Update: the Hawaii Supreme Court’s unanimous opinion affirming that “immedeately forfeit” means the circuit court has the power to declare that a council seat is vacant, is here.
Yesterday, we filed the Opening Brief on behalf of Lanai residents and voters in their appeal from the Maui circuit court’s dismissal of their complaint that Council member Kahoohalahala, who purportsto occupy the Lanai residency seat on the Maui County Council, does not reside onLanai as required by the Maui Charter.
Section 3-3 of the Charterprovides that “If a council member…ceases to be a resident of thecouncil member’s residency area during the council member’s term ofoffice, or if a council member is adjudicated guilty of a felony, thecouncil member shall immediately forfeit office and the seat shallthereupon become vacant.”
The meaning of “immediately forfeit” and “shall thereupon become vacant” are plain: the circuit court may declare a council member who is adjudicated guilty of a felony or who ceases to be a resident of his residency area has automatically forfeited office and the seat is vacant without further action by the electorate. The circuit court, however, determined as a matter of law that if Kahoohalaha is not aLanai resident, section 3-3 of the Charter merely imposes upon him aduty to resign, and if he fails to do so, that he is subject toimpeachment for “nonfeasance” pursuant to section 13-13 of the MauiCharter “or other appropriate proceeding,” but that the plaintiffscould not seek a declaratory judgment that Kahoohalahala had forfeitedoffice and the Lanai seat was vacant.
More to follow as the appeal progresses. This case is currently in the Intermediate Court of Appeals, but we earlier petitioned the Supreme Court to transfer the case.
Note: on August 20, 2009, the Hawaii Supreme Court heard oral arguments in a separate but related case, Dupree v. Hiraga, No 29464, the council member’s appeal from a determination by the State Board of Registration hearing that he is a Lahaina resident and his attempt to register to vote as a Lanai resident was invalid.