Electronically Filed
Supreme Court
SCEC-18-0000654
SCEC NO. 18-0000654
29-AUG-2018
11:06 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI`I
JANE AND JOHN DOE VOTERS 1-47,
Plaintiffs,
vs.
ROMY CACHOLA, as an individual;
SCOTT T. NAGO, as CHIEF
ELECTION OFFICER FOR THE
STATE OF HAWAI`I, in his official
capacity,
Defendants.
DEFENDANT ROMY CACHOLA’S MOTION TO DISMISS
AMENDED COMPLAINT, FILED AUGUST 21, 2018
MEMORANDUM IN SUPPORT OF MOTION
DECLARATION OF ROMY M. CACHOLA
DECLARATION OF JEFFERSON S. ROLDAN, JR.
CERTIFICATE OF SERVICE

MICHAEL JAY GREEN 4451
841 Bishop Street, Suite 2201
Honolulu, Hawai`i 96813
Tel: (808) 521-3336
Fax: (808) 566-0347
Attorney for Defendant
ROMY CACHOLA

 SCEC NO. 18-0000654
IN THE SUPREME COURT OF THE STATE OF HAWAI`I
JANE AND JOHN DOE VOTERS 1-47,
Plaintiffs,
vs.

DEFENDANT ROMY CACHOLA’S
MOTION TO DISMISS AMENDED
COMPLAINT, FILED AUGUST 21,
2018

ROMY CACHOLA, as an individual;
SCOTT T. NAGO, as CHIEF
ELECTION OFFICER FOR THE
STATE OF HAWAI`I, in his official
capacity,
Defendants.
DEFENDANT ROMY CACHOLA’S MOTION TO
DISMISS AMENDED COMPLAINT, FILED AUGUST 21, 2018
Defendant ROMY M. CACHOLA, by and through his attorney, Michael
Jay Green, respectfully move this Honorable Court for an Order dismissing the
Amended Complaint, filed August 21, 2018.
Plaintiffs seek remedies from this Court which are not properly within
the Jurisdiction of the Supreme Court for an Original Proceeding to determine
the outcome of an election as required by Hawai`i Revised Statutes §11-173.5.
Plaintiffs have also failed to set forth any cause or causes, such as
provable fraud, overages or underages, that could cause a difference in the
election results as required by Hawai`i Revised Statutes §11-172.
Finally, this Honorable Court should dismiss the Amended Complaint
because it seeks remedies which the Plaintiffs are not entitled to in this action

 and has failed to seek the one remedy that is permissible under Hawai`i
Revised Statutes §11-173.5.
This Motion is brought pursuant to Hawai`i Rules of Civil Procedure
Rules 81(b)(10), 12(b)(1), and 12(b)(6), Hawai`i Revised Statutes §§11-172 and
173.5 and is supported by the Memorandum in Support of Motion, the
Declarations attached hereto and the Records and Files in this Case.
DATED: Honolulu, Hawai`i, August 29, 2018.
/s/ Michael Jay Green
MICHAEL JAY GREEN
Attorney for Defendant
ROMY CACHOLA

2

 SCEC NO. 18-0000654
IN THE SUPREME COURT OF THE STATE OF HAWAI`I
JANE AND JOHN DOE VOTERS 1-47,
Plaintiffs,

MEMORANDUM IN SUPPORT OF
MOTION

vs.
ROMY CACHOLA, as an individual;
SCOTT T. NAGO, as CHIEF
ELECTION OFFICER FOR THE
STATE OF HAWAI`I, in his official
capacity,
Defendants.
MEMORANDUM IN SUPPORT OF MOTION
I.

INTRODUCTION
Plaintiffs purport to be 47 anonymous registered voters from Hawai`i

House District 30. Exhibit “1” List of Voters Under Seal (Amended Complaint
at fn. 1) has never been produced to or served on Defendant Cachola with the
Amended Complaint so it is unclear as to whether this is a correct statement or
whether these purported Plaintiffs have any standing to bring the instant
action. This Motion to Dismiss does not waive any argument which may be
brought at a later date regarding the standing of Plaintiffs should this Court’s
rulings and appropriate disclosure so warrant.
Defendant ROMY M. CACHOLA also Substantively Joins Defendant Scott
T. Nago’s Motion to Dismiss Amended Complaint, filed August 21, 2018, filed
August 27, 2018 and adopts and incorporates herein any and all arguments

 made therein, along with attached Declarations and Exhibits.

