Electronically Filed
Supreme Court
SCEC-XX-XXXXXXX
15-DEC-2022
08:44 AM
Dkt. 26 FFCL
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
RALPH S. CUSHNIE, along with more than
Thirty Voters, Plaintiffs,
vs.
SCOTT T. NAGO, personally and in his official capacity as
Chief Election Officer, Office of Elections, State of Hawaiʻi,
Defendant.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
(By: Nakayama, Acting C.J., McKenna, Wilson, Eddins JJ., and
Circuit Judge Remigio, in place of Recktenwald, C.J., recused)
On November 22, 2022, Plaintiffs Ralph S. Cushnie, along
with more than Thirty Voters filed a complaint in this court
entitled “Election Complaint pursuant to HRS § 11-172 and HRS
§ 11-174.5 and request for declaratory judgement pursuant to
HRCP Rule 57” (complaint). The named party Defendant is Scott
T. Nago, personally and in his official capacity as Chief
Election Officer, Office of Elections, State of Hawaiʻi. On
November 28, 2022, Defendant Scott T. Nago in his official
capacity as the Chief Election Officer for the Office of
Elections, State of Hawaiʻi (Office of Elections) filed a motion
to dismiss the complaint for failure to state a claim or, in the
alternative, for summary judgment. Subsequently, Plaintiffs and
the Office of Elections filed further briefing and documents on
the motion.
Upon consideration of the complaint and the documents
attached, the motion to dismiss, and having heard this matter
without oral argument, we enter the following findings of fact,
conclusions of law, and enter judgment dismissing the complaint.
FINDINGS OF FACT
1. Plaintiffs are over thirty voters who reside in the
representative district number 17 on the island of Kauaʻi.
2. On November 22, 2022, Plaintiffs timely filed a
complaint challenging the statewide elections results based on
purported deficiencies in the audit practices of the Office of
Elections.
3. The relief requested by the complaint is two-fold.
First, Plaintiffs request a declaratory judgment that interprets
HRS § 16-42 (2009). Second, in the alternative, Plaintiffs
request the court invalidate the general election on the grounds
that a correct result cannot be ascertained because of a mistake
or fraud on the part of the precinct officials.
2
4. The complaint is devoid of any specific allegations as
to how the audit procedure advocated by Plaintiffs would make
any difference in the outcome of the election.
5. In addition to the claims outlined above, the
complaint includes a claim for declaratory judgment against
Defendant Scott T. Nago in his personal capacity.
6. On November 22, 2022, the return of service was filed
to establish proof of service of the complaint and summons on
“Scott T. Nago, in his official capacity only.” To date, the
Plaintiffs have not filed any return of service as to Defendant
Scott Nago in his personal capacity.
7. The Office of Elections moved to dismiss the complaint
for failure to state a claim upon which relief can be granted,
in pertinent part, because the complaint lacks any specific
allegations of errors, mistakes, or fraud that would change the
outcome of the election result.
CONCLUSIONS OF LAW
1. Pursuant to Hawaiʻi Rules of Evidence Rule 202(b)
(2016), the request for judicial notice of the Hawaiʻi laws cited
in the complaint is granted.
2. The issuance of a declaratory judgment on the
interpretation of HRS § 16-42 is not within the original
jurisdiction of the supreme court. See HRS § 602-5 (2016).
Therefore, this court is without original jurisdiction to
consider the Plaintiffs’ claim for declaratory judgment.
3
3. An election contest is instituted by filing a
complaint in the supreme court setting forth “any cause or
causes, such as but not limited to, provable fraud, overages, or
underages, that could cause a difference in the election
results.” HRS § 11-172 (Supp. 2021). “The complaint shall also
set forth any reason for reversing, correcting, or changing the
decisions of the voter service center officials or the officials
at the counting center in an election using the electronic
voting system.” Id.
4. This court has held that a complaint challenging the
results of an election pursuant to HRS § 11-172 fails to state a
claim unless: (1) the plaintiffs demonstrate errors that would
change the outcome of the election, Tataii v. Cronin, 119 Hawaiʻi
337, 339, 198 P.3d 124, 126 (2008) (citing Akaka v. Yoshina, 84
Hawaiʻi 383, 387, 935 P.2d 98, 102 (1997)), or (2) the plaintiffs
demonstrate that the correct result cannot be ascertained
because of a mistake or fraud on the part of the precinct
officials. Akaka, 84 Hawaiʻi at 387, 935 P.2d at 102; see HRS
§ 11-174.5(b) (2009 & Supp. 2021).
5. “[A] complaint should not be dismissed for failure to
state a claim 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.” Bank of Am., N.A. v. Reyes-Toledo, 143
Hawaiʻi 249, 258, 428 P.3d 761, 770 (2018) (citation omitted).
6. “Our review is strictly limited to the allegations of
the complaint, which we view in the light most favorable to the
4
plaintiff and deem to be true.” Civ. Beat L. Ctr. for the Pub.
Int., Inc. v. City & Cnty. of Honolulu, 144 Hawaiʻi 466, 474, 445
P.3d 47, 55 (2019) (citation and internal quotations omitted).
However, “the court is not required to accept conclusory
allegations on the legal effect of the events alleged.” Id.
(citation omitted).
7. Here, the complaint fails to allege any specific facts
that the audit procedures requested would change the outcome of
the election. And, Plaintiffs’ belief and indefinite assertions
that the requested audit could change the outcome of all
statewide elections, by itself, is insufficient to state a claim
under HRS §§ 11-172 and 11-174.5(b). See Hawaiʻi Rules of Civil
Procedure Rule 9(b) (2000) (“In all averments of fraud or
mistake, the circumstances constituting fraud or mistake shall
be stated with particularity.”).
8. Accordingly, Plaintiffs’ claim that the general
election results statewide should be invalidated fails to state
a claim upon which relief can be granted. See Tataii, 119
Hawaiʻi at 339-40, 198 P.3d at 126-27 (“In the absence of facts
showing that irregularities exceed the reported margin between
the candidates, the complaint is legally insufficient because,
even if its truth were assumed, the result of the election would
not be affected.”).
5
JUDGMENT
Based upon the foregoing findings of fact and conclusions
of law, judgment is entered granting the motion to dismiss and
dismissing the complaint as to all claims and parties.
Dated: Honolulu, Hawaiʻi, December 15, 2022.
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins
/s/ Catherine H. Remigio
6