HAWSCT: "Residency" Requires Physical Presence Plus Intent

In an opinion issued today, the Hawaii Supreme Court held that in order to register to vote as a resident of a district, a person must have a fixed habitation in the district in which he is attempting to register, as well as a "physical presence" there. Dupree v. Hiraga, No. 29646 (Oct. 20, 2009). Intent to return is not enough.

The case concerned 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. The unanimous court, in an opinion by Justice Mark Recktenwald, affirmed.

[Disclosure: my Damon Key colleagues and I represent the Lanai voter who prevailed in the appeal.] 

The court held:

The Board concluded in COL No. 14 that Dupree established that Kaho'ohalahala did not abandon his residence in Lahaina and relocate his permanent residence to Lana'i. The Board did not clearly err in reaching that conclusion. The Board found, and there is substantial evidence in the record to establish, that Kaho'ohalahala did not own or work for a business on Lana'i, and did not own or rent a house or keep a car on the island. Hiraga and Kaho'ohalahala argue that those findings are immaterial or not dispositive. While they are certainly not dispositive, they are relevant because they support an inference that Kaho'ohalahala had not established the necessary physical presence on Lana'i.

The Board further found that Dupree had not seen Kaho'ohalahala at "the post office, either bank, the Lana'i store, the gas station or any restaurant on Lana'i." There was substantial evidence to support that conclusion as well. Once again, while none of those observations are dispositive, they are relevant. The record establishes that Lana'i is a small, close knit community where residents would likely see each other at such locations. Thus, the observations support the inference that Kaho'ohalahala had not established a sufficient physical presence on Lana'i.

Slip op. at 51-52 (footnotes omitted). More about the case, including the briefs of the parties here. The oral argument recording is available here.