Hussey v. Say. , 139 Haw. 181 ( 2016 )

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Electronically Filed
Supreme Court
SCAP-14-0001327
17-NOV-2016
09:29 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
RAMONA HUSSEY, M. KAIMILA NICHOLSON, NATALIA ANOTONIA HUSSEY-
BURDICK, BRENT S. DUPUIS, MARVIN D. HESKETT, and JOEL L.
MERCHANT
Respondents/Petitioners-Appellants,
vs.
CALVIN K.Y. SAY,
Respondent/Respondent-Appellee,
and
HOUSE OF REPRESENTATIVES OF THE HAWAIʻI STATE LEGISLATURE,
Petitioiner/Intervenor-Appellee.
________________________________________________________________
SCAP-14-0001327
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0001327; SP. NO. 12-1-0736 KTN)
NOVEMBER 17, 2016
RECKTENWALD, C.J., POLLACK, AND WILSON, JJ.,
CIRCUIT JUDGE BROWNING, IN PLACE OF NAKAYAMA, J., RECUSED, AND
CIRCUIT JUDGE TRADER, IN PLACE OF McKENNA, J., RECUSED.
OPINION OF THE COURT BY WILSON, J.
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I. Introduction
This case concerns a petition for a writ of quo
warranto challenging Representative Calvin K.Y. Say’s (Say)
authority to hold office as a representative of the Twentieth
District of Hawaii. Quo warranto is “a common-law writ used to
inquire into the authority by which a public office is held or a
franchise is claimed.” Dejetley v. Kahoohalahala, 122 Hawaiʻi
251, 265, 226 P.3d 421, 435 (2010) (quoting Black’s Law
Dictionary 1371 (6th ed. 1990)). Hawaii Revised Statutes (HRS)
§ 659-1 (1993) defines a writ of quo warranto as “an order
issuing in the name of the State by a circuit court and directed
to a person who claims or usurps an office of the State or of
any subdivision thereof . . . inquiring by what authority the
person claims the office or franchise.”
Petitioners-Appellants Ramona Hussey, M. Kaimila
Nicholson, Natalia Antonia Hussey-Burdick, Brent S. Dupuis,
Marvin D. Heskett, and Joel L. Merchant (collectively,
Appellants) appeal from the Circuit Court of the First Circuit’s
(circuit court) “Conclusions of Law and Order Granting House of
Representatives of the Twenty Seventh Legislature, State of
Hawaii’s Motion to Dismiss, and Respondent Calvin K.Y. Say’s
Motion to Dismiss Petition for Writ of Quo Warranto for
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Nonjusticiability Pursuant to the Hawaii Rules of Civil
Procedure (HRCP) Rules 12(b)(1) and 12(b)(6).”1
We consider the following issues upon transfer of the
case from the Intermediate Court of Appeals (ICA): (1) whether
“the law of the case” doctrine operates to foreclose Say’s
arguments premised on article III, section 12 of the Hawaii
Constitution, (2) whether the legitimacy of Say’s qualifications
to hold a seat in the State of Hawaii House of Representatives
presents a nonjusticiable political question, (3) whether the
Office of the Attorney General of the State of Hawaii was
permitted to represent the House of Representatives against
Appellants, and (4) whether permissive intervention by the House
of Representatives was proper.
We resolve the issues as follows: (1) the “law of the
case” doctrine does not foreclose Say’s arguments, (2) the
legitimacy of Say’s qualifications to hold office presents a
nonjusticiable political question, (3) the Attorney General was
not prohibited from representing the House of Representatives,
and (4) the grant of permissive intervention to the House of
Representatives was proper.
II. Background
1
The Honorable Karen T. Nakasone presided.
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A. Trial Court Proceedings
Say has served as the representative for the Twentieth
District of Hawaii since 1976. In December 2012, Appellants
filed a petition for a writ of quo warranto in the circuit court
alleging that Say lived and lives in the Twenty-Fifth District
of Hawaii. Appellants challenged Say’s authority to hold office
as a representative of the Twentieth District because he was not
a “qualified voter” of the Twentieth District as required by
article III, section 6 of the Hawaii Constitution.2
Say filed a motion to dismiss the petition in the
circuit court, arguing Appellants’ quo warranto petition
challenged his voter registration, and was therefore subject to
the exclusive jurisdiction of the Office of the City Clerk, City
and County of Honolulu, pursuant to HRS § 11-25 (2012).3
The circuit court granted Say’s motion to dismiss,
ruling the petition was a challenge to Say’s voter registration
2
Article III, section 6 of the Hawaii Constitution provides in
relevant part:
No person shall be eligible to serve as a member of the
house of representatives unless the person has been a
resident of the State for not less than three years, has
attained the age of majority and is, prior to filing
nomination papers and thereafter continues to be, a
qualified voter of the representative district from which
the person seeks to be elected[.]
