Electronically Filed
Supreme Court
SCEC-XX-XXXXXXX
29-AUG-2022
02:12 PM
Dkt. 26 FFCL
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
GARY A. CORDERY; and GROUP OF 30 INDIVIDUAL REGISTERED VOTERS,
Plaintiffs,
vs.
STATE OF HAWAI#I OFFICE OF ELECTIONS, Defendant.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT
(By: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.)
On August 22, 2022, Plaintiffs Gary A. Cordery and a
Group of 30 Individual Registered Voters (collectively,
Plaintiffs) submitted a document entitled “Election Complaint;
Motion for Preliminary Injunction Rule 65 HRCP” (complaint),
which was filed as an election contest complaint. On August 26,
2022, Defendant State of Hawai#i Office of Elections (Defendant)
filed a motion to dismiss. Upon consideration of the complaint
and motion to dismiss, and having heard this matter without oral
argument, we enter the following findings of fact, conclusions of
law, and judgment.
FINDINGS OF FACT
1. On August 22, 2022, the court received a document
from Plaintiffs titled “Election Complaint; Preliminary
Injunction Rule 65 HRCP” that was filed as an election contest
complaint.
2. Referring to the front and back of the 2022
primary election ballot, and the instructions on the ballot,
Plaintiffs assert that the design and order of the ballot used
for the 2022 Primary Election were inconsistent with HRS §§ 12-21
and 12-31, as well as the Hawai#i Constitution. Plaintiffs also
assert that the “Spoiled Ballots” from mail-in voting “will be
impossible to determine, or audit.” They assert it is
“impossible to determine if the voter understood the confusing
instructions and cast their vote in an uninfluenced manner with a
free state of mind[,]” and mail-in ballot voters were provided no
remedy to correct any errors on their ballots.
3. Plaintiffs request the following relief:
(a) Nullification of the 2022 Primary Election
results;
(b) This court require all qualified candidates
to advance to the 2022 General Election; and
(c) Pursuant to Hawai#i Rules of Civil Procedure
(HRCP) Rule 65, issue a preliminary injunction halting
certification of the 2022 Primary Election results until an oral
hearing may be held to determine compliance of the 2022 Primary
Election ballot.
4. Plaintiffs cite, among other authorities, Hawai#i
Revised Statutes (HRS) § 11-173.5 as conferring the court with
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jurisdiction over this matter.
5. Plaintiffs also cite to HRS §§ 12-21 (2009) and
12-31 (2009), as well as the Hawai#i Constitution.
6. Defendant asserts the complaint should be
dismissed with prejudice and the motion for preliminary
injunction should be denied.
CONCLUSIONS OF LAW
1. When reviewing a request to dismiss a complaint,
the court’s review “is based on the contents of the complaint,
the allegations of which [the court] accept[s] as true and
construe[s] in the light most favorable to the plaintiff.
Dismissal is improper unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Casumpang v. ILWU, Local 142, 94
Hawai#i 330, 337, 13 P.3d 1235, 1242 (2000) (quotation marks and
citation omitted).
2. When considering a request to dismiss a complaint,
the court need not accept conclusory or formulaic recitations on
the legal effects of the events alleged. Kealoha v. Machado, 131
Hawai#i 62, 74, 315 P.3d 213, 225 (2013).
3. HRS § 11-172 (Supp. 2021) provides in relevant
part: “With respect to any election, any candidate, or qualified
political party directly interested, or any thirty voters of any
election district, may file a complaint in the supreme court.
The complaint shall set forth any cause or causes, such as but
not limited to, provable fraud, overages, or underages, that
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could cause a difference in the election results.”
4. HRS § 11-173.5 (2009 & Supp. 2021) provides for,
among other matters, time requirements for primary election
contests for cause to be filed in the supreme court, as well as
the remedy allowed to be provided in primary election contests.
5. 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. Funakoshi v. King, 65 Haw. 312, 316, 651 P.2d
912, 914 (1982).
6. In Funakoshi, 65 Haw. at 316, 651 P.2d at 914,
this court said: “By the omission of language providing for the
invalidation of an election and the allowance of a new election
in HRS § 11–173.5(b), the legislature clearly intended that the
only remedy that could be given for primary election
irregularities was the statutory remedy of having this Court
decide which candidate was nominated or elected.”
7. A complaint challenging the results of a 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; Funakoshi, 65 Haw. at 317,
651 P.2d at 915.
8. A plaintiff challenging a primary election must
show that he or she has actual information of mistakes or errors
sufficient to change the election result. Funakoshi, 65 Haw. at
316-17, 651 P.2d at 915.
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9. In order for a complaint to be legally sufficient,
it must “show[] that the specific acts and conduct of which they
complain would have had the effect of changing the results of the
primary election[.]” Elkins v. Ariyoshi, 56 Haw. 47, 49, 527
P.2d 236, 237 (1974).
10. Taking Plaintiffs’ allegations as true and viewing
them in the light most favorable to them, nullification of the
2022 Primary Election results and requiring all qualified
candidates to advance to the 2022 General Election are not
remedies authorized by HRS § 11-173.5(b) (“[t]he judgment shall
decide what candidate was nominated or elected”). See Funakoshi,
65 Haw. at 315, 651 P.2d at 914.
11. Moreover, the last sentence of HRS § 11-173.5(b)
reads (emphasis added): “The judgment shall be conclusive of the
right of the candidate so declared to be nominated; provided that
this subsection shall not operate to amend or repeal section
12-41.”
12. HRS § 12-41(a) (2009) mandates in pertinent part:
“The person or persons receiving the greatest number of votes at
the primary . . . as a candidate of a party for an office shall
be the candidate of the party at the following general . . .
election but not more candidates for a party than there are
offices to be elected[.]”
13. Nullifying the results of the 2022 Primary
Election and requiring all qualified candidates to advance to the
2022 General Election are also remedies that would be
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inconsistent with HRS §§ 11-173.5(b) and 12-41(a) because a
judgment requiring the remedies Plaintiffs seek would not be
conclusive of any candidate receiving the greatest number of
votes in any race for an office in the 2022 Primary Election.
14. Plaintiffs’ complaint thus fails to state a claim
upon which relief can be granted.
15. Because the complaint fails to state a claim upon
which relief can be granted, the motion for preliminary
injunction is denied. See Nuuanu Valley Ass’n v. City & Cnty. of
Honolulu, 119 Hawai#i 90, 106, 194 P.3d 531, 547 (2008).
JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, judgment is entered dismissing the complaint.
DATED: Honolulu, Hawai#i, August 29, 2022.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins
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