Ruling: Kaho‘ohalahala is a voter from Lahaina

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WAILUKU - Sol Kaho'ohalahala, a candidate seeking to return to the Maui County Council as the Lanai representative, has been declared a resident of Lahaina by the Maui Board of Registration.

Kaho'ohalahala's attorney, Lance Collins, said Sunday that his client remains an official candidate on Tuesday's second special election ballot, and the board's decision should not affect Kaho'ohalahala's race against Lanai resident John Ornellas.

The Board of Registration decision issued Sunday sustained an appeal by Lanai resident Michael "Phoenix" Dupree, who challenged County Clerk Roy Hiraga's Oct. 10 ruling in favor of Kaho'ohalahala's contentions that he was a Lanai resident and could run for the residency seat for County Council.

"For purposes of this 2008 election, Mr. Kaho'ohalahala is a resident of Lahaina, Maui, Hawaii," read the board's decision issued by e-mail late Sunday afternoon, just two days before Tuesday's balloting.

County spokeswoman Mahina Martin said county attorneys were reviewing the decision issued after 4 p.m. Sunday and were reserving comment until their review is completed. Hiraga could not be reached for comment.

Kaho'ohalahala said late Sunday that the board's ruling "is not just a ruling against my voter registration, it against the county clerk's decision, and it is a ruling against state law."

He said he will appeal the ruling today. The board's statement noted that he has 10 days to appeal to the Court of Intermediate Appeals.

Collins said it should not affect his candidacy.

"He's on the ballot. . . . Of course people can vote for him."

Dupree, reached by telephone on Lanai on Sunday night, said he was "delightfully surprised" by the ruling.

He also said it was nothing personal but that with Lanaians laboring under the highest cost of living in the state, they need direct representation.

"It's about home rule. I couldn't talk about that at Friday's hearing, but that's what it's about. We want to have a person from Lanai represent us. . . . He hasn't resided here for 10 years. It wasn't just 12 people (who submitted affidavits against Kaho'ohalahala's residency); there are hundreds of people (on Lanai) who are not happy about it."

In his ruling, Hiraga rejected challenges to Kaho'ohalahala's residency and said the former County Council member and state House representative was qualified to run to represent Lanai in part because he intends to return there to live in a family home.

Dupree disagreed with Hiraga's ruling.

On Friday, the three-member panel heard arguments from Collins and Dupree in a hearing that sometimes grew heated.

Kaho'ohalahala refused to answer questions at the hearing.

Dupree told the Board of Registration on Friday that he was angry that Lanai could be represented on the council by someone who didn't actually live on the island.

Collins questioned Dupree's credibility and said he was trying to "strip (Kaho'ohalahala) of his right to vote."

On Sunday, Collins criticized Dupree again.

"This is a well coordinated effort to scandalize Sol's name."

Collins acknowledged that people might mix up the Board of Registration's decision on his client's voting rights with whether he still was qualified to be a candidate for office from Lanai.

"This is not accidental that this is confusing," he said.

Collins was adamant that Kaho'ohalahala's candidacy was not an issue and noted that his client had already submitted a ballot through absentee voting.

Collins said his client wants to protect his name plus his right to vote.

According to the Board of Registration's decision, in the event of an appeal, Kaho'ohalahala shall be allowed to vote "provided that the ballot is placed in a sealed envelope to be later counted or rejected in accordance with the ruling on appeal."

Hiraga also has 10 days to appeal to the Intermediate Court of Appeals. He could not be reached for comment.

Board of Registration Chairman John Henry, and its two members, Gene Zarro and Mercedes Neri, wrote in their decision that Dupree had presented "sufficient credible evidence" to prove that Kaho'ohalahala was a resident of Lahaina with no intentions of abandoning his residence and relocating his permanent residence to Lanai.

Arguments Friday hinged on the legal definition of residency for the purposes of voting.

Under state law, a person can be a legal resident of a place even if he or she isn't physically present - for example, someone serving overseas in the military can still vote in his home state.

To meet the definition of a resident, a person must show that he or she has a fixed dwelling in the area, intends to return there and has taken action toward moving.

Collins said Kaho'ohalahala intended to return to his family home on Lanai. The actions he had taken toward doing so included registering to vote, filing papers to run for office, and visiting the island at least once since July, Collins said.

The law specifically says a person can't lose residency due to employment by the state, Collins said, noting that, as a lecturer at Maui Community College, Kaho'ohalahala is a state employee.

Dupree said Kaho'ohalahala had previously given up his Lanai residency when he registered to vote in Lahaina in 2006.

He challenged Collins' claim that Kaho'ohalahala met the test for residency, saying Kaho'ohalahala hadn't "packed his bags" or taken any physical steps to give up his residence on Maui.

"There can only be one residence," he said. "That residence is in Lahaina."

Lanai is a small community, and it's obvious Kaho'ohalahala isn't there, Dupree said.

"It's hard to be invisible," he said.

Kaho'ohalahala was born and lived for years on Lanai and still has family on the island, but he has acknowledged living with his wife in Lahaina for the past several years while he works on Maui.

Kaho'ohalahala registered to vote in Lahaina in 2006, then changed his registration to Lanai in July, shortly before he filed as a candidate.

After Kaho'ohalahala finished first in a five-way first special election race, advancing to Tuesday's ballot with runner-up Ornellas, a dozen Lanai residents filed challenges to his residency. Hiraga ruled against the challenges in October.

In his cross-examination, Collins turned the spotlight on Dupree, aggressively questioning his credibility. Collins noted Dupree had previously registered to vote under different names - "Phoenix Dupree" and "Michael Dupree."

"Your truthfulness is at issue," Collins said.

Dupree said he had legally changed his name to Phoenix in the 1980s and later went back to using his given name. But he acknowledged he wasn't sure if the name on his voter registration was consistent with his current legal name.

Collins questioned why, if Dupree believed Kaho'ohalahala had lied on his voter registration card, he hadn't pursued criminal charges against him.

"Is that because filing a false police report is a crime, but challenging Sol's right to vote isn't?" he said.

Collins also argued that Kaho'ohalahala's prior service on the council and state Legislature supported his claim of residency.

"It's common knowledge that every member of the Maui County Council has been a legal resident" of the district they represent, he said.

But Deputy Attorney General Russell Suzuki told the board only to note that no challenges had been made to Kaho'ohalahala's residency while he served.

While it might seem unusual that someone physically in one place can legally be a resident of another place, Collins said the law was very clear and had been tested thousands of times in wills, divorces and other civil cases.

"There's nothing exceptional about Mr. Kaho'ohalahala's legal residency on Lanai," he said.

Dupree "just doesn't like state law," he said.

But Dupree said the case should be simple: Kaho'ohalahala didn't live on Lanai and hadn't taken steps to move back there.

"If it looks like it, it sounds like it and it smells like it, then that's what it is," he said.

In its decision, the board cited state law that "the mere intention to acquire a new residence without physical presence at such place, does not establish residency."

In its findings of fact, the board said, "Mr. Kaho'ohalahala does not own or work for a business on Lanai, nor does he own or rent a house or keep a car on Lanai."

It found as a fact that Kaho`ohalahala had moved his residence to Lahaina in July 2006 and concluded he "did not abandon his residence in Lahaina."

* Claudine San Nicolas can be reached at claudine@maui news.com.

* Ilima Loomis can be reached at iloomis@maui news.com.