3
HRS § 11-25 provides that “[a]ny registered voter may challenge
the right of a person to be or to remain registered as a voter in any
precinct . . . . The challenge shall be delivered to the clerk . . . . The
clerk shall, as soon as possible, investigate and rule on the challenge.”
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and that challenges to voter registration are exclusively within
the province of the county clerk. The order stated in part:
1. The Petition for Quo Warranto is, on its face, a challenge
to Respondent’s voter registration. Challenges to voter
registration are exclusively within the province of the
clerks of the respective counties pursuant to Haw. Rev.
Stat. § 11-25.
2. The circuit courts can never have jurisdiction over
challenges to voter registration. A person ruled against by
the county clerk may appeal to the board of registration
pursuant to Haw. Rev. Stat. § 11-26, and an appeal from a
board of registration decision must be made to the
intermediate court pursuant to Haw. Rev. Stat. § 11-51.
B. Appeal to the Intermediate Court of Appeals
In April 2014, the ICA vacated the circuit court’s
dismissal, ruling that the circuit court did, in fact, have
jurisdiction to hear petitions for quo warranto. Hussey v. Say,
133 Hawaii 229, 234, 325 P.3d 641, 646 (App. 2014),
reconsideration denied, 133 Hawaii 452, 330 P.3d 390 (App. 2014)
(Hussey I). The ICA concluded that Appellants’ actual challenge
was to Say’s qualification to remain seated as a house
representative, and not to Say’s voter registration. Id. at
233, 325 P.3d at 645. The ICA explained, “[o]ur courts have
jurisdiction over the interpretation of constitutional
provisions for the qualification of candidates for the house of
representatives and of elected representatives to serve in that
capacity” and “[c]ircuit courts have jurisdiction over ‘actions
or proceedings in or in the nature of . . . quo warranto.’” Id.
at 233-34, 325 P.3d at 645-46 (citing HRS § 603-21.7(b)(1993)).
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The ICA held the circuit court reversibly erred by granting
Say’s motion to dismiss. Id. at 235, 325 P.3d at 647.
Say moved for reconsideration before the ICA, arguing
for the first time that article III, section 124 of the Hawaii
Constitution dictates that the House of Representatives, not the
circuit court, had the exclusive jurisdiction to address the quo
warranto petition in his case. The ICA denied the motion
without comment.
C. Remand to the Circuit Court
1. Proceedings on Remand
On remand, the circuit court issued a writ of quo
warranto against Say “to show by what warrant and authority [he
claimed] title to the office of member of the House of
Representatives for the Twentieth Representative District.”
On July 18, 2014, the House of Representatives moved
to intervene in the case. Appellants subsequently moved to
disqualify the Attorney General from representing the House of
Representatives. Appellants maintained the Attorney General’s
4
Article III, section 12 of the Hawaii Constitution provides in
relevant part:
Each house shall be the judge of the elections, returns and
qualifications of its own members and shall have, for
misconduct, disorderly behavior or neglect of duty of any
member, power to punish such member by censure or, upon a
two-thirds vote of all the members to which such house is
entitled, by suspension or expulsion of such member.
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representation of the House of Representatives created a
conflict of interest with the state interest Appellants assumed
pursuant to their writ of quo warranto. Appellants argued that
the Attorney General’s client was the State of Hawaii, and
therefore he could not represent one state interest against
another without creating a conflict of interest. The circuit
court denied the motion to disqualify the Attorney General. The
court explained that the House of Representatives had its own
distinct “[c]onstitutionally conferred interest in this
proceeding” under article III, section 12 of the Hawaii
Constitution. The court concluded that because the parties’
interests were distinct and because Appellants and the House of
Representatives had their own separate counsel, there was no
conflict of interest.
At the August 29, 2014 hearing, the circuit court
rejected the House of Representatives’ claim for intervention as
of right, ruling there was no evidence showing a possible
impairment of its ability to protect its interests. However,
the court granted the House of Representatives’ motion to
intervene on a permissive basis. The court also rejected
Appellants’ “law of the case” argument that the ICA’s denial of
Say’s motion for reconsideration foreclosed him from making an
article III, section 12 argument again on remand. The circuit
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court concluded that the article III, section 12 issue was a
“defense . . . outside of the original appeal” and that the
“summary denial by the appellate court under these circumstances
cannot be construed as a decision on the merits of the new
defense.”
