Dupree v. Hiraga, 29464.

• Decision Date: 20 October 2009
• Docket Number: No. 29464.,29464.
• Citation: 219 P.3d 1084,121 Haw. 297
• Parties: Michael P. DUPREE, Petitioner/Appellant-Appellee, v. Roy T. HIRAGA, Clerk of the County of Maui, and Solomon P. Kaho`ohalahala, Respondents/Appellees-Appellants.
• Court: Hawaii Supreme Court

219 P.3d 1084

121 Haw. 297

Michael P. DUPREE, Petitioner/Appellant-Appellee, v. Roy T. HIRAGA, Clerk of the County of Maui, and Solomon P. Kaho`ohalahala, Respondents/Appellees-Appellants.

No. 29464.

Supreme Court of Hawai`i.

October 20, 2009.

Kenneth Kupchak, Robert Thomas and Christi-Anne Kudo Chock (of Damon Key Leong Kupchak Hastert), Honolulu, for petitioner/appellant-appellee.

Brian T. Moto, Corporation Counsel, and Jane Lovell, Deputy Corporation Counsel, County of Maui, for respondent/appellee-appellant Roy T. Hiraga.

Benjamin E. Lowenthal, Wailuku, for respondent/appellee-appellant Solomon Kaho ohalahala.

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

Opinion of the Court by RECKTENWALD, J.

Roy T. Hiraga and Solomon P. Kaho`ohalahala appeal from the November 1, 2008 decision of the Board of Registration for Maui County (Board) which determined that Kaho`ohalahala was not a resident of Lāna`i "[f]or purposes of [the November 2008] election[.]"

The case began in September 2008, when appellee Michael P. Dupree and eleven other registered voters from Lāna`i sent letters to Hiraga, the Clerk of the County of Maui, which alleged that Kaho`ohalahala was not a Lāna`i resident. Hiraga subsequently found, inter alia, that Kaho`ohalahala was a Lāna`i resident when he registered to vote there in July 2008. Dupree appealed that determination to the Board, which concluded that Kaho`ohalahala was in fact a resident of Lahaina rather than Lāna`i.

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 Lāna`i seat on the Maui County Council, rather than to 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 Lāna`i resident.

For the reasons set forth below, we conclude that the Board had jurisdiction to hear the appeal, the Board did not exceed its jurisdiction by addressing issues beyond Kaho`ohalahala's voter registration status, and the Board did not err in concluding that Kaho`ohalahala did not have the right to remain a registered voter of Lāna`i. Accordingly, we affirm the Board's November 1, 2008 decision.

I. BACKGROUND

A. Dupree and other Lāna`i residents submit complaints to Hiraga concerning Kaho`ohalahala's residency

Kaho`ohalahala was originally from the island of Lāna`i. He was registered to vote on Lāna`i from June of 1982 until July of 2006, when he registered to vote as a resident of Lahaina, Maui. In July of 2008, he registered to vote as a resident of Lāna`i City, with an address on Fraser Avenue, and also filed nomination papers to run for the Lāna`i seat on the Maui County Council.<sup>1</sup> Two of the qualifications for election to the Maui County Council are that the candidate must be a voter in Maui County and must be, at the time of filing nomination papers, a resident in the area from which the person seeks to be elected.<sup>2</sup> Kaho`ohalahala's nomination papers included a certification by Kaho`ohalahala that he met those qualifications.<sup>3</sup> Hiraga did not receive any challenges to Kaho`ohalahala's nomination papers prior to the September 20, 2008 primary.⁴ Kaho`ohalahala voted in the primary as a Lāna`i resident, and finished first among the five candidates who ran for the Lāna`i seat. He and the candidate receiving the second highest number of votes, John Ornellas, advanced to the November 4, 2008 general election.

On September 23, 2008, Hiraga received two letters from Lāna`i City residents. The letters were identical in form, and stated as follows:

It is my understanding that you are responsible for investigating complaints made regarding elections in Maui County, Hawaii. In the 2008 primary election for the Maui County Council[,] Sol P. Kaho`ohalahala represented himself as a resident of Lāna`i. Although his father resides here and he established a Post Office Box in order to receive mail, it is widely believed that he actually resides with his wife on Maui.

Would you please investigate his claim to residency here? Many residents of this island would like to know what the criteria [are] for establishing residency. I would like to know how to proceed to file a claim that Mr. Kaho`ohalahala falsified documents filed with his signature to run for the office of Maui County Council, Lana`i Seat.

One of the writers added a handwritten note at the bottom which stated, "In the nine yrs. I've lived here I have never seen Sol at the gas station, stores, Bank or Post Office! This is a small island; Where is he?"

