Tuesday, September 30, 2014


Judge Nakasone rules that courts cannot decide question of Calvin Say’s residency

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Respondent Say and Intervenor House of Representatives' Motions to Dismiss are granted, and the Petition for Quo Warranto filed December 31, 2012, is dismissed without prejudice to the claims therein being brought in the proper forum, which is the House of Representatives of the State of Hawaii.—Judge Karen Nakasone

by Larry Geller

Judge Karen Nakasone’s decision, released today, did not decide whether former speaker Calvin Say lives in his district or not. The judge ruled that Hawaii courts do not have jurisdiction, so the matter would have to be handled by the House of Representatives.

Here is the full text—it is an OCR copy and may contain errors. Do not rely on this copy.

(Note: Quo Warranto: A legal proceeding during which an individual's right to hold an office or governmental privilege is challenged.)

Download Hussey et. al. v. Say from Disappeared News


When I started reading this article, my initial reaction was, "What is with this BS?"

But by the time I was half-way through the judge's ruling, I realized the plaintiffs had no case and, had their attorney been more familiar with precedent, should have known they had virtually no chance of prevailing.

As I read it, the judge does not deny there is a constitutional requirement that a candidate be a legal resident of the district. She does not rule whether Say is, or is not, a legal resident of Palolo. Instead, the question is who has the authority to decide if a candidate satisfies the legal qualifications to run for the House.

The judge shows Hawaii's constitution grants this authority to the legislature itself, not to a court. The judge goes further and finds rulings from 12 other states which have reached the same conclusion and points out the plaintiffs have failed to cite a single case, from Hawaii's past or that of other states, which supports their argument this is a matter for a court to decide.

That's pretty conclusive.

We are now stuck with an awkward situation whereby Calvin Say clearly does not live in the district he represents, but the legislature is undoubtedly going to say it's OK for him to thumb his nose at the law. "Law is for the little people."

It is not Say's faction which controls the House, but the Souki-Luke-Saiki alliance. Nonetheless, the Standard Operating Procedures for the House is for the Speaker to protect his members, even if they are aligned with another faction. So the "principle" of "taking care of their own" trumps, and makes a mockery out of, the state constitution and election law. As the public looks on and shakes its head.

No one wins here but cynicism.

As I said, "awkward."

It was a bit awkward for the judge, too. The case has been to the ICA and back. Of course, it's up to the plaintiffs, but I would be surprised if this were the end of it.

If the judges ruling were the only shred of information on this matter, Kolea is right that it might seem that the plaintiffs really were barking up the wrong tree. But then as Larry notes, the ICA already ruled that trial court had the power to hear the case. I'm not expert but I bet there is a story, about why a state trial judge writes an 18 page opinion, that turns her 18 pages of black and white into 1,000 shades of gray. Too bad none of the professional journalists in this town can give more context possibly with experts in the field.

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