Defendant

Cachola respectfully requests that any ruling issued by this Court based on the
arguments contained in Defendant Nago’s Motion be also applied to Defendant
Cachola as if fully argued herein.
In addition to the Arguments contained in Defendant Nago’s Motion to
Dismiss, Defendant Romy M. Cachola also respectfully requests that this
Honorable Court Dismiss Plaintiffs’ Amended Complaint against him for the
reasons described below, and as may be argued at a hearing on this matter.
II.

ARGUMENT
A.

Plaintiffs’ Amended Complaint Fails to State a
Claim for Which Relief Could be Granted

Plaintiffs’ Amended Complaint alleges the following violations of state and
federal law against Romy M. Cachola:
•

voter fraud,

•

coercion and intimidation,

•

misuse and tampering of ballots,

•

unethical use of confidential information, and

•

violations of the Health Insurance
Accountability Act of 1996 (HIPAA).

Portability

and

Romy A. Cachola denies each and every one of the specious and
defamatory allegations contained in the Amended Complaint and affirmatively
declares that he has not engaged in ANY activity which resulted in the
improper casting of any ballots for any candidate. See Declaration of Romy M.
Cachola attached hereto.

2

 The Amended Complaint is filled with allegations that cannot be tested
because they are supported by Declarations of a John and Jane Doe which
were not made available to Defendant, or are purely speculative, or are
completely lacking in any basis in law or fact.

Accordingly this Amended

Complaint should be Dismissed.
For example:
Plaintiffs allege in Count I that Defendant Cachola’s actions are a prima
facie violation of the law relating to election fraud because a medical clinic is
held to a higher standard in law and equity. See Amended Complaint at ¶¶3839. The Amended Complaint states “upon information and belief” that Cachola
is intimidating voters and improperly seeking votes from patients. Id. at ¶40.
This is not alleging a fact that in any way complies with the requirements of
Rule 11 of the Hawai`i Rules of Civil Procedure. The Amended Complaint infers
that if Cachola was interested in complying with the law “his campaign
headquarters would be elsewhere”. Id. at ¶41. This is ludicrous and baseless.
Plaintiffs must ‘show that [they] have actual information of mistakes or
errors sufficient to change the result’ [of the election].” Akaka v. Yoshina, 84
Haw. 383, 388, 935 P.2d 98, 103 (1997) (quoting Funakoshi v. King, 65 Haw.
312, 316-17, 651 P.2d 912, 915 (1982)).

(Emphasis Added).

Making

inferences “upon information and belief” and implying guilt because the
Defendant is acting differently than another candidate might is not actual
information of anything.

3

 Plaintiffs allege in Count II that Cachola’s use of the same address and
phone number as the Cachola clinic and “likely computers and database
systems” is a prima facie violation of HRS §84-12. Actually this is a complete
misreading of the law because the allegation is he is using the clinic’s computer
and database to benefit his campaigning when the law actually prevents the
opposite – using information acquired as a legislator for personal business use.
Also the use of the phrase “likely use” is not alleging any fact.
Counts III and IV are based on some unknown allegation contained in a
Declaration that has never been provided to Defendant Cachola. It should be
stricken and is not actual information of anything and should not be
considered.
Counts V and VI relate to co-defendant Scott Nago and the arguments
contained in his Motion to Dismiss are substantively joined herein.
Plaintiffs allege in Count VII of the Amended Complaint that Defendant
Cachola is a “business associate” of a medical clinic operated by his wife in the
same building that his campaign headquarters is located in.

