Malish v. Nago
Date Filed2022-12-23
DocketSCEC-22-0000682
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
Electronically Filed
Supreme Court
SCEC-XX-XXXXXXX
23-DEC-2022
11:26 AM
Dkt. 16 FFCL
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
JAMES RYAN MALISH and KARL O. DICKS, Plaintiffs,
vs.
SCOTT NAGO, acting in official capacity of Chief Election
Officer, STATE OF HAWAIʻI OFFICE OF ELECTIONS,
and ELECTIONS COMMISSION, Defendants.
________________________________________________________________
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT
(By: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.)
Upon consideration of the election complaint filed on
November 4, 2022, the motion to dismiss filed on November 9,
2022, and the record, we enter the following findings of fact,
conclusions of law, and judgment dismissing the complaint.
FINDINGS OF FACT
1. The 2022 primary election was held on August 13,
2022.
2. Plaintiff Karl O. Dicks (Dicks) was an
unsuccessful Republican candidate for the office of State
Senator, District 17.
3. Plaintiff James Ryan Malish (Malish) was the only
nonpartisan candidate in the primary election for the office of
State Senator, District 9.
4. Stanley Chang (Chang) and Michael L. Parrish
(Parrish) were the only Democrat and Republican candidates,
respectively, in the primary election for the office of State
Senator, District 9.
5. There were no other candidates in the primary
election for the office of State Senator, District 9.
6. There were a total 13,766 votes cast for the
State Senator, District 9, primary election race, the results of
which were:
Chang 11,550
Parrish 2,183
Malish 33
7. Both Chang and Parrish were on the 2022 general
election ballot, but Malish was not.
8. Defendant Chief Election Officer Scott Nago
(Nago) states Malish did not qualify to be a candidate for the
2022 general election because Malish did not receive at least
ten per cent of the total votes cast in the primary election for
the office of State Senator, District 9, or 1,377 votes.
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9. Nago also states Malish did not receive an amount
of votes equal to the lowest amount of votes received by a
partisan candidate who was nominated in the primary election for
the same office.
10. On November 4, 2022, or four days before the
November 8 general election, Malish and Dicks (collectively,
Plaintiffs), pro se, filed an election complaint asserting that
the primary election ballot violates article II, section 4 of
the Hawaiʻi Constitution and Hawaiʻi Revised Statutes (HRS) § 12-
31 (2009) because the ballot requires selection of a political
preference, and the manner in which the primary election ballot
displays a nonpartisan candidate could also be construed to
require declaration of a political preference when selecting a
nonpartisan ballot. Plaintiffs assert that the manner that
nonpartisan candidates are displayed on the primary election
ballot, which includes the designation (N), gives the appearance
that nonpartisan candidates are a part of a political party
because Democrat and Republican candidates are visually grouped
together similarly as nonpartisan candidates and are designated
as (D) and (R), respectively.
11. Plaintiffs also assert that Malish should have
been included in the 2022 general election ballot because he was
unopposed as a nonpartisan candidate. Because Malish was
excluded from the general election ballot for the State Senator,
3
District 9 race, but Chang and Parrish were included, Plaintiffs
assert that HRS § 12-41(b) (2009) should not apply and is
otherwise discriminatory. In support, Plaintiffs assert that
HRS § 12-41(b) should be read in conjunction with HRS § 12-42(b)
(2009) to discern the “spirit of statute” such that unopposed
candidates in a primary election should all move forward to the
general election, including nonpartisan candidates.
12. Dicks contends he has an interest in this
election contest because of his candidacy in the Republican
primary election for the office of State Senator, District 17,
and asserts that the primary election ballot is
unconstitutional.
13. Plaintiffs request that this court order a
special election to be held with a constitutionally compliant
ballot, without discrimination of any kind, and include all
qualified candidates on the 2022 primary election ballot.
Plaintiffs cite to Waters v. Nago, 148 Hawaiʻi 46, 468 P.3d 60
(2019), as support for the relief they seek.