On September 24, 2008, Hiraga wrote to Kaho`ohalahala as follows:

The Office of the County Clerk, County of Maui, has received two written challenges to your voter registration, pursuant to Section 11-25 [1993], Hawaii Revised Statutes.[⁵] The challenge alleges that you do not reside on the Island of Lanai.

You are hereby informed that our Office will conduct an investigation as soon as possible and will subsequently issue a ruling on the challenge. As part of our investigation, we request that you respond to the challenge allegation, i.e., that you do not reside at [] Fraser Avenue.[⁶] Please send your response to our Office no later than October 3, 2008.

....

Kaho`ohalahala responded on October 3, 2008. He submitted an affidavit dated October 2, 2008, in which he stated that "I am a resident of Lāna`i City," that "[m]y residence is fixed at [] Fraser Avenue, Lāna`i City and whenever I am absent from the island of Lāna`i, I intend to return[,]" and that at the time of "fixing my residence in Lāna`i City, it was with the intention of making it my permanent dwelling place." Kaho`ohalahala also stated that his family has continuously lived on Lāna`i throughout his life, that he had "filed an affidavit of voter registration with the belief and understanding that [he is] a legal resident of Lana`i because of [his] permanent residence at [] Fraser Avenue[,]" and that he had filed nomination papers and voted in the primary "with the belief and understanding" that he was a legal resident of Lāna`i.

Kaho`ohalahala also submitted an affidavit by his brother, Gaylien Kaho`ohalahala, in which Gaylien stated that Gaylien was a resident of Lāna`i City and "[i]n the beginning of July, 2008, [Kaho`ohalahala] telephoned me and discussed with the family his intention of returning to Lāna`i to live." Gaylien further stated that "[w]e welcomed [Kaho`ohalahala's] return home and he presently resides at [] Fraser Avenue and resided there since the beginning of July, 2008."

Kaho`ohalahala also submitted a response arguing that the letters were not challenges to his voter registration status under HRS § 11-25, but were challenges to his nomination papers under HRS § 12-8. Kaho`ohalahala noted that HRS § 12-8 required objections to have been made to his nomination papers, which included a sworn statement declaring his residency, no later than thirty days prior to the September 20, 2008 primary election, that no timely objections were made, and that his nomination papers were therefore presumptively valid. Kaho`ohalahala argued that the complaints were "underhanded attempt[s] to circumvent the legal requirements for proper objections to nomination papers and challenges to election results." Additionally, Kaho`ohalahala argued that the complaints constituted a challenge to an election pursuant to HRS § 11-172 (1993),⁷ and that the Office of the County Clerk of Maui did not have jurisdiction to hear such a challenge. He requested that Hiraga dismiss the September 23, 2008 complaint letters as untimely challenges to his nomination papers and for lack of jurisdiction to decide election contest complaints.

Meanwhile, between September 24, 2008 and October 3, 2008, Hiraga received ten additional letters from Lāna`i residents. Six letters were identical to the September 23, 2008 letters. The content of the other letters varied. One resident submitted a letter alleging that Kaho`ohalahala falsified his residence on his filing papers, that Kaho`ohalahala's siblings resided at [] Fraser Avenue in Lāna`i, and that Kaho`ohalahala actually resided in Lahaina, Maui. This resident requested that Hiraga disqualify "Kaho`ohalahala['s] results from the [September 20, 2008 primary][,]" "exclude him from the General Election[,]" and "restore Alberta de Jetley's eligibility in the General Election."

Alberta de Jetley, an unsuccessful candidate in the primary election, submitted a complaint letter alleging that Kaho`ohalahala's "statement to the Maui News about maintaining his residency on Lanai while working for the Kahoolawe Commission is false." De Jetley requested that Hiraga "investigate this matter so [that] we, the registered voters of Lanai, can move on and elect someone who is truly a resident of this island to represent us."

Dupree submitted a complaint letter alleging that although Kaho`ohalahala was from Lāna`i, he did not own a home, manage a business, work on, or farm on, Lāna`i, that he had not campaigned or held rallies there, and that he had not been seen by local residents on the island. Dupree stated that Kaho`ohalahala won the primary based on "off island voting patterns[,]" but that residents of Lāna`i preferred several other candidates for the Lāna`i seat, as they "are all local residents, and they are in touch with the pulse of Lanai[.]" Dupree requested "that off-islanders give [Lāna`i residents] the right and opportunity to govern [them]selves[.]" Dupree stated that although Kaho`ohalahala was a "fine candidate," he should "run in the district that he currently resides in and give a current Lanai resident the opportunity to represent their home island[.]"

Another resident submitted a letter "challenging [Kaho`ohalahala's] running for County Council on behalf of the island of Lanai, or being voted into that office in the...