Waikiki v. Nago

Electronically Filed
Supreme Court
SCEC-14-0001072
28-AUG-2014
11:34 AM
SCEC-14-0001072
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
NELSON NAHINU WAIKIKI, JR., Plaintiff,
vs.
SCOTT NAGO, Chief Election Officer, Defendant.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
We have considered the August 22, 2014 election
complaint filed by Plaintiff Nelson N. Waikiki, Jr. and the
August 26, 2014 motion to dismiss filed by Defendant Scott Nago,
Chief Election Officer for the State of Hawai'i. 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 Nelson N. Waikiki, Jr. (“Waikiki”) was
one of seven candidates for the Maui County Mayoral seat in the
August 9, 2014 special primary election.
2. The election results for the Maui Mayoral seat
were:
Alan M. Arakawa 17,980 (63.5%)
Tamara (Tam) Paltin 3,405 (12.0%)
Alana Kay 1,398 (4.9%)
Nelson Nahinu Waikiki, Jr. 818 (2.9%)
Nelson E. (AZD) Mamuad 724 (2.6%)
Orion (Ori) Kopelman 709 (2.5%)
Beau E. Hawkes 380 (1.3%)
3. Alan Arakawa and Tamara Paltin are the two
candidates who received the highest number of votes.
4. On August 22, 2014, the court received a one-page
letter from Waikiki.
5. Waikiki appears to be contesting the results of
election for the Maui County mayoral race. The subject of the
letter is titled “Re: Elections - Complainant Nelson N. Waikiki,
Jr. Maui Mayoral Candidate.” In the letter, Waikiki states that
there has been “non-compliance, possible conspiracy, and
corruption by election officials” and that a “breakdown in the
system has occurred.” He further states that he “believe[s] that
the Governor’s office, the AG, the Maui Mayor’s office and the
Elections Office conspired and corrupted the rights and trust of
the people of Hawai'i.” He believes that the voters “have been
taken advantaged [and] bullied” due to 800 “misplaced” votes.
6. Waikiki requests a re-vote or a re-count.
7. Defendant Nago moved to dismiss the complaint as
untimely and for failure to state a claim upon which relief can
be granted.
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CONCLUSIONS OF LAW
1. The complaint fails to state claims upon which
relief can be granted.
2. 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).
3. A complaint contesting the results of a special
primary election fails to state a claim unless the plaintiff
demonstrates errors, mistakes or irregularities that would change
the outcome of the election. See HRS § 11-172 (2009); 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).
4. A plaintiff contesting a special primary election
must show that he or she has actual information of mistakes or
errors sufficient to change the result. Tataii, 119 Hawai'i at
339, 198 P.3d at 126; Akaka, 84 Hawai'i at 388, 935 P.2d at 103;
Funakoshi, 65 Haw. at 316-317, 651 P.2d at 915.
5. An election contest cannot be based upon mere
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belief or indefinite information. Tataii, 119 Hawai'i at 339,
198 P.3d at 126; Akaka, 84 Hawai'i at 387-388, 935 P.2d at 102­
103.
6. Taking Waikiki’s allegations as true and viewing
them in the light most favorable to him, it appears that Waikiki
can prove no set of facts that would entitle him to relief
inasmuch as Waikiki fails to present specific acts or “actual
information of mistakes or error sufficient to change the results
of the election.”
7. In a special primary election challenge, HRS § 11­
73.5(b) (2009) authorizes the supreme court to “decide what
candidate was nominated or elected.”
8. The remedy provided by HRS § 11-173.5(b) of having
the court decide which candidate was nominated or elected is the
only remedy that can be given for primary election irregularities
challenged pursuant to HRS § 11-173.5. Funakoshi v. King, 65
Haw. at 316, 651 P.2d at 914.
9. None of the remedies sought by Waikiki are
authorized by HRS § 11-173.5(b).
JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, judgment is entered dismissing the complaint.
Alan M. Arakawa and Tamara (Tam) Paltin are the two candidates
who received the highest number of votes and will appear on the
ballot in the second special election pursuant to art. 7, § 7-2
of the Maui County Charter.
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The clerk of the supreme court shall process the
election contest without payment of the filing fee.
The clerk of the supreme court shall also 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, 2014.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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