• 26 Aug 2010 /  news, politics 16 Comments

    (Editor’s note: A version of this story appeared in the Aug. 25 edition of the Big Island Weekly.)

    By Tiffany Edwards Hunt

    Maile David

    Maile David will be on the ballot as a candidate for Hawaii County Council District 6. But the reality is her candidacy is in limbo.

    David’s candidacy is being challenged by County Clerk Ken Goodenow in Third Circuit Court. The challenge is due the fact that the Hawaii County Charter states a candidate for Hawaii County Council must be registered to vote in the district he or she is running in at least 90 days prior to the Primary Election. David is a 20-year resident of the island, however she has only lived in District 6 since December 2008 and registered to vote in that district 84 days prior to the Primary. District 6 is comprised of South Kona, Ka’u, and Upper Puna.

    David’s attorney, Mike Matsukawa, maintains there is a conflict in the County Charter, stating in one section that a person must be registered to vote in his or her district 90 days prior to the Primary and stating in another section that a person merely has to be registered to vote at the time of pulling nomination papers. Matsukawa argues the “fundamental” right and privilege of our democratic society is to run for public office and “courts have favored a policy ‘to promote rather than defeat candidacy.'”

    Corporation Counsel Lincoln Ashida, meanwhile, believes the argument that the County Charter has conflicting sections is without merit. “In this case, we have a residency requirement and a registered voter requirement,” Ashida said. “The people of our county who enacted and imposed this requirement recognized there are people who have the means to own multiple residences. If you run for Council, the people want to make sure you not only live in the district — something relatively easy to do by showing a utility bill — but you are registered to vote in the district. Ashida noted that, without such a requirement, “you have Hillary Clinton qualifying to be a senator from New York.”

    Still, Matsukawa isn’t swayed. “The law we’re talking about, it’s the kind of law used in the 1960s to stop people from running for office. I thought we had passed that a long time ago,” Matsukawa said. “But, if you look at the law in question, it was made in the 1960s and has carried over today. As recently as 2009, the 9th Circuit Court of Appeals said you cannot enact or enforce this kind of law.” As for David, she is going to leave the court to decide whether or not her candidacy is valid and if there is a conflict in the Charter. In the meantime, she is going to proceed as a candidate and campaign as much as she can.

    If David’s candidacy is found to be invalid and the County pursues criminal charges, she could face a misdemeanor that is punishable by a $500 fine, six months imprisonment or both, for violating the Charter. And she could also face felony voter fraud, which is punishable by a $10,000 fine, five years imprisonment or both. Ashida asserts that the County Clerk informed Maile about her lack of qualification and Matsukawa “jumped the gun,” filing a writ of mandamus with the Hawaii Supreme Court to demand that Goodenow issue David her nomination papers.

    “This is where it gets real sticky for Maile, and I am not sure everyone fully recognizes the ramifications of what is occurring concerning her legal well-being,” said Ashida. “She got the papers, filled them out, and then filed them. Presumably this was done knowing what our Charter provides. By signing the forms, I am concerned about her criminal exposure. This may be considered either False Swearing or Unsworn Falsification to Authorities. I am in no way suggesting conclusively she has committed a crime — I just offer this observation based on my 13 years experience as a prosecutor — but there would have been a less hazardous way to challenge the law. Perhaps the better way would have been to file a declaratory action with the Circuit Court — no doubt there would have been a case or controversy. This would not have put Maile at risk. Look at it from the perspective of the County Clerk,” Ashida said, noting the Charter is “unambiguous.”

    “What if the Clerk said, ‘Well, let’s bend the rules for Maile,’ or ‘She only missed it by a few days,’ or ‘I think this part of our laws is unconstitutional, especially since it was the voters that enacted it and not the Council, so I’m going to ignore it this time,’ Ashida said. “This is why the Clerk did what he did; the last thing we wanted to see was one of our clients commit a crime. And that is why the above lawsuit was filed. State law requires the Clerk to file this type of declaratory judgment lawsuit any time they determine a candidate is not qualified. That is exactly what the Clerk did. This is not a very pleasurable experience for anyone. As I stated, Maile is such a nice person. I think there was a clearly less hazardous way for this law to be ‘tested’ by the courts, without putting anyone at legal risk. Luckily, Maile is represented by a very competent attorney, and I trust he has her best interests in mind.”

    Matsukawa, meanwhile, argues there is a procedure established in state law that allows a person’s candidacy to be challenged by the voters and the County Clerk was wrong to screen David’s qualifications. Matsukawa notes that only the Big Island Charter requires that a person has to register to vote 90 days before filing, and that such a durational requirement only applies to the County Council. Had David sought a State House or a State Senate seat, she could have registered to vote the same day she pulled nomination papers. He believes the durational requirement is “unconstitutional.” Ashida said Matsukawa is free to make such an argument, but county officers and employees cannot make such an “arbitrary and capricious decision.”

