Dejetley v. Kaho‘ohalahala

• Decision Date: 10 February 2010
• Docket Number: No. 29919.,29919.
• Citation: 226 P.3d 421,122 Hawai'i 251
• Parties: Alberta S. DEJETLEY; John R. Dela Cruz; Deborah Yooko Dela Cruz; Laurie Ann Delima; Roy Y.H. Delima; Michael “Phoenix” Dupree, Garek Paul Eligado; Sheila A. Eligado; Lawrence G. Endrina; Darlene Janice Endrina; Reynold Masaji Gima; Bruce Harvey; Jennifer Philomena Lichter; Ron Mccomber; Phyllis S. Mccomber; Sherri Mora; John W. Ornellas; Gail Riener French; Neal S. Tamashiro; Tom Urpanil, Jr.; and Beverly Zigmond, Plaintiffs-Appellantsv.Solomon P. KAHO‘OHALAHALA, Defendant-Appellee.
• Court: Hawaii Supreme Court

122 Hawai'i 251

226 P.3d 421

Alberta S. DEJETLEY; John R. Dela Cruz; Deborah Yooko Dela Cruz; Laurie Ann Delima; Roy Y.H. Delima; Michael “Phoenix” Dupree, Garek Paul Eligado; Sheila A. Eligado; Lawrence G. Endrina; Darlene Janice Endrina; Reynold Masaji Gima; Bruce Harvey; Jennifer Philomena Lichter; Ron Mccomber; Phyllis S. Mccomber; Sherri Mora; John W. Ornellas; Gail Riener French; Neal S. Tamashiro; Tom Urpanil, Jr.; and Beverly Zigmond, Plaintiffs-Appellantsv.Solomon P. KAHO‘OHALAHALA, Defendant-Appellee.

No. 29919.

Supreme Court of Hawai‘i.

Feb. 10, 2010.

COPYRIGHT MATERIAL OMITTED

Kenneth R. Kupchak, Robert H. Thomas & Elizabeth Burroughs, (Damon Key Leong Kupchak & Hastert), Honolulu, on the briefs, for plaintiffs-appellants.

Philip P. Lowenthal & Benjamin E. Lowenthal, Wailuku, on the briefs, for defendant-appellee.

MOON, C.J., NAKAYAMA, ACOBA, DUFFY, and RECKTENWALD, JJ.

Opinion of the Court by ACOBA, J.

We hold that 1) the plain language and construction of § 3-3 of the Charter of the County of Maui (CCM) requires a mandatory and immediate forfeiture of office should a council member violate the § 3-3 residency requirement and that such forfeiture automatically results in an immediate vacancy of that office; 2) impeachment under § 13-13 of the CCM and recall under § 12-1, et seq. of the CCM are not remedies for a violation of § 3-3, as those provisions cannot effect the immediacy and vacancy requirements of § 3-3; 3) declaratory judgment may be a possible remedy for a violation of § 3-3, as well as quo warranto; 4) Plaintiffs-Appellants Alberta S. Dejetley; John R. Dela Cruz; Deborah Yooko Dela Cruz; Laurie Ann Delima; Roy Y.H. Delima; Michael “Phoenix” Dupree, Garek Paul Eligado; Sheila A. Eligado; Lawrence G. Endrina; Darlene Janice Endrina; Reynold Masaji Gima; Bruce Harvey; Jennifer Philomena Lichter; Ron McComber; Phyllis S. McComber; Sherri Mora; John W. Ornellas; Gail Riener French; Neal S. Tamashiro; Tom Urpanil, Jr.; and Beverly Zigmond [collectively, “Plaintiffs”] should be freely given leave to amend their complaint to specify quo warranto relief; and 5) it would be premature for this court to decide whether in this case quo warranto necessarily precludes an action for declaratory judgment, as an action for quo warranto is not before this court. Inasmuch as the circuit court of the second circuit (the court) ¹ held to the contrary as to the aforesaid matters (1), (2), (3) and (4), the court's March 19, 2009 Order Granting the Motion for Judgment on the Pleadings (March 19 Order) filed by Defendant-Appellant Solomon P. Kaho‘ohalahala (Kaho‘ohalahala) and the court's May 7, 2009 Order Denying Plaintiffs' Motion for Relief From Order or Judgment or, in the Alternative, for Leave to Amend (May 7 Order), are reversed, and the June 23, 2009 Judgment of the court (Judgment) is hereby vacated, and the case is remanded for further disposition consistent with this opinion.

I.

Plaintiffs are a coalition of Lana‘i residents and voters who sought a declaratory judgment that Kaho‘ohalahala, the Maui County Council representative for Lana‘i, was not a resident of Lana‘i, had therefore immediately forfeited his office, and that the Lana‘i council seat was vacant. On November 4, 2008, Kaho‘ohalahala was elected to the Lana‘i seat on the Maui County Council. On November 24, 2008, a complaint was filed against Kaho‘ohalahala and also against Roy Hiraga in his official capacity as the County Clerk of the County of Maui and Kevin Cronin in his official capacity as the Chief Election Officer of the State of Hawai‘i. On January 9, 2009, Kaho‘ohalahala moved to dismiss the original complaint on grounds that the court had no jurisdiction because the complaint constituted an unlawful appeal from administrative hearings held before the complaint was filed. On January 29, 2009, Plaintiffs filed their First Amended Complaint for declaratory judgment and injunction against Kaho‘ohalahala requesting that the court find Kaho‘ohalahala was not a resident of Lana‘i and that he must immediately forfeit his office. Defendants Hiraga and Cronin were removed from the lawsuit on March 4, 2009. The original complaint contained additional allegations that were not included in the First Amended Complaint to the effect that 1) Kaho‘ohalahala was not a registered voter and that 2) the filing of his nomination papers based upon such false basis constituted fraud on the County and other registered voters.²

On February 6, 2009, the court heard the motion to dismiss. On March 4, 2009, the court issued its order denying the motion to dismiss, concluding that many of the arguments in the motion were addressed to the original complaint and that Plaintiffs were no longer contesting Kaho‘ohalahala's eligibility to run for office or the election results. The parties disagreed as to whether the court rendered a decision as to its subject matter jurisdiction at that point.

