Cermelj v. Kawauchi

Electronically Filed
Supreme Court
SCEC-12-0000722
28-AUG-2012
02:14 PM
NO. SCEC-12-0000722
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
"HOPE FOR PUNA" HOPE LOUISE CERMELJ, Non-Partisan
Candidate for the State House of Rep. Dist. 4, Plaintiff,
vs.
County Clerk, JAMAE K.K. KAWAUCHI, and
SCOTT NAGO, Chief Election Officer for the
State of Hawai#i, Defendants.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
(By: Recktenwald, C.J., Nakayama, Acoba, McKenna and Pollack, JJ.)
We have considered the August 20, 2012 election
complaint filed by Plaintiff Hope Louise Cermelj and the
documents appended thereto and submitted in support thereof, and
the August 24, 2012 motion to dismiss filed by Defendant Scott
Nago. Having heard this matter without oral argument and in
accordance with HRS § 11-173.5(b) (2009) (requiring the supreme
court to “give judgment fully stating all findings of fact and of
law”), we set forth the following findings of fact and
conclusions of law and enter the following judgment.
FINDINGS OF FACT
1. Plaintiff Hope Louise Cermelj (“Cermelj”) was one
of three candidates (two nonpartisan candidates and one
democratic candidate; there was no republican candidate) running
for the office of state representative, district 4 in the August
11, 2012 primary election.
2. The election results for the office of state
representative, district 4 were:
NonPartisan Candidates
Hope Louise Cermelj 35
Moke Stephens 32
Blank Votes 26
Over Votes 0
Democratic Candidate
Faye P. Hanohano 3,373
Blank Votes 1,358
Over Votes 0
3. On August 20, 2012, Cermelj filed a complaint
challenging the election results. Cermelj named Jamae K.K.
Kawauchi (“Kawauchi”), the county clerk for the Island of
Hawai#i, and Scott Nago (“Nago”), the chief election officer for
the State of Hawai#i, as defendants.
4. Cermelj alleges that she “has been discriminated
against by freedom of speech and freedom of the press in [her]
non[]partis[]an run for State House, District 4.”
5. Cermelj seeks judgment from this court ordering a
recount of the votes received by Faye Hanahano, a recount of the
blank votes received for the Democratic party, and a recount of
the votes she and her opponent, Moke Stephens, received as the
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nonpartisan candidates.
6. Defendant Nago moved to dismiss the complaint for
failure to state a claim upon which relief can be granted.
7. Kawauchi did not file a response and there is no
indication in the record that she was served with the complaint
and summons. A response from Kawauchi, however, is not necessary
to the resolution of Cermelj’s complaint.
CONCLUSIONS OF LAW
1. When reviewing a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted, the
court must accept plaintiff’s allegations as true and view them
in the light most favorable to the plaintiff; dismissal is proper
only if it appears beyond doubt that the plaintiff can prove no
set of facts in support of his or her claim that would entitle
him or her to relief. AFL Hotel & Restaurant Workers Health &
Welfare Trust Fund v. Bosque, 110 Hawai#i 318, 321, 132 P.3d
1229, 1232 (2006).
2. A complaint challenging the results of a primary
election pursuant to HRS § 11-172 fails to state a claim unless
the plaintiff demonstrates errors, mistakes or irregularities
that would change the outcome of the election. Tataii v. Cronin,
119 Hawai#i 337, 339, 198 P.3d 124, 126 (2008); Akaka v. Yoshina,
84 Hawai#i 383, 387, 935 P.2d 98, 102 (1997); Funakoshi v. King,
65 Haw. 312, 317, 651 P.2d 912, 915 (1982); Elkins v. Ariyoshi,
56 Haw. 47, 48, 527 P.2d 236, 237 (1974).
3. A plaintiff challenging a primary election must
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show that he or she has actual information of mistakes or errors
sufficient to change the result. Tataii v. Cronin, 119 Hawai#i
at 339, 198 P.3d at 126; Akaka v. Yoshina, 84 Hawai#i at 388, 935
P.2d at 103; Funakoshi v. King, 65 Haw. at 316-317, 651 P.2d at
915.
4. An election contest cannot be based upon mere
belief or indefinite information. Tataii v. Cronin, 119 Hawai#i
at 339, 198 P.3d at 126; Akaka v. Yoshina, 84 Hawai#i at 387-388,
935 P.2d at 102-103.
5. Taking Cermelj’s allegations as true and viewing
them in the light most favorable to her, it appears that Cermelj
can prove no set of facts that would entitle her to relief
inasmuch as Cermelj has failed to present specific acts or actual
information of mistakes, error or irregularities sufficient to
change the results of the election.
6. Alleged discrimination of freedom of speech and
freedom of the press does not amount to actual information of
mistakes, errors or irregularities sufficient to change the
primary election results for the office of state representative,
district 4.
7. According to HRS § 11-173.5(b), in a primary
election challenge, the supreme court has authority to decide
which candidate was nominated or elected. Funakoshi v. King, 65
Haw. at 316, 651 P.2d at 914.
8. Under the circumstances of this case, Cermelj is
not entitled to the remedy she seeks.
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JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, judgment is entered dismissing the complaint.
Because neither Hope Louise Cermelj nor Moke Stephens received
the minimum votes required under HRS § 12-41(b) (2009) for
nonpartisan candidates to advance to the November 6, 2012 general
election, and there was no republican candidate, Faye Hanahano,
the democratic candidate for the office of state representative,
district 4, is deemed elected.
The clerk of the supreme court shall forthwith serve a
certified copy of this judgment on the chief election officer in
accordance with HRS § 11-173.5(b).
DATED: Honolulu, Hawai#i, August 28, 2012.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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