Complaint in text version.

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAII

Richard Y. Kim,
Plaintiff,

vs.

State of Hawaii,
Attorney General, Russell A Suzuki;

Office of Elections,
Chief Election Officer, Scott T. Nago
Defendants

Colleen Hanabusa and/or as
A Member of US House of
Representatives, District 1 of Hawaii
Real Parties in Interest

)
)
)
Case No.: 18-1-0878-06 GWBC
Civil Action

COMPLAINT AND REQUEST FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

I. INTRODUCTION

1. This is a civil action for declaratory judgment and injunctive relief, brought by Richard Y Kim, a registered voter, citizen of Hawaii, and who is currently a Democratic candidate for Governor of Hawaii.
2. There is a question of law and/or irregularity and inconsistency in State Constitution, Article II, Section 7, “Resign to Run” mandate; among other things, it is constitutional or not, if a federally elected officer is excluded and/or given a preferential treatment in application of the mandate, even if the (fed) officer is a candidate for State office.
3. This may be a public issue as well as a private matter as a candidate in the same race for Governor of Hawaii.

II. Constitutions and Laws
4. Article II, Section 7 of the Hawaii State Constitution provides:
“ANY elected public officer shall resign from that office BEFORE BEING ELIGIBLE as a candidate for another public office, if the term of the office sought begins before the end of the term of the office held.”
5. Article II, Section 7 was added to the Hawaii State Constitution by the 1978 Constitutional Convention of Hawaii and subsequently approved by the voters of the State.
6. After the mandate was implemented in 1978 Constitutional Convention, there were several amendments in state legislature. Among other things, for example, as in SB No. 1028 in 1981, in page 71-72 of Cobb vs State of Hawaii 722 P.2d 1032 (1986), “Cobb’s”, the specific requirement regarding the date of resignation, 45 days before nomination filing deadline, was implemented.
However, the requirement was deleted and repealed in a bill SB No. 1152 (Cobb’s, page 64) in 1983: It was repealed for the requirement of specific resignation date, but NOT for the DEFINITION of “ANY” elected officer, which included federal elected officer, in the bill SB No. 1028 in 1981.
In fact, the repeal and the removal of the specific resignation date in the mandate, is believed (and intended) to be a TOUGHENED requirement, since it was replaced with words “…(shall resign) BEFORE BEING ELIGIBLE…”.
7. The Definition of “ANY” elected officer, (which included federal elected officer), was already specifically stated in SB. No. 10 (Cobb’s, page 75-76) and SB No. 10 SD1 (Cobb’s, page 80-81), in 1979. It clearly stated, for example, in Cobb’s, page 80-81, “Sec. 12 – Nomination for state and county public office; resignation from public office. (a) A person who has been elected or appointed to a FEDERAL, state or county elected public office SHALL NOT BE ELIGIBLE FOR NOMINATION OR ELECTION TO ANY OTHER STATE OR COUNTY ELECTED PUBLIC OFFICE where the terms of the office being sought would begin prior to the expiration of the term which he is occupying, unless he first (1) submits his resignation from the office he is then occupying at least forty-five days prior to the filing deadline for nomination papers, as established in section 12-6 and (2) files a copy of such resignation with the chief election officer.
8. Uniform Information Practices Act, Chapter 92F, Section 27; §92F-27, Civil actions and remedies (a), states, “An individual may bring a civil action against an agency in a circuit court of the State whenever an agency fails to comply with any provision of this part, and after appropriate administrative remedies under sections 92F-23, 92F-24, and 92F-25 have been exhausted.
9. Uniform Information Practices Act, §92F-11. (a) All government records are open to public inspection unless access is restricted or closed by law. (b) Except as provided in section 92F-13, each agency upon request by any person shall make government records available for inspection and copying during regular business hours.
10. Uniform Information Practices Act, §92F-15. Judicial enforcement. (a) A person aggrieved by a denial of access to a government record may bring an action against the agency at any time within two years after the agency denial to compel disclosure. (b) In an action to compel disclosure the circuit court shall hear the matter de novo. (c) The agency has the burden of proof to establish justification for nondisclosure. (d) If the complainant prevails in an action brought under this section, the court shall assess against the agency reasonable attorney’s fees and all other expenses reasonably incurred in the litigation.
11. The United States Constitution enacts penal laws to preserve the purity of election process.
12. Federal Campaign Act of 1971 regulates the conduct of election campaigns in order to protect the integrity of the political process and to ensure effective political debate.
13. The provisions of Federal Campaign Act supersede any provision of state law dealing with election to Federal office.
14. For the purpose of carrying out uniform and nondiscriminatory election technology and administration requirements, the Attorney General shall bring a civil action against any state or jurisdiction in an appropriate United States District Court.
15. Statutes render election officers criminally liable for violations or omissions of their duties under election laws.
16. The Federal Election Campaign Act also provides that no person shall fraudulently misrepresent the person as speaking, writing, or otherwise acting for or on behalf of any candidate or political party or employee or agent thereof for the purpose of soliciting contributions or donations or willfully and knowingly participate in or conspire to participate in any plan, scheme, or design to do so.
17. The statute prosecutes individuals who conspire to commit any offense against the United States, or to defraud the United States or any agency thereof in order to violate election laws.
18. 42 USCS, 1974 provides that every officer of election shall retain and preserve, for a period of 22 months from the date of any general, special, or primary election…
19. US Constitution, Article I, Section 6, states:
“No Senator or Representative shall, during the time for which he (she) was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time; and NO person holding any office under the United States, shall be a member of either House during his (her) continuance in office.”

