Text version of my ex parte motion to stay of election on August 11, 2018.
(By posting here, I am giving my opponents more time to respond…lol)

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
_______________________________________ )
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)
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Civil No: 18-1-0878-06 GWBC
Civil Action

EX PARTE MOTION TO STAY OF ELECTION
ON AUGUST 11, 2018,
AND MOTION TO SHORTEN TIME TO
HEAR; MEMORANDUM OF POINTS;
DECLARATION OF RICHARD Y. KIM;
EXHIBITS; NOTICE OF HEARING;
PROPOSED ORDERS;
CERTIFICATE OF SERVICE

Hearing:
Date:____________________________________
Time:____________________________________
Judge: Honorable Gary W. B. Chang

Per Rules of The Circuit Courts of The State of Hawaii, Rule 7.2 (f), (3) (A), and (5), Plaintiff hereby files ex parte motion to stay of election on August 11, 2018 and motion to shorten time to hear.
Plaintiff requests this Court to schedule for the hearing of the motion after all parties are noticed per Rule 8, (18 day notice), but enough days before the election; so that, the court has time to execute the order, if it rules in Plaintiff’s favor.

MEMORANDUM OF POINTS

The US Supreme Court requires that a petitioner for a stay of proceedings must demonstrate satisfaction of a four-factor test: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” [Niken v Holder, 556 U.S. at 434.]
And, there are no undisputed facts, which are sufficient and clear for the court to make ruling on Plaintiff’s favor in this motion. [Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 61, 647 P.2d 713, 716 (1982)]
But, Ms. Hanabusa claimed in her motion, the footnote #1, at the bottom of page 2 (II. Relevant Factual and Procedural Background), that she “does not admit that all of the allegations in the Complaint are in fact accurate or true”. However, she did not deny many, if not all, of the prima facie facts (e.g. she did not resign from US Congress) alleged in the Complaint. [Demello v. Wilson, 28 H. 298 (1925) Official duty has been regularly performed.] [Exhibits 7, 8][Hawaii Rules of Evidence, Rule 303, 305, 304 (a), (b), (c)(2), Presumption impose burden of proof.]
This honorable Court should consider all the facts, presumption, and/or allegations in the Complaint and in this motion, LEGALLY TRUE, since Ms. Hanabusa (and the State defendants) cannot provide any counter evidence that those facts are not true. [Hawaii Rules of Evidence, Rule 303, 304, 305]
(Plaintiff demands Ms. Hanabusa and the State defendants to prove all the relevant facts alleged here are not true, if they believe so; since, among other reasons, discovery is not completed yet at this stage.)
Plaintiff’s case suffices and satisfies all four factors (per Niken’s court), and Plaintiff respectfully request this court to grant the motion to stay of election on August 11, 2018 and motion to shorten time to hear, until the resolution of the current case in court.

I. Background

1. Please refer the previous factual and procedural background to the entire Complaint, but more from page 8 IV. STATEMENT OF EVENTS.
2. Plaintiff filed the Complaint on June 4, 2018 in the First Circuit Court of State of Hawaii.
3. The Complaint was served to both State defendants and Ms. Hanabusa on June 4, 2018 (with questions for discovery), via certified mail with return postcards, and PERSONALLY on June 12, 2018, as well. (Ms. Kunimoto in the Attorney General’s Office accepted the Complaint on behalf of the Office of Elections.) [Plaintiff’s FILING IN COURT OF PROOF OF SERVICE on June 25, 2018]
4. On or around July 2, 2018, The State defendants, The Attorney General and The Office of Elections, and Ms. Hanabusa, real party in interest, have filed motions to dismiss or summary judgment.
5. The Court scheduled the hearing(s) of the motions for August 14, 2018 and August, 21, 2018, respectively, which are after the scheduled primary election on August 11, 2018.
6. On July 5, 2018, Plaintiff checked with Judge Chang’s clerk (Irene, phonetically), if the judge can hear my motion to stay of election before the election. The clerk suggested I should file ex parte motion since the earliest time to hear would be “mid August”.
7. On July 9-10, 2018, Plaintiff contacted the State defendants and Ms. Hanabusa for stipulation. But, we were able to agree on some, but not all that Plaintiff wanted to have all-at-once hearing before the election. So, Plaintiff brings this ex parte motion to stay of election, first, separately.
Plaintiff will bring his motion for Cross Summary Judgment in opposition to the State defendants’ and Ms. Hanabusa’s motions to dismiss, (with mostly the same Memorandum of Points), later; as we stipulated to hear the motions on August 14, 2018, all together. Plaintiff hopes the court reschedule as in we stipulated so.

