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Kim v. State

Supreme Court of Hawaii

August 27, 2018

RICHARD Y. KIM, Plaintiff,
v.
STATE OF HAWAII; ATTORNEY GENERAL RUSSELL A. SUZUKI; OFFICE OF ELECTIONS; SCOTT T. NAGO, Chief Election Officer, Defendants, and COLLEEN HANABUSA, as a member of the U.S. House of Representatives for the District of Hawai'i, Real Party-In-Interest.

          ORIGINAL PROCEEDING

          Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

         We have considered the August 16, 2018 "Election Objection" filed by Plaintiff Richard Y. Kim ("Plaintiff Kim"), the August 21, 2018 motion to dismiss or, in the alternative, for summary judgment filed by Defendants State of Hawai'i, Attorney General Russell A. Suzuki, Office of Elections, and Chief Election Officer Scott T. Nago ("Chief Election Officer Nago") (collectively, the "State Defendants"), and the August 22, 2018 memorandum in opposition to the motion to dismiss filed by Plaintiff Kim. 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 Kim was one of six Democratic Party candidates for the Office of Governor in the August 11, 2018 primary election.

         2. The election result for the Democratic Party candidate for the Office of Governor was as follows:

David Y. Ige

124, 572

(50.2%)

Colleen Wakako Hanabusa

107, 631

(43.4%)

Ernest Caravalho

5, 662

(2.3%)

Wendell J. Ka'ehu'ae'a

2, 298

(0.9%)

Richard Y. Kim

1, 576

(0.6%)

Van (Tanaban) Tanabe

775

(0.3%)

Blank Votes

5, 116

(2.1%)

Over Votes

304

(0.1%)

         3. David Y. Ige is the Democratic Party candidate who received the highest number of votes.

         4. On August 16, 2018, Plaintiff Kim filed an "Election Objection" challenging the August 11, 2018 primary election.

         5. Plaintiff Kim's election objection stems from the first circuit court's dismissal of his complaint in Civil No. 18-1-878-06. In Civil No. 18-1-878-06, Kim challenged Congresswoman Colleen Hanabusa's ("Congresswoman Hanabusa") qualifications to run for the Office of Governor. Kim alleged that Congresswoman Hanabusa's candidacy for the Office of Governor violated the "resign to run" provision in art. II, sec. 7 of the Hawai'i State Constitution. At a hearing held on August 14, 2018, the circuit court dismissed the complaint. The circuit court's rulings have not yet been reduced to a final judgment.

         6. Plaintiff Kim also alleges that Chief Election Officer Nago has a conflict of interest with him and is guilty of election fraud under HRS § 19-3. Plaintiff Kim contends that the primary election was rigged and that Chief Election Officer Nago publicly ridiculed and insulted him by publishing the election results showing that he received only 1, 576 votes (less than 1% of the votes for the Democratic Party race for governor). Plaintiff Kim states that he gave out 25, 000 name cards to voters and had "heavy" facebook ads which reached 100, 000 users. Plaintiff Kim alleges that he was publicly ridiculed and insulted by having a very low number of votes and claims that Chief Election Officer Nago and others conspired to "rig" the primary election in order to cause him public humiliation and emotional pain.

         7. Plaintiff Kim asks this court to correctly interpret and declare that art. II, sec. 7 of the Hawai'i State Constitution "resign to run" mandate applies to any State candidate and any elected officer, including federal officer, disqualify Congresswoman Hanabusa as a gubernatorial candidate, order a new primary election without Congresswoman Hanabusa's name on the ballot, order a full investigation of Chief Election Officer Nago and the Office of Elections for fraud, temporarily appoint an independent third party to serve as the Chief Election Officer for the new primary election, and order a manual recount of the primary election ballots.

         8. The State Defendants filed a motion to dismiss the complaint for failure to name David Y. Ige as a necessary and indispensable party, lack of subject matter jurisdiction over Plaintiff Kim's "appeal" of the circuit court's dismissal of his civil action in Civil No. 18-1-0878-06, and failure to present any evidence of errors, mistakes, irregularities or any other basis that could cause a difference in the election result. The State Defendants further argue that the remedies requested by Plaintiff Kim are improper and ...


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