III. PARTIES AND JURISDICTION
20. Richard Y. Kim, Plaintiff, is a registered voter, a resident of Hawaii, and is currently a democratic candidate for Governor of Hawaii.
21. People 1-60, in the sealed envelope (Exhibit 4), are citizens and/or residents of Hawaii: They are voters (and/or citizens) who agree and join in Objection regarding Ms. Hanabusa’s candidacy (illegality and disqualification) for governor. Although this case is not a class action, Plaintiff submits this document with complaint, as an evidence of a public issue.
22. Defendant is the STATE of HAWAII (“State”), by and through its Attorney General, Mr. Russell A. Suzuki, who, as the Chief legal officer of the State, is responsible to defend the Constitution of the State and to represent the State in all civil actions in which the State is a party.
23. Defendant, Election Office of Hawaii, is State public entity, which conducts, manages, and controls both Federal and State elections, under both Federal and State Constitutions and Laws.
24. Ms. Colleen Hanabusa, the real party in interest, is a resident of Hawaii, and is currently US congresswoman, representing District 1 in the State of Hawaii.
25. Plaintiff exhausted all necessary administrative process, related to this action. (US Attorney General did not respond yet to this date.)
26. There is currently an actual controversy between Plaintiff and Defendants (and Real party in interest) that is ripe for adjudication as to whether Ms. Hanabusa is disqualified as a gubernatorial candidate for Hawaii, according to State mandate, Article II, Section 7, “Resign to Run”.
27. This Court may take the judicial notice on Cobb vs State of Hawaii 722 P.2d 1032 (1986), (Cobb’s), and also, over any other matter.
28. Both State and/or Federal courts may and can have jurisdiction over this case. The venue, State of Hawaii, The First Circuit Court, is proper in this action.
29. Plaintiff will send a copy of this Complaint as the notice to the office of information practices, according to §92F-15.