14. Plaintiffs also request a “Declaratory Judgment
of Facts” pursuant to Hawaiʻi Rules of Civil Procedure (HRCP)
Rule 57, judicial notice of adjudicative facts pursuant to
Hawaiʻi Rules of Evidence (HRE) Rule 201, questions for admission
to be answered pursuant to HRCP Rule 36, and oral argument
pursuant to Hawaiʻi Rules of Appellate Procedure Rule 36(c).
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15. In connection with their request for a
declaratory judgment, Plaintiffs seek a declaration that the
voting instructions on the 2022 primary election ballot violate
article II, section 4 of the Hawaiʻi Constitution and HRS § 12-31
(2009). The disputed instruction says: “You MUST select ONE
political preference from the box above for your votes to
count.”
16. On November 9, 2022, Defendants Nago, State of
Hawaiʻi Office of Elections, and the Elections Commission
(collectively, Defendants) filed a motion to dismiss the
complaint, asserting: (1) This court lacks jurisdiction over
Plaintiffs’ primary election contest; (2) Dicks lacks standing
to contest the results of Malish’s primary election; (3) the
assertion that the primary election ballot design is
unconstitutional should be dismissed; and (4) Malish was
properly omitted from the 2022 general election ballot.
17. Defendants assert that HRS § 11-172 (Supp. 2021)
confers standing upon a candidate to timely contest the
candidate’s own race - HRS § 11-172 does not confer standing on
a candidate to contest all concurrent and future federal, State,
and county races.
18. On November 14, 2022, this court filed an order
dismissing the election complaint in part, or to the extent that
relief is sought under HRS § 11-173.5 (2009 & Supp. 2021). The
5
order said that this court will instead construe the complaint
as a general election contest.
CONCLUSIONS OF LAW
1. An election contest is instituted by filing a
complaint in the supreme court “set[ting] 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.
2. “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.” HRS § 11-172.
3. In Hawaiʻi state courts, “standing is solely an
issue of justiciability, arising out of prudential concerns of
judicial self-governance[,]” and not an issue of subject matter
jurisdiction. Tax Found. of Hawaiʻi v. State, 144 Hawaiʻi 175,
190-92, 439 P.3d 127, 142-44 (2019).
Our guideposts for the application of the rules
of judicial self-governance founded in concern about
the proper — and properly limited — role of courts in
a democratic society reflect the precepts enunciated
by the Supreme Court. . . . [W]hen asked to decide
whether a litigant is asserting legally recognized
interests, personal and peculiar to him, we have
spoken of standing[.]
Id. at 190-91,439 P.3d at 142
-43 (quoting Trs. of Off. of Hawaiian Affairs v. Yamasaki,69 Haw. 154, 171
,737 P.2d 446, 456
(1987)) (emphases omitted).
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4. In Thirty Voters of Kauai County v. Doi, this
court held that “the electorate as a whole has sufficient
interest in the outcome of these proceedings to confer standing
upon it as a party plaintiff.” 61 Haw. 179, 181,599 P.2d 286, 288
(1979). The plaintiffs in Doi sought to set aside the results of a specific question posed to voters in the ballot of the November 7, 1978 election.Id. at 179-84
,599 P.2d at 287
-
90. The plaintiffs did not seek to set aside the results of an
entire election. See id.
5. In this election contest, Dicks does not have
standing to contest Malish’s absence from the general election
ballot. See Doi, 61 Haw. at 181,599 P.2d at 288
.
6. Dicks and Malish do not have standing to contest
the results of all election races in the 2022 general election
in order for a special election to be held. See Doi, 61 Haw. at
181,599 P.2d at 288
.
7. We instead read the election complaint as
requesting a special election be held with a satisfactory ballot
and in connection with the office that Malish sought in the 2022
primary election.
8. In a general election contest, this court’s
“judgment may 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 voter service center
7
officials; or decide that a certain candidate, or certain
candidates, received a majority or plurality of votes cast and
were elected.” HRS § 11-174.5(b) (2009 & Supp. 2021).
