Friday, September 19, 2014


Calvin Say residency case got complicated yesterday

by Larry Geller

Even apparently simple things can get complicated when a question of law is involved.

For example, does Calvin Say live in his district or not? Should be easy to figure out, right? No way.

Yesterday, in Judge Karen Nakasone’s courtroom, it got very complicated. After reading the briefs and hearing all sides argue. Judge Nakasone announced that she will take the matter under advisement and rule no later than September 30.

I have little to add to Chad Blair’s report, Judge to Rule by Sept. 30 on Dismissal Motions in Calvin Say Residency Case (Civil Beat, 9/18/2014).

But if you’d like an idea of how complicated the decision will be, how about this.

The House is arguing that it alone may determine the qualifications of its members. The plaintiffs argue that the court also has jurisdiction, and since the House has declined to review the matter (see the documents attached to the Civil Beat story), the court has jurisdiction (there were plenty of other arguments on both sides).

Among the several issues is one you may try to resolve yourself. You be the judge. Here it is, in my own interpretation, see what you think.

Check out the Hawaii state constitution, Article 3.12, Organization; discipline; rules; procedure

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….

Compare this with the language in Article 3.19 Impeachment

The house of representatives shall have the sole power of impeachment of the governor and lieutenant governor and the senate the sole power to try such impeachments, and no such officer shall be convicted without the concurrence of two-thirds of the members of the senate.

The Hawaii State Constitution uses the word “sole” here. It’s pretty clear that a court would have trouble impeaching the governor or lieutenant governor. That’s the effect of the words “sole power.” Court: forget about it. Only the House has the power to impeach. The word “sole” appears in a couple of other places in the constitution.

Notice in the earlier snip, the word “sole” does not appear. The usage appears to be not much different from much of the rest of the constitution—prescriptive language. For example,

The legislature shall convene annually in regular session at 10:00 o'clock a.m. on the third Wednesday in January.

In other words, the constitution says what should happen.

(This is my interpretation of the plaintiff attorney’s argument, not his).

And when given the chance, the House declined to consider the question brought before them this time. So can’t the court take it up? The constitution did not give the House “sole” power in this, it seems.

Or does it? You can be the judge.

That’s just one example (as I think I understand it) of the debate that ensued yesterday. If you weren’t there, you missed some profound arguments. They must have been profound because I don’t understand them. I don’t know how to weigh the comparative force of territorial laws. I have no clue what the many citations might really mean.

Poor judge. Tough job.

I went into the courtroom in blissful ignorance and emerged profoundly confused.

This is not easy stuff.


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