2004-04 Council Term Limits Article III, Section 3-2, Hawaii County Charter

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Honorable Bob Jacobson July 29, 2004 Page 2 Article XV, Section 15-3, Hawai'i County Charter(1991). The 1998 letter then cites to McQuillin Municipal Corporations, a general treatise on government law: Unless otherwise provided by law, amendments of constitutional charters take effect from the date of their approval by the people. (Footnote omitted) (Emphasis added) McQuillin Municipal Corporations, Sec. 9.27, at 267 (Td Ed.) (1996). The 1998 letter finally cites a 1996 Hawaii case (State of Hawai'i Organization of Police Officers(SHOPO]v. Society of Professional Journalists-University of Hawaii Chapter, 83 Hawaii 378, 389-90, 927 P.2d 386, 397 [1996]) for the general proposition that"absent clear and express statutory language to the contrary, a law becomes operative upon the effective date of passage or adoption." An "effective date" for the 1996 charter amendment does not appear on the ballot, in the legislative history, nor anywhere else pertinent for purposes of this inquiry. Further, what constitutes the "effective date" is not adequately defined in the 1998 letter and the authorities cited therein. The more specific, germane question (which is the subject of the present debate), is whether council members already in office, or elected contemporaneously with the 'term limits law"are subject to this new law, and what terms are included or excluded from this calculation. Thus, although there is no question candidates not already in office as of November 5, 1996, would be forthwith limited to eight consecutive years of service (i.e., the "term limit law" would first apply in the 1998 election), the charter amendment fails to properly address the next question, which is "what about candidates already in office, or elected in 1996, and what terms are counted?" The 1998 letter did not have the benefit of the most compelling case cited in Opinion 2004-03, Woo v. Superior Court, 83 Cal.App.4'h 967, 100 Cal.Rptr.2d 156 (2000), which was decided two years after the 1998 letter was authored. The Woo case, along with the other cases cited in Opinion 2004-03, do address the specific and germane question of whether to include candidates already serving in office or elected contemporaneously with term limit laws, and what years of service are counted towards such limits. Although Woo, supra, a California case, is not legally binding on Hawaii courts, it nonetheless contains sound legal reasoning which we believe most compelling. For this reason, we believe Hawaii courts would adopt this position from a sister jurisdiction in the Ninth Circuit. Of course, there is a possibility Hawaii courts may reject this position, in favor of a different legal conclusion.