Dejetley v. Kaho'ohalahala

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IN THE SUFREME CGURT OF THE STATE OF HAWAIY[
_-_@@e_“~
JOHN R. DELA CRUZF

ALBERTA S. DEJETLEY;
LAURIE ANN DELIMA;

DEBORAH YOOKG DELA CRUZ;
ROY Y.H. DELIMA; MICHAEL “PHOENIX” DUPREE,
SHEILA A. ELIGAEO; LAWRENCE G.

GAREK PAUL ELIGADO;

ENDRINA; DARLENE JANICE ENDRINA; REYNOLD
MASAJI GIMA; BRUCE HARVBY; JENNIFER PHILOMENR
LICHTER; RON McCOMBER; PHYLLIS S. MCCOMBER;

GAIL RIENER FRENCH;
and

5HERR: M0RA; J0HN W. 0RNELLAS;
NEAL S. TAMASH:R0; T0M URPAN1L, JR.;

BEvERLY z1GM0ND, plaintiffs-App@11@nts §§

§§

vs . §4`»?~`;’

o "L'ZCB'

S0L0M0N P. KAmF0HALAHALA, e xi en
Defendant-Appellee §§

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CK'J

NO. 29919

APPEAL FROM THE SECOND CIRCUIT COURT
{CIV. NO. O3~l-O67S(3))

FEERUARY 10, 2010

DUFFY, AND RECKTENWALD, JJ.

MOON, C.J., NAKAYAMA, ACOBA,

OPINION OF THE COURT BY ACOBA, J.

We hold that 1) the plain language and construction of

§ 3-3 of the Charter of the C0unty of Maui (CCM) requires a

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mandatory and immediate forfeiture of office should a council
member violate the § 3~3 residency requirement and that such
forfeiture aotomatioally results in an immediate vacancy ot that

CCM and recall under

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office; i) impeachment under § l3»l3 of th
§ l2»l, et seq. of the CCM are not remedies for a violation of
§ 3~3, as those provisions cannot effect the immediacy and
vacancy requirements of § 3~3; a} declaratory judgment may he a
possible remedy for a violation of § 3~3, as well as quo
warranto; 4) Plaintiffs~Appellants Alberta S. Dejetlet; John R.
Dela Cruz; Deborah Yooko Dela Cruz; Laurie Ann Delima; Roy Y.H.
Delima; Michael “Phoenix” Dupree, Garek Paul Eliqado; Sheila A.
Eliqado; Lawrence G. Endrina; Darlene Janice Endrina; Reynold
Masaji Gima; Bruce Harvey; Jennifer Philomena Lichter; Ron
McComher; Phyllis S. McComber; Sherri Mora; John W. Ornellas;
Gail Riener French; Neal S. Tamashiro; Tom Urpanii, Jr.; and
Beverly Ziqmond [collectively, “Plaintiffs”] should be freely
given leave to amend their complaint to specify quo warranto
relief; and 5) it would be premature for this court to decide
whether in this case quo warranto necessarily precludes an action
for declaratory judqment, as an action for quo warranto is not
before this court. lnasmuch as the circuit court of the second
circuit (the court)1 held to the contrary as to the aforesaid

matters (l), (2), {3) and (4), the court’s March l9, 2009 Order

' The Honorable Joseph E. Cardoza presided.

2

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Granting tne Motion for Judgment on the Pleadings (March ls
Order) filed ny Uefendant~Appellant Soiomon P. Kahdohalahala

~.

NuMuFohalahala) and the court's May ?, 2009 Order Denying

Plaintiffs' hotion for Relie: From Grder or Judgment or, in the
Alternative, for Leave to amend (May 7 Order), are reversed, and
the June 23, 2009 Judgment of the court (Judgment) is hereby
vacated, and the case is remanded for further disposition
consistent with this opinion.
l.

Plaintiffs are a coalition of Lanad_residents and
voters who sought a declaratory judgment that Kahdohalahala, the
Maui County Council representative for LanaH, was not a resident
of LanaU4 had therefore immediately forfeited his office, and
that the Lanaii council seat was vacant. On November 4, 2008,
Kahdohalahala was elected to the Lanad_seat on the Maui County
Council. On Novemher 24, 2008, a complaint was filed against
Kahdohalahala and also against Roy Hiraga in his official
capacity as the County Clerk of the County of Maui and Kevin
Cronin in his official capacity as the Chief Election Officer of
the State of HawaiYi. On January 9, 2009, Kahcfohalahala moved to
dismiss the original complaint on grounds that the court had no
jurisdiction because the complaint constituted an unlawful appeal
from administrative hearings held before the complaint was filed.
On January 29, 2009, Plaintiffs filed their First Amended

Complaint for declaratory judgment and injunction against

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KahoUNialahala requesting that the court find KahoYHralahala was

not a re

oident of LanaE.and that he must immediately forfeit his
officer Detendants Hiraga and Cronin were removed from the
lawsuit on March €, 2OG9. The original complaint contained
additional allegations that were not included in the First
amended Complaint to t e effect that 1) Kahdoualahala was not a
registered voter and that 2} the filing of his nomination papers
based upon such false basis constituted fraud on the County and
other registered voters.Z

On February 6, 2009, the court heard the motion to
dismiss. On March 4, 2009, the court issued its order denying
the motion to dismiss, concluding that many of the arguments in
the motion were addressed to the original complaint and that
Plaintiffs were no longer contesting Kahdohalahala's eligibility
to run for office or the election resu1ts. The parties disagreed
as to whether the court rendered a decision as to its subject
matter jurisdiction at that point.

However, the First Amended Complaint prayed for “a
declaratory judgment that . . . Mr. Kahoohalahala must
immediately forfeit the office of Lanai council member” and an

\\

{elnjoin Mr. Kahoohalahala from . . hold{ing}

2 On October ZO, 2009, this court issued its opinion affirming the
Novemher l, 2008 decision of the Board of Registration for Maui County (Board}
which determined that Kaho‘ohalahala was not a resident of Lana‘i for voter
registration "purposes of [the Novemher 2008} election[.]" Du_r_)ree v. Hiraga,
121 HawaiE.297, 299, 219 P.3d 1OS4, 1086 (2009).

4

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representative on the Maui Council.” Subject

n was alleged “pursuant to 1Hawaiii Revised

6"‘;3~:.>, e,a»~zi.a, @0::~¢»*:.? ana @3;>;~1."*` on

1

HRS § ff
each of he judicia
the conditions herein
of such cirouit, as,

ished in

and under

circuit court
circuit.”

HRS § 603-2l.f

The several circuit courts shall have jurisdiction,
except as otherwise expressly provided by statute, of:
) Actions for penalties and forfeitures incurred under
the laws of the State;
Civil actions and oroceedings, in addition to
those listed in sections 603-2l.6, 603-Zl.7, and
603-21.8; and
{4) Actions for impeachment of county officers who
are subject to impeachment.

l\)

§

d

(Emphases added.}
HRS § 603-2l.7 (l993) states in part:

The several circuit courts shall have jurisdiction,
without the intervention of a jury except as provided by
statute, as fol1ows:

{b) Of actions or proceedings in or in the nature of
habeas corpus, prohibition, mandamus, guo warranto, and all
other proceedings in or in the nature of applications for
writs directed to courts of inferior jurisdiction, to
corporations and individuals, as may be necessary to the
furtherance of justice and the regular execution of the law.

(Emphasis added.)
HRS § 632~l (l993) states in part:

ln cases of actual controversy, courts of record,
within the scope of their respective jurisdictions, shall
have power to make binding adjudications of right, whether
or not consequential relief is, or at the time could be,
claimed . . . .

Relief by declaratory iudgment may be granted in civil
cases where an actual controversy exists between contending
parties, . . . and the court is satisfied also that a
declaratory judgment will serve to terminate the uncertainty
or controversy giving rise to the proceeding. Where¢
however, a statute provides a special form of remedy for a
specific type of case, that statutory remedy shall be
followed; but the mere fact that an actual or threatened
controversy is susceptible of relief through a general
common law remedy, a remedy equitable in nature, or an

(c0nunued")

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their faces the statutes afforded the court suzject @atter

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jurisdiction over the §

On February lV, 2009, Kahdohalahaia filed a motion for
judgment on the pleadings on the grounds that -} Plaintiffs could
not use declarative and injunctive remedies to evade the express
removal procedures provided by the CCM“ and 2) judicial review of
a council member's qualifications was an infringement upon the
Maui County Council’s legislative authority. The court issued
its March l9 order granting Kahobhalahala's motion for judgment
on the pleadings, finding 13 that if Kahdohalahala is not a

resident of Lana‘i, under § 3~35 of the CCM he is under a duty to

3L~c0nnnued)
extraordinary legal remedy, whether such remedy is
recognized or regulated by statute or not, shall not debar a
part from the privilege of obtaining a declaratory judgment
in any case where the other essentials to such relief are

present.

(Emphases added.)

4 There is a disagreement by the parties as to whether
Kaho‘ohalahala timely argued that impeachment under § l3~l3 of the CCM was an
acceptable means of removal. Plaintiffs contend that Kaho‘ohalahala first
raised this argument in his reply memorandum and that the court improperly
considered this argument. Kaho‘ohalahala contends that the impeachment
provision was attached to his motion and this appears correct.

5 can § 3-3 <2003> states as r@ii@wS:

Section 3-3. Qualifications. To be eligible for election or
appointment to the ccuncil, a person must be a citizen of
the United States, a voter in the county, a resident of the
county for a period of ninety (90) days next preceding the
filing of nomination papers and at the time of filing of
nomination papers a resident in the area from which the
person seeks to be elected. If a council member ceases to
be a resident of the county, or ceases to be a resident of
the council member’s residency area during the council
member's term of office, or if a council member is
adjudicated guilty of a felony, the council member shall
(c0nnnued~)

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immediately forfeit nis office X) that failure to forfeit would
,4 r'
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constitute nonfeasance, 35 that 3 l3~l3 \impeachment of an

officer) and § 2~i? {recall election procedures} o' tne tci

» ,L-
3

govern removal for nonfeasance, § th~t Plaintiffs did not

constitute five percent {5%) of the voters of the last general

election as required for impeachment under § l3~l3 of the CCM,

and 5) also that there was no verified petition for impeachment
before the court, as required under § l3~l3 of the CCM, and

conseguently, the matter must be dismissed. The court noted that

5LHc0nnnued)
immediately forfeit office and the seat shall thereupon
hssQrs;iuaarit. €Amended l992>

(Emphases added.) available at http:/ www.oo.maui.hi.us/index.aspX?nid=l62
6 CCM § 13-13 states as follows:

Secti0n 13-l3. Impeachment of officers. Appointed or elected
officers may be impeached for malfeasance, misfeasance or
nonfeasance in office or violation of the provisions of
Artiole lO. Such impeachment proceedings shall be commenced
in the Circuit Court of the Second Circuit, State of
Hawai‘i. The charge or charges shall be set forth in
writing in a verified petition for impeachment signed by not
less than five percent (5%) of the voters registered in the
last general election. A charge or charges alleging
violation of Article 10 may be set forth in writing in a
verified petition for impeachment signed by a majority of
the members of the board of ethics. If the court sustains
the charge or charges, such officer shall be deemed removed
from office. The officer sought to be impeached and the
petitioners seeking the impeachment other than the board of
ethics shall bear their own attorney's fees and other costs
of such proceedings.