IV. STATEMENT OF EVENTS
30. Ms. Colleen Hanabusa, real party in interest, is currently serving as US congresswoman for district 1 in State of Hawaii, (and was elected in 2016); and her current term is expected to end in January 2019. If she becomes elected as governor, her new term officially begins on December 1, 2018.
31. If Ms. Hanabusa becomes elected as governor in November, 2018, without resignation of her current position as US Congresswoman (and without having a special election), she would have to serve both US congress and Governor positions at the same time, for about 3 months; which is unconstitutional according to US Constitution, Article I, Section 6.
32. In February 28, 2010, (then) US Congressman Neil Abercrombie quit Congress to run for governor. And, on May 22, 2010, a special election was held to fill the vacancy caused by Mr. Abercrombie; and Ms. Hanabusa ran for the position at that time, but lost to Mr. Charles Djou, a republican.
33. [Back in 1986, US Congressman Cecil Heftel resigned his congressional seat to run for governor. And there were two elections on the ballot September day; the special election (for the remainder of Heftel’s term) and the primaries for the seat that would begin in January of ’87.]
34. According to her Facebook post, Ms. Hanabusa formally launched her campaign for governor on or around January 8, 2018.
35. Before the campaign for governor, however, Ms. Hanabusa did not resign her current position as US congresswoman, despite the specific statement in the mandate (State Constitution Article II, Section 7), “Resign to Run”; it stated, “…shall resign BEFORE BEING ELIGIBLE…”
36. Ironically, according to Honolulu Star-Advertiser on January 5, 2018, she demanded Mr. Doug Chin, Attorney General (at that time), to resign, presumably based on the mandate, ‘Resign to Run”. (According to his Facebook post, on or around December 21, 2017, Mr. Chin announced his intention or candidacy to run for the US congress, district 1, which is still currently held by Ms. Hanabusa.)
37. However, the newspaper (Honolulu Star-Advertiser, January 5, 2018) reported, “Hanabusa, meanwhile, says she will not resign, and plans to serve out her own term in Congress as she campaigns for governor this year. She said she can manage both roles, and did so before when she ran for US Senate in 2014.”
38. On January 7, 2018, Mr. Chin announced his resignation (intention) of his position as Attorney General, but it did not happen due to his abrupt acceptance as Lt. Governor, appointed by current Gov. Ige, before his planned resignation as the Attorney General.
39. Despite her formal announcement of her candidacy for governor on January 8, 2018, without resigning first from her current seat, US Congress, District 1, Ms. Hanabusa already started and held several illegal fundraising events for governor (since September 26, 2017), according to her official fundraising report to Campaign Spending Commission.
40. Despite her formal announcement of her candidacy for governor on January 8, 2018, without resigning first from her current seat, US Congress, District 1, Ms. Hanabusa prematurely and illegally started and campaigned, as of September 10, 2017, according to her official expenditure report to Campaign Spending Commission.
41. To this date (January 8, 2018), there seems no legal record or documentation, if Ms. Hanabusa already resigned from her current position as US congresswoman, or not.
42. As of February 1, 2018, the election office (Office of Elections) started to hand out nomination papers for US congress, district 1, despite there seems no sign of Ms. Hanabusa’s resignation (or her intention).
43. As of February 23, 2018, according to the election office’s record, 3 candidates, (and more, as of today), already picked up the nomination papers for US congress, district 1.
44. On February 26, 2018, Richard Kim, Plaintiff, sent a (formal) inquiry to Office of Elections (of Hawaii), among other things, why the seat is officially available; and further asked for their legal basis or any documentation or record, regarding its availability (US congress, district 1) from the election office’s point of view.
45. On or around March 2, 2018, Office of Elections (Chief Election Officer, Mr. Scott T. Nago) sent Richard Kim, Plaintiff, their response to his initial inquiry. However, Mr. Nago falsely represented the Opinion No. 86-4. Among other things, he wrongfully stated, “Article II, Section 7…does not apply to federal elected public officers”. Note: Richard Kim, Plaintiff, could not find if Mr. Nago’s statement is correct in any part of Attorney General Opinion, No. 86-4.
46. The Attorney General Opinion (No. 86-4) might have been the case (Candidate seeking Federal office position from State elected office), which had ultimately led State Senator Steve Cobb to challenge in the court; and he won, in State Supreme Court. (Cobb’s)
Note: According to this decision, Mr. Chin might have not needed to resign, first.
47. Errors in Cobb vs State of Hawaii (Cobb’s): The Court’s misinterpretation and (the State’s erroneous contention as stated in the above). Among other things, the Court erred that “public” did ONLY mean state and county office holders, (although there was, among other things, evidence that included federal office holders in the case, as stated in #45). And further, the Cobb’s Court concluded “the drafters did not manifest a clear intention to include candidates for federal office within the scope of Article II, Section 7 and hold that Cobb will not have to resign from the State Senate in order to run for congress”.
48. However, Ms. Hanabusa’s case is different and in the other way around (Candidate seeking State Office position from Federal elected office). She is a Candidate for State office (governor); and the State Constitution, Article II, Section 7, “Resign to Run” Mandate, MUST apply to her case.
Note: The mandate states, “ANY elected public officer….”, and, it should include any or all State and Federal elected officers. Besides, the mandate did not state and specify, if the word, “ANY” does exclude federal elected officer or not. Despite and contrary to the Court’s opinion in Cobb’s, it is very clear, but not illogical or inconsistent.