    “The bottom line is this was not a case about the exercise of discretion,” Ashida said. “For Ms. David’s lawyer to succeed, he will have to successfully argue this part of the Charter, i.e., the will of the people, since the Charter may only be promulgated or amended by the voters, is legally invalid. If he is successful, so be it. This has never been a political or personal issue — despite what some uninformed people may have suggested; in fact we have all worked with Maile when she was with the County, and no doubt she was one of the most respectful, nice and efficient employees I have worked with.” David worked in the County Clerk’s Office as a legislative assistant to former Council Vice Chair Angel Pilago, of North Kona.

    Third Circuit Court judge Greg Nakamura is expected to take up the County Clerk versus David case at 8:30 a.m., Sept. 7, 2010 in a Hilo courtroom. Along with David, Marie Burns, of Ocean View, and Brittany Smart, of Na’alehu, also are to be on the ballot challenging incumbent Guy Enriques. The Primary Election is Sept. 18.

    Posted by Tiffany Edwards Hunt @ 12:40 pm

    Tags: , , , , , , , , , , ,

16 Responses

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  • Doc Says:

    “.we have all worked with Maile when she was with the County, and no doubt she was one of the most respectful, nice and efficient employees I have worked with.” David worked in the County Clerk’s Office as a legislative assistant to former Council Vice Chair Angel Pilago, of North Kona.”

    And she is smart; we’d all be very, very lucky to have her work for us. I think I will pray on Sept. 7th – please join me!

    Yeah, three days late is a stretch, I suppose – considering they let Arakaki have a whole term illegally. (and that cost us a bundle)

    Go Maile! :)

  • Thomas Says:

    The old boyz are scared of this woman that means I like her.

    Did you see Ashida threatening to charge her with a misdemeanor and a felony? What an obnoxious bully that guy is with all the corruption in the county government he is threatening a woman who wants to help, because of a three day technicality, that show his true agenda in my opinion.

    The whole things stinks and I hope it backfires and brings voters to her campaign. Its about time Lincoln Ashida go back to the private sector he has been at the taxpayer trough far to long, he can take Ken Goodenow and Guy Enriques with him what a total waste of time and money this witch hunt is.

    Vote for Maile Davis then lets get rid of the rest of these guys that have been there to long and are responsible for the mess the county now finds itself.

  • go lakers Says:

    If I am not mistaken, and please correct me if I am wrong, but Lincoln Ashida filed to allow Aarakaki to have another term, Hara approved and it was overturned as an illegal extended council term by the State Supreme Court with no one in the County held liable or accoutable.

    Can anyone enlighten me, true or false?

    Now Goodenow wants to spend county funds to eliminate a political opponent of the “don’t care about the rule or spirit of the law” majority from running against one of their own?

    Why don’t these guys ever use their own money to file and fight their opponents instead of our tax paying dollars?

  • Doc Says:

    “If I am not mistaken, and please correct me if I am wrong, but Lincoln Ashida filed to allow Arakaki to have another term, Hara approved and it was overturned as an illegal extended council term by the State Supreme Court with no one in the County held liable or accountable.”

    I think that’s about the way I remember it.

  • Peter S (pro se) Says:

    Actually, it was Al Konishi as county clerk who put Arakaki on the ballot.

    The Supreme Court found that Arakaki should not have been named on the ballot, but by that time he was already out of office.

    It’s a fascinating read, from a legal perspective:
    http://scholar.google.com/scholar_case?case=1348322991729037634&hl=en&as_sdt=2&as_vis=1&oi=scholarr

  • go lakers Says:

    “this has never been a personal or political decsion – despite what some uninformed people may have suggested” says Ashida.

    Gee, were these the same uninfomed people who testified overwhelmingly against the Rere-Organization change of Council Chair positions on Finance and Public Works committees and also against Vice-Chair position coup while this great legal mind suggested it was legal.

    A six month injunction disallowing not only the County Council to do business (first time in the history of any legistlative body in the State of Hawaii) but also 47k in legal fees paid to private attorneys (out of tax payers pockets, where are the trial attorneys so promised that the county was supposed to be hiring) to defend council members later and we are still feeling the effects of this by the animosity that is still evident on our council council.

    This would almost be comical if it wasn’t so foolish and expensive for the tax payer.

    Again, the Rerere org., like the Goodenow attempt to disallow David to run sounds to me like the incumbents and their appointees using public funds to litigate against their political opponents.

  • silverpenny Says:

    Why go to such great lengths to prevent someone from running for office?? Good ol’ boys network are threatened by the possibility of decent representation who will infiltrate their network and make things difficult. Go, monkey wrench Maile, Go!