See Amended

Complaint at ¶¶30 and 70. The Amended Complaint apparently alleges that 45
C.F.R. §160.103’s definition of “business associate” includes any other activity
contained in the same building as a medical clinic. This is patently untrue.
45 C.F.R. §160.103 states in relevant part:
Business associate:
(1) Except as provided in paragraph (4) of this
definition, business associate means, with respect to a
covered entity, a person who:

4

 (i) On behalf of such covered entity or of an
organized health care arrangement (as defined in this
section) in which the covered entity participates, but
other than in the capacity of a member of the
workforce of such covered entity or arrangement,
creates,
receives,
maintains,
or
transmits
protected health information for a function or
activity regulated by this subchapter, including
claims processing or administration, data analysis,
processing or administration, utilization review,
quality assurance, patient safety activities listed at 42
CFR 3.20, billing, benefit management, practice
management, and repricing; or
(ii) Provides, other than in the capacity of a member of
the workforce of such covered entity, legal, actuarial,
accounting, consulting, data aggregation (as
defined in § 164.501 of this subchapter),
management, administrative, accreditation, or
financial services to or for such covered entity, or
to or for an organized health care arrangement in
which the covered entity participates, where the
provision of the service involves the disclosure of
protected health information from such covered entity
or arrangement, or from another business associate of
such covered entity or arrangement, to the person.
(2) A covered entity may be a business associate of
another covered entity.
(3) Business associate includes:
(i) A Health Information Organization, E-prescribing
Gateway, or other person that provides data
transmission services with respect to protected
health information to a covered entity and that
requires access on a routine basis to such protected
health information.
(ii) A person that offers a personal health record to
one or more individuals on behalf of a covered entity.
(iii) A subcontractor that creates, receives,
maintains,
or
transmits
protected
health
information on behalf of the business associate.

5

 (Emphases Added).
No extreme stretch of the definition cited above can include Defendant
Cachola’s campaign headquarters simply because it is located in the same
building as the medical clinic.

Since Defendant Cachola and his campaign

headquarters are not business associates of Cachola Clinic as defined by
federal law, there is no basis in law for the remainder of Count VI.

This

allegation is demonstrative of the recklessness disregard for law and fact
exhibited by the filers of the Amended Complaint.
Further, the balance of the Count assumes without evidence that
Defendant

Cachola

violated

HIPPA

requirements,

improperly

accessed

protected health information of patients of the Cachola Clinic and used that
information for political campaign purposes. There is no foundation for this
allegation.
Plaintiffs have “the burden of demonstrating that the specific acts and
conduct of which they complain would have the effect of changing the results”
of the election. Akaka v. Yoshina, 84 Haw. 383, 388, 935 P.2d 98, 103 (1997)
(quoting Elkins v. Ariyoshi, 56 Haw. 47, 49, 527 P.2d 236, 237 (1974)).
(Emphasis Added). If the plaintiffs cannot do so, then the Amended Complaint
is “legally insufficient and…it fail[s] to state a claim against the defendants
upon which relief could be granted.”

Id.

“Conclusory allegations and

unwarranted inferences are not sufficient to defeat a motion to dismiss.”
Waters v. Nago, 2014 Haw.Lexis 371; 2014 WL 7334915 (Haw. December 24,
2014) at p. 16.
6

 The entire Amended Complaint should be dismissed for failure to state a
claim upon which relief could be granted (pursuant to Hawai`i Rules of Civil
Procedure, 12(b)(6)) for the lack of any act or conduct alleged therein which
would have the effect of changing any votes away from Romy M. Cachola and
toward any other candidate in the primary election such that the results of the
election would have changed in any respect.
B.

The Amended Complaint Should be Dismissed because
Plaintiffs have not Alleged Anything Which Will Lead to
Provable Fraud, Overages or Underages that Would
Change the Outcome of the Election

Defendant Romy M. Cachola incorporates by reference as if fully set-forth
herein the Argument contained in Section IV.C of Defendant Scott T. Nago’s
Motion to Dismiss Amended Complaint, filed herein on August 21, 2018, and
the Declaration of Scott T. Nago attached thereto, filed August 27, 2018.
Hawai`i Revised Statutes §11-172 states:
With respect to any election, any candidate, or
qualified political party directly interested, or any
thirty voters of any election district, may file a
complaint in the supreme court. The complaint shall
set forth any cause or causes, such as but not limited
to, provable fraud, overages, or underages, that
could cause a difference in the election results. The
complaint shall also set forth any reasons for
reversing, correcting, or changing the decisions of the
precinct officials or the officials at a counting center in
an election using the electronic voting system. A copy
of the complaint shall be delivered to the chief election
officer or the clerk in the case of county elections.
(Emphases Added).
“We read the words (contained in HRS §11-172) ‘difference in the election
results’ in the statute to mean a difference sufficient to overturn the
7

 nomination of any particular candidate or candidates in the primary.” Elkins
v. Ariyoshi, 56 Haw. 47, 49, 527 P.2d 236, 237 (1974)).
As discussed above and in Defendant Scott T. Nago’s Motion to Dismiss,
Plaintiffs’ Amended Complaint does not contain the requisite information
required by Hawai`i Revised Statutes §11-172 and should be dismissed.
C.

