State Ex Rel. Kanbara v. Gill

477 P.2d 625, 52 Haw. 410, 1970 Haw. LEXIS 140

• Court: Hawaii Supreme Court
• Decided: November 24, 1970
• Docket: 5063
• Status: Published

Opinions

OPINION OF THE COURT BY

LEVINSON, J.

Tbis case involves the manner in which a vacancy in the State Senate of the sixth Hawaii legislature, arising from the death of a candidate, is to be filled. The present vacancy arose as a result of the death of Senator Kuri-yama, which occurred on October 23, 1970. At that time Senator Kuriyama was one of four Democratic candidates running for the Senate offices representing the Fourth Senatorial District of the State of Hawaii. Under the 1968 reapportionment, the Fourth Senatorial District is entitled to’ the, representation of four State Senators. Senator Kuriyama and the other three Democratic candidates were running unopposed for these four seats.

Senator Kuriyama’s death created a vacancy in the candidacy for one of the Fourth District’s Senate seats. The respondent, Lieutenant Governor of the State and also its chief election officer, determined, pursuant to HRS § 11-118, which is part of S.L.H. 1970, Act 26, that a substitution of a candidate on the general election ballot could not be made in some practical effective manner. The candidacy was thus declared vacant and notices of the death of Senator Kuriyama were posted at the polling places in the Fourth Senatorial District on the general election day.

On the day following the election of November 3, 1970 the petitioner, the Attorney General for the State of Hawaii, issued an opinion, stating the procedures .he felt should be followed in filling the Fourth Distinct vacancy. He advised that in accordance with HRS § 17-3 as amended by S.L,H-1970, Act 26, the vacancy was to be filled at the 1972 general election, pending which the Governor was empowered to make a temporary appointment. The respondent rejected this procedure and on November 5,1970 issued a proclamation calling for a special election to be held on January 9, 1971, in the Fourth Senatorial District." A.t that time a State Senator would be chosen whose term of office would expire on the date of the 1974 general election. In accordance with the proclamation, nomination papers were to be filed not later than 4:30 p.m. on November 25, 1970.

The parties filed this case in this court on November 11, 1970 as a submission on agreed facts under HRS | 631-1. Briefing by the parties was completed on November 17,1970, and oral arguments were heard the next day. The petitioner asked us to enjoin the holding of the special election, contending that HRS § 17-3 as amended establishes the proper procedure for filling the vacancy and that there is no constitutional or statutory provision authorizing the respondent to conduct a special election. Alternatively, the petitioner argues that if HRS § 17-3 as amended is not applicable the Governor may make an appointment under article III, section 6 of the Hawaii Constitution, because there is no other applicable statutory provision, and that such an appointment would continue until the general election of 1974. The respondent argues that HRS § 17-3 as amended is not applicable and that as chief election officer he is empowered to proclaim a special election for the purpose of filling the vacancy.

I. THE FAILURE OF THE LEGISLATURE TO PRESCRIBE THE MANNER OF FILLING A VACANCY ARISING FROM THE DEATH OF A CANDIDATE.

A. HRS § 17-3 as Amended is not Applicable to the Present Case.

A vacancy exists in the State Senate because only three Senators were elected in the general election of 1970 to represent the Fourth Senatorial District which is entitled to four Senators. HRS § 17-3 as amended by S.L.H. 1970, Act 26, is the only statutory provision dealing with the manner of filling vacancies in the State Senate. The petitioner contends that paragraph (1) of this section empowers the Governor to make a temporary appointment pending the 1972 general election.¹ Paragraph (1) states:

In the case of a vacancy, the term of which does not end at the next succeeding general election:

(1) If it occurs ten days or more prior to the close of filing for the next succeeding primary election, the vacancy shall be filled for the unexpired term at the next succeeding general election. The chief election officer shall issue a proclamation designating the election for filling the vacancy. All candidates for the unexpired term shall be nominated and elected in accordance with this title. Pending the election the governor shall make a temporary appointment to fill the vacancy and the person so appointed shall serve until the election of the person duly elected to fill the vacancy. The appointee shall he of the same political party as the person he succeeds. (Emphasis added.)

