Electronically Filed

Supreme Court

SCEC-XX-XXXXXXX

27-AUG-2020

09:44 AM

SCEC-XX-XXXXXXX

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

BANNER S. FANENE, Plaintiff,

vs.

STATE OF HAWAI#I OFFICE OF ELECTIONS, Defendant.

ORIGINAL PROCEEDING

ORDER DISMISSING ELECTION COMPLAINT (By: Recktenwald, C.J., Nakayama, McKenna and Wilson, JJ., and Circuit Judge Kuriyama, assigned by reason by vacancy)

Upon consideration of Plaintiff Banner S. Fanene’s election contest complaint filed on August 20, 2020, Defendant State of Hawai#i Office of Elections’ motion to dismiss the complaint, and the records and files herein,

It appears that:

1. In the election contest complaint, Plaintiff asks that all candidates listed on the primary election ballot be listed on the general election ballot; and that the Chief Election Officer be asked to submit his resignation.

2. HRS § 11-173.5, which governs primary election contests, provides in relevant part that:

[T]he court shall cause the evidence to be reduced

to writing and shall not later than 4:30 p.m. on

the fourth day after the return give judgment

fully stating all findings of fact and of law.

The judgment shall decide what candidate was

nominated or elected[.]

3. Pursuant to the plain language of HRS § 11-173.5, the only remedy this court can provide is to give a judgment as to who was nominated or elected; and

4. The court cannot invalidate the primary election and move everyone on the primary election ballot to the general election ballot. Nor can the court ask the Chief Election Officer to resign. See Funakoshi v. King, 65 Haw. 312, 314, 651 P.2d 912, 913 (1982) (the only relief to which a plaintiff is entitled under HRS § 11-173.5 is to have the court declare the name of the candidate to be nominated or elected).

Therefore,

IT IS HEREBY ORDERED that the motion to dismiss is granted, and the complaint is dismissed.

DATED: Honolulu, Hawai#i, August 27, 2020.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Christine E. Kuriyama

2