Hayes v. Gill

473 P.2d 872, 52 Haw. 251, 1970 Haw. LEXIS 119

• Court: Hawaii Supreme Court
• Decided: August 26, 1970
• Docket: 5015
• Status: Published

Opinions

OPINION OP THE COURT BY

MARUMOTO, J.

This case is before us on a submission on agreed facts under HRS c. 631, filed on August 10, 1970. The submission is a sequel to respondent’s letter of August 5 to petitioner, which is referred to below.

Petitioner is seeking election as a member of the house of representatives of the sixth State legislature, the first regular session of which will convene on January 20,1971. She is of the age of majority, is a qualified voter of the representative district from which she seeks to be elected, and will complete her three years’ residence in the State on January 10, 1971.

Respondent is lieutenant governor of the State, and is also its chief election officer. In the latter capacity, he has the ministerial duty of printing the names of candidates, who file proper nomination papers, on the ballots for primary elections.

The State constitution provides as follows in article III, section 7: “No person shall be eligible to serve as a member of the senate unless he shall have been a resident of the State for not less than three years, have attained the age of majority and be a qualified voter of the senatorial district from which he seeks to be elected. No person shall be eligible to serve as a member of the house of representatives unless he shall have been a resident of the State for not less than three years, have attained the age of majority and be a qualified voter of the representative district from which he seeks to be elected.”

HRS § 12-3(6), which is part of S.L.H. 1970, c. 26, proscribes the printing of the name of any candidate on a primary election ballot unless the candidate files a nomination paper containing a certification that he will “qualify under the law for the office he is seeking by the date of the next election, and that he is a registered voter and a resident in the district from which he is running.”

In order to become a member of the bouse of representatives of the sixth State legislature, petitioner must first be nominated at the primary election to be held on October 3, 1970, after filing her nomination paper by August 19, and then be. elected at the general election to be held on November 3.

On August 5, petitioner presented her nomination paper to respondent, with proper filing fee. Eespondent found the nomination paper to be in order except for the certification required under § 12-3(6). With respect to the certification, instead of certifying that she would qualify under the law for the office she was seeking by November 3, as printed on the form furnished by respondent, petitioner changed the date and certified that she would qualify by January 10, 1971. Respondent took the position that, by changing the date, petitioner failed to comply with § 12-3(6), and wrote to her: “Because of this, I have no choice but to hold your nomination paper and remittance in abeyance pending a decision by an appropriate court.”

The first question which we are called upon to decide on this submission is whether § 12-3(6) is valid under the State constitution. If we answer that question in the affirmative, we must then decide whether the residency requirement in article III, section 7, is valid under the United States Constitution.

It is petitioner’s contention that § 12-3(6) is invalid because it violates the State constitution in two respects, first, in requiring a candidate to certify to compliance with a residency requirement which differs from the residency requirement in article III, section 7, and, second, in foreclosing the senate, or the house of representatives, of a future legislature from rendering a judgment under article III, section 13, as to whether a candidate elected to it has the qualifications to be its member. Article III, section 13, provides: “Each house shall be the judge of the elections, returns and qualifications of its own members.”

In our opinion, § 12-3(6) does not require a candidate to certify to compliance with a residency requirement which differs from the residency requirement in article III, section 7.

There is a slight ambiguity in § 12-3(6). It requires a candidate to certify that he will qualify by the date of “the next election.” Petitioner urges upon us that the quoted words mean the ensuing primary election because the primary election is the next election which is held after the filing of the nomination paper.

From the context of the statute in which the quoted words are used, and considering the apparent purpose for which § 12-3(6) was enacted, we have no doubt that the legislature meant the general election and not the primary election.

Under the rule of construction stated in HRS § 1-15, where the words of a statute are ambiguous, their true meaning may be ascertained by considering the context, as well as the reason and spirit of the statute and the cause which induced the legislature to enact it. The quoted words must be read in the context of S.L.H. 1970, c. 26, which provides the procedure for “all elections, primary, general, special or county.” The apparent purpose of § 12-3(6), as we see it, is to prevent the occurrence of a situation where, after a candidate is elected, he is found not to possess the qualifications stated in article III, section 7.

