High court ruling on residency requested

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Attorneys for a Lanai man challenging County Council Member Sol Kaho'ohalahala's claim of Lanai residency are applying for the case to be transferred directly to the Hawaii Supreme Court.

Kaho'ohalahala's appeal of a ruling that he is actually a resident of Lahaina - not Lanai, from which he holds the residency seat on the council - is pending before the Intermediate Court of Appeals. But attorneys for his challenger, Michael "Phoenix" Dupree, said the importance of the case justifies a move to the Supreme Court, and asked for the case to be expedited.

"Whether an individual who is registered as a resident of one district may register in another district and vote in an election merely by declaring that he has an intent to make the new district his residence is an issue of fundamental importance," Dupree's attorneys wrote in court documents.

Kaho'ohalahala will oppose the application to transfer the case, said his attorney, Ben Lowenthal.

"Mr. Kaho'ohalahala should be entitled, like any other citizen, to take his case through the entire appellate process, which begins with the Intermediate Court of Appeals," Lowenthal said. "The Legislature gives Mr. Kaho'ohalahala the right to have the Intermediate Court of Appeals hear this case. A transfer shortens the appellate process and deprives him of that right."

Kaho'ohalahala was born and lived for much of his life on Lanai, but in recent years he has lived with his wife in Lahaina while working on Maui.

Kaho'ohalahala was registered as a Lahaina resident since 2006, but registered to vote as a Lanai resident in July 2008, shortly before filing nomination papers to run for the council's Lanai seat.

A number of Lanai voters filed challenges questioning his residency after Kaho'ohalahala was the top vote-getter in September's first special election. But the Maui County clerk denied the challenges, saying Kaho'ohalahala met the legal definition of a resident because he had shown that he intends to move back to Lanai and make it his home.

Dupree appealed the decision to the state Board of Registration, which has the authority to hear challenges to an individual's voter registration, and the board ruled that Kaho'ohalahala did not qualify as a Lanai resident because he had not taken any concrete steps toward physically moving back to the island.

Kaho'ohalahala appealed the board's decision to the Intermediate Court of Appeals. The court has not yet set a date to hear oral arguments in the case.

In court documents filed last month, Kaho'ohalahala's attorney argued that the Board of Registration didn't have the authority to hear the case, and that its ruling was wrong. Lowenthal argued Dupree was actually making a challenge to Kaho'ohalahala's eligibility to hold office and seeking to overturn his election - something outside the board's jurisdiction.

He also said Dupree failed to prove Kaho'ohalahala's real residence was in Lahaina.

But Dupree's attorneys argued that the board's decision was correct because it took into account that Kaho'ohalahala needed to have a physical presence on Lanai, not just show an intent to return. They said Dupree's case was a legitimate challenge to Kaho'ohalahala's voter registration.

Dupree is represented by Honolulu attorneys Kenneth Kupchak, Robert Thomas and Christi-Anne Kudo Chock.

Maui County Clerk Roy Hiraga is also a party in the case, and county attorneys have presented arguments similar to Kaho'ohalahala's.

In addition to Dupree's challenge, Lanai residents have mounted a number of attempts to challenge Kaho'ohalahala.

In March, a Maui judge threw out an attempt by 19 Lanai residents to block Kaho'ohalahala from serving on the council. The judge said the proper way for citizens to seek the removal of a county elected official they believe should not be in office was through impeachment or recall.

And last year the Hawaii Supreme Court threw out a request by Kaho'ohalahala's defeated opponent, John Ornellas, that the election results be overturned. The court found that Ornellas was challenging Kaho'ohalahala's eligibility to run for office, which the law required him to do before the election.

* Ilima Loomis can be reached at iloomis@mauinews.com.