9. “A complaint challenging the results of [a
general] election pursuant to HRS § 11-172 fails to state a
claim unless the plaintiffs demonstrate errors that would change
the outcome of the election” -- e.g., errors, mistakes, or
irregularities that would change the outcome of the election.
Tataii v. Cronin, 119 Hawaiʻi 337, 339, 198 P.3d 124, 126(2008) (brackets in original) (quoting Akaka v. Yoshina, 84 Hawaiʻi 383, 387,935 P.2d 98, 102
(1997)).
[T]he [plaintiff] must show that he or she has
actual information of mistakes or errors sufficient
to change the result. The [plaintiff] has the burden
of demonstrating that the specific acts and conduct
of which [he or she] complain[s] would have had the
effect of changing the results. 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.
. . . .
It is not sufficient that the [plaintiff]
points to a poorly run and inadequately supervised
election process that evinces room for abuse or
possibilities of fraud. An election contest cannot
be based upon mere belief or indefinite information.
Tataii, 119 Hawaiʻi at 339-40,198 P.3d at 126
-27 (quoting Akaka, 84Hawaiʻi at 387-88
,935 P.2d at 102-03
).
10. In Waters, this court invalidated the results of
a City and County of Honolulu second special election between
8
Thomas Waters and Trevor Ozawa for the District IV city
councilmember seat. Pursuant to HRS § 11-174.5(b), this court
found and concluded there were 350 absentee ballots that were
“invalidly received” and “potentially altered the election
results” for this seat because “the difference in the number of
votes between Waters and Ozawa was 22 votes,” and the City Clerk
had counted 350 ballots for Council District IV that were
received by the City Clerk after the 6:00 p.m. deadline
established by the then-existing version of HRS § 15-9(a). 1
Waters, 148 Hawaiʻi at 65-66,468 P.3d at 79-80
. Because a recount excluding the invalid 350 votes was not possible, this court held that “a correct result without the inclusion of the 350 ballots cannot be ascertained” and, thus, the second special election for this seat “must be invalidated.”Id. at 65
,468 P.3d at 79
; see HRS § 11-174.5(b).
11. Before reaching this result, this court said:
6. In Count I of his complaint, Waters alleges
that the absentee ballots in the District IV election
counted between the fourth printout and the fifth
printout were miscounted because they were not
delivered to the State Capitol for counting before
the polls closed on election day. Waters claims that
as many as 1,286[] absentee return envelopes were not
received by the City Clerk or the Office of Elections
by the close of the polls at 6:00 p.m. on November 6,
2018. Waters contends that the counting of these
ballots violates HRS § 15-9(a), and they therefore
cannot be considered.
1 HRS § 15-9 has since been amended, but at the time was
interpreted by this court to require all absentee mail-in return envelopes to
be “received by the City Clerk or an authorized representative by 6:00 p.m.
on election day.” Waters, 148 Hawaiʻi at 62,468 P.3d at 76
.
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7. The 39 voters allege in Count I of their
complaint that the City Clerk “miscounted,
misapplied, and mishandled” the ballots included in
the fifth printout by “failing to follow requirements
set forth within the governing statutes and
administrative rules.” In subsequent filings, the
voters clarified their argument, contending that the
City Clerk had violated HRS § 15-9(a) by collecting
mail-in absentee return envelopes after the closing
of the polls.
8. Because Waters and the 39 voters allege a
particular error that would invalidate a number of
votes greater than the 22-vote margin by which the
election was decided, they have alleged a specific
mistake “sufficient to change the result,” as is
required to state a claim for relief under our
precedents.[] Akaka, 84 Hawaiʻi at 388,935 P.2d at 103
(quoting Funakoshi, 65 Haw. at 316–17, 651 P.2d
at 915).
Waters, 148 Hawaiʻi at 60-61,468 P.3d at 74-75
.
