Quo Warranto in Hawai'i

• Jurisdiction: Hawaii,United States
• Citation: Vol. 22 No. 10
• Publication year: 2018

Quo Warranto in Hawai'i

[Page 20]

by Lance D. Collins

A quo warranto action is a special proceeding in the circuit court to determine the title of a person to hold public office,¹ the power of a public official to act in some way,² or to question the existence or acts of a corporation. Haw. Rev. Stat. §§ 659-1, 659-3. Many published cases in Hawai'i have involved testing a person's title to public office³ or corporate office.⁴ The purpose of quo warranto is to prevent the unlawful exercise of state power. In Territory v. Supervisors of County of Oahu, 15 Haw. 365 (Haw. Terr. 1904), quo warranto was used to test the constitutionality of a statute on the basis that if the statute creating an office or conferring power to act were void, no person can lawfully hold office created under such a statute.

The use of quo warranto has declined, and that decline can be attributed to three changes in civil procedure: the statutory adoption of declaratory judgment as a remedy,⁵ the codification of the rules of civil procedure simplifying pleading practice,⁶ and the adoption of the Hawai'i Administrative Procedure Act, creating a statutory framework for judicial review of agency actions.⁷ Today, agency appeals of contested cases and civil actions seeking declaratory and injunctive relief are the most common ways to challenge the unlawful exercise of state power.

Although quo warranto originally developed as a criminal process against someone who usurped the power of the English crown, it eventually transformed into a special civil process. The common law action of quo warranto has been abolished throughout the United States, and a statutory process "in the nature of quo warranto" has substituted in its place.

In Hawai'i, quo warranto begins by lodging a petition in the circuit court, in the form of a special proceeding, in the circuit where the challenged office is located or challenged acts occurred. Haw. Rev. Stat. § 659-4, Haw. R. Civ. P. Rule 81(b)(4). See also Hussey v. Say, 133 Haw. 229 (App. 2014) (circuit courts have jurisdiction to hear quo warranto). Quo warranto can also be raised as part of a multiple count civil action. Haw. Rev. Stat. § 659-10. Unlike other common law jurisdictions, Hawaii's Supreme Court does not issue quo warranto.⁸

In Office of Hawaiian Affairs v. Cayetano, 94 Haw. 1 (2000), the Hawai'i Supreme Court determined that an agreed upon statement of facts in the appellate courts is not the proper procedure to test title to office. Testing title to office may be raised in an agency appeal attacking an officeholder's decision,⁹ although under Kingdom law, quo warranto was the exclusive remedy to challenge the acts of a de facto officer¹⁰ or a corporate franchise.¹¹ Questioning title to office was permitted to be raised defensively in a mandamus proceeding in State ex rel. Industrial Finance, Ltd. v. Yanagawa, 52 Haw. 637 (1971). The lodging of a petition for quo warranto against a sentencing judge in a criminal case, however, was held insufficient to require disqualification for bias or prejudice under Haw. Rev. Stat. § 601-7 prior to sentencing in State v. Villeza, 85 Haw. 258 (1997).

A petition must include all the facts, which if proven true and uncontroverted, would entitle the petitioner to relief. The petitioner must verify the petition by signing the petition under oath or affirmation. In the case In re Sherretz, 39 Haw. 431 (Haw. Terr. 1952), the Hawai'i Supreme Court liberalized the standing requirements, holding that a resident, taxpayer, and qualified voter had standing to petition for the writ. This followed an earlier case, Canairo v. Serrao, 11 Haw. 22 (Haw. Rep. 1897), that held that a petitioner need not claim title to office in order to seek the writ.

After lodging the petition, it is then reviewed by a circuit court judge in chambers. If a private party lodges a petition, the judge must determine whether the facts are sufficient to show that the officeholder is not entitled to hold office or not entitled to act. If it is sufficient, the judge will issue the writ of quo warranto. If the petition is insufficient, the judge will deny the petition and may give his or her reasons in writing. If the petition is lodged by the attorney general, the court has no discretion and must issue the writ of quo warranto. Territory v. Morita, 41 Haw. 1 (Haw. Terr. 1955).

When issued, the writ is issued in the name of the State of Hawai'i. Haw. Rev. Stat. § 659-1. It is addressed to the person who holds an office and commands him or her to answer the petition and prove "by what authority" the person claims the office. The writ is equivalent to a summons. The writ typically will include a return day and a date by which the writ should be answered. The petitioner then must have the petition and writ served on the...