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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

________________________________________________________________

RAMONA HUSSEY, M. KAIMILA NICHOLSON, NATALIA ANOTONIA HUSSEYBURDICK, 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.

Electronically Filed

Supreme Court

SCAP-14-0001327

17-NOV-2016

09:29 AM
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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