The fate of state Rep. Calvin Say’s political career will have to wait a little longer.
Circuit Court Judge Karen Nakasone said she will make a ruling no later than Sept. 30 on a legal challenge to Say’s residency for office, though she said she might decide sooner.
The judge will determine whether to accept motions to dismiss Hussey v. Say or deny them and allow the case to go to trial.
Six residents in Say’s District 20 argue that the speaker emeritus does not live in Palolo and therefore should not represent them. They say his 10th Avenue house is empty and Say instead lives with his wife in Pauoa Valley in District 25.
Say defends his residency, however, and has thus far survived three previous challenges to the seat he has held since 1976.
Say was not in Nakasone’s courtroom Thursday when she rejected one of Say’s motions to dismiss Hussey v. Say. But two other motions regarding the authority of the judicial branch over the legislative branch remain.
Say’s attorneys had pointed out that previous challenges to their client’s voter registration status based on his residency had not stood up. But Nakasone said those challenges were on a different matter and involved other people, so there was not parity between the cases.
The other two motions to dismiss are based on justiciability, which has to do with whether courts can exercise authority in a legal issue. Here, Article III, Section 12 of the Hawaii Constitution is central to that question:
Each house shall be the judge of the elections, returns and qualifications of its own members and shall have, for misconduct, disorderly behavior or neglect of duty of any member, power to punish such member by censure or, upon a two-thirds vote of all the members to which such house is entitled, by suspension or expulsion of such member. Each house shall choose its own officers, determine the rules of its proceedings and keep a journal. The ayes and noes of the members on any question shall, at the desire of one-fifth of the members present, be entered upon the journal.
In this regard, both the attorney for Say and the attorney for the Hawaii House of Representatives, which Nakasone permitted to intervene in the case, argue that it is the House and not the courts that should determine whether Say is qualified to hold office.
Deputy Attorney General Deirdre Marie-Iha, who is representing the House, argued the court has “no jurisdiction.” She said that that is what other states have found and even the U.S. Constitution says regarding the authority of the separate branches of government. Marie-Iha called the dispute over Say’s qualifications “a political question” best left to a political body like the Hawaii House.
But Lance Collins, the attorney for plaintiff Ramona Hussey, argued that Hawaii case law is unique, in part because Hawaii was both an independent nation and later a territory. It even experienced martial law during World War II.
Because of that history — one in which other entities forced their views on the people — Collins said the best authority on issues raised by Hussey v. Say is the Hawaii Supreme Court. It was important, he argued, that there be “checks and balances” on the legislative branch.
Collins also asked Nakasone to consider a sworn declaration made by Keiko Bonk, a Green Party candidate seeking to unseat Say this fall, and a House memorandum from Rep. Marcus Oshiro. Collins said the declaration and memo (reproduced below) suggest that Oshiro (who was in Nakasone’s courtroom Thursday) and House Speaker Joe Souki (who was not) raise questions about whether the House actually believes it should rule on Say’s qualifications.
Marie-Iha and Say’s attorney, Lex Smith, however, called the declarations “hearsay” and “not relevant” to the case before Nakasone.
“This is a pure question of law,” said Marie-Iha.
But Nakasone wanted to know whether the Hawaii House ever actually exercises its authority over a member’s qualifications and whether citizens wanting to challenge a representative could take their case elsewhere should the House reject their concerns.
In announcing her decision to rule on the two motions no later than Sept. 30, Nakasone said she was sensitive to the time considerations involved. Say is up for re-election and faces not only Bonk (who was in the courtroom Thursday along with Hussey) but Republican Julia Allen, who in 2006 filed a complaint with the Honolulu City Clerk’s Office over Say’s voter registration status.
After Nakasone ended the hearing, Collins told reporters he was unsure how she would rule on the other motions to dismiss.
“But I’m happy that Judge Nakasone is taking her time and being thoughtful about it,” he said. “It’s a hard case. Obviously, we hope that she allows the petitioners specifically and the people of Hawaii in general the opportunity to have checks and balances in their government.”
Collins added that Hawaii is one of the few states that allow courts to review what the Legislature does.
For his part, Smith said, “My sense is that the constitution is pretty clear and it’s a question for the House. That’s what I expect her ruling to be, although she obviously wants to be very careful and go over everything again.”