There is also an ambiguity in article III, section 7. The ambiguity consists of an omission to state the date as of which the qualifications stated therein must be met. In such a situation, it is the task of a court to resolve the ambiguity by filling the gap.¹

In filling tlie gap liere, we tliink that the proper date to be read into article III, section 7, is the date of the general election.

There was no uncertainty under the Organic Act regarding the date by which a member of the house of representatives should have qualified, for section 40 of the act required that he possess the qualifications “at the time of election.”

That the framers of the State constitution intended no change is evident from the report of the Committee on Legislative Powers and Functions of the Constitutional Convention of 1950, which stated: “Section 7 states the qualifications for members of the senate and the house of representatives. The requirements, are the same as in the Organic Act * * Standing Committee Eeport No. 92, I Proceedings of the Constitutional Convention of Hawaii 1950, 251.

We see no significance in the failure to include the words “at the time of election” in article III, section 7. In this connection, it may be noted that section 34 of the Organic Act, relating to the qualifications of senators, did not contain those words.

Petitioner argues that the proper date to be read into article III, section 7, is the date of commencement of the first regular session of each legislature.

Under article III, section 11, the legislature convenes annually in regular session at 10:00 o’clock a.m. on the third Wednesday in January. Under article II, section 5, general elections are held on the first Tuesday after the first Monday in November in all even-numbered years. Thus, the first regular session commences slightly more than two months after the date of the general election.

In support of her argument, petitioner relies on the words “eligible to serve,” as used in article III, section 7. Her point is that, if she is elected, normally she will not be required to serve until the convening of the first regular session, and that, by the time the first regular session is convened, she will have completed her three years’ residence in the State and will be eligible to serve.

Petitioner’s argument ignores the possibility that there may be an emergency which requires the calling of a special session between the date of the general election and the convening of the first regular session and the importance of the availability of all legislators for service in case such special session is convened. It may well be that the emergency which requires the convening of such special session will involve a situation where the need of the constituents to be effectively represented is the greatest.

Article III, section 5, provides: “The term of office of members of the house of representatives shall be two years beginning with their election and ending on the day of the next general election, and the term of office of members of the senate shall be four years beginning with their election and ending on the day of the second general election after their election.” We think that implicit in that provision is the requirement that a legislator be available for service at all times during his elected term, in regular sessions as well as in special sessions.

Under our construction discussed above, § 12-3(6) is consistent with article III, section 7. Both look to the date of the general election as the date by which the qualifications must be met.

With regard to petitioner’s contention that § 12-3(61 violates the State constitution in abridging the power of each house of the legislature to judge the qualifications of its members, it has cogency if the powers of a legislative body to judge includes the power to construe the language of the constitutional provision pertinent to the question of qualification.

Past actions in Congress under the provisions of the Federal Constitution corresponding to article III, section 7, and article III, section 13, of the State constitution, show that tlie United States Senate and the House of Representatives have botli acted on the basis that each lias such power. But such actions do not establish that each house in fact has such power. The precise question has not been before the United States Supreme Court. However, we think that there is clear indication in Powell v. McCormack, 395 U.S. 486 (1969), that if the question is presented to it, it will rule that the power of each house to judge the qualifications of its members does not include the power to construe the constitutional provision on qualifications contrary to the construction of the court.

Powell v. McCormack was a case in which Congressman Adam Clayton Powell, Jr., sought relief from a denial by the United States House of Representatives of a seat therein for causes other than lack of qualifications stated in the Federal Constitution.

The respondents in the case contended that the court was barred from adjudicating Powell’s claims, first, because of “textually demonstrable commitment” formulation of the political question doctrine in Baker v. Carr, 369 U.S. 186, 217 (1962), and, second, because a judicial resolution of his claims will produce a potentially embarrassing confrontation between coordinate branches of the federal government.

The court rejected the contention. As to the first ground, it ruled that article I, section 5, of the Federal Constitution, which empowers each house of Congress to be the judge of the qualifications of its members, “is at most a ‘textually demonstrable commitment’ to Congress to judge only the qualifications expressly set forth in the Constitution.” As to the second ground, it stated: “But, as our interpretation of Art. I, § 5, discloses, a determination of petitioner Powell’s right to sit would require no more than an interpretation of tlie Constitution. Sueli a determination falls within the traditional role accorded courts to interpret the law * *." 395 U.S. 486, 548.

