A Circuit Court judge Tuesday dismissed a legal challenge to state Rep. Calvin Say’s residency, ruling that the state House has the exclusive power to determine the qualifications of its members.
Judge Karen Nakasone found that if the courts were to interfere in the dispute before the House could investigate a complaint against Say or exercise its power, it "would not only be unconstitutional, but also premature, unwise and inefficacious."
Six voters in Palolo claimed Say, a former House speaker, does not live in the Palolo state House district he has represented since 1976. Say has said that his primary residence is a 10th Avenue home in Palolo, even though he spends time with his family at a home in Pauoa Valley.
The state Constitution requires lawmakers to be qualified voters of the districts they represent. Say has survived three previous challenges to his residency by political opponents that centered on his voter registration.
But this challenge was over whether Say met the constitutional requirements for serving in the House and sought to remove the veteran Democrat from office. Say and the state House had told the court that under the state Constitution only the House has the jurisdiction to weigh the qualifications of lawmakers.
"I am pleased with the court’s decision today," Say (D, Palolo-St. Louis Heights-Kaimuki) said in a statement. "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."
Lance Collins, an attorney for the six voters, said they will likely appeal. "I think that she erred," he said of the judge. "And my clients want their day in court."
While Judge Nakasone found that the voters have the option of bringing a residency complaint against Say before the House, Collins was disappointed the judge did not consider that he and Keiko Bonk — a Green Party candidate running against Say in November — had met with House Speaker Joseph Souki about Say’s residency last year.
In a declaration with the court, Bonk said Souki (D, Waihee-Waiehu-Wailuku) had told her that the House defers questions of residency to the courts. The judge found that Bonk’s declaration was irrelevant to the question of law before the court and contained inadmissible hearsay.
"She refused to acknowledge the fact that Speaker Souki did not want to get involved," Collins said.
Initially, Nakasone had found that Say’s residency was a matter for the city clerk, which oversees voter registration, and not the courts. But the state Intermediate Court of Appeals ruled in April that the courts do have jurisdiction over the constitutional question of lawmaker qualifications, and sent the legal challenge back to Nakasone.
Nakasone ordered Say to prove his residency in court, but Say and the House asked the judge to dismiss the case, citing the constitutional power granted to the House.
In her ruling Tuesday, Nakasone held that the courts have the jurisdiction to interpret constitutional provisions but that this particular subject was a political question exempt from judicial review.
Nakasone found that the "overwhelming weight of authority" from other states that have interpreted similar constitutional provisions as Hawaii supports her conclusion that the Legislature and not the courts should decide the issue.
"Because the Hawaii Constitution has clearly committed the question of House members’ qualifications to the legislative branch, this court may not interfere with, nor intrude on, the Legislature’s assertion and exercise of its power," the judge ruled.
The legal challenge not only presented a test of the separation of powers between the courts and the Legislature; it had the unusual turn of uniting Say and Souki, who have fought for control of the House throughout much of their long political careers.
Say, who helped depose Souki as House speaker in 1999, was the longest-serving speaker since statehood until Souki and a coalition of dissident Democrats and minority Republicans ousted him last year.
Say is up for re-election in November against Bonk and Julia Allen, a Republican.
