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Where does Calvin Say live? That is the central question of a lawsuit that has yet another court hearing Thursday.
Six residents of District 20, which Say represents in the Hawaii House of Representatives, argue that he does not live at 1822 10th Ave., the address Say lists as his home. The residence is in lower Palolo Valley which, along with St. Louis Heights, Maunalani Heights, Wilhelmina Rise and Kaimuki, comprises District 20.
His actual residence, the plaintiffs claim, is 2247 Star Road in Pauoa Valley. That’s in Sylvia Luke’s District 25 and includes Pacific Heights, Makiki, Punchbowl and Nuuanu. The Star Road home is owned by Say’s wife, Cora Say.
Ramona Hussey and her other District 20 residents believe that, if Say really does live in Pauoa rather than Palolo, he should not be representing them in the Hawaii Legislature.
On Thursday, Circuit Court Judge Karen Nakasone is expected to rule on three motions to dismiss Hussey v. Say. Two are from Say and the other is from the House of Representatives which, according to Speaker Joe Souki, is of the opinion that the House — and not the courts — has say over evaluating the qualifications of representatives.
If the motions are dismissed, Nakasone is expected to set a trial date sometime before the Nov. 4 election. Say is running for re-election in District 20 against Republican Julia Allen and Green Party candidate Keiko Bonk.
Even if Hussey v. Say is dismissed, it may not be the last word on the matter, according to the plaintiffs’ attorney Lance Collins
“I have to hear what the judge says, but my clients want to have a trial and want the judge to rule on the merits,” Collins said Wednesday. “And as long as they don’t get that, I am sure they will continue to pursue this until they get that.”
Collins boils his case down to this simple question: “‘OK, Calvin, where do you live?’ Why is everyone so afraid of coming out and saying that?”
Say, the House speaker emeritus, did not comment on the legal action, but he did have an answer on the question of residency.
“I’ve always been a lifetime resident of the district for the past 62 years,” Say, 62, said Wednesday. “I attended Palolo Elementary and Jarrett Middle School and St. Louis High School.”
The first two schools are in Palolo and the third is just around the corner on Waialae Avenue.
“My clients want to have a trial and want the judge to rule on the merits.” — Attorney Lance Collins
Say has survived three previous challenges to his residency status.
Twice in 2006 and again in 2010, constituents complained that Say was not registered to vote in the district in which he lives. But the Office of the Clerk, which conducts elections for the City and County of Honolulu, sided with Say, who said he had been taking care of elderly in-laws at the Pauoa home.
State law suggests some wiggle room on matters of voter registration.
Hawaii Revised Statutes 11-12 says, “No person shall register or vote in any other precinct than that in which the person resides. …” But HRS 11-13, concerning the rules for voter residency, says, “There can be only one residence for an individual, but in determining residency, a person may treat oneself separate from the person’s spouse.”
HRS 11-13 also offers rules to determine that, including, “The residence of a person is that place in which the person’s habitation is fixed, and to which, whenever the person is absent, the person has the intention to return.”
Here is another rule for HRS 11-13: “A person does not gain or lose a residence solely by reason of the person’s presence or absence while employed in the service of the United States or of this State. …”
Say, of course, is employed by the state and has been since he was first elected in 1976. But how does one define where one actually lives? Several sworn declarations that are part of the Hussey case raise questions about that.
In one declaration, lead plaintiff Ramona Hussey said that, not long after the 2012 election, she began traveling by the 10th Avenue house.
“I never observed any activity at the house in the evenings,” she said. “The curtains were always drawn and the lights were always off.”
Hussey said that the general consensus of Say’s neighbors is that Say has lived with his wife and children at the Star Road house “for more than 20 years.”
Another declaration is from Keiko Bonk, who met with Collins and Souki in February 2013. Bonk said Souki made statements that strongly suggested Say’s home was not in his district:
“He stated that everyone knew that Mr. Say lived at 2247 Star Road. He also indicated that after session, during that time, on some nights members of the House leadership would go for drinks and socialize and that he frequently would be the one to drive Mr. Say home to his house on Star Road in Pacific Heights.”
“I’ve always been a lifetime resident of the district for the past 62 years.” — Rep. Calvin Say
There is another declaration from Bonk in which she said Souki explained that the House does not get involved in questions about qualifications to serve in the House.
“We leave all other matters to the courts and don’t get involved,” Bonk quotes Souki as saying. Of course, Souki is now arguing the opposite and is trying to get the lawsuit against Say dismissed.
Bonk, meanwhile, has her own agenda. As a Green Party candidate, she lost to Say in the 2012 general election but has a rematch this Nov. 4. Bonk did not respond to Civil Beat’s media inquiries.
Say is registered to vote in District 20, according to the State Office of Elections. The polling place is the cafeteria at the same school where he went to middle school.
Hussey v. Say does not challenge Say’s voter registration but rather his qualifications to remain a representative under the Hawaii Constitution. Article III Section 6 states:
No person shall be eligible to serve as a member of the house of representatives unless the person has been a resident of the State for not less than three years, has attained the age of majority and is, prior to filing nomination papers and thereafter continues to be, a qualified voter of the representative district from which the person seeks to be elected; except that in the year of the first general election following reapportionment, but prior to the primary election, an incumbent representative may move to a new district without being disqualified from completing the remainder of the incumbent representative’s term.
Meanwhile, according to Hawaii Information Service, a real estate database, Say does own the Palolo home on 10th Avenue home, just as his wife, Cora Say, owns the Pauoa home on Star Road.
Records also show that the Pauoa property has six bedrooms and one and a half baths compared with three bedrooms and one bath in the Palolo property. Cora Say also owns the Pauoa property next door, which has four bedrooms and one and a half baths.
The Pauoa house is, then, perhaps a more desirable place to live, especially if a family of four was caring for elderly in-laws. It is also very close to the place where Say works, the Hawaii State Capitol.
Civil Beat visited the 1822 10th Avenue property Wednesday morning. The windows were closed, there were no cars in the garage and no one answered our knock. A call to the phone number listed by Say for the house did not pick up and there apparently was no answering machine.
Calvin Say is registered to vote in his district and owns a home there.
Regardless of how Hussey v. Say turns out, Calvin Say’s name will be on the ballot this November. Should he lose the lawsuit — which would presumably result in his ouster from his seat — but win the election, it raises some interesting questions. One theory is that, if Say is the winner, the Democratic Party of Hawaii would select three possible replacements and send the nominations to the governor.
Collins, the attorney for Hussey, believes there would almost certainly be a court challenge, either by Bonk or possibly the Republican, Julia Allen, who has unsuccessfully challenged Say in the past five elections.
Allen was one of the parties that challenged Say in 2006 over his voter registration. Speaking with Civil Beat on Wednesday, she did not say whether she would consider legal action, pointing out that Bonk was already working with an attorney, Collins.
But she did say she still has lots of questions about Say’s residency, too, and feels it is important to continue to challenge him electorally.
“The loss is in not doing that,” she said. “I don’t lose unless I quit — and I don’t quit.”
For his part, Say, who said he could not comment on the case — “This is in the courts and I will leave it to the courts,” he said — did note that he continues to find satisfaction in his political career.
“I really enjoy doing public service,” he said. “That’s what I tell the people as I walk the district. And they vote me back in.”