Friday, February 13, 2015


50 shades of gray area—Rules for today’s hearing on Calvin Say qualifications to hold office

by Larry Geller

The hearing will take place today, Friday, 02/13/15 at 2:00 p.m. in House conference room 325 at the State Capitol.

Unlike courts of law, Hawaii legislative investigative committees do not have whole libraries of legal precedent to guide them. No law degree is required of the committee heads, though in the past, committees have engaged attorneys to lead the proceedings.

Example: Rules of the Felix Investigative Committee (2001)

The Committee adopted rules of procedure in accordance with Chapter 21, HRS and SCR 65, S.D. 1, H.D.1. In summary, the proceedings were conducted in a formal setting. Subpoenas were served and witnesses were given ten days’ notice to appear. Unlike other hearings of the Legislature, only those subpoenaed or invited by the Committee testified. Members of the public were not allowed to testify. Witnesses were questioned under oath. They were allowed to bring an attorney, and a court reporter recorded the proceedings. The Clerk of the House of Representatives served as the official repository of the committee’s records. The proceedings were open to the public, unless it was necessary for the committee to meet in executive session to confer with counsel. Olelo, the community access station, telecast most of the hearings live; some hearings were shown on a delayed basis. The written transcripts of the proceedings were placed on the Internet.

Hearings are supposed to be governed by HRS §21, but who knows to what extent the committee will create and follow rules required by the statute. The House is notorious for not following its own rules… and that’s not against the law apparently: if they can make ‘em, they can break ‘em.

§21-1  Purpose.  The purpose of this chapter is to establish procedures governing legislative investigating committees to provide for the creation and operation of legislative investigating committees in a manner which will enable them to perform properly the powers and duties vested in them, including the conduct of hearings, in a fair and impartial manner, consistent with protection of the constitutional rights of persons called to testify at such hearings and preservation of the public good.

We will see how this plays out, of course, and could be pleasantly surprised.

The example of the Felix Investigative Committee (2001) in the sidebar was an extreme case. The Legislature was invested in “getting” the providers who were allegedly driving up costs, and that’s what they relentlessly pursued, in a long series of public hearings. It was a time when legislators and the federal court were at odds over spending the funds needed to straighten out special education in Hawaii, so the investigative committee was determined to plug on. In the end, they found practically nothing wrong with provider billing.

This time, it can be assumed that legislators really would rather avoid putting one of their own in the hot seat.

So they titled today’s hearing “SPECIAL COMMITTEE TO CONSIDER MISCELLANEOUS COMMUNICATION NO. 1003”, and although they shout it in all caps, it doesn’t exactly instill faith that they are really onto the Say residency issue yet. We’ll have to see how it goes, of course.

Bottom line, the committee appears to have enough wiggle room to either treat this matter seriously—or not. If the House fails to resolve the issue with vigorous investigation, the matter will likely move a few blocks makai to the state courthouse once again. The plaintiffs and their attorney Lance Collins have demonstrated that they are not quitters.


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