A day after the Hawaii
Supreme Court threw out Trevor Ozawa’s 22-vote victory over Tommy Waters for the City Council District 4 seat, Ozawa on Saturday criticized the decision and said the justices should have recused themselves because of potential conflicts of interest.
Ozawa, an attorney, said while he’s not alleging any specific wrongdoing, the potential for conflict is enough to have had the justices remove themselves from any role in the case.
“As the highest court in the state, the Supreme Court must have no perceptions of impropriety,” he said. “However, the amount of conflict that this court has with my opponent is outrageous.”
Waters, who followed up Ozawa’s Honolulu Hale press conference Saturday with his own availability in front of the Supreme Court building several hundred yards away, said he was pleased with the court’s decision and is looking forward to a new election. He also disagreed with several of Ozawa’s assertions.
Anyone who sat through the Supreme Court’s hearing of oral arguments on the challenge Jan. 15 “would agree that there was a clear violation of the law” on the part of elections officials, Waters said. “And we had case law to back us up, as well as the facts.”
Ozawa said he and his own attorneys are “looking at all our other options to see if there could be a set of neutral eyes that could visit this matter,” perhaps the U.S. District Court or even the U.S. Supreme Court.
Hawaii’s high court on Friday issued a unanimous 5-0 decision invalidating the Nov. 6 election results for District 4, which runs from Hawaii Kai to Waikiki.
Waters took the state Office of Elections and Honolulu Office of the City Clerk to court, alleging improprieties with the voting process. Thirty-nine East Honolulu voters, comprised largely of Waters’ supporters, also challenged the results in a separate but similar filing.
The state Elections Office, under Administrator Scott Nago, oversees the entire election and counts the actual ballots. The city Elections Division, under City Clerk Glen Takahashi, is responsible for absentee voting on Oahu and collects the ballots for the state.
The justices, in their 55-page order, focused on 350 District 4 ballots that election officials picked up from the airport post office after
6 p.m. on Election Day, the time precinct polls are supposed to close.
Ozawa said the city clerk’s office has been handling the collection of absentee ballots from the U.S. Postal Service for more than 30 years. On election night, as in previous years, “the USPS collected the 350 ballots in dispute by 6 p.m., scanned them and held them safe for the city clerk’s office to pick up again,” he said.
The court said the clerk’s office “was unable to make any direct representation regarding the procedures actually employed at the USPS airport mail processing plant.”
Ozawa said Waters has ties to three of the five justices — Richard Pollack, Sabrina McKenna and Michael Wilson — because he was vice chairman of the Judicial Selection Commission that nominated them for appointment to the High Court.
Pollack was Waters’ boss when they both were at the Public Defender’s Office, Ozawa said, and McKenna’s law clerk rents housing from an attorney for the 39 East Honolulu residents in the case. He said McKenna previously recused herself when Waters unsuccessfully challenged the results of his 41-vote loss to Ozawa in 2014.
Waters called the charge “ridiculous” and suggested Ozawa is diverting attention from a clear and logical ruling by the Supreme Court. He said while he was on the commission when Pollack and Wilson were appointed, he does not recall whether he was when McKenna was nominated. In any event, Waters said, he was only one of nine people who made their recommendations to the governor, who ultimately makes the appointments.
Asked if any of the justices should have recused themselves, Waters said: “You’ll have to ask them. I think the idea is if you cannot be fair to both sides, then you need to recuse yourself.”
Ozawa also pointed out that Waters, during his time in the state House of Representatives in the 2000s, was chairman of the House Judiciary Committee and made friends in the state Judiciary system then.
In a rare move Saturday, the Judiciary responded to a request for comment on Ozawa’s allegations.
“Judges are guided by the Hawaii Revised Code of Judicial Conduct, which establishes standards for the ethical conduct of judges,” Judiciary spokeswoman Jan Kagehiro said. “It provides guidance to assist judges in maintaining the highest standards of judicial and personal conduct, including when making a determination on whether or not to sit on a particular case.”
Meanwhile, Ozawa said private attorneys should have been hired to represent the city clerk because the Department of Corporation of Counsel attorneys are appointed by the administration of Mayor Kirk Caldwell, a Waters ally. He said he felt the clerk was represented inadequately.
Waters downplayed his relationship with Caldwell. “I agree with him on some things, I disagree with him on others,” he said.
Unclear from the court’s opinion is whether a new election will have only Ozawa and Waters on the ballot or be open to other candidates. Takahashi told the Honolulu Star-Advertiser Friday night that he is talking to city attorneys about how the election will be conducted.
Ozawa and Waters, also an attorney, separately said they interpret the opinion to mean the new election should have only their names on the ballot.
State law says the election must be held within 120 days of a vacancy.
With the outcomes of the challenges still in question, the court ordered state elections officers to not
certify Ozawa’s victory. As a result, the nine-member Council has been operating without an East Honolulu representative.
Council Chairwoman Ann Kobayashi said Friday night the Council will likely call a meeting the week of Feb. 4 to select a temporary member from Council District 4. She said that as in the past, the person taking the post would not be someone hoping to be elected permanently.
Both Ozawa and Waters said the Legislature should adopt legislation triggering an automatic recount in close elections.