The Amended Complaint Should be Dismissed because
Plaintiffs are Not Entitled to the Remedies they Seek

In the Prayer for Relief in the Amended Complaint, Plaintiffs seek the
following: (1) order a briefing schedule and allow Doe Voters to collect and
present further evidence; (2) Order a recount of the ballots of the State of
Hawai`i District 30 primary race; (3) Order the review of voter registration
forms for District 30 to account for those who are ineligible to vote under
Hawai`i law (specifically deceased people 1); (4) Order an investigation to review
2018 voter registration forms against the patient list of Cachola Clinic with the
submission of “mail in drop off ballots”; (5) Order a review of the Office of
Election’s policy regarding “mail in drop off ballots” to ensure that votes cast
were valid; (6) Refer the matter to the State Attorney General for prosecution;
(7) Refer the matter to the F.B.I.; (8) Refer the matter to the State Department
of Health; (9) Refer the matter to the State Ethics Commission, and (10)
Remove Defendant Cachola from the general election ballot.

Contrary to the implied accusation in this prayer for relief, when asked
by a voter about the casting of an absentee ballot by a deceased voter,
Defendant Cachola specifically instructed that this not happen.
See
Declaration of Jefferson S. Roldan, Jr. attached hereto.
1

8

 Unfortunately this Court’s power to order a remedy for an election
dispute filed pursuant to Hawai`i Revised Statutes §11-173.5(b) does not
permit it to grant any of the items contained in the prayer for relief.
Hawai`i Revised Statutes §11-173.5 states in relevant part:
(b) In primary and special primary election contests,
and county election contests held concurrently with a
regularly scheduled primary or special primary
election, the court shall hear the contest in a
summary manner and at the hearing the 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, as the case
may be, in the manner presented by the petition, and
a certified copy of the judgment shall forthwith be
served on the chief election officer or the county clerk,
as the case may be, who shall place the name of the
candidate declared to be nominated on the ballot for
the forthcoming general, special general, or runoff
election. The judgment shall be conclusive of the
right of the candidate so declared to be nominated;
provided that this subsection shall not operate to
amend or repeal section 12-41.
(Emphases Added).
“[T]he legislature clearly intended that the only remedy that could be
given for primary election irregularities was the statutory remedy of having this
Court decide which candidate was nominated or elected.” Funakoshi v. King,
65 Haw. 312, 316, 651 P.2d 912, (1982). “The remedy provided by HRS §11173.5(b) of having the court decide which candidate was nominated or elected
is the only remedy that can be given for primary election irregularities
challenged pursuant to HRS §11-173.5.” See Waikiki v. Nago, 2014 Haw.Lexis
261; 2014 WL 4251240 (Haw. August 28, 2014) at pages 3-4.
9

 The irony of Plaintiffs’ Amended Complaint is that only relief that they
did not seek was that of having the Court decide which candidate was
nominated or elected by the voters 2.
III.

CONCLUSION
For the reasons stated above, those contained in Defendant Scott T.

Nagos’ Motion to Dismiss and arguments made before this Honorable Court,
Defendant Romy M. Cachola respectfully requests that Plaintiffs’ First
Amended Complaint be Dismissed with Prejudice and that Sanctions for this
baseless and defamatory filing be awarded to include attorney’s fees and costs.
Respectfully Submitted.
DATED: Honolulu, Hawai`i, August 29, 2018.
/s/ Michael Jay Green
MICHAEL JAY GREEN
Attorney for Defendant
ROMY CACHOLA

The Amended Complaint filed in this case was apparently instigated by
supporters of candidate Ernesto M. Ganadan who seek only to harm Defendant
Cachola’s future campaign for office since they have not sought to have
Ganadan declared as the winner of the Primary Election. This is an improper
use of scarce judicial resources, is defamatory and wholly improper and should
be sanctioned.
2

10

 IN THE SUPREME COURT OF THE
STATE OF HAWAII
JANE AND JOHN DOE VOTERS 1?47, CASE NO. 