Thus, under Powell v. McCormack, the power of each house of Congress to be the judge of the qualifications of its members is not plenary but is limited by the qualifications expressly set forth in the Federal Constitution, and the role of construing the constitutional provision rests with the court.

Here, the issues, as framed by the parties, require us to construe article III, section 7. Once we have construed, we do not think that either house of the legislature has the power to act pursuant to a construction contrary to ours. Inasmuch as the certification requirement in § 12-3(6) accords with our construction of article III, section 7, that statute does not violate the State constitution.

This brings us to the question of the validity of article III, section 7, under the United States Constitution. The attack on article III, section 7, is based on the equal protection of laws clause of the fourteenth amendment to the Federal Constitution.

Until Kramer v. Union Free School District, 395 U.S. 621 (1969), the equal protection of laws clause was satisfied if there was a rational basis for classification, and the burden was upon the party assailing a classification to prove that there was invidious discrimination, as discussed in State v. Johnston, 51 Haw. 195, 456 P.2d 805 (1969).

In the State Constitutional Convention of 1968, the three-year residency requirement of article III, section 7, was scrutinized by the delegates. Proposals were made to eliminate or reduce the requirement. The requirement was retained in accordance with the recommendation of the Committee on Legislative Powers and Functions, stating: “The residency requirements, too, are important; all states include such provisions in their constitutions. The role of the legislator is to represent the views of his constituents, and he must be familiar with them and their needs, which familiarity residency, in some measure, assures.” Constitutional Convention of Hawaii 1968, Standing Committee Report No. 46, p. 7.

We cannot say that the action of the constitutional convention in retaining the residency requirement is devoid of rational basis. Certainly the action is not invidiously discriminatory.

Residency requirement for legislators is not unique to this State. Our examination of state laws shows that every state, except Nevada, has residency requirement of varying length. Nor is a three-year requirement unusual. Nine other states have the same requirement. Five states require longer residency. See accompanying table.

In Kramer v. Union Free School District, supra, the United States Supreme Court struck down, as being in violation of the equal protection of laws clause, a New York law which prohibited residents who were otherwise eligible to vote in state and federal elections from voting in certain school districts unless they owned or leased taxable realty in the district or were parents of children enrolled in the local public schools. In so doing, the court stated the issue in the case was whether the law furthered a “compelling state interest” to justify the denial of franchise. The court observed that the requirements of the law were not sufficiently tailored to limiting the franchise to those “primarily interested” in school affairs, implying that the law might pass muster if it were so limited.

It will be observed that Kramer is a voting right case. The case here involves a right to run for office and not a right to vote. That the United States Supreme Court deems that different considerations are involved in a right to vote and a right to run or to hold office is indicated in Turner v. Fouche, 396 U.S. 346 (1970), where the court

RESIDENCY REQUIREMENT FOR REPRESENTATIVES

(A) Georgia and Tennessee require citizenship instead of residence.

Anthony P. David and George K. Noguchi for petitioner. Bertram T. Kanbara, Attorney General (Morton King and Thomas M. Pico, Jr., Deputy Attorneys General, with him on the brief), for respondent. Steven E. Kroll for American Civil Liberties Union, amicus curiae.

resolved the issue of discrimination under the pre-Kramer test and declined to rule on the applicability of the compelling state interest test. That case involved a statute restricting membership on school boards to freeholders.

In the absence of any decision of the United States Supreme Court applying the compelling state interest test to qualifications for elective office, we apply here the pre-Kramer rationality test. This does not imply that we think that article III, section 7, does not pass the Kramer test.

Stapleton v. Clerk for the City of Inkster, 311 F. Supp. 1187 (1970), has been cited as an authority for the application of the compelling state interest test to qualifications to run. Our answer to that is, first, the decision there is by a single judge of a lower federal court; second, the decision is actually based on the rationality test and the discussion of the compelling state interest test is dictum; and, third, one of the qualifications was two-year residency but the constitutional validity of that qualification was never questioned.

In view of the foregoing, the case is dismissed.

1 Some refer to the process as construction. Others frankly acknowledge it as judicial legislation, although done only interstitially. Holmes, J., in Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917): “I recognize without hesitation that judges must and do legislate, but they can do so only interstitiaUy.”