Update 7/15/2009: The Supreme Court will hear oral arguments on Thursday, August 20, 2009, from 9:00-10:00. Here's the notice.
The Hawaii Supreme Court has agreed to hear the appeal regarding whether the State Board of Registration (County of Maui) correctly concluded that a Maui County councilperson who registered to vote as a Lanai resident is actually a resident of Maui. Under Haw. Rev. Stat. § 602-58 (1993), an appeal may be transferred from the ICA to the Supreme Court if the issue is one of "fundamental public importance" or if it is an issue of first impression or a novel legal question.
The Court's order transferring the appeal from the Intermediate Court of Appeals is posted here. [Disclosure: my Damon Key colleagues and I represent the Lanai voter who successfully challenged the residency of the councilperson.] On June 10, 2009, we filed this application to transfer the case from the ICA to the Supreme Court, and for expedited consideration pursuant to Haw. Rev. Stat. § 11-52 (1993).
The Court will be considering two issues:
- Physical presence. When a voter registers in a district, he attests that the district is the location of his "fixed habitation" and the place he "intends to return." In order to gain a "new residence" in another district, the voter must have both a "physical presence" there and an intent to make the new location his residence. The first question is whether the Board was clearly erroneous when it found that the councilperson registered as a resident of Lahaina, Maui in 2006, and lives and works there, and that he lacks a physical presence on Lanai.
- Standing. Hawaii's Election law, Hawaii Revised Statutes chapter 11 allows "any registered voter" to challenge another’s registration with the County Clerk "for any cause," and "the person ruled against" by the Clerk may appeal to the Board of Registration. The Board ruled only that the councilperson is not a resident of Lanai for registration purposes. The second question is whether in these circumstances, the voter who challenged the councilperson's residency had standing and whether the Board exceeded its jurisdiction in ruling on that issue.
Here are the briefs in the appeal:
In a separate but related case in which we represent a group of Lanai residents and voters, we have filed an appeal with the ICA of the Maui Circuit Court's dismissal of their complaint seeking enforcement of section 3-3 of the Maui Charter. The seats on the Council are apportioned by "residency area" districts, and the Charter requires continuous residency by council members in their respective residency areas, with immediate forfeiture the consequence of ceasing to reside there:
If a council member . . . ceases to be a resident of the council member’s residency area during the council member’s term of office, or if a council member is adjudicated guilty of a felony, the council member shall immediately forfeit office and the seat shall thereupon become vacant.
Maui Charter § 3-3 (2003). The Lanai residents instituted an original jurisdiction complaint in Circuit Court seeking a declaratory judgment that because the councilperson is not a resident, he has forfeited office which is vacant. The Circuit Court ruled the Charter provision means that a council member who ceases to be a resident of his or her residency area or is adjudicated guilty of a felony has a duty to immediately resign, and if he or she fails to do so, may be impeached or recalled, but that declaratory judgment is not available. We've asked the ICA to expedite consideration of the appeal. More details here (motion to expedite).