(Emphases added.)
7 The court specifically stated that impeachment governs nonfeasance
in its order and that impeachment was not the only remedy. The recall
t

provision is referred to in a footnote to he latter statement. CCM § l2-l
states as follows:

Section 12-1. Recall Procedure. Any elective officer or
member of a board or commission provided for in this charter
may be removed from office by the voters of the county. The
procedure to effect such removal shall be in accordance with
this Article.

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the order “provides only that declaratory relief is not an
appropriate means of removing an elected official from office

out that impeachment was not the only means of removal.

d a motion for relief

h

0n March 30, 2C®9, Plaintiffs fil¢
from the March l9 Order pursuant to HawaiYi Rules of Civil

r in the alternative for leave to

C‘

Procedure {HRCP> Rule 6G{h),
amend their First Amended Complaint to “specifically mention quo
warranto by name” pursuant to HRCP Rule l5(a). Kahdohalahala
opposed the motion on grounds that a second amendment would he
unduly prejudicial. fn its May 7, 2009 order, the court denied
?laintiffs' motion.

The court entered judgment in favor of Kahdohalahala
on June 23, 2009. Plaintiffs filed their Notice of Appeal on

July 6, 2009, appealing the Judgment and the March 19 Order.

Transfer to this court was granted on Octoher 9, 2OO9.B

8 This case is before us by virtue of our acceptance of a request
filed by Plaintiffs for transfer from the Intermediate Court of Appeals (ICA),
pursuant to Hawai‘i Rules of Appellate Procedure (HRAP) Rule 40.2 (2OG9) and
HRS § 602-58 {Supp. 2OG8). HRS § 602~58 entitled “Application for transfer to
the supreme court,” states in part as follows:

(a) The supreme oourt, in the manner and within the
time provided by the rules of oourt, shall grant an
application to transfer any case within the jurisdiction of
the {ICA] to the supreme court upon the grounds that the
case involves:

{l) A question of imperative or fundamental public
importance;

b) The supreme court, in a manner and within the time
provided by the rules of court, may grant an application to
transfer any case within the jurisdiction of the [ICA] to
the supreme court upon the grounds that the case involves:

(l) A question of first impression or a novel legal

guestion; or

(c0ndnuedr)

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lI.

Piaintiffs raise two questions on appeal. The first

asks

§ €32~l (l993}, a circuit court may

a iorieitur“ has occurred and the council seat is
vacar, upon a deter nation a council member is nrc a
resident of his r¢»idency area, or whether the Chaiter means
only that a council m abet is subject to an impeachment
proceeding for “nonfeauance” after a council member refuses
to resign, or a recall election after he is in office for at
ieast six months.

Plaintiffs’ second question on appeal asks “whether {the court§
abused its discretion when it did not ‘freely give’ leave to
amend the form of the complaint to label the relief sought as a
writ of quo warranto.”

llI.

Plaintiffs request that th~ Judgment he vacated and
this case he remanded to the court for further proceedings.

lV.
A.

As to Plaintiffs' first question on appeal, Plaintiffs
initially maintain that the plain text of CCM § 3-3 “created its
own self-executing remedy for council members . . . who cease to
he residents of their residency areas” and requires “immediate”

forfeiture and vacancy. In support this proposition, Plaintiffs

cite to cases from this and other jurisdictions, including ln re

Pioneer Mill Co., 53 Haw. 496, 5G5, 497 P.2d 549, 555 (l97Z)

E(. . .continued)

(2) issues upon which there is an inconsistency in
the decisions of the [lCA] or of the supreme
court.

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iholdinq that the land conrt’a judgment wee rendered void on the
hasia that the lend court judge had automatically forfeited hia
office when he announced his candidacy for lieutenant gcverncr};

r~». x

§gg§gLv; Fleminq, 3a Haw. 0l0, 320 {Haw. Terr. l933) (county
enperviaor who took another position in effect “exprea3ly
re;iqned”); Hollinoer v. Kumalae, 25 Haw. 669, 689 (Haw. Terr.
l920) (acceptance of office of supervisor automatically vacated
the offices of state senator and state repreSentative); LiQ3comh
v. Randall, 985 S.W.2d 60l, 608 {TeX. Ct. App. l999) (holdinq
that the Flower Mound Town Charter’e forfeiture provision for

conviction of a crime was aelf~enacting and automatic regarding a

councilman’S conviction for aS5ault); ln re Simmona, 395 P.2d

l0l3 (Waah. l964) (citing State ex rel. Carroll v. SimmonS, 377
P.2d 421 (WaSh. l962)) (atating that a judqe'S felony conviction
carried with it automatic forfeiture of the judgeship and created
an immediate vacancy; legal proceedings to remove the official
were merely ancillary to and in aid of the forfeiture and not a
condition precedent to the forfeiture).
Plaintiffa next contend that declaratory relief is

available and that the circuit courts have jurisdiction to
declare a forfeiture and vacancy pursuant to HRS §§ 603-

2l.5(a)(2)9 and 632-l." (Citinq Hawaii'e ThouSand FriendS v.

10

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City § County of Honolulu, 75 Haw. 237, 245, 358 P.Qd 72E, 731

/\

{l‘93) §holding that similar language in the coastal Zone
Management Act (CZMA), HR3 § 205A~6(e) {l985), “clearly allcwed”

lief under the CZMA or by

§§

a plaintiff to elect whether to seek r

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aratory judgment”}. They further assert that the

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ci"cuit courts must have jurisdiction because the Maui County

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Council lacks the power to enforce the continuous residency
reguirement, citing, in contrast, statutes from other
jurisdictions and offices where the legislative body was granted
authority to manage its own memhers' gualifications.

Plaintiffs additionally argue that the court
“effectively rewrote the [CCM] by ignoring the terms ‘shall,'
‘immediate,’ ‘forfeit,’ and ‘vacancy,’ transforming a mandatory,
self-eXecuting, and immediate forfeiture and vacancy in § 3~3
into a nonimmediate, discretionary process” by its March l9
0rder. (Citing Leslie v. Bd. of Aopeals, Countv of Hawaidq l09
Hawafi 384, 393, l26 P.3d l07l, l080 (2006) (noting that the use
of the term “shall” indicates mandatory language); In re Doe, l08
HawaiU,l44, l53, ll8 P.3d 54, 63 (2005) (“Because that statute
states that the court ‘may’ appoint a guardian, discretion
resided in the court as to whether to do so or not.”}; Coon v.
Citv & County of Honolulu, 98 Hawaid.233, 250, 47 P.3d 348, 365
(2002) (stating that the rules of statutory construction require
rejection of interpretation of a statute that renders any part of

the statutory language a nullity); Pioneer Mill, 53 Haw. at 500,

ll

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497 P.2d at 552 §holding that the failure to effectuate the plain

meaning of the forfeiture provision would “rewrite the
Constitution”}. Plaintiffs declare that the court effectively

nullified the mandatory “immediate forfeiture” and vacancy

requirements cf § 3~3 of the CCM when it concluded that iudici l

.,»

§§

remedies of declaratory judgment and quo warranted were not
available and in further concluding that discretionary remedies
of impeachment under § 13-l3 of the CCM or recall under § l2-l of
the CCM were available instead.

B.

Kahdohalahala responds to Plaintiffs’ first and third”
sub-arguments that § 3-3 of the CCM’s plain language imposes a
duty on the council member to forfeit his office, by contending
that in Pioneer Mill the statute was structured so that the
judge’s announcement of candidacy was also the act of forfeiture,
but that in CCM § 3~3 forfeiture is not automatic because the act
of forfeiture must be triggered upon the occurrence of certain
events, i.e., conviction of a felony or loss of residency.
Additionally, KahtFohalahala objects to Plaintiffs’ reliance on

foreign jurisdictions arguing, instead, that the cannons of

" Plaintiffs argue that although the “court only expressly

eliminated declaratory judgment, it also rejected quo warranto as reflected by
its refusal to allow amendment of the complaint to specify that the relief
sought is in the form of quo warranto.”

m Kaho‘ohalahala does not address Plaintiffs’ argument that § 3~3 of

the CCM requires immediate and mandatory forfeiture or that such forfeiture
automatically creates a vacancy.

l2

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w ztuto;y construction govern and that the lanonaoe in § 3~3 of
the CCM is clear and unambiquous. {Gi“ing Countv of HawaiH_v.

5 v

C&J Goupe Familv Lt.. P’ship, 119 Hawaii 352, 363, 138 F.3d 6l5,

§

6;6 (2003) {stating that, “where the language of the law in

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question is plain and unambiouous‘,;
the law according to its plain and obvious meaning” (guoting
Mikelson v. United Servs. Auto Ass’n, 108 Hawai‘i 353, 360, 120
P.3d 257, 259 (2005))); Maui Countv Council v. Thompson, 84
HawaiH_105, 106, 929 P.2d l355, 1356 (1996) {when the charter is

plain and unambiguous, the court’s “only duty is to give effect

to its plain and obvious meaning” (duotind State v. Baron, 80

Hawafi 107, 1l3, 905 P.2d 613, 619 (1995))}; State v. Faoaradan,
115 Hawafi 364, 369, 167 P.3d 739, 744 (App. 2007) (turning to
“structure” as well as plain language of statute in order to
interpret meaning).).