II. STRONG MERITS (LIKELIHOOD OF SUCCESS)
(A) HISTORY
1. The previous US congressmen for Hawaii, Gov. Abercrombie and Mr. Heftel, resigned before running for governor. [Complaint, #32, #33]
2. Ms. Hanabusa is aware of this “Resign to Run” mandate. [Complaint, #32, #36]
3. Ms. Hanabusa knew she (would) violate the mandate. [Complaint, #32, #36, #37]
4. Ms. Hanabusa already started illegal fundraising. Refer to Campaign Spending Commission report [Exhibit 5]
5. Ms. Hanabusa already started illegal campaigning. Refer to Campaign Spending Commission report [Exhibit 6]
6. Ms. Hanabusa already illegally filed her nomination paper on June 1, 2018. [Ms. Hanabusa’s Motion to Dismiss, Memorandum in support, page 3, line 22-23 (II. Relevant Factual and Procedural Background)]
7. As of today, Ms. Hanabusa is still US Congresswoman. [Id at page 2, line 13-14 (II. Relevant Factual and Procedural Background, line 3-4)] [Demello v. Wilson, 28 H. 298 (1925) Official duty has been regularly performed.][Hawaii Rules of Evidence, Rule 304 (a), (b), (c)(2), Presumption impose burden of proof.]
(Ms. Kaiawe, the attorney for Ms. Hanabusa, repeatedly and continuously stated Ms. Hanabusa as Congresswoman Hanabusa in her motion paper.)
8. As of today, Ms. Hanabusa did not resign yet her current seat from US congress. [Id at page 3, line 23-25] [Exhibits 7, 8] [Hawaii Rules of Evidence, Rule 304 (a), (b), (c)(2) Presumption impose burden of proof.] [Demello v. Wilson, 28 H. 298 (1925) Official duty has been regularly performed.]
(B) THEORY
Among other things,
1. The focal point of this case is Article II, Section 7 of the Hawaii State Constitution:
“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.” [Complaint, #4]
2. Ms. Hanabusa did not deny that she is currently US Congresswoman, District 1 of Hawaii. [Ms. Hanabusa’s Motion to Dismiss, Memorandum in support, page 2, line 13-14 (II. Relevant Factual and Procedural Background, line 3-4)]
3. Ms. Hanabusa admitted she did not resign from her current office as US Congresswoman. [Id at page 3, line 23-25]
4. In their motions, Ms. Hanabusa (and the State defendants) mixed up a bunch of cases as if those cases apply to Ms. Hanabusa’s case (a fed officer running as a candidate for a state office); further falsely claimed that the “Resign to Run” mandate does not apply to “federal elected officer” [Id at page 3, line 4] and she did not have to resign.
But, it should have been “CANDIDATE for federal office”, not “federal elected officer”, per Cobb’s. [Complaint, #51]
In fact, the State defendants admitted in their motion that it was “candidate for federal offices”, (although the court stated it was not certain). [State Defendants’ motion, page 12, line 17-18] (Mr. Cobb was a State officer running for fed office, and he did not have to resign before running, thanks to this Supreme Court decision.)
5. However, the State defendants falsely claimed as if “Hawaii Supreme Court refused to apply the resign to run provision to federal offices in the absence of clear intent by the framers”. [Id at page 12, line 20-21]
In fact, the Supreme Court in Cobb’s only formed its opinion on a state officer running as a candidate for federal office (e.g. Mr. Cobb); but, did not form any opinion about a federal officer running as a candidate for state office (e.g. Ms. Hanabusa), which did not mean “refusal to apply the mandate on any or all federal elected officer”.
6. However, all defendants (including Ms. Hanabusa, real party in interest) failed to respond to Plaintiff’s claims; among other things, the exclusion and/or preferential treatment for a federal elected officer in application of the state mandate would be unconstitutional and discriminatory, when the fed officer is seeking for state office.
Therefore, by omission (to state or argue the Plaintiff’s allegation), the State defendants and Ms. Hanabusa passively agreed that the state mandate should apply to Ms. Hanabusa, a federally elected officer, since she is a candidate for a state office (governor); in accordance with both US and State Constitutions.
7. Ms. Hanabusa, in her motion [page, 15-17, IV. ARGUMENT C, 3], admitted she would have her remaining term as US congresswoman if she gets elected as governor.
(Regardless her argument,) Ms. Hanabusa should focus on our point, State Constitution, Artcle II, Section 7. “Resign to Run” mandate.
Ms. Hanabusa is disqualified per the state mandate, since she did not resign “before being eligible” as a candidate for another office, where the (prospective) new term and the previous term overlap.
(C) PRACTICALITY
Among other things,
1. If Ms. Hanabusa becomes elected as governor in November, 2018, without resigning from 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 2-3 months; which is unconstitutional according to US Constitution, Article I, Section 6. [Complaint, #31]
2. Cost, extra cost for special election
Even if she supposedly resigns soon after being elected as governor, we still need to have a special election to cover her remaining term (2-3 months) for US Congress. This would be a great burden to taxpayers, as compared to having special election at the same time of current primary election schedule.
3. Cost, extra cost for another election, if not stayed.
If Ms. Hanabusa is disqualified as a result of this case, we may have to have another election without her name on the ballot. It is going to be a tremendous burden to taxpayers, e.g. time and money.

