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

Home

Honorable Bob Jacobson May 26, 2004 Page 11 Unlike Hustace, there appears to be no one willing to challenge Mr. Konishi's findings. As I expressed to you in my email communication of May 15, 2003, an adversarial party, in our opinion, would be necessary. This is because our court rules require an actual case or controversy. Your final question is, "Please advise what corrective action the Council could take if there (sic) have been omissions or failures in the due process of passing the term limits bill other than the County Clerk's conclusion that four Council members elected in 1996 are still eligible candidates in 2004." Your question presupposes it was the intent of the Council and the voters to specifically include prior and/or contemporary elective terms of service into the "term limit" calculation, when the Charter amendment passed in 1996. As stated in our opinion, ante, the record is barren of any such conclusive determination, given the limited legislative history, lack of stated intent on the public notice, and lack of stated effective date and term calculation in the body of the law. Thus, we cannot make the same assumption you do, as such would be inappropriate in properly performing our function in independently reviewing the record and law, and formulating an informed opinion. Further, our opinion does not pass on the wisdom of such term limit legislation, but is limited to researching and opining what a Hawaii court would conclude, given the present record, constitutional considerations, and prevailing national case law. I thoroughly agree with both you and Mr. Konishi that a judicial determination would be most conclusive. However, our research, conducted independent of Mr. Konishi's conclusions, reveal it highly unlikely a Hawaii court would disagree with Mr. Konishi's findings. A final note worth repeating. As we expressed at the beginning of our opinion, it is the responsibility of the County Clerk pursuant to law to determine the eligibility of candidates for elective office in our County. The County Clerk and not the Corporation Counsel, makes this determination. To the extent our independent research arrives at the same conclusion and opinion as the County Clerk, and is relevant for whatever purpose you seek it, we conclude there is neither a conflict of interest nor breach of our ethical responsibilities. Consequently, we render this opinion. Since our opinion is intended for publication, any person having a different opinion should not solely rely on our analysis and conclusions, and is herein advised to contact an attorney licensed to practice law in the State of Hawaii if he so chooses. The Corporation Counsel's opinion is intended to assist County officers, and is not intended to be binding on the public at large.