Dicks v. Schatz

1

KARL ORLANDO DICKS, Plaintiff, v. BRIAN SCHATZ, ET AL., Defendants.

Civ. No. 23-00012 JMS-WRP

United States District Court, D. Hawaii

May 2, 2023

ORDER GRANTING MOTIONS TO DISMISS WITHOUT LEAVE TO AMEND

J Michael Seabright United States District Judge

I. INTRODUCTION

Most of the Defendants (the “moving Defendants”) in this action brought by pro se Plaintiff Karl Orlando Dicks (“Plaintiff”) have filed Motions to Dismiss Plaintiff's Complaint filed on January 10, 2023. See ECF Nos. 24, 27, 29, 32, 33, 37, 40 and 45 (substantive joinder).^[1] Based on the following, the moving Defendants' Motions to Dismiss are GRANTED. Further, although the other Defendants-who are similarly-situated to the moving Defendants-have not entered appearances (and have thus not filed dismissal motions of their own), the court sua sponte dismisses them for the same reasons discussed in this Order.^[2] See, e.g., Silverton v. Dep't of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (“A [d]istrict [c]ourt may properly on its own motion dismiss an action as to defendants who have not moved to dismiss where such defendants are in a position similar to that of moving defendants ....”). And, because further amendment would be futile, the Complaint is dismissed without leave to amend.

II. BACKGROUND

A. Factual Background

Plaintiff's Complaint alleges that he was a non-partisan candidate for Mayor of Honolulu in Hawaii's 2020 primary election, and a Republican candidate for Hawaii Senate District 17 in Hawaii's 2022 primary election. See ECF No. 1 at PageID.5. He claims that in both instances he “did properly ‘pull nomination papers'” prior to campaigning for those offices. Id. He brought this suit against numerous candidates for federal, State, and local offices in the 2020 and 2022 Hawaii elections. In particular, he has sued Brian Schatz, Calvin Say, Choon James, Colleen Hanabusa, Donovan Dela Cruz, Josh Green, Kai Kahele, Keith Amemiya, Kymberly Pine, Kurt Fevella, Rick Blangiardi, Scott Saiki, Stanley Chang, Steve Alm, Sylvia Luke, Vicky Cayetano, and Will Espero (collectively, “Defendants”). See id. at PageID.2.

Plaintiff's Complaint rests on the allegation that “some or all of the Defendant individuals . . . did engage in, and did campaign for . . . or participate in political actions and activities, in pursuit of a political office while not being registered.” Id. at PageID.8. He claims that “some or all Defendant individuals intentionally did not register and did thereby result in avoidance of filing certain reports, and certain deadlines for State of Hawaii Campaign Spending Commission, which did also circumvent the rules, guides of other agencies and that Defendant individuals were held less accountable and was a misrepresentation of their status.” Id.

Plaintiff alleges that campaigning by Defendants prior to “being registered” constitutes misrepresentation in violation of: (1) 52 U.S.C. § 30124 (prohibiting “fraudulent misrepresentation of campaign authority”); (2) 18 U.S.C. § 1515(a)(3) (defining “misleading conduct” for purposes of 18 U.S.C. § 1512 regarding illegal witness tampering); (3) 18 U.S.C. § 241 (criminalizing certain conspiracies against rights); and (4) Hawaii Revised Statutes (“HRS”) § 19-3 (defining “election frauds”). ECF No. 1 at PageID.8, 15-19, 20.

As a remedy, Plaintiff requests “declartory [sic] judgments,” apparently asking the court to answer these six questions:

1. Can an Individual that has pulled the papers, but who has not been nominated by collecting and filing the required number of signatures, be considered a Legal Candidate?

2. Can an Individual be a “Legal Candidate[”] if you have not completed the steps that are required to have your name appear on the ballot?

3. If an Individual has not completed the process to have your name appear on the ballot is it a misrepresentation to call yourself a legal Candidate?

4. If an Individual knowingly represents himself as a Legal Candidate and has not registered would that representation be fraudulent or misleading?

5. If an Individual was campaigning, collecting money and never registered for an office and name did not appear on the ballot as a legal Candidate [would the individual] be guilty of fraud?

6. If an Individual exceeded the limits of contributions from a single source and Individual is not registered, could they be held accountable?