According to Kahdohalahala, the failure of a council
member to forfeit his or her office constitutes nonfeasance.
(Citing Black's Law DictionarV 729 (6th ed. 199l) (“As respects
to public officials, ‘nonfeasance' is substantial failure to
perform a required legal duty.”); Lee v. Corrededore, 83 HawaiH

l54, 174 n.l, 925 P.2d 324, 344 n.l (l996} (Levinson, J.,

dissenting) (“Nonfeasance implies the failure to act where a duty

to act existed.”); Baccus v. Ameripride Servs., Inc., 179 P.3d
309, 350 (1daho 2008) (“‘Nonfeasance' means the omission of an

act which a person ought to do.” (citation omitted)).

13

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Kanormalahala asserts that the appropriate remedies for

nonfeasance are found within CCM §§ l3~l3 (impeachment}, l2~l

(recall election), l2~i t seq (removal proceedings), and l2~

c"v

{an elected official can be recalled for any reason>. He argues
that “[tjhe remedy provided by the impeachment proceedings ~
removal from office based on non~residency ~ is identical to the
remedy sought by [Plaintiffs} in their amended complaint.”

As to Plaintiffs’ secondU sub~argument regarding the
availability of declaratory relief, Kahdohalahala maintains that
Plaintiffs may not be granted declaratory relief when “a statute
provides a special form of remedy for a specific type of case,”"
that removal of elected officials by the voters is a “special
form of remedy for a specific type of case,” and that under § 13-
13 of the CCM the voters are empowered “to bring impeachment
proceedings against elected officials who fail to perform their
duties.” Kahcfohalahala also notes that the CCM “provides voters
with recall and removal proceedings” as well, under § 12-1 et
seg., and that Ҥa]n elected official can be recalled for any

reason” under § 12-7. Again, Kahdohalahala asserts that recall

‘ ‘- ‘.' .~ ~ » »‘ r‘ '.
“ Kaho ohalahala does not directly counter Piaintifrs' second sub~

argument as to the court’s jurisdiction. Kaho‘ohalahala mentions subject
matter jurisdiction in his Statement of the Case in hat, during the
february 6, 2009 hearing on Kaho‘ohalahala’s Motion to Dismiss, the court did
not foreclose the possibility that a future subject matter jurisdiction
challenge could be made. Kahocohalahala subsequently filed his motion for
judgment on the pleadings asserting that declaratory judgment was not an
available remedy for Plaintiffs, but challenge to the court’s jurisdiction
does not seem to have been mentioned again.

“ See HRS § 632-1, quoted supra, at note 3.

l4

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and impeachment proceedings would seem to effect the same remedy,

i.e., removal of an elected official, but have different

""ocadural requirements." (Citing Baleirau v. hal

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Haw.

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3

§

420, €24 {Haw. Terr. 192,) (holding that declaratory relief

cannot replace already~existing procedures such as petitions for

1

o. 2d 13l5 {Ala. l996) (“Quo

<'.'

quo warranto); tx Parte James, ,64
warranto, not declaratory judgment is the exclusive remedy to
determine whether or not a party is usurping a public office.”)
(BracKets and citation omitted.); Nicolopu1os v. Citv of
Lawndale, 111 Cal. Rptr. 2d 420, 423 (Cal. Ct. App. 200l)
(holding that title to public office must be brought through quo
warranto proceedings and “cannot be tried by mandamus,
injunction, writ of certiorari or petition for declaratory
relief”) (citation omitted); Madden v. Houck, 403 N.E.2d 1133,
1136 (lnd. Ct. App. 1980) (“The proper remedy to determine the
question of whether a person elected to office possesses the
requisite qualifications for eligibility is by an information in
the nature of quo warranto[] . . . [b]ecause the issuance of
declaratory judgment would not completely resolve the
controversy.”) (citation omitted); Giannotta v. Milliken, 246

N.W.2d 357, 360 (Mich. Ct. App. 1976) (dismissing the declaratory

ge

“ Reoall proceedings detailed in sections 12~1 through l2~9 of the
CCM essentially provide that the question of whether an elected officer should
be removed be brought to the voters through a special election, requiring a
petition signed by at least 20% of the voters in the last election and
occurring no sooner than six months after the elected official took office.
impeachment proceedings are to be commenced in the Second Circuit Court with
charges set forth in a verified petition, signed by at least 5% of the voters
in the last election. There is no waiting period before impeachment
proceedings may be instituted.

15

*=Y=~For< P\_rx;x,xc_r.¢\'rroz~: ms wl'<:s"r’s zx.mviu‘l mzl>c)u'rs AN'I) P».c‘lp"xv;: xzrl~<)}z'r!¢:lz***

action heeause it “speaks to the procedure required of what we

"`0

perceive as a clear quo warrants olaim”); Coon¢r v. State, 3l6

”T)

l

S.W.2d 6§3, 651 {Mo. Ct. App. E99l) {stating that declaratory

judgment “is neither a general panacea for all legal ills nor a
substitute for existing remedies{,}” and concluding that

declaratory judgment “is not to he invoked where an adequate

§"l‘

remedy already exists”); Beasley v. Ci y of E. Cleveland, 486
N.E.2d 859, 863 (Ohio Ct. App. l934) (declaratory judgment cannot

he used to determine if a person should remain in public office);

state v. Franks, 50l P.2d 622, 624 (Wash. App. l972) (“The proper

and exclusive method of determining the right to public office is
through a quo warranto proceeding.” QCitation omitted.))).
C.
ln Plaintiffs’ reply to Kahdohalahala’s first and

third sub-argument response, Plaintiffs assert that § 3~3 of the
CCM does not impose a duty upon the council member to resign,
because the loss of office is an automatic and self-executing
provision requiring no action on Kahdohalahala’s part. (Citing
Black’s Law Dictionary 548 (5th ed. l979) (to “forfeit” means
“[tjo lose, or lose the right to, by some error, fault, offense
or crime”); Pioneer Mill, 53 Haw. at 498, 497 P.2d at 551
(holding that Land Court judge “had forfeited his judgeship” -

not that he had a duty to resign)). Plaintiffs restate their

l6

=~*+¢FQR l,>x_zlzl.ilc,xrxow IN wx<:s'xf-s HAWAJ‘! m~:Pr)R’rs ANI) ;PAC_!FI(": lrrz_x~c)rz'rr<_zn#=='-~

»-<

;osition that § 3~3 ot the CCM is automatic ant self~executing,

reciting support used in their opening brief.
ln reply to Kahothalahala’s second sub~argument

response, Plaintif"s assert that declaratory relief is available

!”

\\

because there is no other special remedy” provided by the
Charter or another statute that would bar Plaint`ffs from
obtaining declaratory relief under HRS § 632-l. (Citing HRS
§ 632~l (“the mere fact that an actual or threatened controversy
is susceptible of relief through a general common law remedy
shall not debar a party from the privilege of obtaining a
declaratory judgment”); Eunohu v. Sunn, 66 Haw. 485, 487, 666
P.2d ll33, ll35 (l983) (holding that declaratory judgment was not
available because a special remedy existed under HRS ch. 91 for
administrative appeals); Costa v. Sunn, 64 Haw. 389, 389, 642
F.2d 530, 531 (l983) (holding that administrative procedures act
expressly authorized declaratory relief}; Traveler’s Ins. Co. v.
Hawaii Roofing, lnc., 64 Haw. 3SO, 386, 641 P.2d l333, ll37
(l982) (holding that declaratory judgment was not available

because a special remedy existed through worker’s compensation

statutes)). Plaintiffs restate their support from Hawaii's

Thousand Friends, 75 Hawaid_at 245, 358 P.2d at 73l, which

stated that the CZMA section providing that “[n]othing in this
section shall restrict any right that any person may have to

assert any other claim or bring any other action” “clearly

l7

weston Pryxsx,zyc:,,r'rxow m \vrs“r~s rIA\>v/».l‘i xu:r»<);k'lis AND Plcrlr.~fr,cf 1'»>.1~:1><)111"1»:'11»\‘**

(")

ZMA.

{‘}

HRS § 632Ml without the need to proceed under” th~
According to Plaintiffs, quo warranto is not a “special

p‘\

remedy”“ to be used to the exclusion of declaratory relief.

{Citing HRS § 659~l0 5l993} (“Nothing in this chapter shall
preclude the obtaining of relief available by quo warranto by
other appropriate action”); Office of Hawaiian Affairs v.
Cayetano, 94 Hawaid_l, 8, 6 P.3d 799, 806 (2000) (holding that
quo warranto needed to create vacancy because U.S. Supreme Court
decision, unlike the Charter, did not automatically create one)).
They further state that Kahdohalahala’s reliance on cases from
other jurisdictions is misplaced because those jurisdictions do
not contain a non~eXclusivity provision similar to that in HRS §
659»l0. Plaintiffs additionally assert that because § 3~3 of the
CCM creates a vacancy in office upon forfeiture, a writ is not
necessary to do so. (Citing Office of Hawaiian Affairs, 94
Hawafi at 8, 6 P.3d at 806 (stating that when a court decision

or a statute does not automatically create a vacancy in office,

quo warranto is available to do so)).

“ Plaintiffs argue also that Kahcfohalahala did not properly raise

the claim that quo warranto was a “special remedy” in the proceedings below
and that, as such, this argument should be precluded. (Citing Hill v. lnou‘e,
90 HawaiU.76, S2, 976 P.2d 390, 396 (l998) (appellate courts “will not
consider an issue not raised below unless justice so requires” (quoting State
Farm Mut. Auto. Ins. Co. v. Dacanay, 87 HawaiH l36, l45 n.l4, 952 P.2d 893,
902 n.l4 (l998))). However, this claim is relevant to Plaintiffs’ motion to
amend to “specify” quo warranto in its First Amended Complaint that was filed
in the court.

l8

…Folz Pr_rznl.x_ct.zx'x‘lc)w IN wl»;s'r~‘s I~L¢\WA!‘! luzcx>c)n'rs mo la».c;‘i 1110 Rrr'<)rz'r‘ulz*»*~*

V.
H.

As to Plaintiffs’ senond question on appeal, Plaintiffs
first maintain that the remedy of a writ of quo warranto pursuant
to HRS §§ §59~l“ and 659-lO” is available, and that the court
has jurisdiction to issue a writ of quo warranto pursuant to HRS
§ 693-2l.7. (Citing Office of Hawaiian Affairs, 94 HawaFi at 8~
9, 6 P.3d at 806~O7 (stating that the writ is available to create
vacancy in office where statute does not do so automatically)}.

