Judge quashes Souki subpoena in Say residency challenge

State House Speaker Joseph Souki will not have to testify this week about when he first heard of a legal challenge to state Rep. Calvin Say’s residency, a state Circuit Court judge ruled Wednesday.

Lance Collins, an attorney for six Palolo voters who allege Say does not live in the Palolo state House district he has represented since 1976, had subpoenaed Souki. Collins said outside of court that he wanted to ask Souki about a conversation the attorney and Keiko Bonk, a Green Party activist running against Say in the November general election, say they had with Souki about Say’s residency a few years ago.

Collins had sought Souki’s testimony to help defeat the state House’s attempt to intervene in the legal challenge, which will be heard by the court on Friday. The attorney had hoped to show that Souki was aware of the legal question about Say’s residency for some time and that the House waited too long to try to intervene.

But Circuit Judge Karen Nakasone granted the state’s motion to quash the subpoena, finding that any evidence Souki might provide is not necessary for her ability to decide whether the House should be able to join the case. Such interventions, the judge explained, rest on questions of law that do not require evidentiary hearings.

The state Attorney General’s Office, representing Souki, had also argued that Souki has legislative privilege under the state Constitution and did not have to testify in court. While Nakasone acknowledged that legislative privilege might have been an appropriate argument, she found that the state failed to show evidence that Souki had actually invoked the privilege.

The legal challenge has potential political ramifications for Say, a Democrat who faces Bonk and Republican Julia Allen in November, and raises separation of powers issues between the courts and the Legislature.

The six Palolo voters claim Say lives in Pauoa Valley, which would make him ineligible to represent the Palolo district, since the state Constitution requires lawmakers to be qualified voters in the districts they serve. Say has said that while he spends time at both homes for family reasons, his primary residency is a home on 10th Avenue in Palolo.

Nakasone ordered Say to prove that his residency is in Palolo after the state Intermediate Court of Appeals ruled in April that the courts can review whether lawmakers meet the constitutional requirements for qualifications in the House. Nakasone had previously held that the issue of Say’s residency was a matter for the city clerk, which oversees voter registration.

The House has asked to intervene in the case, arguing that the House, and not the courts, has exclusive jurisdiction under the state Constitution to determine the qualifications of its members.

Earlier this month, the court rejected a motion by Collins to have the Attorney General’s Office disqualified from representing the House in the case.

The House’s move to preserve its legal authority, which would indirectly help Say, is an odd turn in a long-running rivalry between Souki and Say. Say (D, Palolo-St. Louis Heights-Kaimuki) had ousted Souki (D, Waihee-Waiehu-Wailuku) as speaker in 1999. He became the longest-serving speaker since statehood before Souki and a coalition of dissident Democrats and Republicans removed him from power last year.