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Hussey v. Say

Supreme Court of Hawaii

November 17, 2016

RAMONA HUSSEY, M. KA'IMILA NICHOLSON, NATALIA ANOTONIA HUSSEY-BURDICK, BRENT S. DUPUIS, MARVIN D. HESKETT, and JOEL L. MERCHANT Respondents/Petitioners-Appellants,
v.
CALVIN K.Y. SAY, Respondent/Respondent-Appellee, and HOUSE OF REPRESENTATIVES OF THE HAWAI'I STATE LEGISLATURE, Petitioiner/Intervenor-Appellee.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0001327; SP. NO. 12-1-0736 KTN)

          Lance D. Collins, for appellants

          Deirdre Marie-Iha, for appellee

          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

          WILSON, J.

         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 Hawai'i 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 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

         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 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)). 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 12 [4]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 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 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 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 ...


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