2. Circuit Court’s Rulings on Motions to Dismiss
Say filed two motions to dismiss Appellants’ petition
for quo warranto on July 18, 2014. The first was premised on
collateral estoppel because earlier challenges to his residency
were rejected in other forums. In the second motion, Say made
the argument that the House of Representatives, and not the
court, was the proper authority to preside over the quo warranto
petition per article III, section 12 of the Hawaii Constitution.
The House of Representatives also filed a motion to
dismiss Appellants’ quo warranto petition on August 29, 2014,
arguing that article III, section 12 of the Hawaii Constitution
confers exclusive jurisdiction to judge the qualifications of
its members upon the House of Representatives, therefore
rendering the question nonjusticiable by the court.
At its September 18, 2014 hearing, the circuit court
orally denied Say’s motion to dismiss based on collateral
estoppel, concluding the current proceedings involved different
issues and parties than those in the prior adjudications. Say’s
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and the House of Representatives’ motions premised on
nonjusticiability were heard together. On September 30, 2014,
the circuit court granted Say’s and the House of
Representatives’ motions to dismiss the quo warranto petition.
The court ruled that the legitimacy of Say’s qualifications to
hold office as a representative presented a nonjusticiable
political question, and accordingly dismissed the quo warranto
petition. Judgment was entered on October 31, 2014, and
Appellants appealed to the ICA on November 28, 2014.
At the ICA, the parties filed applications for
transfer which were subsequently granted by this court on June
9, 2015.
III. Standards of Review
A. The Law of the Case
The law of the case doctrine holds that “a
determination of a question of law made by an appellate court in
the course of an action becomes the law of the case and may not
be disputed by a reopening of the question at a later stage of
the litigation.” Fought & Co. v. Steel Eng’g & Erection, Inc.,
87 Hawaii 37, 48-49, 951 P.2d 487, 498-99 (1998) (citation
omitted). “This doctrine applies to issues that have been
decided either expressly or by necessary implication.” Id. In
other words, “the usual practice of courts to refuse to disturb
all prior rulings in a particular case” is referred to as the
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“law of the case” doctrine. Chun v. Bd. of Trs. of the Emps.’
Ret. Sys. of State of Hawaii, 92 Hawaii 432, 441, 992 P.2d 127,
136 (2000) (citations omitted). “Unless cogent reasons support
the second court’s action, any modification of a prior ruling of
another court of equal and concurrent jurisdiction will be
deemed an abuse of discretion.” Wong v. City & Cty. Of
Honolulu, 66 Haw. 389, 396, 665 P.2d 157, 162 (1983) (emphasis
omitted). Consequently, the “law of the case” doctrine “does
not preclude modification of a prior ruling in all instances.”
Stender v. Vincent, 92 Hawaii 355, 361, 992 P.2d 50, 56 (2000).
B. Constitutional Questions
The appellate court reviews “questions of
constitutional law de novo, under the right/wrong standard.”
Jou v. Dai-Tokyo Royal State Ins. Co., 116 Hawaii 159, 165, 172
P.3d 471, 477 (2007) (citation omitted).
C. The Attorney General’s Representation of the House of
Representatives
Appellate courts apply the abuse of discretion
standard for reviewing a judge’s denial of a motion for
disqualification. State v. Ortiz, 91 Hawaii 181, 188, 981 P.2d
1127, 1134 (1999). “Under the abuse of discretion standard, the
trial court may not be reversed by an appellate court unless the
trial court clearly exceeded the bounds of reason or disregarded
rules or principles of law or practice to the substantial
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detriment of a party litigant.” Kealoha v. Cty. of Haw., 74
Haw. 308, 318, 844 P.2d 670, 675 (1993) (citation omitted).
D. Permissive Intervention
Permissive intervention is subject to the discretion
of the trial court under HRCP Rule 24(b)(2) (2006). A grant of
permissive intervention is reviewed for abuse of discretion.
Baehr v. Miike, 80 Hawaii 341, 345, 910 P.2d 112, 116 (1996).
IV. Discussion
A. The ICA’s Order Denying Say’s Motion for Reconsideration
is Not the Law of the Case
In Hussey I, the ICA held the circuit court had
jurisdiction to hear petitions for quo warranto, stating “[o]ur
courts have jurisdiction over the interpretation of
constitutional provisions for the qualification of candidates
for the house of representatives and of elected representatives
to serve in that capacity.” 133 Hawaii at 233, 325 P.3d at 645.