Plaintiffs next assert that the remedy of quo warranto
is substantively the same as a declaratory judqment. They argue
that declaratory relief is not limited in scope, similar to quo
warranto, and that the court would have to determine whether
Kahdohalahala was a resident of Lanau.under either action.
Additionally, Plaintiffs cite to a number of state and federal
cases to support their contention that the First Amended

Complaint need only give Kahdohalahala clear notice under HRCP

" sas § 659-1 3:ar@S:

Definition. This is an order issuing in the name of
the State by a circuit court and directed to a person who
claims or usuros an office of the State or of any
subdivision thereof, or of any corporation or quasi-
corporation, public or private, or any franchise, inquiring
by what authority the person claims the office or franchise.

(Emphases added.)
m HRS § 659-lO entitled “Other actions,” states that “{n]othinq in

this chapter shall preclude the obtaining of relief available by quo warranto
by other appropriate action.” (Bmphasis added.)

l9

…FL)R .Puxzl.l!cr.¢x"rlc)z-z vvl<;s'r~'s ‘H.»iw',xl"l m_+:l>ol<'r$ AN_!) x.>.dxcilvlr: Rzzr>ok"rl+;),z***

huie E, and that the substance of the claim, not form, matters.”
Also, Plaintiffs urge that they should have been

¢

dll'l

{”l'

(Citing Hirasa v.

}__,.

leave to amend their comp

Burtner, 68 Haw. Z2, 2 , 702 P.2d 772, .75 (l»35§ (stating that,

LD

“{ijn the absence of any arant or declared reason” “such as

l and} bad faith . . . on the part of the movant,

L

repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc. . . . the
leave should, as the rules require, be ‘freely given’” (quoting
Bishop Trust Co. v. Kamokila Dev. Corp., 57 Haw. 330, 337, 655
P.2d ll93, ll98 (l976) (other citation omitted)) (emphases
added))); HRCP Rule l5(a) (stating that “leave shall be freely
given when justice so requires”}.

Plaintiffs maintain that the court did not articulate a
reason for the denial to amend, which alone is an abuse of

discretion.” They further assert that in addition to the

” Plaintiffs’ Opening Brief cites to Henderson v. Professional
Coatinqs Cor ., 72 Haw. 387, 395, 819 P.2d 84, 92 (l99l} (“Pleadings should
not be construed technically when determining what the pleader is attempting
to set forth but should be construed liberally so as to do substantial
justice.”}; Perry v. Planninq Comm'n, 62 Haw. 666, 685, 619 P.2d 95, lO8
(l98G) (“Modern judicial pleading has been characterized as ‘simplified notice
pleading.' lts function is to give opposing parties ‘fair notice of what the
. . claim is and the grounds upon which it rests,'” (Quoting Conley v.
Gibson, 355 U.S. l, 47 {l957).§); Hall v. Kim, 53 Haw. 2l5, 224, 49l P.2d
54l, 547 (l97l} (“{Ely the adoption of [the HRCP,j we have rejected the
approach that pleading is a game of skill in which one misstep by counsel may
be decisive to the outcome and in turn accepted the principle that the purpose
of pleading is to facilitate a proper decision on the merits.” (lnternal
quotation marks and citation omitted.)}.

w The court declared that in its discretion and based upon its prior
order (presumably the March 19 Order Granting the Motion for Judgment on the

(c0nunued"J

20

**»‘~'1@'01§_Ptinl,lc,¢s;i‘lon’ 1';~: w'x+:s'r’s imvval‘l Ri~:r>r,)xzrs inn atomic max>orz'rm.xer*

y»a-

absence of declared reasons, :here was no apparent basis for
denying the motion to amend. Plaintiffe argue there was no undue
delay. ;ccording to Piaintiffs, there was also no improper
purpose and no pattern of “repeated failure to cure deficiencies
by amendments previously allowed” anywhere in the record. Next,
Plaintiffs contend that Kahdohalahala would not suffer prejudice
because the complaint would only be changed in form, not
suhstance, and the motion to amend was requested in the early
pleading stage. Lastly, Plaintiffs assert that the amendment
would not he futile.

B.

Kahdohalahala responds to Plaintiffs' second question

on appeal,“ asserting that the court’s reason in denying the

2°(. . .continued)
Pleadings), it deemed denying the motion to amend to be the appropriate
decision. The court stated:

The {c]ourt concludes that for purposes of the motion for
relief that the record supports denial of that motion. l'm
going to therefore deny that motion. And with respect to
the motion to amend, for leave to amend, after the [c]ourt's
earlier order, in the {c]ourt's view, given the [c}ourt's
previous ruling, given the current status of this case and
the history of these proceedings, the proper exercise at the
[c}ourt's discretion relative to the request for leave to
amend is to deny that motion as well.

” Kaho‘ohalahala also argues that Plaintiffs failed to properly

include any argument underlying their second point of error in their Opening
Brief and therefor pursuant to HRAP Rule 28(h)(7), which states that “[p]oints
not argued may be deemed waived,” the argument should he waived. This seems
incorrect as Plaintiffs did argue that the May 7 Order, denying their motion
to amend, was an abuse of discretion by the court because they should have
been “freely given” leave to amend their complaint, although not explicitl
headlined as their second point of error, lt may be noted that, in their
Opening Brief, Plaintiffs failed to support their argument that the court’s
failure to articulate a reason constituted an abuse of discretion. However,
Plaintiffs do cite to case law supporting that proposition in their Reply
Brief. (Citing Keawe v. Hawaiian Elec. Co., 65 Haw. 232, 239, 649 P.2d ll49,
ll54 (l982) (stating that failure to articulate any reason for the denial is
(c0nnnued~)

21

…rz'on_ Plinxv,r§c».'riv<)n WF:ST'S Hi~.wv:u‘_x R,P:Poxz'rs AN_¢) Pixcn;<~rc R_)_<;Pc)lafri;xz*»n=

motion to amend the complaint was hecause Kaho%nialahala would

1

su…fer undue prejudice if P‘aintiffs were allowed to amend their
complaint. {Citing Maveaux v. Lousiana Health Serv. & lndem.

r».

¢"O, y

six
l
s a
l\)
v

Co., 3V6 F.3d 6~27 (Tth Cir. 2OG4)” {stating that court's

reason for denial of leave to amend complaint

.
!,.,...\`
£.
ti
®
ct
O
if
er
" x
rt
§T)

faT
“is unfortunate but not fatal in affirmance” when the record
shows “ample and obvious grounds”) {citation and internal
quotation marks omitted)).

According to Kahdohalahala, allowing Plaintiffs to
amend their complaint from a declaratory action to one for quo
warranto would have been unfairly prejudicial because a new guo
warranto action would have changed the lawsuit against
Kahdohalahala from one against him in his personal capacity to
one against him in his official capacity. Kahdohalahala
maintains that, although Corporation Counsel had a duty to
repreent him, Corporation Counsel had refused to represent
Kahdohalahala. Kahdohalahala asserts that thus, if the
amendment were granted, he would have to resort to privately-

retained counsel, incurring personal costs and expenses. (Citing

”(ic0nnnued)
alone an abuse of discretion.)

m Kaho‘ohalahala cites to Federal Home Loan Mortgaoe Corp. v.
Transamerica lnsurance Co., 89 HawaiH l57, l62 n.l, 969 P.2d l275, l2BO n.l
(l99B), for the proposition that “Rule l5(a) of the Federal Rules of Civil
Procedure is functionally identical to Rule l5(a) HRCP” and that “{w]here a
Hawaid rule of civil procedure is identical to the federal rule, the
interpretation of this rule by the federal courts is highly persuasive.”
(Quoting Wong v. Takeuchi, 87 Hawai‘i 320, 329, 955 P.2d 593, 602 (l998).).

22

'…F<_nz Plcz,rzt'x<:.¢\.'rzon m vvms'r=s r-l.»xwi'_a.x"r RP;PQR'FS ,»».z\'l) PA<;?:;FIC lz_)'~_:l><)irz":i'v;xzn**

§ 8~?.?{2}M of the CCM.“) However, HaM§ohalahala does not
explain why Corporation Counsel refused the tender of his
defense. He refers to the record, but the record does not
explain Corporation Counsel’s refusal.
C.

ln Plsintiffs’ reply to Kahdohalahala's response to
the second question on appeal, Plaintiffs contend that the court
did not deny the motion to amend because of undue prejudice to
Kahdohalahala. Plaintiffs note that Kahdohalahala fails to
provide a cite to the record for where the court stated that
allowing the amended complaint would prejudice Kahdohalahala.
They maintain that nothing in the record indicates whether the

court agreed or did not agree with Kahdohalahala’s objection on

prejudicial grounds.

” CCM § 8-2.3(2) states in parts

Secti0n 8-2.3. Powers, Duties, and Functi0ns. The corporation
counsel shal`

2. Be the chief legal advisor and legal representative of the

County of Maui; of the council, the mayor, all departments,

and all boards and commissions; and of all officers and

employees in matters relating to their official duties.
” KahoT3halahala also cites to numerous cases in which the
government attorney defended a public official. See In re Apolication of
Ferguson, 74 Haw. 394, 846 P.2d 894 (l993) (Attorney General defended district
court judge); ln re Application of Thomas, 73 Haw. 223, 832 P.2d 253 (l992)
{corporation counsel defended deputies corporation counsel); Okuda v. Ching,
7l Haw. l40, 785 P.2d 943 (l990) (corporation counsel defended prosecuting
attorney); Crossley v. lng, 50 Haw. 470, 442 P.2d 459 (l968) (Attorney General
defended lieutenant governor and governor); ln re Sherretz, 40 Haw. 366 (Haw.
Terr. l953) (county attorney defended city personnel director); ln re Jones,
34 Haw. 12 (Haw. Terr. l936) (Attorney General defended commissioner of
Territorial Board of Archives).

23

~e*r“c)lz x->trnlilc;r,+.'rvow m wlz;s'r’s llmvv'.».x‘l _mu>oizirs ANI) PACH<'!(: 1;:.1+‘.1~()11'1'14:11***

Further, Plaintifrs reply that the basis of their
ccmplaint, i.e., tha: Kahoohalahala was not a resident of LanaE
and had therefore forfeited his council seat, is tie same whether
the relief requested is declaratory or is in the form of a writ
of quo warranto. Next, Plaintiffs contend that Kahdohalahala’s
assertion of prejudice because of “additional discovery, costs,
and eXpenses" is incorrect because the case has not progressed
beyond the pleading stages in the court yet and there is thus no
evidence that he would incur any “additional expense.” Finally,
Plaintiffs respond that it makes no difference that Corporation
Counsel refused the tender of defense for Kahotmalahala.
According to Plaintiffs, Kahdohalahala would have to retain
private counsel inasmuch as, “in a quo warranto case, the
plaintiffs would be seeking a writ on behalf of the people and in
the public interest.” (Citing HRS § 659-l”) (stating that quo
warranto “is an order issuing in the name of the State by a
circuit court”).