IN FACT, IF ANY FEDERAL ELECTED OFFICER IS GIVEN A PREFERENTIAL TREATMENT AND/OR AN EXCEPTION FOR ANY STATE POSITION, BY CIRCUMVENTING AND ESCAPING THE MANDATE, IT IS NOT ONLY UNFAIR AND DISCRIMINATORY, BUT ALSO INCONSISTENT WITH OUR CONSTITUTIONS AND LAWS.
As stated in #7, the definition of “ANY” elected officer, (which included federal elected officer), in fact, was already specifically stated in SB No. 10 (Cobb’s, page 75-76) and SB No. 10 SD1 (Cobb’s, page 80-81) in 1979, as well as in the bill SB No. 1028 (Cobb’s, page 71-72) in 1981; although it was deleted in a bill SB No. 1152 (Cobb’s, page 64) in 1983. Note: It was a toughened requirement; and repealed for the requirement of specific resignation date, but NOT for the DEFINITION of “ANY” elected officer, which included federal elected officer as in the bill SB No. 1028 (Cobb’s, page 71-72) in 1981.
49. On or around March 7, 2018, thru 1st class US mail as well as email (to elections@hawaii.gov), Plaintiff responded to Office of Elections, and further demanded; among other things,
a. Explain why the election office falsely represented the Opinion, No. 86-4. Provide facts and evidence that it was honest mistake or unintentional.
b. Regardless Ms. Hanabusa’s illegality and disqualification, explain why election office already gave out nomination papers, as if the seat is already available.
c. Did election office receive any letter or document regarding Ms. Hanabusa’s resignation, although Mr. Nago (Chief Election Officer) might have already passively admitted he did not receive the letter from her, since it was not mentioned in his letter? If so, why?
d. What was election office’s legal basis for the availability of the seat (US congress, district 1)?
e. Provide any legal evidence (legal proof or filed documents) why the seat (US congress, district 1) is already available from election office’s stand point.
f. Do not give out nomination papers to Ms. Hanabusa, since she is already disqualified by the law (the mandate, Article II, Section 7).
g. What is election office’s plan if Ms. Hanabusa does not resign?
50. However, to this date, Plaintiff has not received yet any more response (to his reply on March 7, 2018) from the election office.
51. Irregularity and inconsistency of the election office (Office of Elections). Due to misinterpretation of the mandate, Article II, Section 7, among other things, as if the public officer did not include federal officer, (but, instead, it should have rather been interpreted as “candidate for federal office”); the election office might have failed to obtain legal document of resignation from Ms. Hanabusa, for the availability of the seat, US Congress, district 1. (The election office has already handed out the nomination papers, most likely without the documentation of its availability and/or without mentioning a special election for her remainder of terms in case of her resignation.)
52. On or around March 18, 2018, ONLY after Plaintiff’s inquiry to the election office, Main media reported as if Ms. Hanabusa “is vacating” her current seat, US congress, District 1. Note: Main media have often unfairly supported Ms. Hanabusa, by reporting unfair and unbalanced news and/or articles.
53. On March 21, 2018, Plaintiff sent Complaint (and Request) to both State and US Attorney Generals’ offices. (Ms. Hanabusa must have also received the complaint and request; since Plaintiff send a service copy to her office in Honolulu.)
54. On April 12, 2018, State Attorney General, Mr. Russell A. Suzuki, replied; among other things, (without specific reason or justification, but generally), Ms. Hanabusa did not violate the resign-to-run constitutional provision.
The decision by the State is arbitrary and capricious, and without merit or basis.
55. As of April 12, 2018, at the time of response from State Attorney General’s office, there was no sign, if Ms. Hanabusa already resigned from her seat, US congress, District 1.
56. On or around May 1, 2018, according to the election office’s (Office of Elections’) report, despite Plaintiff’s inquiry and complaint, the election office gave out Ms. Hanabusa the nomination papers; (and, as she picked up the papers).
57. On or around June 1, 2018, according to the election office’s report, despite Plaintiff’s inquiry and complaint, the election office accepted and allowed Ms. Hanabusa to file her nomination papers.
However, there is no mention if she already resigned her current position from US Congress, District 1 in the election office’s record or her website ‘Hanabusa for governor’(www.hanabusaforgovernor.com) and facebook page (Colleen Hanabusa).
58. Furthermore, Ms. Hanabusa’s website for US Congress, District 1, (http://hanabusa.house.gov/) did not state or announce if she already resigned as of June 1, 2018.
Also, since June 1, 2018, Ms. Hanabusa placed two new posts (on June 1 and 3, 2018) on her facebook page for ‘Congresswoman Colleen Hanabusa’.
Simply, there was no report or announcement that she already resigned when she filed her nomination papers. In fact, those facebook post(s) after filing her nomination papers specifically prove that she is still currently acting as US congresswoman, District 1; which may be another good evidence that she did not resign from her current position as the US congresswoman.
59. As of today, there is no report or announcement by the election office or (even Main media), if Ms. Hanabusa already resigned her current position as US congresswoman, District 1 or not.
Even if her resignation was filed at the time of the filing, it is STILL illegal, according to the state mandate, Article II, Section 7, “Resign to Run”, since it SPECIFICALLY mentioned “…shall resign BEFORE BEING ELIGIBLE…”.

V. JUDGMENT SOUGHT IN THIS ACTION

WHEREFORE, Plaintiff, Richard Y. Kim, respectfully requests:
60. The Court correctly interprets and declares that the State mandate, Article II, Section 7, “Resign to Run”, applies to (any) State candidate and further “Any” elected officer correctly means any or all public officers, including federal officer.
61. The Court disqualifies Ms. Hanabusa (as a gubernatorial candidate), according to the State mandate, Article II, Section 7, “Resign to Run”.
62. The Court provides any other actions deemed just, necessary, and appropriate.

Dated this 4th day of June, 2018

Richard Y. Kim
Plaintiff, Pro Se