Say subsequently filed a Hawaii Rules of Appellate Procedure
(HRAP) Rule 40 (2000)5 motion for reconsideration, making the
argument that “[t]o the extent the petition is a challenge to
5
HRAP Rule 40 reads in relevant part:
Motion for Reconsideration.
(b) Contents. The motion shall state with particularity
the points of law or fact that the moving party contends
the court has overlooked or misapprehended, together with a
brief argument on the points raised. The motion shall be
supported by a declaration of counsel to the effect that it
is presented in good faith and not for purposes of delay.
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Say’s qualifications to serve as a member of the House of
Representatives, the House is the judge of his qualifications
pursuant to Art. III, sec. 12 of the Hawaii Constitution.” The
ICA summarily denied Say’s motion without comment.
On remand before the circuit court, Appellants
contended the ICA’s denial of Say’s motion for reconsideration
precluded him from raising the article III, section 12 argument
again because the ICA’s ruling on the issue was the “law of the
case.” Appellants explained that the “law of the case” doctrine
“posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent
stages of the same case.” Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 816 (1988) (citation omitted). In
Appellants’ view, the ICA’s holding that circuit courts have
jurisdiction in quo warranto cases and its denial of Say’s
motion for reconsideration established that the circuit court,
and not the House of Representatives, was the proper authority
to investigate Say’s qualifications to hold office. The circuit
court rejected the argument that the ICA’s denial of Say’s
motion for reconsideration was the “law of the case,” stating:
[T]he ICA’s summary denial of Respondent Say’s motion for
reconsideration cannot be construed as a decision on the
merits of the Article III, Section 12 jurisdictional
argument. Such argument was newly raised in the
reconsideration and was not a part of the trial and
appellate record before the ICA in Hussey v. Say, supra.
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According to Appellants, the circuit court wrongly interpreted
the “law of the case” doctrine in concluding that the law of the
case exists only when there is an express decision on the merits
of a claim. Appellants maintain the circuit court was precluded
from considering Say’s article III, section 12 argument on
remand where the ICA had formerly decided that courts have
jurisdiction over quo warranto petitions.
The “law of the case” doctrine holds that “a
determination of a question of law made by an appellate court in
the course of an action becomes the law of the case and may not
be disputed by a reopening of the question at a later stage of
litigation.” Tabieros v. Clark Equip. Co., 85 Hawaii 336, 352
n.8, 944 P.2d 1279, 1295 n.8 (1997). Thus, as the United States
Supreme Court held, the “law of the case” doctrine “merely
expresses the practice of courts generally to refuse to reopen
what has been decided.” Christianson, 486 U.S. at 802. In
Ditto v. McCurdy, 98 Hawaii 123, 128, 44 P.3d 274, 279 (2002),
this court held “the law of the case concept applies to single
proceedings, and operates to foreclose re-examination of decided
issues either on remand or on a subsequent appeal but does not
encompass issues presented for decision but left unanswered by
the appellate court.” An appellate court may decide an issue
“either expressly or by necessary implication.” Id. A question
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is decided explicitly or implicitly when it is “specifically
determined in a prior decision . . . [or] necessarily determined
to arrive at the decision.” Int'l Union v. State, 535 N.W.2d
210, 212 (Mich. Ct. App. 1995).
Because Say’s motion for reconsideration was denied
without comment, the ICA did not explicitly decide the issue of
whether article III, section 12 of the Hawaii Constitution gives
the House of Representatives exclusive jurisdiction over
investigations of the qualifications of its members. Therefore,
the question before us is whether the ICA implicitly resolved
the article III, section 12 issue as a necessary step in
reaching its conclusion that “[c]ircuit courts have jurisdiction
over ‘actions or proceedings in or in the nature of . . . quo
warranto’” pursuant to HRS § 603-21.7(b).6 Hussey I, 133 Hawaii
at 233-34, 325 P.3d 645-46.
6
HRS § 603-21.7(b) provides in relevant part:
Nonjury cases. The several circuit courts shall have
jurisdiction, without the intervention of a jury except as
provided by statute, as follows:
. . . .
(b) Of actions or proceedings in or in the nature of habeas
corpus, prohibition, mandamus, quo warranto, and all other
proceedings in or in the nature of applications for writs
directed to courts of inferior jurisdiction, to
corporations and individuals, as may be necessary to the
furtherance of justice and the regular execution of the
law.