VI.

The first question raised on appeal implicates two
issues. The first issue is whether § 3~3 of the CCM is a
mandatory, immediate forfeiture provision that is triggered when
a council member fails to be a resident of his or her county, or

whether it, instead, works in tandem with other provisions of the

25

See su ra note 17.

24

…rvcnz Px,rxzx,rc,_»x'rlc)i\z m w'r:s'r’s x'~lA,xvArl REP<)RTS AN!) r~,»~.crlrlc' REP<)_u're;R*-‘~'=

CCM, specifically impeachment under § l3~l3 or recall under § l2»
3 to effect removal from office. The second issue is whether

declaratory action is an available method of relief under CCM

A.

This court's statutory construction is guided by
established rules:

First, the fundamental starting point for statutory

interpretation is the language of the statute itself.

Second, where the statutory language is plain and

unambiquous, our sole duty is to give effect to its plain

and obvious meaning. Third, implicit in the task of

statutory construction is our foremost obligation to

ascertain and give effect to the intention of the

legislature, which is to be obtained primarily from the

language contained in the statute itself. Fourth, when

there is doubt, doubleness of meaninq, or indistinctiveness

or uncertainty of an expression used in a statute, an

ambiguity exists.
Rees v. Carlisle, ll3 HawaiU.446, 452, 153 P.3d ll3l, ll37
(2007). “The interpretation of the charter is similar to the
interpretation of a statute.” Thompson, 84 Hawaid_at lG6, 929

.2d at l356.

Kahdohalahala and the court below maintained that CCM

§ 3-3% places a duty upon the council member to resign his

position and that failure to do so constitutes nonfeasance.

This proposition would seem to be supported by the words, “the

26

§e§ § 3-3 of the CCM quoted supra, at note 5, specifically the
last sentence of the provision at issue, which states that “[i]f a council
member ceases to be a resident of the county, or ceases to be a resident of
the council member’s residency area during the council member's term of
office, . . . the council member shall immediately forfeit office and the seat
shall thereupon become vacant.” (Emphases added.)

25

»=»"*_11‘01§ 1>11)1z1_.1cA'r1c)N in vvr:s'r*s Hl\\x/A_Vz im';x_>onfrs Am) PA€IFJ‘<: mc:>c)lzfrlz:rz***

f}

council member shall . . . {emphasis added), implying that a
duty is imposed on the council member.

However, the plain meaning of “forfeit” necessitates a
different interpretation of the provision. “Forfeiture” means

\’\ '1

loss of a right, privilege, or property because of

D»
G
ti
|L_z .
3
("L`»
~

breach of obligation, or neglect of duty.” Elack’s Lsw

Dictionar 722 (9th ed. 2GO9). The last sentence of § 3~3 of the

CCM states in part, “the council member shall immediately forfeit
office.” Thus, the correct construction of the provision would
be that “the council member shall immediately” lose his right or
privilege of “office.” Here, there cannot‘be a duty to lose
one’s office, instead the office is automatically lost.

In Pioneer Mill, this court held that a prior provision
in the Hawai‘i Constitution that “[a]ny justice or judge who
shall become a candidate for an elective office shall thereby
forfeit his office,”” meant that the land court judge forfeited
his judgeship upon announcement of his candidacy for political
office. 53 Haw. at 498, 497 P.2d at 55l. The forfeiture in that
case was triggered by the judge’s announcement of his

candidacy.”

gm

“ §§§ Haw. Const. art. V, § 3. Tnis provision was later eliminated
when article V was amended and redesignated as article VI. But, at the time
of the Pioneer Mill case, it was in effect.

w ln Pioneer Mill, only the rulings made by the judge after his
announcement were voided because it was determined that the judge forfeited
his office when he made the announcement. This was not an action to
specifically remove the judge, however. Kahdohalahala argues that the case
only holds that the judge's rulings were void, but that the judge was not
specifically removed. Plaintiffs counter in their reply that Kahdohalahala
(c0nunuedi)

26

~@»~I~‘<)Iz x>lrlz'r,!ci,»x.'l‘l<)n m w:<:s';“s HAWAH Ri:l>oxz'rs Az\'l) P.»ACIF!<,‘. mal>on'ru:xv~'**

However, Kan§ohalahala argues that the language in
§ 3~3 of the CCM is different from that in Pioneer Mill, because

§ 3-3 requires an event” such as lack of residency or conviction

w

of a felony forfei,ure, rather than an “act”

.i

d
0
' z
i*"*
);

Gray v. Admin. Dir. of the Court, State of HawaiU4 84 HawaiH

2Y.Hc0nhnued)
misstated the court’s conclusion in Pioneer Mill, in that not only was the
judgment rendered void, but that this court held the judge had lost his office
by virtue of his becoming a candidate.

The opinion states, “We have concluded that the [l}and {c]ourt
judge had become a candidate for public office at the time he rendered the
decision helow, and that under the Hawaii Constitution, he had forfeited his
judgeship.” Pioneer Mill, 53 Haw. at 498, 497 P.2d at 55l. lt appears that
this court did rule that the judge had forfeited his position, but no action
was taken to effect the forfeiture because the judge had already stepped down
to run for political office a little more than a month after his announcement
of candidacy. §§ at 506, 497 P.2d at 556.

27

…rvon Prfxzrirc¢.'r'lon m wr;s'r"s rnxwix‘l Rr:rc)lz'rs Anl) PAr;illvlnzi xucPc)RTER="**

- ..,
¢

w »*, w L' ’”» "‘;“ g
.L..Z)tl , i.?i»‘, ,‘;'/3 .,

’l)l

92 (l§97) {“The word ‘shall’ is

».»~

d 5BC

£\3

¥f.'
1:. ,
generally construed as mandatory in legal acoaptation. (Quoting
in re Adoption of Watson, 45 Haw. 69, 79, 361 P.2d lt54, 1059

{l96l).}). “lmmediate” means “§o]ccuring without delay;

'["‘i

instant.” Black’s aw Dictionarv at 8l6. Thus, the phrase
“shall immediately forfeit office” in § 3»3 of the CCM, by its

lain meaning indicates a mandatory, instant, loss of cffice.

”U

Kahdohalahala and the court maintain that there was a duty on
the part of the council member to leave his office. However,
given the plain meaning of “shall immediately forfeit office,” a
duty is not imposed to leave office but, rather, the right of
office is automatically and instantly lost.

The remaining portion of CCM § 3~3 supports this
interpretation. The following words “and the seat shall
thereupon become vacant” (emphasis added), confirms the
conclusion that the office is “immediately” lost and at that
instant, becomes vacant. “‘Courts are bound to give effect to
all parts of a statute, and . . . no clause, sentence, or word
shall be construed as superfluous, void, or insignificant if a
construction can be legitimately found which will give force to
and preserve all words of the statute.’” Blair v. Harris, 98

Hawaid.l76, l79, 45 P.3d 798, 891 (2002) (guoting Keliipuleole

v. Wilson, 85 HawaiYi 2l7, 22l, 941 P.2d 300, 304 {l997} (other

citations omitted)). Thus, in order to give meaning to all

portions of § 3-3, § 3-3 must be construed as meaning that upon

28

***Fo}z WBL!<_:AT!'<)N m \ai'F;sT-*S l>lixv'v.»xl‘,r R);<;),><)RTS Anl) P.»».c,fli»‘lcé Izt);l>o;z'.rx_~ilz***

'1 »».

loss of residency, a council member both loses his or her
nosition, and his or her seat becomes vacant.
Furthermore, in construing § 3~3 of the CCM, this

oourt’s rules of statutory construction should also give effect

to legislative intent. State v. Wells, T8 HawaiE 373, E?6, 394
P.2d 70, 73 (l995) (statinq that “onr foremost obligation is to

ascertain and give effect to the intention of the legislatnre”
(quotinq Pac. Int'l Servs. Corp. v. Hurip, 76 HawaFi 2G9, 2l6,
873 P.2d 88, 95 (l994))). Under CCM § 3-l, the drafters of the
charter intended that the Maui County Council consist of nine
members and that, “one shall be a resident of the lsland of
LanaUd’”9 Hence, § 3~l mandates that one member of the council
be a resident of LanaUd Section 3-3 of the CCM enforces the
intention of the drafters, by rendering any council member’s seat

vacant upon the loss of residency.

” § 3~l of the CCM states in part, as follows:

Secti0n 3-l. C0mposition. There shall be a council composed
of nine members who shall be elected~at larqe. Of the nine
members elected to the council, one shall be a resident of
the leland of LanaH, one a resident of the lsland of
MolokaE, one a resident of the residency area of East Maui,
one a resident of the residency area of West Maui, one a
resident of the residency area of Makawao~Ha‘iku~?ada, one a
resident of the residency area of "Upcountry" comprising
Pukalani»Kula3Ulupalakua, one a resident of the residency
area of South Maui, one a resident of the residency area of
Kahului, and one a resident of the residency area of
Wailuku-Waihee~Waikapu. The county clerk shall prepare the
nomination papers in such a manner that candidates desiring
to file for the office of council member shall specify the
residency area from which they are seeking a seat. The
ballots shall, nevertheless, be prepared to give every voter
in the county the right to vote for each and every council
seat.

