Real Estate & Property Law

Appellate Oral Argument: Is Intending To Live Somewhere Enough To Be "Residing" There?

By Robert Thomas (inversecondemnation.com)

The Supreme Court of Hawaii will hear oral arguments on Thursday, August 20, 2009, from 9:00-10:00 in Dupree v. Hiraga, No 29464, 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.
[Disclosure: my Damon Key colleagues and I represent the Lanai voter who successfully challenged the residency of the councilperson.] 

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:

• County Clerk's Opening Brief

• Councilperson's Opening Brief

• Lanai voter's Answering Brief

• Clerk's Reply brief

• Councilperson's Reply Brief

Here is the summary of the case from the court's web site:

Appellants Solomon P. Kaho`ohalahala and Roy T. Hiraga appeal the Findings of Fact, Conclusions of Law and Decision entered by the Board of Registration of the County of Maui (?Board?) on November 1, 2008. Hiraga, the Maui County Clerk, ruled in response to complaints by Appellee Michael P. Dupree and other voters that Kaho`ohalahala was properly registered to vote on Lana`i in 2008. Dupree appealed to the Board, which overruled Hiraga?s determination and concluded that Kaho`ohalahala was a resident of Lahaina for purposes of the 2008 election. The questions on appeal include whether: (1) the Board lacked jurisdiction because Dupree?s complaint was an untimely challenge to Kaho`ohalahala?s eligibility to be a candidate for the Lana`i seat on the Maui County Council, rather than his voter registration, (2) the Board exceeded its jurisdiction by addressing issues beyond Kaho`ohalahala?s voter registration, and (3) the Board erred in concluding that Kaho`ohalahala was not a Lana`i resident.

Full post as published by inversecondemnation on August 20, 2009 (boomark / email).