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In Hussey I, the ICA considered the language of HRS §
603-21.7(b) and cases involving challenges to the qualifications
of county council representatives7 and state trustees.8 133
Hawaiʻi at 234, 325 P.3d at 646. These authorities clearly
establish the general rule that circuit courts have jurisdiction
over petitions for quo warranto. However, article III, section
12 of the Hawaii Constitution states that “each house shall be
the judge of the . . . qualifications of its own members.”
Neither HRS § 603-21.7(b) nor the cases the court considered
raised the issue of whether article III, section 12 supersedes
the general rule and creates an exception granting the House of
Representatives jurisdiction over quo warranto petitions
involving its members. Furthermore, Say did not raise this
argument to the court until after the ICA issued its opinion.
Thus, it appears the ICA applied the general rule granting
circuit courts jurisdiction over petitions for quo warranto
because it was unaware that a constitutional exception existed
7
In Dejetley, 122 Hawaii at 266, 226 P.3d at 436, the court
concluded that a writ of quo warranto “seem[ed] to be an appropriate remedy”
for the defendant’s alleged violation of section 3-3 of the Charter of the
County of Maui residency requirements, which automatically and instantly
created a forfeiture and vacancy of his office.
8
In Office of Hawaiian Affairs v. Cayetano, 94 Hawaii 1, 5, 6 P.3d
799, 803 (2000), the State sought a judicial determination that the Office of
Hawaiian Affairs trustees appropriately held their elected offices after the
U.S. Supreme Court held the trustees’ eligibility requirements to be
unconstitutional. The Hawaii Supreme Court concluded, “the State should seek
relief through a quo warranto petition filed pursuant to HRS chapter 659.”
Id. at 8, 6 P.3d at 806.
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for cases involving legislators. It follows that, where the ICA
was uninformed of the article III, section 12 issue, it could
not have implicitly decided the constitutional issue as a
necessary step in resolving the appeal.
Because the ICA neither expressly nor implicitly
decided the issue of whether circuit courts have jurisdiction
over petitions for quo warranto involving House representatives
in light of article III, section 12 of the Hawaii Constitution,
its denial of Say’s motion for reconsideration cannot be viewed
as the “law of the case.” Moreover, since this was a new
argument made on appeal from a motion to dismiss, the
reinstatement of proceedings on remand would have allowed and
did allow Say to present and argue the issue at the circuit
court. Accordingly, Say was not foreclosed from raising his
article III, section 12 argument before the circuit court on
remand.
B. Representative Say’s Residency Issue Presents a
Nonjusticiable Political Question
On remand from Hussey I, the circuit court concluded
that the issue of Say’s qualification to hold office constitutes
a political question and thus is nonjusticiable by the courts.
The circuit court accordingly held that the legislature has
exclusive jurisdiction to judge Say’s qualifications pursuant to
article III, section 12 of the Hawaiʻi Constitution. Appellants
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maintain the circuit court reversibly erred in reaching this
conclusion. They argue the issue of Say’s qualification to hold
office is justiciable by the courts because HRS § 659 provides
judicially discoverable and manageable standards for executing
quo warranto proceedings involving political figures.
Furthermore, Appellants contend allowing the House of
Representatives to judge Say’s qualifications to hold office
erodes the separation of powers doctrine because it leaves the
House’s power to determine its members’ qualifications
unchecked.
“Justiciability” is a legal term of art relating to
the court’s position as one of the three coequal branches of
government. It is a doctrine meant to assure that the courts
“not intrude into areas committed to the other branches of
government.” Trs. of Office of Hawaiian Affairs v. Yamasaki, 69
Haw. 154, 168, 737 P.2d 446, 455 (1987) (citing Flast v. Cohen,
392 U.S. 83, 95 (1968)). See also Haw. Const. art. III, art. V,
and art. VI.9 A political question arises in the courts when the
9
The Hawaiʻi Constitution reads in relevant part:
Article III, section 1: The legislative power of the State shall
be vested in a legislature, which shall consist of two houses, a
senate and a house of representatives. Such power shall extend
to all rightful subjects of legislation not inconsistent with
this constitution or the Constitution of the United States.
Article V, section 1: The executive power of the State shall be
vested in a governor. The governor shall be elected by the
(continued. . .)
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resolution of a dispute “threatens confrontation with the other
parts of government . . . .” Yamasaki at 169, 737 P.2d at 455.
