Hawaii Elections 2012

Hawaii Elections 2012BY ROBERT THOMAS – Here’s the latest election law case from the Hawaii appellate courts. In Kawauchi v. David, No. CAAP-10-0000066 (Dec. 13, 2012), the Hawaii Intermediate Court of Appeals held that the time deadlines in Haw. Rev. Stat. § 12-8 are mandatory, and that a constitutional challege to the Hawaii County Charter was not timely decided. The ruling emphasizes that in election cases under Hawaii law, the often-short repose periods must be followed precisely, even by courts, and even if the delay is the result of an understandable error. Failure to adhere to these deadlines will deprive a trial court of jurisdiction.

The case involved a challenge to the charter’s requirement that a candidate for public office be a resident of the district in which she intends to run for at least 90 days before the primary election. Section 12-8 establishes the procedures for challenging nomination papers and contains a 30-day repose period, including challenges by a county clerk to a candidate’s qualifications. The statute also gives the circuit courts a limited number of days to hold a hearing and make a decision after service of the summons, in this case, nine days. The court held that these time limits are mandatory, and when the statute says “shall,” it means “must” —

That the purpose of HRS § 12-8 is to permit prompt or timely resolution of challenges to candidates’ nomination papers, is supported by the context in which primary elections occur: the short time frames involved in elections; the time needed for election officials to prepare the primary ballots; and the unfairness to a candidate associated with having his or her nomination challenged but not resolved for an extended period, including possibly through the primary election itself. A mandatory reading of the judgment-filing deadline in HRS § 12-8(h) appears most consistent with the legislative intent. In fact, it appears necessary in order to ensure timely resolution prior to the primary election.

Slip op. at 18 (footnote omitted). The court held that the “Circuit Court failed to enter judgment within nine days after the service of the Complaint,” and that it didn’t matter that the delay was the result of the summons being issued in an improper form. Slip op. at 20-21.

The opinion goes into detail about how to calculate the time deadlines in election challenges, and provides a good roadmap to future cases.

Kawauchi v. David, No. CAAP-10-0000066 (Haw. App. Dec. 13, 2012)

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.