HomeMy WebLinkAboutCOM 0088.042 1998-2000 ,,. o �;, 0
Stephen K. Yamashiro Richard Wurdeman
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Musa. ' ! Corporation Counsel
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OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 • Hilo, Hawni'i 96720.4262 • (808) 961 -8251 • Fax (808) 961.8622
March 4, 1999
OPINION NO. 99-1
Honorable Bobby Jean Leithead -Todd ' RECEIVED y
Hawaii County Council By
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25 Aupuni Street County Council /P
Hilo, Hawaii 96720
RE: RATIFICATION OF A VOIDABLE ORDINANCE
Dear Ms. Leithead -Todd:
This is in response to your request of February 24, 1999, asking for further explanation of
the term "ratification ", as it is applied to the affirmation of an ordinance that was adopted
pursuant to a defective procedure.
I. Background
On December 18, 1998, a Circuit Court ruled that Bill 250 of 1995, a substantive
revision of the Zoning Code had been adopted in violation of Chapter 92, Hawaii
Revised Statutes. Since HRS §92 -11 provides that final actions taken in violation
of Sections 92 -3 and 92 -7 shall be "voidable ", the. Court directed that Draft 4 of
the Bill be referred back to the County Council for "ratification ", in that the
violation occurred when that Draft was inadequately agendized for first reading
before the Council.
II Discussion
"Ratification" is defined as the "...confirmation of a previous act done either by the
party himself or by another; as, confirmation of a voidable act." Black's Law
Dictionary, 5t Edition, 1979, at p. 1135.
Comm. No. 83. 42.
File No. I4CC. N6
Ref. To: 'Tied Pc
Ref. Date MAR 9 1999
O 0
Honorable Bobby Jean Leithead -Todd
March 4, 1999
Page 2
Ratification is a concept taken from the law of agency which allows for the after
the fact conferral of authority where the agent had no authority. Lewis v.
Vogelstein 699 A2d 327 (Del 1997).
An essential requirement of ratification is the need to affirm the prior transaction
in it's entirety. One may not ratify one part and reject another, accepting the
benefits of one part and rejecting the obligations of another. Restatement of
Agency 2d (1982), §96. Reuschlein and Gregory; Agency and Partnership, West
(1979); King v. White, 962 P 2d 475 (Kan 1998), Pioneer Concrete Pumping
Service, Inc. v. T & B Scottdale Contractors, Inc. 462 SE 627 (Ga App. 1995);
Daugherty v. McDonald, 407 SW 2d. 954 (Tex. Civ. App. 1966). Thus, when
property owners had ordered changes to a plumbing contract, no ratification could
occur. Miles v. Plumbing Services of Houston, 668 SW 2d. 509 (Tex App. 1984).
Another significant characteristic of ratification, one that distinguishes it from
related concepts such as "affirmation" or "adoption ", is retroactivity. When an act
is ratified, it operates as if the transaction were complete at the time and place of
the first event, and in that way it is unique. Restatement supra §82 Comment (c).
Garrison v. Daytonian Hotel 663 NE 2d. 1316 (Ohio App. 1995); East Central
Oklahoma Electrical Cooperative v. Oklahoma Gas and Electric, 505 P 2d. 1324
(Okla 1973); Brewer v. First National Bank of Danville, 120 SE 2d. 273 (Va
1961).
Although the concept of ratification is most commonly applied in the area of
contract, it is also applicable to the actions of legislative bodies. McQuillin,
Municipal Corporations 3 Ed., §16.93, 29.104. Governing bodies are entitled to
ratify that which they could have legally authorized, and such ratification after the
fact is as valid as any other authority. Stirman v. City of Tyler, 443 SW 2d; 354
(Tex. Civ. App. 1969); Citizen's National Ban's Trustees v. Town ofLoyall, 88 SW
2d. 952 (Ky 1935). Thus, in Valley Realty and Development, Inv. Town of
Hartford, 685 A 2d. 292 (VT 1996), the town board illegally voted to purchase land
in a closed session, but because they subsequently voted in public session, the
Court held that they had "ratified" their improper action. See also Bale v. City of
Auburn 941 P2d 671 (Wn 1997) (re- enactment of ordinance later invalidated for
improper publication).
0
Honorable Bobby Jean Leithead -Todd
March 4, 1999
Page 3
When such a defect occurs, the ordinary way to correct the defect is by
commencing proceedings at the point where the defect occurred. McQuillin supra
at §16.93, Pohorny v. City of Schuyler, 275 NW 2d 281 (Neb 1979).
III Summary
To summarize, ratification is the affirmance of a prior act, which gives that act the
same effect as if originally authorized, Restatement supra, §82; it is retroactive to
the time of the first action; and it is, in the words of one court, an "all or nothing"
proposition. Friddle v. Epstein, 21 Cal Rptr. 2d. 85 (Cal App. 1993).
Sincerely,
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Corporation Counsel
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BJLT - Ratification Op #1