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Calvin Say has survived another challenge to his legal residency.
In a ruling released Tuesday, Circuit Judge Karen Nakasone said Hawaii courts do not have authority to “judge” the qualifications of House members. That authority resides with the House, which intervened in a lawsuit challenging Say’s residency.
Accordingly, Nakasone agreed to motions from both Say and the House to dismiss Hussey v. Say.
The lawsuit was filed on behalf of six residents of Palolo, which is part of Say’s District 20, who argued that the former House speaker had not lived in their neighborhood for years. The plaintiffs said Say’s 10th Avenue house is empty and that Say instead lives with his wife in Pauoa Valley in District 25.
Say, however, has long defended his residency and survived three previous residency challenges to the seat he has held since 1976.
The two motions to dismiss were based on the question of whether courts can exercise authority in a legal issue. Article III, Section 12 of the Hawaii Constitution says this:
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 her ruling, Nakasone wrote, “The overwhelming weight of authority from other jurisdictions, which have interpreted constitutional provisions identical or similar to Article III, Section 12 of the Hawaii Constitution, supports this court’s conclusion that the legislature and not the court must decide the questions herein.”
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. For that reason, Collins said, the ultimate authority for ruling on Hussey v. Say should be the judicial branch so that a “check and balance” is maintained over the legislative branch.
But Nakasone noted that the House had not taken up the Hussey’s complaint regarding Say’s residency, and so the plaintiffs still have “a forum to bring their complaints.”
Nakasone disagreed that the House’s authority over its members erodes the constitutional system, stating:
“On the contrary, it is wholly consistent with the separation of powers for this court, to accord the respect to a coordinate political branch of government, the House of Representatives, to carry out the exercise of the constitutionally conferred power to the legislative branch, to adjudge this dispute over Respondent Say’s qualifications.”
In short, Nakasone concluded that her court “may not interfere with, nor intrude on, the Legislature’s assertion and exercise of its power.”
In a statement Tuesday afternoon, Say said, “I am pleased with the court’s decision today. I have long maintained that I am a lifelong resident of the district and have had the privilege of serving the district since 1976. Hopefully today’s ruling will put a conclusion to this debate so we can focus on the many issues facing the state.”
Reach by telephone, Collins said he thinks Nakasone erred by not considering signed declarations from Keiko Bonk, a Green Party candidate who is running against Say this fall. Bonk had said that Speaker Joe Souki told her that the House decided not to question Say’s residency. Collins added that, by allowing Say to take his seat, the House indirectly ruled that he was qualified to be in the House.
Collins has previously suggested that his clients would appeal, and he told Civil Beat Tuesday that he expected no change.
“They want their day in court,” he said.
In addition to Bonk, Say, the speaker emeritus, also faces Republican Julia Allen in the November election. He has defeated both in previous elections.
UPDATE: Speaker Souki issued this statement Wednesday regarding Tuesday’s court ruling:
“I am extremely pleased that the courts have upheld the separation of powers between the Judiciary and the Legislature with its recent ruling that the state House has the exclusive power, as stated by our state Constitution, to determine the qualifications of its members. The separation of powers between our three branches of government is a cornerstone in our democratic process and Judge Nakasone’s ruling correctly determined that the court may not interfere or intrude on the exercise of legislative power granted by the state Constitution to the Legislature.”