Id. at PageID.19-20. In addition to declaratory relief, Plaintiff asks the court to find Defendants guilty of violating 52 U.S.C. § 30124, 52 [sic 18] U.S.C. § 241, 18 U.S.C. § 1515(a)(3), and HRS § 19-3(12). ECF No. 1 at PageID.20. He “suggest[s] [a] minimum of 10 years prohibition from political activity.” Id.

The Complaint also explains that Plaintiff previously filed an election challenge to certain nominations in 2020, but it was eventually dismissed in State Circuit Court. Id. at PageID.11-13. Plaintiff claims that the “dismissal was granted without standing or merit and is invalid.” Id. at PageID.13. The Complaint similarly explains that he also filed objections to nominations in 2022, but actions arising out of those objections were dismissed by the State Circuit Court, allegedly because “the First Circuit Court [of] Hawaii [had] no Jurisdiction on this matter.” Id. at PageID.13-15.

B. Procedural Background

Plaintiff filed his Complaint in this action on January 10, 2023. ECF No. 1. Defendant Say filed a Motion to Dismiss on January 30, 2023, ECF No. 24, followed by Motions to Dismiss by Green and Schatz on February 1, 2023, ECF Nos. 27, 29. Defendant Espero filed his Motion to Dismiss on February 7, 2023, ECF No. 32. Defendant James filed hers on February 8, 2023, ECF No. 33. On February 10, 2023, Defendants Luke, Saiki, Dela Cruz, and Hanabusa filed their Motion to Dismiss, ECF No. 37. On February 21, 2023, Defendant Cayetano filed her Motion to Dismiss, ECF No. 40. And on February 24, 2023, Defendant Blangiardi filed his substantive joinder in the Motions filed by Defendants Green, Schatz, Luke, Saiki, Dela Cruz, Hanabusa, and Say, ECF No. 45.

As noted earlier, appearances have not been filed by Defendants Kahele, Amemiya, Pine, Fevella, Chang, or Alm. Under the Complaint, however, they are all similarly-situated as the Moving Defendants in that they were all candidates for federal, State, or local offices in 2020 or 2022 elections in Hawaii.

On March 27, 2023, Plaintiff filed a Response to the Motions to Dismiss, ECF No. 49, and Replies were filed on April 10, 2023, ECF Nos. 51, 52, 53, 54, 55. The court decides the Motions to Dismiss without a hearing under Local Rule 7.1(c). See ECF No. 50.

III. STANDARDS OF REVIEW

The Motions to Dismiss argue both that the court lacks subject-matter jurisdiction and that the Complaint fails to state a claim.

Federal Rule of Civil Procedure 12(b)(1) permits a motion to dismiss for lack of subject matter jurisdiction. A challenge to the court's jurisdiction under Rule 12(b)(1) can be either “facial” or “factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A “facial” attack accepts the truth of the plaintiff's allegations but asserts that they “are insufficient on their face to invoke federal jurisdiction.” Id. The court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the nonmovant's well pleaded factual allegations as true and drawing all reasonable inferences in the nonmovant's favor, the court determines whether the allegations are sufficient to invoke the court's jurisdiction. See, e.g., Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013).

“If, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). However, courts may “consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

IV. DISCUSSION

A. Plaintiff Lacks Article III Standing to Challenge Defendants' Alleged “Campaigning” Before Being “Registered” as Candidates

Under Article III of the U.S. Constitution, federal court jurisdiction is limited to “cases” and “controversies.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992). And “[s]tanding to sue is a doctrine rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). The Supreme Court “ha[s] long understood that constitutional phrase to require that a case embody a genuine, live dispute between adverse parties, thereby preventing the federal courts from issuing advisory opinions.” Carney v. Adams, 141 S.Ct. 493, 498 (2020) (citations omitted). To establish standing, a plaintiff has the burden of clearly demonstrating that he or she has: (1) suffered an injury in fact; (2) that is fairly traceable to the challenged conduct of the defendant; and (3) that is likely to be redressed by a favorable judicial decision. Id. (citations omitted). To establish an injury in fact, a plaintiff must have suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560. A “particularized” injury means “the injury must affect the plaintiff in a personal and individual way.” Raines v. Byrd, 521 U.S. 811, 819 (1997) (quoting Lujan, 504 U.S. at 560 n.1).

And federal courts have consistently held that a plaintiff raising only a generally available grievance about government- claiming only harm to his and every citizen's interest in proper application of

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