Court can’t decide House standards, state says

The state House has sought to intervene in the legal dispute over Rep. Calvin Say’s residency, arguing that the House, and not the courts, has exclusive jurisdiction over the qualifications of its members.

Circuit Judge Karen Nakasone has ordered Say to prove that he lives in his Palolo House district after six voters in the district alleged that the Democrat actually lives in Pauoa Valley. The state Constitution requires that lawmakers be qualified voters of the districts they represent.

In a legal filing, the state Attorney General’s Office, representing the House, contends that the state Constitution also provides a clear mandate for the House to act as the "judge of the elections, returns and qualifications of its own members."

The legal twist sets up a potential separation of powers clash between the Legislature and the courts.

Lance Collins, an attorney for the six voters in Say’s district, has filed a motion to disqualify the attorney general from the case, which will be heard on Aug. 8, the day before the August primary.

Collins said he would argue that while the Attorney General’s Office can represent individual lawmakers or the Legislature, the office cannot represent only the House. He will also contend that the attorney general should not be interfering in a private prosecution to enforce a constitutional requirement that the state itself should be enforcing,

Say is unopposed in the Democratic primary but faces Julia Allen, a Republican, and Keiko Bonk, a Green Party candidate, in the November general election.

If the court rules that Say is not a resident of his House district, he could be ousted from office, a prospect that complicates the election.

Say, a former House speaker, has represented the Palolo district since he was first elected in 1976. He acknowledges that he spends time at a Pauoa Valley home for family reasons, but explains that a home on 10th Avenue in Palolo is his primary residence.

Voters, including some of Say’s political opponents, have mounted three previous challenges to Say’s qualifications that have been unsuccessful.

Nakasone initially ruled that the courts lacked jurisdiction over Say’s residency, finding that his voter registration was a matter for the city clerk. But the state Intermediate Court of Appeals ruled in April that the Circuit Court does have jurisdiction over the constitutional requirement that lawmakers be qualified voters of the districts they represent.

The constitutional provisions at issue are found in Article III of the state Constitution, which describes the power of the Legislature.

Article III, Section 6, outlines the qualifications of lawmakers.

Article III, Section 12, specifies that the House and Senate have the power to judge the qualifications of lawmakers as well as the authority to discipline lawmakers for any misconduct.

"House leadership requested the attorney general to intervene on its behalf because it believes that the Intermediate Court of Appeals did not give consideration to the provisions of Article III, Section 12 of the Hawaii constitution which gives sole authority to the respective houses of the Legislature to judge the qualifications of its own members," Carolyn Tanaka, a House spokeswoman, said in a statement.

The voters in Say’s district did not challenge Say’s voter registration, but his qualifications to remain in the House.

"The House has a direct and significant interest in challenges to the qualifications of its members and the right to remain in the House of Representatives and this litigation may impair or impede the House’s ability to protect that interest," the Attorney General’s Office maintains in the filing.