2004-03 Council Member Term Limits Article III, Section 3-2, Hawaii County Charter

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Honorable Bob Jacobson May 26, 2004 Page 10 elections herein provided for shall be held in accordance with the provisions of Article XVI of this Charter, and the other election laws of this state applicable to elections held in this city not in conflict with this Section. This Section shall take effect immediately upon its adoption. Davis, supra, 418 S.W.2d at 165-166. Thus, Davis, an old case with distinguishable facts and negligible precedent (shepardizing this case revealed one citation where it was distinguished), is of limited import to our analysis and conclusion that the 1996 Hawai'i County Charter amendment has prospective application only. This is because Davis was a case where transactional provisions were clearly stated in the law. In addressing your specific questions in your original communication to our office of March 6, 2003, you ask for citations to "United States Constitutional and Hawaii case law pertinent to his (Mr. Konishi's) findings and conclusions." Our research revealed no reported United States Supreme Court cases on this issue. Presumably, as Mr. Konishi points out at page 2 of his written findings, the congressional promulgation of the 22nd Amendment to the United States Constitution contained language, unlike the 1996 Hawaii County Charter amendment, which adequately provided fair notice of the amendment's effect to both the person holding office at the time the amendment was passed, as well as the person holding office when the amendment became law. Thus, no litigation ensued. There are no reported Hawai'i appellate court cases on this issue. You ask for the relevance of"Fasi v. Cayetano, 60 Hawai'i 282, 588 P.2d 915 (1978)." The correct title of this case is Hustace v. Doi, found at the same citation. I believe Mr. Konishi cited this case for the proposition that a sufficient justiciable case and/or controversy exists in the present Hawaii County Charter matter, sufficient to warrant the filing of a request for declaratory relief. As stated above, we do not conclude, based upon a reading of our Rules of Civil Procedure and Rules of Professional Conduct, and absent an adversarial party, that it would be permissible to bring this case before the Circuit Court. Hustace involved a nonpartisan candidate for mayor of Maui County suing Hawai'i's chief election officer to determine the validity of Hawai'i's election laws with respect to the criteria for inclusion of nonpartisan candidates on the ballot for the general election.