A Maui judge has temporarily blocked a newly appointed member of the county Planning Commission from joining the nine-member panel at its next meeting.

Second Circuit Judge Kelsey Kawano on Monday issued a temporary restraining order and a so-called writ of quo warranto against Danny Ray Blackburn, a construction executive with F&H Construction, which has offices in California and Maui.  

Blackburn was expected to join the Maui Planning Commission, which makes key countywide decisions over development, at its Tuesday meeting. His name is listed on the agenda.

But court papers filed by Maui attorney Lance Collins on behalf of petitioner Dick Mayer, a retired University of Hawaii Maui College economics professor, challenged his appointment.

The writ of quo warranto is a legal order that challenges a person’s right to hold a public or corporate office. With that granted, Blackburn is ordered to appear before the judge on April 17 for a hearing to address questions and explain why he has the authority to serve on the Planning Commission. He’s also barred from participating in any proceedings or deliberations of the commission for 10 days.

The squabble over Blackburn’s appointment stems from a dispute between Mayor Richard Bissen’s office and the Maui County Council over the timing of when the mayor submitted his selections for citizen nominees to serve on a number of boards and commissions.

At a Feb. 16 meeting, the council’s Government Relations, Ethics and Transparency Committee Chair Nohelani U’u-Hodgins said Bissen missed the deadline for submitting his picks by one day.

Because of the alleged missed deadline, U’u-Hodgins dismissed Bissen’s nominations and said the council would start over.

Bissen had selected retired tech executive Gary Passon to fill a vacancy on the Maui Planning Commission on Jan. 31. His name, along with the others, was submitted to the clerk’s office on Jan. 31.

But the County Clerk didn’t receive the appointment letter until Feb. 1. U’u-Hodgins said the appointment letter needed to be received by Jan. 31 and therefore the appointments were invalid. She said the council had the power to make its own appointments as a result.

County Council Chair Alice Lee said in a phone interview late Monday that it’s clear to the council that the mayor missed the deadline, an opinion she said was supported by Corporation Counsel.

The council appointed Blackburn to the Planning Commission along with other citizens to various boards and commissions in March.

Collins said in an interview on Monday evening that the council appears to have “gotten really bad legal advice.”

Maui voters approved a county charter amendment in 2022 to change how board and commission members get appointed by using an independent nominating board.

The boards and commissions often play an advisory role to county government officials, including the mayor. But some also make binding decisions, such as the salary of elected officials, who prevails in tax bill disputes, and how developments get shaped, approved or denied.

The independent nominating board has been slow to get up and running and did not send a list of nominees to Bissen.

Because of that, Bissen retained the authority to make his own appointments, in Collins’ opinion.

There’s nothing in the county charter that gives the council the power to make its own appointments, said Collins, a former chair of the Maui Charter Commission.

If the mayor fails to make an appointment from the nominee list, the council can make its own choices. But Bissen did transmit a list of nominees to the clerk’s office and did so within the deadline, he said.

“The voters of Maui County chose this new process at the 2022 general election. The council is simply not free to disregard the voters’ will,” Collins said in a news release.

In addition to the April 17 hearing on the writ of quo warranto and the temporary restraining order, the judge has scheduled a separate hearing on a motion for preliminary injunction for May 8.

U’u-Hodgins could not be reached late Monday.

Mayer said that the council “should never have rejected the mayor’s list.”

“I’m glad the court is taking a look at this,” he said.

The mayor has not disputed the council’s interpretation that he missed the deadline, Lee said. She added that council members did not take the decision lightly to reopen the nomination process just as the busy budget season was about to get underway.

“It’s not something we wanted to do but we felt compelled to do,” Lee said.

Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.