III. IRREPARABLE HARM TO PLAINTIFF (AND PUBLIC)
Plaintiff will suffer irreparable harm if Ms. Hanabusa’s name is still on the ballot, especially because the main media have unfairly been supporting her. The harm can also be harm to the public, since it may confuse the voters, (among other things).
In addition, it will impose a heavy burden on taxpayers, e.g. time and money, if another election is necessary due to her disqualification, as a result of the current case resolving in Plaintiff’s favor.

IV. NO IRREPARABLE HARM TO ALL OTHER PARTIES
All other parties will not suffer harm as a result of the stay of the election.

V. PUBLIC ISSUE
The election is a public issue.
In fact, we may and can reduce the unnecessary cost of the election, e.g. time and money, as a result of the stay.

VI. DEFENDANTS’ AND MS. HANABUSA’S MOTIONS TO DISMISS OR SUMMARY JUDGMENT SHALL BE DEFEATED

(A) THE COURT NOW HAS JURISDICTION IN THIS CASE; BUT, NOT THE STATE DEFENDANTS
1. Office of Elections initially responded to Plaintiff’s inquiry. [Exhibit 7] But, they failed to respond to Plaintiff’s further request. [Complaint, #49]
The Office of Elections’ no further response to Plaintiff [Complaint, #50], and then, the State Attorney General’s response [Complaint, #54] [Exhibit 8] (after Plaintiff’s complaint in the Attorney General’s office), was FINAL agency action. [Leone v. County of Maui, 128 Hawaii 183, 284 P.3d 956 (2012)]
(US Attorney General did not respond yet to this date.)
2. Also, Plaintiff could not file the Complaint in Court due to the case was not ripe until Ms. Hanabusa file her nomination papers at Office of Elections. (The case became ripe when Ms. Hanabusa filed her nomination papers at Office of Elections on June 1, 2018.) [Kapuwai v. City & County of Honolulu, Dept of Parks and Recreation, 121 Hawaii 33, 39, 211 P.3d 750, 756 (2009)] [Leone v. County of Maui, 128 Hawaii 183, 284 P.3d 956 (2012)]
3. Automatic stay of any further proceedings in Election office (and/or in Attorney General’s Office), once Complaint is filed in Court: The State (The Office of Elections and The Attorney General’s Office) loses jurisdiction on this case. [Hawaii Rules of Civil Procedure, Rule 62 (d).] [Kapuwai v. City & County of Honolulu, Dept of Parks and Recreation, 121 Hawaii 33, 39, 211 P.3d 750, 756 (2009)] [Leone v. County of Maui, 128 Hawaii 183, 284 P.3d 956 (2012)]
Complaint was filed in Court on June 4, 2018; and the Complaint was served twice via certified mail with return postcard on June 4, 2018 (with questions for discovery), and personally on June 12, 2018 (since Ms. Kunimoto of The Attorney General’s office agreed and accepted the Complaint on behalf of the Office of Elections.) [Plaintiff’s FILING IN COURT OF PROOF OF SERVICE on June 25, 2018]
As of June 4, 2018, the State Defendants (both Office of Elections and the Attorney General) lost their jurisdiction on this case.

