Quo Warranto Fu: Courts Have Jurisdiction To Determine Whether State Representative Is A Qualified Voter In His District

BY ROBERT THOMAS – The Hawaii Constitution requires that a member of the state House of Representatives be a “qualified voter” of the district she or he represents. In Hussey v. Say, No. CAAP-13-0002255 (Apr. 24, 2014), the Hawaii Intermediate Court of Appeals analyzed how someone who asserts that the representative from District A is in actuality a qualified voter in District B goes about mounting a legal challenge. Is this really a challenge to the representative’s voter registration, and thus must be instituted in the county’s Board of Registration, or may the challenger institute a quo warranto lawsuit in state circuit court? The ICA settled on the latter answer, concluding that courts have jurisdiction to consider these type of claims.

The case involved allegations that a long-time House member who represents one district and is registered to vote there was actually living in another district (where his spouse and family live and are registered). The plaintiffs instituted a circuit court lawsuit which sought an order of quo warranto to “inquir[e] by what authority the person claims the office …” The trial court dismissed, concluding that this was really a challenge to the rep’s voter registration, and that jurisdiction over that claim lies with the county Board of Registration, which reviews registration decisions by the county clerks. The ICA disagreed, holding that this was a challenge to the representative’s qualifications under the Constitution, and that courts “are the ultimate interpreters of the Constitution.” Slip op. at 6.

We and our Damon Key colleagues have been down this path before, in two recent Hawaii Supreme Court cases relied upon by the ICA which addressed these issues, and in which we represented the prevailing parties. These decision set out the guidelines about how these types of challenges should go down. See Dupree v. Hiraga, 121 Haw. 297, 219 P.3d 1084 (2009); DeJetley v. Kahoohalahala, 122 Haw. 251, 226 P.3d 421 (2010).

In DeJetley, the court noted the jurisdiction of the BOR’s is limited to questions of a voter’s registration, and not the effects of such a ruling. There, the plaintiffs who objected to the qualifications of a member of the Maui County Council to serve, challenged his voter registration, asserting that he registered as a Lanai resident when he really resided on Maui. The Maui BOR concluded that he was not a resident of Lanai, and did not make any determination of whether he was qualified to serve on the Council. The Supreme Court affirmed. The ICA applied that ruling to reverse the trial court’s recasting of the plaintiff’s claims as challenges to the representative’s voter registration, and not his qualifications. In the related Kahoohalahala case, the Supreme Court held that quo warranto is a proper claim for relief to challenge the qualifications of an office holder (as well as declaratory relief), and that circuit courts have jurisdiction to hear those type of cases.

In an intriguing footnote, the ICA noted that the circuit court did not dismiss the case for failure to state a claim, merely for lack of subject matter jurisdiction:

The circuit court did not dismiss the petition for failure to state a claim pursuant to HRCP Rule 12(b)(6), and Say did not so move. That issue is not before us. It was not raised and addressed below. This case is solely about the jurisdiction of the circuit court to entertain a Petition for Quo Warranto pursuant to HRS § 603-21.7.

Does this mean that the issue of whether there’s a viable claim in this case is still up for discussion on remand? It shouldn’t be (Dupree and Kahoohalahala should make short work of that argument), but this footnote indicates that it might. If so, then the fact that the circuit court treated this issue solely as one of subject matter jurisdiction — rather than as one about the nature of the plaintiffs claims — made this case more difficult than it needed to be. To the ICA, the plaintiff alleged a quo warranto claim, and circuit courts by statute possess subject matter jurisdiction over quo warranto claims. Game, set, match.

No doubt the correct result, but an exceedingly obvious and simple issue. The appeal was only necessary because the circuit court essentially rewrote the plaintiffs’ complaint, concluding that the challenge really was to the rep’s voter registration and not his qualifications for office. Issues that overlap, for sure, as in Dupree and Kahoohalahala, and brought about by the text of the Constitution, which makes a rep’s voter registration an essential element of a qualifications challenge. But these are issues that, if set forth properly in the complaint, should have been clear enough to understand that they were separate. From the ICA’s narrative of the proceedings, it seems the circuit court should not have gone behind the plaintiffs’ allegations challenging the rep’s qualifications (because, among other thiings, he allegedly resided elsewhere and thus his voter registration was erroneous), and recast the complaint as really about his voter registration. The plaintiff should be in charge of what claims are set forth in the complaint.

So if a citizen wants to challenge an official’s voter registration, that claim is instituted with the county clerk, with review by the county’s BOR, followed by an appeal to the appellate courts. But if the citizen thinks the official is not qualified for office, the challenge can be in the form of a quo warranto or declaratory claim in circuit court, even when part of that claim is that the official has registered to vote in the wrong district, as was the case here.

Hussey v. Say, No. CAAP-13-0002225 (Haw. App. Apr. 24, 2014)

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