Thursday, April 16, 2015
A case of legislative immunity in the ongoing Say saga
by Larry Geller
How many laws can a legislator break
Before the Speaker will care?
Yes, how many times can a man turn his head
Pretending he just doesn't see?
The answer my friend is blowin' in the wind
The answer is blowin' in the wind.
(with deep apologies to Bob Dylan)
by Larry Geller
In a letter dated April 10 (see below), Speaker of the House Joseph Souki shrugged off a complaint filed against Rep. Karl Rhoads relating to Rhoads’ conduct in investigating whether Rep. Calvin Say lives in his district and is qualified to hold office.
The response includes a “coded” phrase that looks innocent enough, but turns out to have a very troubling meaning in the context of this complaint:
… I believe that all of Representative Rhoads' actions were appropriately
taken in the exercise of his legislative functions
This is “code” for “But in any case, Rhoads could claim legislative immunity even should there be a violation of the law.” No, Souki didn’t say exactly that, but what it suggests is that there is no use proving the case against him, because, as a legislator, he can’t be hauled off to jail for it anyway.
What Souki is saying explicitly is that he doesn’t care that private information was posted or that part of the personal information remains on the Capitol website, and no, he’s not going to hold Rhoads accountable in any way. He’s turning his head away.
Ms. Ramona Hussey and Ms. Natalia Hussey-Burdick, through their attorney, Lance Collins, filed a complaint with Speaker Joseph Souki on March 30 asking the Speaker to deal with the release of their private information on the Capitol website. For reasons that are not clear, Rep. Karl Rhoads provided the personal information to Rep. Calvin Say’s attorney, who included it in a document that Rhoads then posted publicly on approximately February 12. Remember, Calvin Say is the other party in this dispute that Rhoads and his committee were to investigate.
Collins asked that the private data be removed from the website in a letter dated February 20, and in response, Rhoads partially redacted the data and reposted it on February 23, without any notation that it was not the original document.
The data was obtained by Rhoads from election records, but the use of those records is strictly limited by statute and backed up by the Hawaii state constitution’s protection of the right to privacy. From Collins’ March 30 letter:
HRS 11-97(a) states:
(a) A voter's full name, district/precinct designation, and voter status shall be public; but all other personal information, as provided on the voter registration affidavit, shall be confidential except for election or government purposes in accordance with rules adopted by the chief election officer, pursuant to chapter 91.
This provision has been interpreted by the Office of Elections and the various County Clerks to mean that use of the confidential information can be used only for election purposes.
Also from the letter:
Article I, Section 6 of the Hawai'i Constitution (“The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.”)
Rhoads was apparently trying to establish that two of the complainants against Say’ qualifications did not live in the district and so lacked standing, which turns out to be irrelevant since they did live there when the complaint was filed. In any case, he could have just asked them at his hearing, without divulging their personal information to the other side to be used against them.
While deciding not to take action, Souki actually verified in his letter that the information was posted and then partially redacted. He confirmed that. And yet he is taking no action.
Without the coded meaning of the last paragraph, it would not be clear why he can choose to take no action.
Attorney Collins explained the concept of legislative immunity to me. And now I have another concern. If a legislator were to back over me in the Capitol parking lot, it seems they could claim legislative immunity for the deed and I’d be dead and they wouldn’t have this pesky blog to annoy them any longer.
Could they even be immune to prosecution for something like that??
Well, maybe not for that, but you get my point. I’m wondering just what legislators could get away with. That’s a matter for research some day.
if Jon Riki Karamatsu had been arrested for his first DUI during session back in 2007, he'd probably have a much a better chance of claiming legislative immunity than Karl Rhoads does in disclosing the confidential information of one party in an adversarial proceeding to the opposing party in private. Art III, Sec 7 of the state constitution expressly protects legislators coming and going from session, from arrest. but it's highly questionable whether Rhoad's actions were "taken in the exercise of the member's legislative function".
Well, it was his posted document that revealed the private information. The two complainants affected filed their police complaint against both Karl Rhoads and attorney Kobayashi.
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