29

…I<‘QR Punl,lcuyrlon' m wrcs"r’s la,».vvr;z‘x .zzi;z>on'rs AM) xiiiscr_rmtc xzl»i.x>c).xin"r:xn**

There is nothing in CCM § 3~3 to suggest how the
removal from office should be enforced. But, CCM § 3“3 cannot be
implemented through other removal provisions of the €CM without
losing its mandatory and immediate sffect. Potter v. hawaii
, 99 Hawaid,4ll, 4Z2, 974 P.2d 5l, 6i~63 (l999}

News“a er A enc'

(“Our rules of statutory construction require us to reject an
interpretation of [a] statute that renders any part of the
statutory language a nullity.”}; see also State v. Jumila, 97
HawaiU l, lO, 950 P.2d l20l, l2lO {l998}; Shultz v. Lu*an, 86
HawaiH_l37, l4l, 948 P.2d 558, 562 (l997); Konno v. Countv of
Hawai‘i, 85 Hawai‘i 6l, 7l, 937 P.2d 397, 401 (l997). Although
Kahdohalahala and the court believed that impeachment under

§ l3-l3 is a remedy for violation of § 3-3, impeachment is not
“immediate” as directed by the language, “shall immediately
forfeit,” nor does impeachment comport with the mandatory vacancy
language in § 3-3 of “shall thereupon become vacant,” inasmuch as
impeachment is a discretionary measure. Under § l3-l3 of the
CCM, impeachment procedures require a verified petition “signed
by not less than five percent (5%) of the voters registered in
the last general election.” Gathering five percent of Maui
County’s voters alone would not fit within the immediacy language
of § 3-3, in addition to the time it would take for the second
circuit court to set and hold impeachment proceedings. Moreover,
a voter's decision to sign the verified petition for impeachment

is by itself a discretionary and not a mandatory act by a voter.

30

M*P‘oxz PLJB1.1C.A1‘1L)N m \vss'r”s l--l/x\xvxx‘x R;s,»~icv"lr<“x<_: RP;Pc)R'1‘;h;:1z=-f-

lmpeachment under 5 l3»l3 is also tiscretionary in that,

the court sustains the charge or charges, such officer shall he

3

removed from office." fns use of “if” in this sentence

(

suggests that a court could overrule a charge of impeachment,
assuming that enough voters signed the petition, thus
conditioning the removal of the officer on the further act of the
court.

Likewise, the CCM's removal remedy under § l2~l, et
seg.” does not provide an adequate remedy for violation of § 3~3
either, given that removal, like impeachment, is also neither
“immediate” nor mandatory. Under CCM § l2~3{2) the petition for
recall of an official “shall be signed by not less than twenty
percent (20%) of the voters registered in the last general
election.” Similar to the 5% voter signatures required for
impeachment proceedings, gathering 20% of signatures for a recall
petition is not a process consistent with the immediacy language

in § 3~3. Furthermore, CCM § 12-63 specifies that a recall

w See specifically CCM § l2~l supra, at note 7, regarding the

general provision of removal.
“ CCM § l2-6 states:

Section 12-6. Recall Election. If a recall petition or
supplemental petition shall be certified b the county clerk
to be sufficient, the county clerk shall at once submit the
petition with the certificate to the council and shall
notify the officer sought to be recalled of such action. lf
the officer whose removal is sought does not resign within
five (5} days after such notice, the council shall thereupon
order and fix a day for holding a recall election. Any such
election shall be held not less than sixty (6C) nor more
than ninety (90) days after the petition has been presented
to the council, at the same time as any other election held
within such period; but if no election is to be held within
(c0nunued~J

31

*~k~‘~vor< P'Lzlnr.lc:..x'.rlr_)n' m wr'xzsT-"s l-{,iv\/Ar‘l _mu>olrrs AND PACIFlr: ns x>o_ni"p:zz»'-~

¢-,.v

e
the ;etition has been presented to the council.” Also, CtM § l2~
9 states that “§t§he question of the removal of any officer shall
not be submitted to the voters until such person has served six
(6) months of the term during which the officer is sought to be

-

recclied.” Applyinq these two sections, at the earliest, an
officer could only be recalled after eight months of service,
Again, an eight month hiatus could not reasonably be considered
immediate removal. Thus, the recall remedy under § l2»l, et seq.
cannot imolement the immediacy requirement in § 3~3 that a
“council member shall immediately forfeit office.” {Emphasis
added.)

The recall remedy in § 12-6 is also a discretionary
measure. First, 20% of the county’s voters must exercise their
discretion to sign the petition. Second, the county clerk has
discretion to deem whether the petition is sufficient for
certification. Finally, if the petition results in a recall

election, at least 50% of the registered voters must vote, and of

that, recall will not take effect without a majority vote.”

“(…c0nunued)

such period, the council shall call a special recall
election to be held within the time aforesaid. if less than
fifty percent (50%) of the voters registered in the last
oeneral election shall vote at such recall election, the
officer soudht to be recalled shall not be deemed recalled
reoardless of the outcome of the election.

(Emphases added.)
” CCM § l2~7 states in part, that “{a] majority vote shall he

sufficient to recall such officer, subject to the provisions of Section l2-6
of this Article.”

32

ection “shall he held not less than sixty §69) . . . days after

…F<)R x>urzx,rc:ia.'rxon m v\lr:s'r"s nAvsfAl‘x ul~zx>ok’rs Am) PAC:IP‘IC uii‘;l_»oni‘xariw**

Voting decisions are discretionary. Thus, the recall remedy

y not create a mandatory “vacancy” of the

i§.=

under § l2~l, et seq. m
council memher’s s,xcurlcr' Iz,rz;l'oxz'rr;lzr**

casz, that statutory remedy shall be followed." But, as

discussed snora, impeachment and recall under the CCM cannot

properly effect the mandatory and immediacy requirements under
§ 3~3; thus impeachment and recall cannot be special remedies in

)_.s
§§

Cé':l €.

7 .:

1

hs to th~ remedy of quo warranto, this common law
remedy was codified in the HRS under chapter 659 and is defined
by § 659-l.” Quo warranto is “a common-law writ used to inquire
into the authority by which a public office is held or a
franchise is claimed.” Black’s Law Dictionary at l37l.

There are two modes of proceeding judicially to ascertain
and enforce the forfeiture of a charter for default or abuse
of power. The one is by scire facias; and that process is
proper where there is a legal existing body, capable of
acting, but who have abused their power. The other mode is
by information in the nature of a quo warranto; which is in
form a criminal, and in its nature a civil remedy; and that
proceeding applies where there is a body corporate de facto
only, but who take upon themselves to act, though from some
defect in their constitution, they cannot legally exercise
their powers.

ld; (quoting 2 James Kent, Commentaries on American Law 313
(George Comstock ed., llth ed. l866)). ln this case, as
Plaintiffs correctly state, there is no specific legal body to
enforce § 3-3. The following additional definition clarifies the
availability of this remedy:

The remedy or proceeding by which the sovereign or state
determines the legality of a claim which a party asserts to
the use or exercise of an office or franchise and ousts the
holder from its enjoyment, if the claim is not well founded,
or if the right to enjoy the privilege has been forfeited or
lost.

Ballantine’s Law Dictionary lO49-50 (3d ed. l969). As construed

§ See su ra note l7.

34

***1~"<)12. PL’;HLICYA',FK)N‘ m w'Es'r-’s Iilvvm‘x R:r;l~<)lz'rs AN!) P,xcrx)a‘lc Rr;rr)xz'rrn***

§gg;a, § 3~3 automatically and instantly or;:tes a forfeiture and
vacancy of office. Thus, quo warranto would seem to be an
appropriate remedy under the allegations in this case.
KahCfohalahala relies on cases from foreign

jurisdictions and KaleiKau for the proposition that declaratory
relief cannot replace already~eXisting procedures such as
petitions for quo warranto.“ fn Kaleikau, petitioners filed a
petition under the declaratory judgment statute, Act l62 S.L.

l92l,” against sixteen people of the Hale 0 Na Alii 0 HawaFi

34 Plaintiffs allege that Kaho‘ohalahala improperly raised this
argument only on appeal, but did not raise it in the proceedings below, thus
it cannot be argued on appeal. However, as Plaintiffs raised the argument for

quo warranto relief below and through the appeal of the denial of their motion
for leave to amend, Kaho‘ohalahala's argument is responsive to that issue.

5 The action for declaratory judgment was brought under Act l62,
S.L. l92l, which stated:

Section l. In cases of actual controversy, courts of record,
within the scope of their respective jurisdictions, shall
have power to make binding adjudications of right, whether
or not consequential relief is, or at the time could be,
claimed, and no action or proceeding shall be open to
objection on the ground that a judgment or order merely
declaratory of right is prayed for. Controversies involving
the interpretation of deeds, wills, other instruments of
writing, statutes, municipal ordinances, and other
governmental regulations, may be so determined, and this
enumeration does not exclude other instances of actual
antagonistic assertion and denial of right.

Section 2. Declaratory judgments may be obtained and
reviewed as other judgments, according to the laws of the
Territory of Hawaii relating to civil procedure.

Section 3. Further relief based on a declaratory judgment
may be granted whenever necessary or proper. The application
shall be by petition to a court having jurisdiction to grant
the relief. lf the application be deemed sufficient, the
court shall, on reasonable notice, require any adverse party
whose rights have been adjudicated by the declaration of
right, to show cause why further relief should not be
granted forthwith.

Section 4. When a declaration of right or the granting of
further relief based thereon shall involve the determination

(c0nunuedn)

35

*~1~»'11<)11v'ulzmc.airlozv IN w\i"L-;S'r’s H,x\v.¢\_l‘l' R;E;P¢;)R'rs linn PA¢§¢:F!C§Y Re;von'rxz;lrz»~**

\ 1

society who were allegedly `illegall" claiming and pretending to
be the duly elected officers of the society.” 2? Maw. at 2l.
This court indicated that a declaratory judgment action was not
the appropriate avenue to remove an officer, because there the
alleged injury {usurpation of office} had already occurred, and,
thus, the injury was not merely an uncertain threat which could
only have been remedied through declaratory judgment but,
instead, was an actual injury with already prescribed remedies,
i.e., quo warranto. §d; at 427-29. This court noted that “it is
evident from the language of the act itself that it was not the
intention of the legislature to provide a new remedy or method of
procedure for cases for which an adequate remedy and method of

procedure had already been provided” and is “not to provide new

or additional remedies where remedies already existed.” Id. at

3Y.rc0nunued)
of issues of fact triable by a jury, such issues may be
submitted to a jury in the form of interrogatories, with
proper instructions by the court, whether a general verdict
be required or not.

Section 5. The parties to a proceeding to obtain a
declaratory judgment may stipulate with reference to the
allowance of costs, and in the absence of such stipulation
the court may make such an award of costs as may seem
equitable and just.

Section 6. This Act is declared to be remedial; its purpose
is to afford relief from the uncertainty and insecurity
attendant upon controversies over legal rights, without
requiring one of the parties interested so to invade the
rights asserted by the other as to entitle him to maintain
an ordinary action therefor; and it is to be liberally
interpreted and administered, with a view to making the
courts more serviceable to the people.