12. When reviewing a motion to dismiss a complaint,
the court must accept the plaintiff’s allegations as true and
view them in a light most favorable to the plaintiff. Bank of
Am., N.A. v. Reyes-Toledo, 143 Hawaiʻi 249, 257, 428 P.3d 761,
769 (2018). Dismissal is proper only if it appears beyond doubt
that the plaintiff can prove no set of facts in support of their
claim that would entitle them to relief. Id.
13. Conclusory assertions concerning the legal
effects of the events alleged will not be accepted. Reyes-
Toledo, 143 Hawaiʻi at 262,428 P.3d at 774
.
14. Malish has not alleged specific facts, or actual
information of mistakes or errors, sufficient to change the
result of the 2022 general election for the State Senator,
10
District 9 office. See Waters, 148 Hawaiʻi at 60-61,468 P.3d at 74-75
. In other words, even if Malish’s assertion that his name should have been on the 2022 general election ballot are taken as true and viewed in a light most favorable to Malish, Malish has not alleged a specific error “sufficient to change the result” of the 2022 general election for the office of State Senator, District 9. See id.; Tataii, 119Hawaiʻi at 340
,198 P.3d at 127
(“An election contest cannot be based upon mere belief or indefinite information.” (Quoting Akaka, 84Hawaiʻi at 387-88
,935 P.2d at 102-03
)).
15. Nor does Malish assert that a certain candidate
received a majority of the votes cast in the 2022 general
election for the State Senator, District 9 office, and was
elected. See HRS § 11-174.5(b).
16. Accordingly, it appears beyond doubt that Malish
can prove no set of facts in support of Malish’s claim that
would entitle Malish to relief. See Reyes-Toledo, 143 Hawaiʻi at
257,428 P.3d at 769
.
17. In addition to Malish’s assertion, the election
complaint asserts that the 2022 primary election ballot is
unconstitutional and violates HRS § 12-31 because the
instructions on the 2022 primary election ballot states that the
voter must select a political preference for the vote to count.
Plaintiffs seek a declaratory judgment pursuant to HRCP Rule 57,
11
and also cite to HRS § 602-5 (2016) as providing this court with
jurisdiction “to rule on these matters of statutes, laws,
constitutionality and compliance with thereof.”
18. In Lewis v. Cayetano, 72 Haw. 499, 502,823 P.2d 738, 740
(1992), which concerned two unsuccessful County of Kauaʻi proposals, the plaintiffs asserted, among other things, that the County Clerk erred by including the overvotes in tallying the total number of votes cast on the question. This court held that, even though the doctrine of laches did not bar this issue, we “nevertheless decline[d] to determine the merits of the issue” because “[e]ven if we accept plaintiffs’ contention, the election results would not have changed” and the plaintiffs “would not be entitled to relief.”Id. at 503
,823 P.2d at 741
.
19. Similarly, here, even if we were to accept
Plaintiffs’ contention, Plaintiffs have not shown how the 2022
general election results would change nor the relief that
Plaintiffs would be entitled to. See Lewis, 72 Haw. at 503,823 P.2d at 741
; see also Tataii, 119Hawaiʻi at 340
,198 P.3d at 127
(“An election contest cannot be based upon mere belief or indefinite information.” (Quoting Akaka, 84Hawaiʻi at 387-88
,935 P.2d at 102-03
)).
20. Plaintiffs’ motion for a declaratory judgment
addressing the constitutionality and validity of the voting
12
instructions printed on the 2022 primary election ballot is thus
denied because the motion does not state a claim on which relief
can be granted in an election contest. See Lewis, 72 Haw. at
503,823 P.2d at 741
.
21. Because we are dismissing the election complaint
for failure to state a claim on which relief may be granted, we
deny Plaintiffs’ requests for oral argument, judicial notice of
adjudicative facts, and questions for admission to be answered.
JUDGMENT
Based on the above findings of fact and conclusions of
law, judgment is entered granting the motion to dismiss and
dismissing the complaint.
DATED: Honolulu, Hawaii, December 23, 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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