The emphasized requirement of the above paragraph makes it clear that this provision was meant to apply only to those vacancies arising from the failure of an elected member of the Senate to serve his full term and not to those resulting from the death of a candidate. If HRS § 17-3 as amended were applied to the latter situation the Governor would be unable to comply with the statutory requirement that his “appointee shall be of the same political party as the person he succeeds.” This is because candidates running for Senate offices from a given district do not declare for any particular seat. Thus, when there is an original vacancy, as in the present. case, it becomes impossible to say whom tlie appointee “succeeds.”² For this reason it is clear that HRS § 17-3 as amended may not be used to fill the present vacancy.

B. The Lack of Legal Authorisation to Conduct a Special Election.

We are in sympathy with the respondent’s desire to hold a special election to fill the present vacancy, agreeing Avith him that it would be the most democratic procedure to' follow. HoAvever, article II, section 5 of the Hawaii Constitution requires .that special elections be held only “in accordance with law.” Thus, in order for a special election to be called there would have to be specific legislative authorization. Such legislation exists for filling Araeaneies in other elective offices³ but has not been enacted to cover the situation presently before us.

Nor may authorization be inferred from HRS § 11-91, which is part of S.L.H. 1970, Act 26. This section merely sets forth the procedures that are to be followed in informing the voters of the time, place and purpose of an-election authorized under other provisions of the election laws. HRS § 11-91 does not grant to the respondent any substantive power to call a special election whenever he deems the circumstances appropriate. Thus it is clear that the manner of filling a vacancy arising from the death of a candidate has not yet been dealt with by the state legislature.

George Pai and Roy Miyamoto, Deputy Attorneys Gen-

II. IN THE ABSENCE OF A STATUTORY PROVISION, THE GOVERNOR IS EMPOWERED TO FILL THE VACANCY BY APPOINTMENT.

Article III, section 6 of the Hawaii Constitution resolves the problem presented by tbis case. That provision is as follows:

Any vacancy in the legislature shall be filled for the unexpired term in such manner as may be prescribed by law, or, if no provision be made by law, by appointment by the governor for the unexpired term.

As noted above, no provision has been made by law for filling the present vacancy. Faced with this legislative hiatus it is clear that article III, section 6 of the constitution has empowered the Governor to fill the vacancy.

In applying this constitutional provision we avoid the problem faced in HRS § 17-3 as amended since the Governor is authorized to make the appointment without restriction as to political party. Nor is any problem raised with respect to the. duration of the appointment. Article III, section 6 states that the appointment shall be for the “unexpired term.” In this case, since the appointment is to fill a vacancy in the State Senate, the appointee will hold office for the remainder of the four-year term, as set forth in article III, section 5 of the Hawaii Constitution. We hold, therefore, that since no statutory provision has been enacted prescribing the manner for filling the vacancy in the present case, it may be filled only by the Governor, in accordance with article III, section 6 of the Hawaii Constitution.

The proclamation for a special election issued by the respondent is void and the respondent is enjoined from conducting the special election called for in the proclamation.

eral (Bertram T. Karibara, Attorney General, State of Hawaii, of counsel) for Petitioner. Robert G. Dodge, for respondent.

1 The petitioner relies only on paragraph (1) of HRS § 17-3 as amended. The other provisions of this section, paragraphs (2) and (3), also contain the requirement that the appointee shall be of the same political party as the person he succeeds. Paragraph (2) is not applicable because it applies only if a vacancy occurs less than ten days prior to the close of filing for the next succeeding primary. Paragraph (3) is not applicable because it applies only if a vacancy occurs less than ten days prior to the next succeeding general election.

2 This problem may be illustrated by assuming that one of the Fourth District’s Senate seats in the fifth legislature had been held by a Republican. The Governor would now be unable to say to which political party the current vacancy belonged, since it would be equally logical to say that one of the three newly elected Fourth District Senators “succeeded” to that seat as it would be to hold that the Republican member was replaced by the vacant seat.

3 See HRS §§ 46-21, 70-23 and HRS § 17-2 as amended by S.L.H. 1970, Act 26. Specific legislative authorization also exists for calling a special election when a general election has been invalidated. HRS § 12-103, referred to in Akizaki v. Fong, 51 Haw. 354, 361, 461 P.2d 221, 225 (1969).