Kaleikau, 27 Haw. at 424-25.

36

*»‘\'*11‘<)12 x>iz,lzxilc,x'rlr)n !N \vrs'r’s HA\v/>.ji"l Rln>olz'rs ¢\Ni) Piiclmc rz_nzl>oiz_'l‘rlzr*»‘=

4Q8. This appears similar to the facts of the case at bar, where
the injury {usurpation of office} has been alfeged to have
actually occurred and another remedy, quo warranto, already

exists.”

i.\

Plaintiffs do correctly point out that HRS § 659~iG,
relating to quo warranto and enacted after the ruling in
Kaleikau, states that “{n]othing in this chapter shall preclude
the obtaining of relief available by quo warranto by other
appropriate action.” (Emphasis added.) fn this regard,
Plaintiffs assert that the legislature's enactment of HRS
§ 659-lO superceded Kaleikau. However, the legislative history
for HRS § 659-lO is inconclusive on whether the statute rejected
Kaleikau. The changes made to the quo warranto chapter were part
of the legislature's effort to coordinate the HRS, "eliminate
inconsistencies; delete outmoded provisions; make improvements of
a technical nature; and transfer procedural matters to court
rules where advisable." H. Spec. Comm. Rep. No. 9, in l972 House
Journal, at lll6. Furthermore, the section amending

extraordinary legal remedies, including quo warranto, states

“ lt does not appear in the record that it has been factually

determined whether Kaho‘ohalahala was a resident of Lana‘i for purposes of his
public office residency requirement. ln Dupree, this court affirmed the
Board’s decision that Kaho‘ohalahala was not a resident of Lana‘i for purposes
of voter registration. §ee supra note 2. But, the issue of whether
Kaho‘ohalahala was actually a resident of Lanaii for public office purposes
appears to be unresolved on any factual basis. ln fact, the court’s March 19
Order (re Motion for Judgment on Pleadings) states, “{Kahdohalahala's] motion
does not seek such a determination.” Plaintiffs argue that Kahdohalahala’s
non-residency status should have been deemed admitted.

37

-»*'-F'OR l»llnl,x,ciA'lflow m \vi;s'r's ri..»x\>v..=».l‘r R_EPOR'FS AN!) PAC:¢FIC# .lz.aPolz'x‘l-:R*="*

‘1

de deletion or the statutory provisions on mandamus,

tnat, “[tj
certiorari, prohibition, and other extraordinary legal remeties
does not signify that the writs have been abolisheN. Tne matter
is covered by rules of court and case law.” ld. at ll24
(emphases added). This implies that in adopting HRS § 6o9-iO,
the legislature did not intend to specifically eschew Kaleikau,
but instead, the statute was merely enacted to uphold existing
rules and case law.

Plaintiffs alternatively assert that under the current
version of HRS § 632el, declaratory judgment affords the same
relief as quo warranto and that declaratory relief is not barred,
even when other common law remedies (like quo warranto,
Plaintiffs assert) are available. §ee supra note 3. The
declaratory judgment act, Act l62, S. L. l92l, enacted two years
before KaleiKau and later recodified as HRS § 632-l, has been
amended since the disposition in Kaleikau. The subsequent
pertinent amendment to the declaratory judgment statute was made
by Act 74, S.L. l945, which added the second paragraph in the

current version of HRS §632-l.” As reproduced supra, at note 3,

that paragraph states:

w The other amendments are not relevant to this case. See 1925

Revised Laws of Hawai‘i § 29l8, at lO49 (recodifying the section); Revised
Laws of HawaiE.1935 § 4220, at 687 (recodifying the section); Revised Laws of
HawaiH.l945 § 997l, at 280 (adding a new paragraph regarding the application
of the declaratory judgments); l955 Revised laws of HawaiH.§ 228-l, at l403;
l96S Hawafi Revised Statute § 632-l at l403 (recodifying the section); l972
Haw. Sess. L. Act B9, § l, at 338 (adding limitation on the use of declaratory
judgment in cases of taxes, divorce or annulment of marriage); l984 Haw. Sess.
Laws Act 90 § l, at l66 (substituting proper section or chapter numbers,
changing capitalization for uniformity).

38

Mr»"on Pxvrxzi,xcv,irlom in \x’i:s'r’s HA\VAI‘I R:EPQRTS mo wicrlsircir rix~;l>olzr'r~;xa***

civil cases
wuNJn
.i c t antagoni~
involved which
=tion, or where in any
' mserts a

"dntroyersy exist
the court *
present between
immin'2t and inevi
such case the court is '
le al relaticn, status, y l ,. in which the
party has a concrete interest and v ; ' »_a is a challenge

tic

or denial cf the a aa 'r - ,_ion, righr, or
privilege by an adv a o ' or air-rts a
concrete interest therein, and the court if satisfied also
that a declaratory judgment will serve to terminate ina

v

uncertainty or centro ersy giving rise to the proceeding.
Where, however, a statute provides a special form of remedy
for a specific type of case, that statutory remedy shall be
followed; but the mere fact that an actual or threatened
controversy is susceptible of relief through a general
common law remedy, a remedy equitable in nature, or an
extraordinary legal remedy, whether such remedy is
recognized or regulated by statute or not, shall not debar a
party from the privilege of obtaining a declaratory judgment
in any case where the other essentials to such relief are
present.

HRS § 632-l {emphasis added).

The portion of the foregoing paragraph that states
“{w]here . . . a statute provides a special form of remedy for a
specific type of case, that statutory remedy shall be
followed[,]” HRS § 632~l, appears to be consistent with
Kaleikau’s holding that declaratory judgment relief is not
available when there are other already existing forms of relief.
However the language following, “but the mere fact that an actual
or threatened controversy is susceptible of relief through a
general common law remedy, a remedy equitable in nature, or an
extraordinary legal remedy, whether such remedy is recognized or
regulated by statute or not, shall not debar a party from the
privilege of obtaining a declaratory judgment in any case where

the other essentials to such relief are present,” puts into

question whether Kaleikau is still good law. Because the

39

*“HF<)R ivulzl,rctA'rrr)w IN w'l<:s"r=s ll.»xvvAx‘x .Rr_~:P<)R'rs ANI) P..xcx_l»“le:r RP;P()R'I‘ER**='=

underscored part of the paragraph above appears inconsisrent, a

review of legislative history is appropriate. T-Mobile USA, Inc.

»Is

v. Connty of Hawaii Planning CommYn, 106 Hawai°i 343, 352, lQl
P.3d 930, 939 (2GO5) {“Courts turn to legislative history as an
interpretive tool only where a statute is unclear or ambiguous.”
(citing State v. Mueller, lO2 Hawai‘i 39l, 394, V6 P.3d 943, 946

(2003))?i Hawafi Providers Network, lnc. v. AIG HawaiU.lns. Co.,

lnc., lO5 Hawai‘i 362, 369, 98 P.3d 233, 240 (2004) {“If

statutory language is ambiguous or doubt exists as to its

meaning, ‘[/}ourts may take legislative history into

/

consideration in construing a statute.'”) (guoting Franks v. City
& County of Honolulu, 74 Haw. 32S, 34l, 843 P.2d 668, 674
(l993)}.

The Senate Committee on the Judiciary stated that “the
purpose of this bill is to expand the proceedings for declaratory
judgments to a scope that will render such proceedings of real
value[.]” S. Stand. Com. Rep. No. 235, in the l945 Senate
Journal at 656. The committee noted that “[t]he present chapter
of the Revised Laws of HawaiU_l945 on declaratory judgments has
been so narrowly construed that the bar generally, hesitates to
make use of it.” ;d; at 657. Significantly, the House Committee

on the Judiciary stated, “{tjhis bill . . . will afford greater

relief by declaratory judgment than the present law. The

benefits sought to be had under present law have been negatived

by two decisions of our Supreme Court.” H. Stand. Com. Rep. No.

40

hinton Plz‘lzl,l'czxrrc)w' m \\V’_FLST‘S HA'»VAI": lu;l»ok'rs AN!) PAC!FIC R:z:rorz'rl¢:lz#=**

7?, in 1945 house Journal, at 566. The two decisions are not

referenced in the legisFative history but it appears tha

-+

; one of

,_

the cases referred to was Kaleikau.M

” or tc the l943 amendmont, this court decided a total of three
ca es that re renced prior versions of the declaratory judgment act, which
subsequently became HR5 § 623~l ~* Pires v. Phillips, 31 Haw. 720, ?2U (Haw.
Te r. l93G3 (referencing chapter l7G, R.L. l925), hide v. Waiakea Mill, 29
Haw. 122 125 {Huw. Terr. l926) {referencino cha:ter l?O, R.L. l925l, and

r '_V .,
Kal‘ kau, 27 Haw. at 421 {referencing Act 1)2, S.L. l9Zl}. ln Pires, the
c.itioner soo ht a declarator jud mont of whether a revision in his lease
. J . ~.
that stated “‘1t}hat he’ f e) ‘will not commit or suffer any waste of

said premises, nor cut or in any way destroy any of the inia and algaroba
trees now growing on said demised premises, excepting for right of ways,
trails, roads and in case of necessity{,]” prevented him from clearing “cactus
or panini” “in order to clear the land for the cultivation of pineapples.”
Pires, 31 Haw. at 722. The respondent demurred to the petition on the ground
that the court did not have jurisdiction to render a declaratory judgment.

The court overruled the demurrer and the respondent excepted. ;§; at 72 .
Pires, without any discussion on jurisdiction, held that the exception could
not be sustained and that “[petitioner} in removing the cactus from the
premises in question will not be committing waste; but will be acting strictly
within his legal rights.” ;d; at 723. Inasmuch as Pires did not limit the
scope or benefit of the declaratory judgment statute, it was likely not one of
the two cases that was considered by the legislature when it noted that “two
decisions by our Supreme Court” “negatived" the “benefits sought under present
law[.]” Stand. Com. Rep. No. 76, in 1945 House Journal, at 566.