A case involving a nonjusticiable political question must be
dismissed when there is “a textually demonstrable constitutional
commitment of the issue to a coordinate political department.”
Id. at 170, 737 P.2d at 455 (quoting Baker v. Carr, 369 U.S.
186, 217 (1962)).
Generally, circuit courts have jurisdiction over quo
warranto petitions. HRS § 603-21.7(b). However, in this case,
there is a clear “textually demonstrable constitutional
commitment” of the issue to the legislature because article III,
section 12 explicitly commits the determination of
qualifications of House members to the House of Representatives
itself. The legislature, not the court, possesses the authority
to judge the qualifications of its members. In Harris v.
Cooper, 14 Haw. 145, 148 (Haw. Terr. 1902), the court explained
(. . .continued)
qualified voters of this State at a general election. The person
receiving the highest number of votes shall be the governor. In
case of a tie vote, the selection of the governor shall be
determined as provided by law.
Article VI, section 1: The judicial power of the State shall be
vested in one supreme court, one intermediate appellate court,
circuit courts, district courts and in such other courts as the
legislature may from time to time establish. The several courts
shall have original and appellate jurisdiction as provided by law
and shall establish time limits for disposition of cases in
accordance with their rules.
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that “[t]he very fact that ‘each house shall be the judge of the
elections, returns, and qualifications of its members10 is
sufficient reason why neither the Secretary nor the courts
should undertake to pass upon the question of the eligibility of
a candidate” and that “[t]he jurisdiction of each house of the
legislature is exclusive in such cases. Each branch of the
government must respect the prerogatives of each of the others.”
Courts in other jurisdictions faced with interpreting
language similar or identical to that of article III, section 12
of the Hawaii Constitution have held that the legislature, not
the court, has the power to judge the qualifications of its
members. In Buskey v. Amos, 310 So. 2d 468, 469 (Ala. 1975),
the Supreme Court of Alabama rejected a similar quo warranto
challenge, holding “[i]n view of this constitutional provision
this court is compelled to hold that it lost jurisdiction of
this appeal when the appellee became a member of the State
Senate.”11 The Supreme Court of Iowa ruled in State ex rel.
Turner v. Scott, 269 N.W.2d 828, 832 (Iowa 1978) that the Iowa
10
The court interpreted the language of the Hawaii Organic Act,
ch. 339, 31 Stat. 141, § 15 (1900), the predecessor to article III, section
12 of the Hawaii Constitution. The section reads “[t]hat each house shall be
the judge of the elections, returns, and qualifications of its own members.”
11
Article IV, section 51 of the Alabama Constitution provides in
relevant part that “[e]ach house shall choose its own officers and shall
judge the election, returns, and qualifications of its members.”
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Constitution “clearly leaves to the Senate the determination as
to whether a member is qualified” and that the issue is
“nonjusticiable and improper for judicial resolution.”12 The
holdings of these courts support our conclusion that, based on
the plain language of article III, section 12 of the Hawaiʻi
Constitution and our jurisdiction’s case law, the House of
Representatives maintains the exclusive authority to determine
the qualifications of its members to hold office.
Appellants cite Ford v. Leithead-Todd, No. CAAP-15-
0000561, 2016 WL 4705136 at *6 (Haw. Ct. App. Sept. 8, 2016),
for the proposition that the Hawaiʻi constitution cannot grant
the House of Representatives exclusive authority to review its
representatives’ qualifications. Appellants maintain that this
policy would leave the House’s discretion unchecked, thus
violating the separation of powers doctrine.
In Leithead-Todd, the ICA held that the circuit court,
and not the Mayor or County Council, had jurisdiction over quo
warranto proceedings involving a challenge to the Director of
the Department of Environmental Management’s (Director)
qualifications to hold office. Id. at *7. The Charter of the
County of Hawaiʻi (CCH) expressly granted the Mayor authority to
12
Article III, section 7 of the Iowa Constitution provides that
“[e]ach house shall choose its own officers, and judge of the qualification,
election, and return of its own members. A contested election shall be
determined in such manner as shall be directed by law.”
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remove the Director.13 However, the ICA held the Mayor could not
assess the qualifications of the Director in response to a quo
warranto inquiry because he had previously approved her
qualifications when he appointed her Id. According to the ICA,
granting the Mayor this “unreviewable discretion in determining
the qualifications of the Director” would essentially render the
CCH provisions identifying qualifications for the office of the
Director meaningless, leading to an absurd result. Id. Thus,
the ICA held that the question of the Director’s qualification
to hold office must be evaluated by the court, and the CCH could
not textually commit this authority to the Mayor. Id.
