ORIGINAL PROCEEDING FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
(By: Recktenwald, C.J., Nakayama, Acoba, and Duffy, JJ. and Circuit Judge Kim, assigned by reason of vacancy)
We have considered Plaintiff Khistina Caldwell DeJean's Election Complaint, Defendant Bernice Mau's motion to dismiss or for summary judgment, and the affidavit and exhibits appended to each. 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" and "decide what candidate was nominated or elected"), we set forth the following findings of fact and conclusions of law and enter the following judgment.
1. Plaintiff Khistina Caldwell DeJean was one of eight candidates for the office of mayor of the City and County of Honolulu in the September 18, 2010 special vacancy election.
2. The election results for Honolulu mayor were: (1) Peter Carlisle: 80,553 votes; (2) Kirk Caldwell: 71,815 votes; (3) Panos Prevedouros: 38,439 votes; (4) Rod Tam: 3,036 votes; (5) Khistina DeJean: 761 votes; (6) Philmund Lee: 642 votes; (7) Calvin Griffin: 582 votes; and (8) John Andrew McLeod: 391 votes.
3. Plaintiff DeJean challenged the election results by filing a complaint in the office of the clerk of the supreme court on September 27, 2010, the sixth day after the September 18, 2010 special vacancy election. Plaintiff DeJean was in the office of the clerk of the supreme court before 4:30 p.m. on September 27, 2010 and remained in the office for an hour to complete her election contest complaint. The office of the clerk remained open for business until plaintiff DeJean completed her complaint. The complaint was completed and filed at 5:29 p.m.
4. The complaint contests the special vacancy election for Honolulu mayor based on plaintiff DeJean's allegations of the possibility of a margin of error of "1 per 100 votes or 1 per 10,000 votes" in the Honolulu mayoral vote tabulation, the possibility of inconsistent procedures in processing absentee and walk-in ballots, the possibility that additional votes were counted after final results were reported, the absence of plaintiff DeJean's name on the first set of absentee ballots, the absence of certain official observers at the September 18, 2010 election, the failure of precinct officials to remind voters to vote both sides of the ballot, the inability of voters to vote "none" on the Honolulu mayoral ballot, and the limited media coverage of plaintiff DeJean's candidacy.
5. Plaintiff DeJean seeks judgment from the supreme court directing a recount of the votes or a new election for Honolulu mayor.
6. Defendant Mau moved for dismissal of the complaint or for summary judgment for failure to state claims upon which relief can be granted.
1. HRS § 11-173.5(a) (2009) provides that a complaint challenging a special county election held concurrently with a regularly scheduled primary election "shall be filed in the office of the clerk of the supreme court not later than 4:30 p.m. on the sixth day after the . . . election."
2. Where the language of a statute is plain and unambiguous that a specific time provision must be met, it is mandatory and not merely directory. Tataii v. Cronin, 119 Hawai#i 337, 339, 198 P.3d 124, 126 (2008).
3. While the word "shall" is generally regarded as mandatory, in certain situations it may be ...