The appeals court ruling could mean the lawsuit will go to trial in Circuit Court as soon as July, ahead of this year’s elections, said Lance Collins, a Maui-based open-government attorney who is representing the petition’s six plaintiffs.
Say declined to comment on Wednesday’s ruling, saying he still needs to consult with his attorney.
Say has for decades represented the Honolulu district that includes St. Louis Heights, Palolo and Kaimuki. But some residents, including the lawsuit’s plaintiffs, contend he doesn’t actually live there, citing evidence that his 10th Avenue home consistently appears vacant.
The plaintiffs, including University of Hawaii law school administrator Ramona Hussey, contend that Say has long lived in Pacific Heights with his wife and two children.
Collins says this is an “open secret.” The original petition alleges that Say’s wife and two children are all registered to vote at the Pacific Heights address.
The original petition, which was filed in December 2012 by the six plaintiffs, said that while Say is registered to vote and claims legal residency at his Palolo Valley home, he “previously admitted he does not actually live there.”
Nakasone dismissed the petition last March, concluding that she didn’t have the authority to determine Say’s ability to represent the area.
She instead deferred that right back to the city clerk, who oversees voter registration. The Hawaii State Constitution stipulates that a lawmaker must be a registered voter in the district that he or she represents, but it doesn’t explicitly address residency.
Say’s case never went to trial.
But Wednesday’s appeals court opinion, written by Associate Judge Daniel Foley, concluded that the Circuit Court does have jurisdiction to hear challenges to people who hold public office.
The state’s courts, he wrote, have the right to interpret constitutional provisions when it comes to determining an elected official’s eligibility to serve in public office.
The Intermediate Court of Appeals has ordered the case back to the Circuit Court.
Before this petition, which marks the first time his actual residency is being disputed, Say faced three unsuccessful challenges to his voter registration address, including two in 2006 and one in 2010.
The city clerk on those occasions ruled in Say’s favor, convinced in large part by the representative who said he needed to care for an ailing family member elsewhere, the appeals court decision says.
But Collins says that family member died years ago.
“If the lawmakers aren’t themselves following the laws, then that’s not a good thing,” Collins said.
Margaret Kaimi Nicholson, another one of the plaintiffs, said the appeals court decision comes as a relief.
“It’s an indication that we’re living in a new age of transparency,” said Nicholson, who lives on 10th Avenue. “We want them (politicians) to abide by the rules.”
Collins, who filed the appeal last July, stressed how quickly the opinion was produced, perhaps a sign that the court recognized the need to address the issue before this year’s elections.
“As soon as the next election happens, it’s not a live controversy anymore,” Collins said.
Depending on whether the Hawaii Supreme Court decides to review the case, Collins says that he anticipates the case could go to trial in a few months. He said he’s prepared to subpoena neighbors who can testify that Say doesn’t actually live in Palolo Valley.
Say was the longest-serving speaker in the history of Hawaii’s House of Representatives.