Following this reasoning, Appellants maintain the
House of Representatives should not have the authority to review
Say’s qualifications to be a representative because this policy
would similarly grant the House unfettered review of the
qualifications of its members. However, unlike the Director in
Leithead, Say was not appointed by the same authority that would
review his qualifications. He was elected by his constituents,
while his qualifications will be reviewed by the House. Thus,
13
CCH § 6-10.3 (2010) reads in relevant part:
The director of environmental management shall be appointed
by the mayor, confirmed by the council, and may be removed
by the mayor. The director shall have had a minimum of
five years of administrative experience in a related field
and an engineering degree or a degree in a related field.
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the danger of “unreviewable discretion” present in Leithead-Todd
does not exist here because Say’s qualifications will not be
reviewed by the same individuals who selected him for office.14
Accordingly, the House of Representatives has
exclusive jurisdiction to decide whether Say satisfied the
constitutional residency requirements of a sitting House member.
On this basis, the ruling of the ICA in Hussey I, 133 Hawaii at
235, 325 P.3d at 647 granting quo warranto jurisdiction is
overruled.
C. The Attorney General is Permitted to Represent the House
of Representatives
Appellants argue the circuit court erred by denying
Appellants’ motion to disqualify the office of the Attorney
General and by concluding it could represent the House of
Representatives. Appellants base their claim on two arguments.
First, Appellants maintain the Attorney General may
represent the legislature as a whole, but is not statutorily
authorized to represent only the House of Representatives.
14
In Leithead-Todd, the ICA concluded that allowing the Mayor to
assess the qualifications of a Director he had appointed would leave the
Mayor’s discretion unchecked, and therefore the question should be
adjudicated by the court. However, the ICA suggested that this holding does
not extend to situations involving quo warranto writs granted against state
legislators: In a footnote, the ICA cited the Iowa Supreme Court’s holding in
Scott, 269 N.W.2d at 832 that a quo warranto action to remove a state senator
from office was a political question nonjusticiable by the courts. The ICA’s
reference to Scott implies that its holding in Leithead-Todd does not apply
to the issue of a state representative’s qualification to hold office.
Leithead-Todd, No. CAAP-15-0000561, 2016 WL 4705136 at *9 n.6.
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Citing HRS § 28-4 (2009), Appellants explain that the Attorney
General is tasked to “give advice and counsel to the heads of
departments, district judges, and other public officers, in all
matters connected with their public duties, and otherwise aid
and assist them in every way requisite to enable them to perform
their duties faithfully.” Additionally, per HRS § 26-7 (2009),
the Attorney General has the responsibility to “administer and
render state legal services, including furnishing of written
legal opinions to the governor, legislature, and such state
departments and officers as the governor may direct[.]”
Appellants assert this statutory language should be strictly
construed because the powers of the Attorney General originate
from English common law and “statutes in derogation of the
common law must be strictly construed and, where it does not
appear that there was a legislative purpose in the statute to
supersede the common law, the common law applies.” Doi v.
Hawaiian Ins. & Guar. Co., 6 Haw. App. 456, 465, 727 P.2d 884,
889 (1986). In Appellants’ view, strict construal of the
statutory language authorizes the Attorney General to represent
the “legislature” as a whole per HRS § 26-7, but not the House
of Representatives alone.
HRS § 26-7 instructs that the department of the
attorney general “shall administer and render state legal
services, including furnishing of written legal opinions to the
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governor, legislature, and such state departments and officers
as the governor may direct . . . . The attorney general shall
be charged with such other duties and have such authority as
heretofore provided by common law or statute.” HRS § 26-7
(emphasis added). We have noted that the common law of this
jurisdiction broadly interprets the Attorney General’s powers of
representation:
[I]n addition to those conferred on it by statute, the
office [of the Attorney General] is clothed with all the
powers and duties pertaining thereto at common law; and, as
the chief law officer of the State, the Attorney General,
in the absence of express legislative restriction to the
contrary, may exercise all such power and authority as the
public interests may from time to time require.
Chun v. Bd. of Trs.' of Emps. Ret. Sys. of State of Hawaii, 87
Hawaii 152, 169, 952 P.2d 1215, 1233 (1998) (quoting Darling
Apartment Co. v. Springer, 22 A.2d 397, 403 (Del. 1941)). There
is no statute or common law rule that expressly restricts the
Attorney General to representing the legislature as a whole.
