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My colleague Mark Murakami who blogs at hawaiioceanlaw.com will be covering today’s oral argument in the Hawaii Supreme Court case 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 tovote as a Lanai resident is actually a resident of Maui.

Follow along at twitter.com/Hawaiioceanlaw

Information about the case, including the briefs and the court’s summary of issues, is available in this post.

Disclosures: our firm represents the challenger (Dupree); I wrote the brief, and our partner Ken Kupchak is arguing today.Continue Reading Follow Hawaii Supreme Court Oral Argument Live By Twitter On Voter Registration Case

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 tovote as a Lanai resident is actually a resident of Maui.
[Disclosure: my Damon Key colleagues and I represent the Lanai voterwho 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 isthe location of his “fixed habitation” and the place he “intends toreturn.” In order to gain a “new residence” in another district, thevoter must have both a “physical presence” there and an intent to makethe new location his residence. The first question is whether the Boardwas clearly erroneous when it found that the councilperson registeredas a

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Continue Reading Appellate Oral Argument: Is Intending To Live Somewhere Enough To Be “Residing” There?

Homesweet.jpb Update 7/15/2009: The Supreme Court will hear oral arguments on Thursday, August 20, 2009, from 9:00-10:00. Here’s the notice.

The Hawaii Supreme Court has agreed to hear 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. Under Haw. Rev. Stat. § 602-58 (1993), an appeal may be transferred from the ICA to the Supreme Court if the issue is one of “fundamental public importance” or if it is an issue of first impression or a novel legal question.

The Court’s order transferring the appeal from the Intermediate Court of Appeals is posted here.  [Disclosure: my Damon Key colleagues and I represent the Lanai voter who successfully challenged the residency of the councilperson.]  On June 10, 2009, we filed this application to transfer the case …

Continue Reading HAWSCT To Review Residency Challenge: Is Intending To Live Somewhere Enough To Be “Residing” There?

I’ve received a few interesting comments and e-mails on an earlier post (“Why Hawaii Can’t Vote On Property Taxes”) about the Ohana Kauai property tax charter amendment and how it was declared unconstitutional by a 3-2 Hawaii Supreme Court.

Here’s one that I thought was worth moving from the below-the-fold comment section:

I know you’re addressing strict legal interpretations here at inversecondemnation.com, but I feel compelled to mention that giving the direct power to tax to the electorate does not necessarily mean that it will be exercised fairly and wisely. To deprive the electorate of ability to directly set tax policy through charter amendments does not deprive them of the ample power they have to effect tax policy through their choice of elected representatives and their ability to remove unresponsive representatives. It also permits elected representatives to make wise and balanced decisions fair to all taxpayers many of which have…

Continue Reading Further Thoughts On Property Taxes And Voting

In High court ruling on residency requested, the Maui News reports on Dupree v. Hiraga, No. 29464, the appeal of the decision by the State Board of Registration (County of Maui) which concluded that a Maui County councilperson who registered as a Lanai resident is actually a resident of Maui.

Attorneys for a Lanai man challenging County Council Member SolKaho’ohalahala’s claim of Lanai residency are applying for the case tobe transferred directly to the Hawaii Supreme Court.

Kaho’ohalahala’sappeal of a ruling that he is actually a resident of Lahaina – notLanai, from which he holds the residency seat on the council – ispending before the Intermediate Court of Appeals. But attorneys for hischallenger, Michael “Phoenix” Dupree, said the importance of the casejustifies a move to the Supreme Court, and asked for the case to beexpedited.

“Whether an individual who is registered as a residentof one district may register

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Continue Reading Report On Residency Challenge Appeal: Is Intending To Live Somewhere Enough To Be “Residing” There?

Faced with a budget shortfalls and declining revenue projections (and what level of government these days isn’t?), the Honolulu City Council voted today to raise property taxes and eliminate a property tax credit that would have softened the raise for some homeowners. See the reports here and here. It also voted to raise the bus fare from $2 to $2.50 for a single fare (with corresponding increases in monthly pass fares), up the vehicle weight tax 25% this year and an additional 25% next year (Hawaii taxes automobiles by weight, not by age as California does), and quadruple parking rates at the Honolulu Zoo.

There’s been a lot of rumbling lately from Hawaii taxpayers about decreasing government expenditures and controlling property tax rates, but a few years ago, after years of pleading with their elected representatives for relief, Kauai voters actually did something about it. They voted to amend…

Continue Reading Why Hawaii Can’t Vote On Property Taxes

Homesweet.jpb Yesterday, my Damon Key colleagues and I filed this brief on behalf of a Lanai voter, asking the Hawaii Intermediate Court of Appeals to affirm a decision by the State Board of Registration (County of Maui) which concluded that a Maui County councilperson who registered as a Lanai resident is actually a resident of Maui.

State law establishes the tests for determining residency for registration and other purposes, and includes “habitation,” “permanent dwelling place,” “physical presence,” and a “present intention to establish the person’s permanent dwelling place” in the district. See Haw. Rev. Stat. § 11-13 (1993). The councilperson registered as a resident of Lahaina, Maui, in 2006, but in 2008, the County Clerk determined the councilperson validly registered in the Lanai district. The Clerk determined only a registrant’s stated intent is relevant. 

The Board overruled the Clerk, holding that both physical presence and intent are necessary under the …

Continue Reading Election Law: Is Intending To Live Somewhere Enough To Be “Residing” There?

Slgn_frontpageThe ABA Section on State & Local Government has published my article “Because They Can: Judicially Excising the People from the Definition of “County” in the Hawaii Constitution” in the State & Local Government Law News (Spring 2008). 

The article is a summary and analysis of County of Kauai ex rel. Nakazawa v. Baptiste, 165 P.3d 916 (Haw.2007), the 3-2 decision in which the Hawaii Supreme Court creatively overcame justiciability problems to hold that the term “the counties” in the Hawaii Constitution’s provisions regarding property taxes means “county councils.”  In doing so, the court invalidated a voter-enacted Kauai charter amendment that would have rolled back property taxes to 1998 levels, and set a yearly cap on increases.  The dissenting justices accused the majority of “subverting the judicial process,” and would have dismissed the case for lack of standing. 

The article is posted on the ABA’s web …

Continue Reading New Article Published: “Because They Can: Judicially Excising the People from the Definition of ‘County’ in the Hawaii Constitution”

On April 9, 2008, the Hawaii Intermediate Court of Appeals will be hearing oral arguments in Unite Here! Local 5 v. City and County of Honolulu, No. 28603, the appeal involving the question of whether the City should have required the Kuilima Resort to prepare a supplemental Environmental Impact Statement.  Here are the main merits briefs of the parties:

The issue, as stated by the Appellants:

Does the Hawai’i Environmental Protection Act (HEPA) [Haw. Rev. Stat. § 343-1, et seq.] and the Environmental Council Rules (HEPA Rules) obligate a public agency to determine whether a project requires a Supplemental Environmental Impact Statement (Supplemental EIS or SEIS) where new circumstances and evidence bring to light likely increased environmental impacts not previously dealt with in the project’s twenty-two (22) year old EIS?

Opening Brief at 1. …

Continue Reading Merits Briefs in Upcoming ICA Appeal on Kuilima Resort Environmental Impact Statement