0n the other hand, both Kaaa and Kaleikau restricted jurisdiction
under the declaratory statute. As discussed supra, Kaleikau held that in an
action seeking to obtain a declaratory judgment, the court did not have
jurisdiction where the respondents were not merely threatening to invade the
rights of the petitioners, but had already infringed these rights, and an
immediate cause of action in quo warranto eXisted. ln Kaaa, petitioners,
holders of homestead lots at Waiakea, Maui who signed agreements made with
respondent Waiakea Mill Company, filed a petition seeking declaratory
judgment. 29 Haw. at l22-23. The petition alleged that the respondent
violated the terms of the agreements and therefore “an actual controversy
exist[ed] between each of the [petitioners] and the respondent” which
“reguire[d} the determination of the court under the Declaratory Judgment Act
(Ch. l70, R.L. l92§) in that {petitioners} ‘assert their right to the
rescission . . . ’ of said agreement[.}” ;g; at l25. The respondent filed a
demurrer. lg; The trial court sustained the demurrer and dismissed the
petition. §Q; On appeal, one of the issues was whether the petition
“state[d] facts sufficient to give the petitioners a cause of action against
respondent under the Declaratory Judgement Act.” lg; at lZ6. This court
determined that “a cause of action or suit under established methods of
procedure, ha§d] accrued in favor of petitioners,” and recognized that
Kaleikau held that “courts will not entertain jurisdiction under the
Declaratory Judgment hot when it appears that the wrongs complained of have
already been committed and the cause of action already exists, but will leave
the injured party to seek redress according to the established methods of
procedure.” lQ; at l27~28.

Further, Kaaa rejected petitioners' contention that “all that was
held in [Kaleikau] was that the court would not take jurisdiction under the
declaratory judgment law when there is some other statutory mode of proceeding
provided for.” lg; at l28 (emphasis in original). lnstead, Kaaa asserted

(c0nnnuedn)

41

…Folz l>nlzl_,lc__vx'rn)n m wwe;s'r-’s liAnuxl‘l Rrl“ol»x'r's AM) _1>.,;<;‘11@"1c)lzi‘l~:lz=~'**

ln light of the desire to afford greater relief under

rt
U“
ns
§§

`eclaratory statute and the reference to “two decisions of
our Supreme Court” which “negative<” benefits under the statute,
the legislative history suggests that in amending section 9976 of
the Revised Laws of Hawaii l945, the legislature intended to
“afford {citizens} greater relief” under the declaratory judgment
statute than that given in Kaleikau. Thus, Kaleikau does not
appear to preclude Petitioner from bringing a declaratory
judgment action under the current HRS § 632-l, even though quo
warranto relief is available provided that “the other essentials
to such relief are present.” HRS § 632-l.”

Here, a claim for quo warranto is not before this
court. Thus, it would be premature for this court to determine
whether quo warranto is the only appropriate remedy to the
exclusion of an action for declaratory judgment before that

question is presented to the court on remand. Because we

conclude that it would be premature to decide whether quo

3Y.lc0ndnued)

that Kaleikau “show[ed] clearly” that “relief under the Declaratory Judgment
Act was not obtainable where relief was already obtainable under established
methods of procedure” and “did not base its decision on the fact that relief
was provided for by statute{.]” ;g; Therefore, Kaaa rejected the
petitioners' contention that declaratory judgment was applicable because

“there was no reason to believe that . . . in an appropriate action at law or
suit in equity, the courts have not ample power to afford petitioners full,
adequate and complete relief.” ld. at l27. Because Kaaa and Kaleikau both

established the limitations on a court's jurisdiction under the declaratory
judgment act, it is probable that the Committee on the Judiciary was referring
to these two cases in its Committee Report.

” Under HRS § 632-l, all "other essentials" for declaratory relief
must be met.

42

…1<‘<_)11Plzi;l.lc,x'rxow m Wb:s'r’s lmwuxr‘! li,rn>oln‘s ANI) P.»,(?IFIoxzir}zk***

warranto precludes a declaratory judgment action, the March 19
Order Granting {KahoKMwlahala’sj Motion for Judgment on the
Pleadings must also he reversed on this ground.“
VII.
ln that connextion, the second question raised on

appeal is whether the court abused its discretion when it denied
Plaintitfs leave to amend the complaint to designate quo warranto
as a form of relief. As noted before, unless there is an
apparent reason indicating otherwise, under HRCP Rule l5(a),
leave to amend “shall be freely given” to a party to amend its
complaint “when justice so requires.”“ §§e Hirasa, 68 Haw. at
26, 702 P.2d at 775. This court reviews a denial of leave to
amend a complaint pursuant to HRCP Rule l5(a) under the abuse of

discretion standard. Gonsalves v. Nissan Motor Corp. in Hawaii,

Ltd., lOO Hawai‘i l49, l58, 58 P.3d ll96, l205 (2002) (stating

that “this court reviews the [court's] denial of a motion to
amend a complaint under the abuse of discretion standard”). “An
abuse of discretion occurs where the trial court has clearly
exceeded the bounds of reason or disregarded rules or principles
of law or practice to the substantial detriment of a party

litigant.” Sta e ex rel. Bronster v. U.S. Steel Corp., 32

(

w On remand, of course, this decision does not require that
Plaintiffs proceed under both declaratory judgment and quo warranto.

“ HRCP Rule l5(a) (2000) states in part, that “a party may amend the

party’s pleading . . . by leave of court . . . ; and leave shall be freely
given when justice so requires.”

43

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HawaiU_32, 5é, 919 P.2d 2QQ, 316 {l996§ §internal citations
omitted}.

This court has previously held that Rule l5€a) of the
HRCP is functionally identical to Rule l5{a; cf the Federal Rules
of Civil §rocedure. Fed. home Loan Mortg. Corp, 89 hawaii at
l62 n.l, 969 P.2d at 1280 n.l. “Where a Hawafi rule of civil
procedure is identical to the federal rule, the interpretation of
this rule by federal courts is highly persuasive.” ld; (guoting
wong v. Takeuchi, 88 HawaiH_46, 52, 961 P.2d 6ll, 6l7 (l998}
(other citation omitted). ln Foman v. Davis, 371 U.S. l78, l8l
(l962), the U.S. Supreme Court stated that the Court of Appeals
had erred in affirming the District Court's denial of
petitioner's motion to vacate the judgment in order to allow
amendment of the complaint. “As appears from the record, the
amendment would have done no more than state an alternative
theory for recovery.” Foman, 371 U.S. at l82. The Court went on

to state:

Rule l5(a) declares that leave to amend "shall be freely
given when justice so reguires"; this mandate is to be
heeded. lf the underlying facts or circumstances relied
upon by a plaintiff may be a proper subject of relief, he
ought to be afforded an opportunity to test his claim on the
merits. in the absence of any apparent or declared reason
-- such as undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc. - the leave sought should, as
the rules require, be "freely given." Of course, the grant
or denial of an opportunity to amend is within the
discretion of the District Court, but outright refusal to
grant the leave without any justifying reason appearing for
the denial is not an exercise of discretion; it is merely
abuse of that discretion and inconsistent with the spirit of
the Federal Rules.

44

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(emnhasis added§ {internal citations omitted}. Here, an
amendment to the complaint alleging a claim ¢f quo warranto would
do “no more than state an alternate theory” for relief. ld;
Although Kahdohalahala asserts that he would suffer
prejudice if the amendment were allowed, the assertion is not
persuasive. According to Kahdohalahala, when sued in his
official capacity, Corporation Counsel had a duty to represent
him, but because Corporation Counsel previously refused to
represent him, he would be faced with having to resort to
privately~retained counsel, incurring personal costs and
expenses.” This argument is unavailing because as Plaintiffs
correctly point out, in a quo warranto proceeding Kahdohalahala
would still face the lawsuit in his personal capacity, as the
suit is brought in the name of the State. HRS § 659-l defines
quo warranto as “an order issuing in the name of the State by a
circuit court and directed to a person who claims or usurps an

office of the State, or of any subdivision thereof.” (Emphasis

added.) Moreover, this issue was not definitively resolved by

“ in his Answering Brief Kahdohalahala refers back to the record,
specifically his memorandum in opposition to Plaintiffs"motion for leave to
amend, where it states, “In light of this motion, [KahoZmalahala] -- as a
sitting member of the Maui County Council ~- tendered his defense in this case
to Corporation Counsel, but was told that Corporation Counsel would not
represent him at this time.” As noted before, there is no reason given for
Corporation Counsel’s denis . lt may be that if Kahophalahala continues to
be sued in his personal capacity, Corporation Counsel cannot yet represent
him. But it appears that Corporation Counsel has not foreclosed the
possibility of representing him in the future, should he later be sued in his
official capacity. lt appears that Corporation Counsel simply declined to
tender his defense “at this time,” i.e., while he is sued in his personal
capacity.

45

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indication that the court

the court below as there is no cl
denied the motion to amend due to prejudice against
KahoEnmlahala. The only statement recorded refere to the

court’s incorrect finding at the iearing on the motion for

v

judgment on the pleadings that § 3~3 imposed a duty upon the
officer to forfeit his office and that failure to do so

o nstituted ncnfeasance, as to which declaratory judgment would
not be an appropriate remedy.

“The trial court abuses its discretion if it bases its
ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Lepere v. United Pub. Workers,
Local 646, 77 Hawafi 47l, 473, 837 P.2d lO29, lO3l (l995)
(guotation marks and brackets omitted). Given the lack of any
findings of prejudice against Kahdohalahala or findings of any
other exception warranting denial to amend the complaint, and
given that the court appears to have based its denial on a wrong
view of the law, it must be concluded that there was an abuse of
discretion. As Plaintiffs were apparently attempting to state an
alternative theory of relief by way of quo warranto, leave to
amend the complaint should have been granted. Because leave to
amend should otherwise be “freely given,” HRCP Rule l5(a), the
May 7 Order denying Plaintiffs’ motion for leave to amend its
complaint must be reversed. On remand, the court is ordered to
permit Plaintiffs to amend their complaint to include quo

warranto relief.

46

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VIll.
For the reaaons stated herein, the court’e Maroh l9
Order and May 7 Order are reveraed, the judgment is vacated, and

the case remanded for disposition consistent with thin opinion.

On the briefs: é;zz@%»_~
Kenneth R. Kupciak,

“\'3 m '“ \\ .~
Robert H. ihomas & YT¢MAm 5fW“na¢Q¢i¢LWWN
Elizabeth Burroughs

(Damon Key Leong

Kupchak a Hastert) for //6p,»--a
plaintiffs~appellants. _

Philip P. Lowenthal & i%H“*£"b“H%’%"
Benjamin E. Lowenthal

for defendant~appellee. 1/Z7éah ;4Q¢¢2¢14¢,qj¢//

47