Accordingly, the Attorney General’s broad jurisdiction to
represent the interests of the state includes representation of
the House of Representatives in this case.
Appellants’ second argument is that the Attorney
General’s representation of the House of Representatives created
a conflict of interest in violation of the Hawaii Rules of
Professional Conduct (HRPC), thus precluding the Attorney
General from representing the House of Representatives.
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Appellants maintain the Attorney General’s representation of the
House of Representatives results in a conflict because the
Attorney General’s “client” is the State of Hawaiʻi, and
therefore the Attorney General cannot represent the House of
Representatives if in so doing the Attorney General’s office
takes a position adverse to the general state interest
Appellants defend via their writ of quo warranto.
Appellants cite HRPC Rule 1.7 (b)(3)(1994) in support
of the proposition that the Attorney General is barred from
representing one state interest against another. HRPC Rule 1.7
(b)(3) provides in relevant part that “a lawyer may represent a
client if . . . the representation does not involve the
assertion of a claim by one client against another client
represented by the lawyer in the same litigation or other
proceeding before a tribunal.” In the case at bar, the Attorney
General does not represent multiple clients. The Office of the
Attorney General represents the House of Representatives, and
Appellants are represented by independent counsel. HRPC Rule
1.7 (b)(3) thus does not apply.15 Therefore, the Attorney
15
Furthermore, the Attorney General’s duty to protect the public
interest does not preclude the Office of the Attorney General from
representing the House of Representatives in this case. The Attorney
General’s common law duty to protect the public interest is subject to his or
her definition of what is in the best interests of the state or public at
large. See Chun, 87 Hawaiʻi at 169, 952 P.2d at 1233. Thus, Appellants’ writ
(continued. . .)
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General is not disqualified from representing the House of
Representatives.
D. The Circuit Court Did Not Err in Granting Permissive
Intervention to the House of Representatives
Appellants assert that the circuit court’s grant of
permissive intervention to the House of Representatives under
HRCP Rule 2416 constituted reversible error because the circuit
court lacked any factual basis to grant intervention. However,
Appellants failed to provide any argument or analysis in support
of this statement in their opening brief.
Under the Hawaii Rules of Appellate Procedure, points
not argued may be deemed waived. HRAP Rule 28(b)(7) (2010).
This court is “not obliged to address matters for which the
(. . .continued)
of quo warranto does not ipso facto establish their position to be in the
public interest and is not binding upon the Attorney General.
16
HRCP Rule 24(b) states:
(a)Permissive Intervention. Upon timely application anyone
may be permitted to intervene in an action: (1) when a
statute confers a conditional right to intervene; or (2)
when an applicant’s claim or defense and the main action
have a question of law or fact in common. When a party to
an action relies for ground of claim or defense upon any
statute, ordinance, or executive order administered by an
officer, agency or governmental organization of the State
or a county, or upon any regulation order, requirement or
agreement issued or made pursuant to the statute, ordinance
or executive order, the officer, agency or governmental
organization upon timely application may be permitted to
intervene in the action. In exercising its discretion the
court shall consider whether the intervention will unduly
delay or prejudice the adjudication of the rights of the
original parties.
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appellants have failed to present discernible arguments.”
Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116
Hawaii 277, 288, 172 P.3d 1021, 1032 (2007).
Furthermore, a grant of permissive intervention under
HRCP Rule 24(b) only requires that “an applicant’s claim or
defense and the main action have a question of law or fact in
common.” In this case, the House of Representatives and
Appellants contested the legal question of whether the courts or
the legislature possess jurisdiction over quo warranto petitions
involving state representatives. Thus, the House of
Representatives’ claim shared a question of law in common with
the main action of the case, and permissive intervention was
proper. In exercising its discretion to grant permissive
intervention, the court must consider whether the intervention
will “unduly delay or prejudice the adjudication of the rights
of the original parties.” HRCP Rule 24(b). There is no
evidence or allegation that the circuit court’s grant of
permissive intervention caused undue delay or prejudiced the
adjudication of the rights of the original parties in this case.
Therefore, the circuit court did not abuse its discretion in
granting permissive intervention to the House of
Representatives.
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V. Conclusion
Accordingly, the circuit court’s order entered on
September 30, 2014 granting Say’s and the House of
Representatives’ motions to dismiss is affirmed.
Lance D. Collins, /s/ Mark E. Recktenwald
for appellants
/s/ Richard W. Pollack
Deirdre Marie-Iha,
for appellee /s/ Michael D. Wilson
/s/ Robert M. Browning
/s/ Rom A. Trader
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