Kaho‘ohalahala not a Lanai resident

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WAILUKU - The Hawaii Supreme Court affirmed Tuesday that County Council Member Sol Kaho'ohalahala is a resident of Lahaina - not Lanai, the island from which he holds the council's residency seat.

In a 5-0 decision, the court said that just intending to move back to Lanai was not enough to make him a resident again, as Kaho'ohalahala and Maui County Clerk Roy Hiraga had argued in their appeal of the case. Instead, the court said Kaho'ohalahala also had to show he had taken steps to abandon the home he had established in Lahaina and physically move back to Lanai - something he had not done.

It was not immediately clear how the decision would affect Kaho'ohalahala's standing on the council. The decision upheld an earlier ruling that dealt specifically with Kaho'ohalahala's ability to vote on Lanai, not to run for office or serve on the council. A separate appeal by Lanai residents seeking to block Kaho'ohalahala from serving on the council is now pending before the state high court.

Corporation Counsel Brian Moto said county attorneys were meeting with the county clerk's office to review the court's decision and discuss its meaning and the county's options.

Kaho'ohalahala's attorney, Ben Lowenthal, declined to comment on what the decision would mean for Kaho'ohalahala's future on the council.

"The court's decision touches upon our right to vote," he said in a prepared statement. "It has widespread consequences for Hawaii residents who have returned home and wish to re-enter the community by registering to vote. It seems that challenging anybody's - not just a politician's - right to vote is really quite simple."

Lanai resident Michael "Phoenix" Dupree, who filed the challenge to Kaho'ohalahala's residency that sparked the case, said he was pleased that the court had ruled in his favor, but he was skeptical that it would make a difference in who holds the Lanai residency seat on the County Council.

"To me as a layperson, it seems obvious - he's not a resident of this district," he said. "The way I read it, he should resign immediately, but I don't think that's going to happen, and I don't know who can compel that to happen."

Honolulu attorney Ken Kupchak, who represented Dupree, confirmed that the court's ruling wouldn't automatically trigger a change in Kaho'ohalahala's status on the County Council. But the decision will be "significant" in the separate appeal now pending before the court, he said.

The Kaho'ohalahala case will also have wider implications for future cases that involve questions of legal residency, including election campaigns, divorce proceedings and tax issues, he said.

"I think you could say it's something of a landmark decision in the sense that it lays out residency requirements," he said.

Those requirements include a "domicile test," in which people will need to show that they've taken steps to abandon their old residence and establish a physical presence in their new one, he said.

Kaho'ohalahala's fellow council members said they were surprised by the decision and were full of questions about what it would mean.

"We have to look at how this affects his ability to continue to serve," said Council Member Mike Molina. "Another issue is: What about his prior votes on the council? How does this affect that?"

Molina said the uncertainty came at a difficult time, with the Planning Committee that Kaho'ohalahala chairs preparing to start a lengthy and in-depth review of the county's Maui Island Plan.

There was also the question of how the council would reshuffle committee chairmanships and assignments, he added.

"We need to be on a high state of alert to address these issues if - and it is an 'if' - he needs to resign," Molina said.

Council Member Mike Victorino also expressed concern.

"I like Sol," he said. "We don't agree on everything, but I think he's a pretty good councilor, and I'm sorry to hear that this ruling has come down.

"I'll be curious to see what happens," he added.

Mayor Charmaine Tavares said she was in touch with corporation counsel about the matter.

Kaho'ohalahala was born and lived for much of his life on Lanai and has previously represented the island on the Maui County Council and in the state Legislature. But in recent years, he has lived with his wife in Lahaina while working on Maui. In 2006, he registered to vote in Lahaina.

In July 2008, he changed his voter registration back to Lanai, just a few days before filing as a candidate for the Lanai seat on the council. Challenges to his residency were not filed until Kaho'ohalahala had finished first in a preliminary election contest. He easily won the seat later in a final election against Lanai resident John Ornellas, just a few days after the state Board of Registration ruled that he was actually a resident of Lahaina for voting purposes.

Kaho'ohalahala had previously argued that he should qualify as a Lanai resident because he intended to move back to the island, and he stated that he had established his permanent residence at his brother's home in Lanai City. A statement by his brother confirmed that he had been "welcomed" to return to the home.

But the court found there was no evidence that Kaho'ohalahala "actually lived there or anywhere else on Lanai in any commonly understood meaning of the term."

"Neither affidavit states that Kaho'ohalahala actually lives at that address, or that he has stayed there for any particular number of nights, keeps personal items there, shares in paying the utility bills, or provides any other details consistent with actual residence at a particular location," the justices wrote.

To the contrary, the record indicated that Kaho'ohalahala continued to work on Maui and stay with his wife in Lahaina.

In registering to vote in Lahaina in 2006, Kaho'ohalahala gave up his Lanai residency, the court also found. That meant that when he wanted to register there two years later, he had to prove not only that he met basic residency requirements; he also had to show enough of a "physical presence" on Lanai to confirm that he had really abandoned the residence he had established on Maui, the justices said.

They found Dupree's statements that he had not seen Kaho'ohalahala at the post office, bank, store or any restaurant on Lanai to be relevant to the case.

"The record establishes that Lanai is a small, close-knit community where residents would likely see each other at such locations," the justices wrote. "Thus, the observations support the inference that Kaho'ohalahala had not established a sufficient physical presence on Lanai."

Dupree said he understood his case was about Kaho'ohalahala's voter registration - not his qualifications for office. But he said it was outrage over Kaho'ohalahala's council race that motivated him to file his complaint.

He said he knew three of the other people who ran for the council seat, and thought any one of them could have done a good job representing the island.

"That's what upset me - he took that right away from them," he said. "His only intent was to run for council from this district. It wasn't because he wanted to represent us. It was a job opening."

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