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 2 This document was forwarded to State of Hawaii Chief Election Officer Dwayne D. Yoshina, and has been a public record since its issuance in 2003. This document was published well in advance of the filing deadline for the 2004 election. For reference purposes, a copy of Mr. Konishi's written findings is attached hereto as Attachment 1. Recent media attention surrounding this issue reports a division in the interpretation of this Council term limit provision. Specifically, notwithstanding Mr. Konishi's conclusions, there is reported ambiguity whether a Council member who was elected contemporaneously with the passage of the 1996 Charter amendment is "covered" by the term limit law. Earlier this year, in an effort to have this matter judicially examined, our office explored the possibility of filing a petition for declaratory relief with the Third Circuit Court. However, HRS Section 632-1 requires an "actual controversy" as a condition precedent to the filing of a request for declaratory judgment. Thus, we were unable to proceed without an adversarial party. Although the media had reported a difference of opinion surrounding this issue, no taxpayer, organization, potential candidate, or other person or entity with standing affirmatively stepped forward to challenge the County Clerk's written conclusions. As reported above, the County Clerk had determined as early as 2003 that he would accept the filing of a candidate for Council office, notwithstanding the fact the candidate had been elected contemporaneously with the 1996 Charter amendment. Equally as significant, it was reported Council Chairman James Arakaki declared his intention to run for reelection in 2004, as he believed he was not precluded from reelection by this new term limit law. The Corporation Counsel is charged by Charter with the following responsibility (reproduced in pertinent part): The corporation counsel shall be the chief legal advisor and legal representative of all county agencies, the council and all officers and employees in matters related to their official powers and duties. The corporation counsel shall represent the county in all civil legal proceedings and shall perform all other services incident to the office as may be required by law. Section 6-2.3, Hawaii County Charter The conclusion concerning term limit applicability reached by the County Clerk was one made pursuant to his official power and duty. Having examined the basis and methodology of his findings, we concluded his position was legally prudent and defensible, in the event of legal attack. Thus, we are obliged by the