However, the First Amended Complaint prayed for “a declaratory judgment that ... Mr. Kahoohalahala must immediately forfeit the office of Lana‘i council member” and an injunction to “[e]njoin Mr. Kahoohalahala from.. hold [ing] office as Lana‘i's representative on the Maui Council.” Subject matter jurisdiction was alleged “pursuant to [Hawai‘i Revised Statutes (HRS) ] §§ 603-2, 603-21.5, 603-21.7 and 632-1.” ³ On their faces the statutes afforded the court subject matter jurisdiction over the First Amended Complaint.

On February 17, 2009, Kaho‘ohalahala filed a motion for judgment on the pleadings on the grounds that 1) Plaintiffs could not use declarative and injunctive remedies to evade the express removal procedures provided by the CCM ⁴ and 2) judicial review of a council member's qualifications was an infringement upon the Maui County Council's legislative authority. The court issued its March 19 order granting Kaho‘ohalahala's motion for judgment on the pleadings, finding 1) that if Kaho‘ohalahala is not a resident of L ¯ana‘i, under § 3-3 ⁵ of the CCM he is under a duty to immediately forfeit his office, 2) that failure to forfeit would constitute nonfeasance, 3) that § 13-13 ⁶ (impeachment of an officer) and § 12-1 ⁷ (recall election procedures) of the CCM govern removal for nonfeasance, 4) that Plaintiffs did not constitute five percent (5%) of the voters of the last general election as required for impeachment under § 13-13 of the CCM, and 5) also that there was no verified petition for impeachment before the court, as required under § 13-13 of the CCM, and consequently, the matter must be dismissed. The court noted that the order “provides only that declaratory relief is not an appropriate means of removing an elected official from office” but that impeachment was not the only means of removal.

On March 30, 2009, Plaintiffs filed a motion for relief from the March 19 Order pursuant to Hawai‘i Rules of Civil Procedure (HRCP) Rule 60(b), or in the alternative for leave to amend their First Amended Complaint to “specifically mention quo warranto by name” pursuant to HRCP Rule 15(a). Kaho‘ohalahala opposed the motion on grounds that a second amendment would be unduly prejudicial. In its May 7, 2009 order, the court denied Plaintiffs' motion.

The court entered judgment in favor of Kaho‘ohalahala on June 23, 2009. Plaintiffs filed their Notice of Appeal on July 6, 2009, appealing the Judgment and the March 19 Order. Transfer to this court was granted on October 9, 2009.⁸

II.

Plaintiffs raise two questions on appeal. The first asks

whether under [HRS] § 632-1 (1993), a circuit court may declare a forfeiture has occurred and the council seat is vacant upon a determination a council member is not a resident of his residency area, or whether the Charter means only that a council member is subject to an impeachment proceeding for “nonfeasance” after a council member refuses to resign, or a recall election after he is in office for at least six months.

Plaintiffs' second question on appeal asks “whether [the court] abused its discretion when it did not ‘freely give’ leave to amend the form of the complaint to label the relief sought as a writ of quo warranto.”

III.

Plaintiffs request that the Judgment be vacated and this case be remanded to the court for further proceedings.

IV.

A.

As to Plaintiffs' first question on appeal, Plaintiffs initially maintain that the plain text of CCM § 3-3 “created its own self-executing remedy for council members ... who cease to be residents of their residency areas” and requires “immediate” forfeiture and vacancy. In support this proposition, Plaintiffs cite to cases from this and other jurisdictions, including In re Pioneer Mill Co., 53 Haw. 496, 505, 497 P.2d 549, 555 (1972) (holding that the land court's judgment was rendered void on the basis that the land court judge had automatically forfeited his office when he announced his candidacy for lieutenant governor); Pombo v. Fleming, 32 Haw. 818, 820, 1933 WL 2402 (Haw.Terr.1933) (county supervisor who took another position in effect “expressly resigned”); Hollinger v. Kumalae, 25 Haw. 669, 689, 1920 WL 828 (Haw.Terr.1920) (acceptance of office of supervisor automatically vacated the offices of state senator and state representative); Lipscomb v. Randall, 985 S.W.2d 601, 608 (Tex.Ct.App.1999) (holding that the Flower Mound Town Charter's forfeiture provision for conviction of a crime was self-enacting and automatic regarding a councilman's conviction for assault); In re Simmons, 65 Wash.2d 88, 395 P.2d 1013 (1964) (citing State ex rel. Carroll v. Simmons, 61 Wash.2d 146, 377 P.2d 421 (1962)) (stating that a judge's felony conviction carried with it automatic forfeiture of the judgeship and created an immediate vacancy; legal proceedings to remove the official were merely ancillary to and in aid of the forfeiture and not a condition precedent to the forfeiture).

Plaintiffs next contend that declaratory relief is available and that the circuit courts have jurisdiction to declare a...