(B) EVEN IF THE STATE DEFENDANTS STILL CLAIM THEIR JURISDICTION OVER THIS CASE, THEY ALREADY RECEIVED TWO WRITTEN OBJECTIONS (COMPLAINTS)
1. The Complaint is the written objection, interchangeably for the purpose of requirement per Election office.
2. Per law, there is no form or specific format required on the written objection. There is no form or format to follow; but, it can be construed freely at writer’s will, since there are no specifications required by law in the written objection.
3. The written objection, which is also the Complaint in this action, was served twice before the deadline; after Ms. Hanabusa did filing her nomination paper on June 1, 2018.
Among other things, it stated, “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”. [Complaint, #21]
4. Although both papers served on the Office of Elections would be sufficient as the written objection; but, to help my opponents understand better, the paper served on June 4, 2018 can be considered as the written objection to the election office, and the other paper, personally served on June 12, 2018, as Complaint in court.
5. The Office of Elections failed to respond to Plaintiff’s written objection (Complaint) by not following thru the law. The court should already have heard this case before the election, per HRS §12-8, (b), (e), (h), (i).
There is no evidence if the Office of Elections did this procedure.

(C) A FATAL ERROR
The State Defendants’ and Ms. Hanabusa’s mistaken logic is that Plaintiff did not exhaust the administrative remedies under HRS §12-8: The Office of Elections already (previously) cut communication unilaterally without further responding to Plaintiff. It is just like they are the ones who stopped communicating, but rather accusing Plaintiff of not communicating anymore. How absurd!
The Complaint can (should) also be viewed such as Motion to Compel Discovery. [HRCP Rule 37 (a)]

(D) REGARDING VIOLATIONS OF THE FEDERAL ELECTION CAMPAIGN ACT
This case is only about Declaratory Judgment and Injunctive Relief. The State defendants are not on point; and this issue is irrelevant in this case. No need to argue back. However, other claims may and can be filed in federal court later, if necessary.

(E) PLAINTIFF CLEARLY STATED HIS CLAIM FOR RELIEF
1. There are sufficient material facts in the Complaint. And, Plaintiff clearly stated his claim for relief. Refer to in the above, II. Strong Merits (B) Theory. And, refer to the Plaintiff’s entire Complaint.
2. Also, clearly, there exist triable issues. Among other things,
(a) If the state mandate “Resign to Run” should apply to any or all fed officers or not, especially when they run for a state office.
(b) If it is unconstitutional or discriminatory, not to apply the mandate in Ms. Hanabusa’s case (for a candidate running for State office from Fed office).
(c) If Ms. Hanabusa has her own discretion to decide to hold fed and state office at the same time or not, even though our State and US Constitutions state otherwise.
(d) If Ms. Hanabusa has own discretion to decide if and when to resign, even if the mandate states otherwise.
(e) If Ms. Hanabusa is allowed to violate the law (“Resign to Run”), even if she is fully aware of it.

(F) REGARDING VIOLATIONS UNDER THE UNIFORM INFORMATION PRACTICES ACT
The Complaint clearly stated Plaintiff demanded the information from the Office of Elections, among other things, in Complaint, #49, “(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.”
Although it is a very minor issue, Plaintiff agrees he did not specifically mention for relief at the end of the Complaint. But, the Complaint, #62, “The Court provides any other actions deemed just, necessary, and appropriate”, should be sufficient for such statement for relief.

(G) REGARDING PROCESS OF SERVICE ON MS. HANABUSA
Service of Process on Ms. Hanabusa is legally complete.
The Complaint and Summons were delivered to Ms. Hanabusa personally at both Honolulu office for US Congress and Hanabusa for Governor on June 12, 2018, according to HRCP Rule 4(d)(1)(A); regardless her Honolulu office staff’s claim regarding their capacity to receive the complaint or not. [Ms. Hanabusa’s staff’s claim is per Rule 4(d)(1)(B)]
Rule 4(d)(1) Upon an individual other than an infant or an incompetent person, (A) by delivering a copy of the summons and of the complaint to the individual personally or in case the individual cannot be found by leaving copies thereof at the individual’s dwelling house or usual place of abode with SOME person of suitable age and DISCRETION then residing therein (B) by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
Nevertheless, however, Ms. Hanabusa passively admitted the completion of service of process, since her motion did not challenge the PERSONAL service of process on her at Hanabusa for Governor on June 12, 2018. (Admission by omission). [Plaintiff’s FILING IN COURT OF PROOF OF SERVICE on June 25, 2018]

All in all, this honorable Court should grant the Plaintiff’s ex parte motion to stay of primary election on August 11, 2018 and motion to shorten time to hear.
Respectfully submitted,

Richard Y. Kim
Plaintiff, Pro Se
Date: July 11, 2018