  • T.Wright Says:

    Let her run, a fresh voice is needed and the people should have the right to vote for who they want in office.
    She lived in the district for 2 years and to me that should be enough.
    Oh, she missed the deadline to register by what, 4 or 6 days? Hell, it could have been a furlough Friday at the elections office followed by a State or Federal Holiday.
    If she only lived in her district per say, 86 days then I agree that she would not know enough in her district. Missing the deadline to register to vote by a few days and not allowing her to run is a joke.
    Let her run and may the best person win!!!

  • Matt Binder Says:

    Lincoln Ashida is such a hypocrite. This is the same man who ignored the Charter and the law in 2004 when he let Jimmy Arakaki run for an extra term after Arakaki was term-limited out. I and two other island residents sued the county for letting Arakaki run and we eventually won, but not until after three years of court battles allowed Arakaki to serve out his illegal term. Lincoln Ashida should have been fired for that blunder and Arakaki should have been forced to pay back his salary, but that is another matter.

    It became clear to me through that court case and other actions that the Old-Boys are going to do whatever they want when it comes to election law and that seems to be what is happening again with Maile David. The County Clerk, Ken Goodenow, seems to think his job is “hatchet man” for the council majority and that he alone gets to interpret election laws and decide who gets to run for office. Judging by this and his actions last year when he drove around with J. Yoshimoto stiff-arming council members to throw out Pete Hoffman, Dominic Yagong, and Brenda Ford as committee chairs, Goodenow has earned his sorry nickname as “the tenth councilman.”

    As the Old-Boys’ control of the County Council itself grows weaker, their focus has been on strengthening their control of the Corporation Counsel and the Clerk’s office. When Pete Hoffman was Chair of the County Council from 2006 to 2008, he hired Casey Jarman to be County Clerk. Jarman was universally praised for her abilities and fairness. So, of course, she was the first to go when J. Yoshimoto and his gang took over two years later. Now they are protecting one of their most vulnerable members, Guy Enriques, from a challenge by an experienced, articulate, native-born West Hawaiian by trying to use an obscure technicality in the law to keep her from running.

    Everyone in her district knows that Maile David and her family have lived there for years, and Ken Goodenow and Lincoln Ashida admit that she meets the Residency Requirement. But when Goodenow and Ashida noticed that she didn’t change her voter registration to her new house until 6 days after the County of Hawaii’s unique, candidate-only 90 day Voter Registration District Requirement deadline, that was just the excuse they needed to reject her candidacy papers. The difference between the treatment of Arakaki and Maile David is unacceptable. We need a County Clerk and Corporation Counsel who don’t play favorites with the law.

  • Russell Ruderman Says:

    Thanks Matt for that excellent info! Keep up the good work.

  • silverpenny Says:

    The reason they need to keep Enriques in his position is because they are poised to develop K’au on a MAJOR scale. Look into Nani Kahuku development plans for makai of HOVE. K’au CDP was initiated during this time as the community was up in arms about the mega development plans including an airport, 2 golf courses, thousands of resort homes, malls, etc…introduced by Nani Kahuku, and Enriques purposefully injected his own people into the CDP board at the exclusion of other qualified people. Enriques lied about Dr. R. Creagan to keep him from the board and placed in his man instead. This is not the first time he supported mega development despite major protest from the people. You can find his prints all over the Punalu’u development scheme. No wonder he doesn’t like transparency. No wonder he objects to public hearings. No wonder he and his cronies would do anything to stop competent candidates who has high probability of displacing him at the district 6 council seat.

  • Anonymous Says:

    Matt-

    So the argument to the State Supreme Court had Kamelamela and Garson representing the County (Aarkaki) and De Lima representing Jarman with Corporation Counsel making the decsion to use tax payer funds to litigate to extend a an elected officials seving term.

    And the County attorney’s and it’s outside counsel lost the case?

    Is this correct?

    If it is, it speaks volumes about a lot of issues or presumed assumptions.

  • go lakers Says:

    Matt-

    So the argument to the State Supreme Court had Kamelamela and Garson representing the County (Aarkaki) and De Lima representing Jarman with Corporation Counsel making the decsion to use tax payer funds to litigate to extend an elected officials seving term.

    And the County attorney’s and it’s outside counsel lost the case?

    Is this correct?

    If it is, it speaks volumes about issues of misusing public funds and effectiveness of legal counsel.

  • silverpenny Says:

    Would it help for us, the public, to come speak on behalf of Maile on her court date?

  • Chuck Flaherty Says:

    Court hearings do not allow for public testimony.

    You could file an amicus “friend of the court” brief, but it would have to provide certified statements of facts relevant to the case from individuals and/or conclusions of precedent law to provide legal guidance for the court.

    David is blessed to have Matsukawa. He is the perfecgt attorney for this situation and we should all say “mahalo nui loa” to him for his pro bono work.

    People could come to show their support of Maile David through the simple act of their presence as long as they are willing to also have respect for the court.

    Regardless, it will be a great civics educational opportunity and first-hand experience of a really interesting political “reality show”.

  • Doc Says:

    Yes, go to witness justice. Or not.

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