Hussey v. Say.

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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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