Plaintiffs, DECLARATION OF ROMY M.
CACHOLA
vs.

ROMY CACHOLA, as an individual;
SCOTT T. NAGO, as CHIEF
ELECTION OFFICER FOR THE
STATE OF HAWAII, in his official
capacity,

Defendants.

 

 

DECLARATION OF ROMY M. CACHOLA
I, ROMY M. CACHOLA, declare as follows:

1. I am one of the Defendants in this case and I make this
Declaration based upon my personal knowledge.

2. I have reviewed the contents of the Amended Complaint, filed
herein on August 21, 2018.

3. Paragraph No. 25 of the Amended Complaint refers to
?Exhibit Declaration of Jane Doe There was no such declaration or
exhibit attached to the Amended Complaint that I was served with. To date, I
have not been subsequently served or provided with this Exhibit Declaration
so I cannot not individually address the allegations contained therein.

4. Paragraph No. 26 of the Amended Complaint refers to

?Exhibit Declaration of John Doe There was no such declaration or

exhibit attached to the Amended Complaint that I was served with. To date, I
have not been subsequently served or provided with this Exhibit Declaration
so I cannot individually address the allegations contained therein.

5. The Amended Complaint contains several appalling,
egregious and defamatory allegations against me. I specifically and vigorously
deny these allegations.

6. I did not engage in any activities that resulted in the improper
casting of any ballots for any candidate.
I declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge and belief.

DATED: Honolulu, Hawaii, August 28, 2018.




 

IN THE SUPREME COURT OF THE
STATE OF HAWAII
JANE AND JOHN DOE VOTERS 1?47, CASE NO. 

Plaintiffs, DECLARATION OF JEFFERSON S.
ROLDAN, JR.
vs.

ROIVIY CACHOLA, as an individual;
SCOTT T. NAGO, as CHIEF
ELECTION OFFICER FOR THE
STATE OF HAWAII, in his official
capacity,

Defendants.

 

 

DECLARATION OF JEFFERSON S. ROLDAN, JR.
I, JEFFERSON S. ROLDAN, JR., declare as follows:
1. I have been a resident of the City and County of Honolulu,
State of Hawaii for thirty?four (34) years.
2. My father, JEFFERSON A. ROLDAN, SR. (?Father?) was also

a resident of the City and County of Honolulu, State of Hawaii.

3. Both my father and I resided in the same household together
since 2014.

4. Jefferson A. Roldan, Sr. passed away June 9, 2018.

5. During the month of July 2018, my father and I received our

absentee ballots in the mail.
6. Sometime after I received our absentee ballots, I asked Romy

Cachola (?Cachola?) if it was okay to vote my father?s absentee ballot in support

of him, as my father was a lifetime supporter of Cachola. Cachola advised me
not to do so.
7. Accordingly, I did not vote my father?s absentee ballot.
I declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge and belief.

DATED: Honolulu, Hawai?i, August 28, 2018.

 

 

s. JR.

SCEC NO. 18-0000654
IN THE SUPREME COURT OF THE STATE OF HAWAI`I
JANE AND JOHN DOE VOTERS 1-47,

CERTIFICATE OF SERVICE

Plaintiffs,
vs.
ROMY CACHOLA, as an individual;
SCOTT T. NAGO, as CHIEF
ELECTION OFFICER FOR THE
STATE OF HAWAI`I, in his official
capacity,
Defendants.

CERTIFICATE OF SERVICE
I hereby certify that on the date of filing I caused a true and correct copy
of the foregoing document to be served on the following parties at their last
known addresses as indicated below to their respective addresses:

AARON K. WILLS, ESQ.
2909 Waialae Avenue, #MB27
Honolulu, Hawai`i 96826
Attorney for Plaintiffs
DOE VOTERS

JEFS

U.S. Mail





 RUSSELL A. SUZUKI, Attorney General
PATRICIA OHARA, Deputy Attorney General
425 Queen Street
Honolulu, Hawai`i 96813
Attorney for Defendant
CHIEF ELECTION OFFICER SCOTT T. NAGO

JEFS

U.S. Mail





DATED: Honolulu, Hawai`i, August 29, 2018.
/s/ Michael Jay Green
MICHAEL JAY GREEN
Attorney for Defendant
ROMY CACHOLA

2