Real Estate & Property Law

Brief In Maui Councilmember Residency Appeal: What Is "Immediate Forfeiture And Vacancy?"

By Robert Thomas (inversecondemnation.com)

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 purports to occupy the Lanai residency seat on the Maui County Council, does not reside on Lanai as required by the Maui Charter.

Section 3-3 of the Charter provides that "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."

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 a Lanai resident, section 3-3 of the Charter merely imposes upon him a duty to resign, and if he fails to do so, that he is subject to impeachment for "nonfeasance" pursuant to section 13-13 of the Maui Charter "or other appropriate proceeding," but that the plaintiffs could not seek a declaratory judgment that Kahoohalahala had forfeited office 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.

Full post as published by inversecondemnation on September 30, 2009 (boomark / email).