Cobb v. State by Watanabe

722 P.2d 1032, 68 Haw. 564, 1986 Haw. LEXIS 102

• Court: Hawaii Supreme Court
• Decided: July 28, 1986
• Docket: NO. 11439
• Status: Published

Opinions

OPINION OF THE COURT BY

LUM, C.J.

The question raised by this original proceeding is whether article II, section 7 of the Hawaii State Constitution requires Plaintiff Steve Cobb to resign his State Senate seat in order to become a candidate for the United States House of Representatives. Cobb contends that article II. section 7 applies only to elected state and county officials who seek other state or county offices and not to candidates for federal offices.

Having reviewed the record and the relevant constitutional provisions, we cannot say with any certainty that the drafters of article II, section 7 intended for it to apply to candidates for federal offices. In view of the uncertainty, we conclude that Cobb should not have to resign from the State Senate in order to run for Congress.

I.

Cobb is the State Senator for the 12th Senatorial District His term began on November 6, 1984 and ends on November 8, 1988. Cobb has expressed an intention to run for the United States House of Representatives.

Article 11, section 7 was drafted by delegates to the 1978 State Constitutional Convention and was subsequently adopted by the voters at a general election. It provides:

Any elected public officer shall resign from that office before being eligible as a candidate for another public office, if the term of the office sought begins before the end of the term of the office held.¹

We note at the outset that this provision is ambiguous on its face. Its framers used “public” to modify both “officer” and “office ”

When resolving ambiguity, we have repeatedly held “that the fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it.” Huihui v Shimoda, 64 Haw. 527, 531, 644 P.2d 968, 971 (1982) (quoting State v. Miyasaki, 62 Haw. 269, 281, 614 P.2d 915, 922 (1980), quoting HGEA v. County of Maui, 59 Haw. 65, 80-81, 576 P.2d 1029, 1039 (1978)).

In construing article II, section 7, we are further bound by the settled rule that “[i]n the construction of a constitutional provision . . . the words of the constitution are presumed to be used in their natural sense . . . ‘unless the context furnishes some ground to control, qualify or enlarge [them].’ ” State ex rel. Amemiya v. Anderson, 56 Haw. 566, 577, 545 P.2d 1175, 1182 (1976) (quoting Employees' Retirement System v. Budget Director Ho. 44 Haw. 154, 159, 352 P.2d 861, 864-65 (1960)). Unfortunately, neither the provision nor the convention’s history sets forth what “public” was intended to include.

It is beyond dispute that every “resign to run” provision carries a disability that impinges to some degree on the rights of voters and candidates to choose and be chosen. See Anderson v. Celebreeze, 460 U.S. 780 (1983); Clements v. Fashing, 457 U.S. 957, reh’g denied, 458 U.S. 1133 (1982). For this reason, we are extremely reluctant to read into article II, section 7 any resignation requirement that was not clearly intended.

Michael A. Lilly for Plaintiff. Deborah Day Emerson (Charleen M. Aina with her on the brief), Deputy Attorneys General, for Defendant.

Cobb contends that the drafters clearly intended not to include federal officers and offices within the meaning of “public” because the result would have been an unconstitutional provision.² See Powell v. McCormack, 395 U.S. 486 (1969).

The State concedes that the drafters intended “public officer” to include only state and county office holders. However, it argues that they intended “public office” to encompass federal offices as well. The State contends that the purpose of article II, section 7 is to limit the campaign activities of office holders and that the nature of the office being sought is therefore irrelevant.³

We cannot accept the State’s position that the drafters intended to define “public” one way in reference to public officers and another way in reference to public offices. This seems illogical and inconsistent.

Accordingly, we conclude that the drafters did not manifest a clear intent to include candidates for federal office within the scope of article II, section 7 and hold that Cobb will not have to resign from the State Senate in order to run for Congress.

1 Pursuant to Hawaii Revised Statutes (HRS) § 659-3 (1976). the State Attorney General may bring a quo warranto action against a public official who runs for public office in violation of article II, section 7 to force him to resign.

2 Cobb raises several constitutional arguments including the argument that state regulation of federal office seekers violates the qualifications clause of the United States Constitution. See U.S. Const. art. 1, § 2, cl. 2. We find it unnecessary to address these issues here.

3 We acknowledge that a convention committee report articulated the purpose of article II, section 7 as being to keep voters from being saddled with elected public officers “who no longer wish to fulfill the duties of the office to which he was elected[.j” However, we are not persuaded that the drafters intended to include candidates for federal office. Indeed, there is evidence in the record that some delegates were concerned about potential constitutional problems that might result from the inclusion of federal candidates within the scope of the provision.