HomeMy WebLinkAbout1990-05-22_Resignation_to_Seek_an_Elective_Office i
Larry S. Taninoto
Mayor
Richard I.Miyamoto
�Iy Corporation Counsel
`� M•�
Steven Christensen
°. Office of the Corporation Counsel Assistant Corporation Counsel
Hilo Lagoon Centre • 101 Aupuni Street, Suite 325 • Hilo,Hawaii%720 • (808) %1-8251
FAX (808) 969-7049
May 22, 1990 C(DPY
Honorable Stephen K. Yamashiro
Councilman, County of Hawaii
25 Aupuni Street
Hilo, HI 96720
Dear Councilman Yamashiro:
Re: Resignation to Seek an Elective Office
You have asked for a written opinion on when you must resign to
seek the office of mayor in the election to be held in 1990 to
fill the vacancy created by the death of Mayor Akana. We reply
that you must resign at or before the time of filing nomination
papers for the mayor' s office.
Section 7, Article II of the Hawaii State Constitution provides
that :
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.
Generally this constitutional provision would not apply in the
case of a councilmember running for the office of mayor since
the terms of office of councilmember and mayor are
coterminous . See Hawaii County Charter §§3-2 and 5-1. 1. We
have so advised in a prior opinion to Helene Hale (see attached
opinion dated December 29, 1982) .
However as this election for mayor is a midterm election
wherein the term of office for mayor will begin in 1990 which
is prior to the term of your office ending, it is our opinion
that this constitutional provision applies and you must resign
your council seat in order to be able to run for the office of
mayor.
f � i
Honorable Stephen K. Yamashiro
Page 2
May 22, 1990
The term of office of the current council began at 12 noon on
the first Monday in December after the council elections, i .e. ,
on December 5, 1988. The term continues for 4 years until
1992. Section 3-2, Hawaii County Charter. Therefore if you
seek the mayor' s office in the election to be held in 1990, you
must resign "before being eligible as a candidate for another
public office, " since your term as councilmember runs until
1992 and the term of the mayor' s office run for in 1990 will
begin prior to 1992.
The term "being eligible as a candidate" has been interpreted
in Attorney General Opinion 86-4 as requiring the public
officer seeking another office to resign no later than when
nomination papers for the office sought are filed. This is
based upon § 12-3(a) (8) of the Hawaii Revised Statutes which
requires that a nomination paper for a candidate must be filed.
which contains "a certification, where applicable, by the
candidate that the candidate has complied with the provisions
of Article II, Section 7, of the Constitution of the State of
Hawaii . "
In addition to the State constitutional provision, the County
Charter should be considered. Section 13-1(f) (9) provides that
there is a vacancy in office " [u]pon filing nomination papers
for another elective office during his own term of office. "
Both the State Constitution and the County Charter would apply,
therefore, a current councilmember must leave office when
filing for another office in the election to be held in 1990.
The prior opinions and interpretations of these relevant
provisions have been attached for your information:
Corporation Counsel opinion dated May 27, 1988, and Attorney
General Opinions 86-4 and 86-17.
To add complexity to this issue, Act 35 of the 1990 legislature
impacts directly upon the question under consideration in that
it sets the time for filing nomination papers for special
elections. The act provides in section 8 that the nomination
papers shall be filed "not later than 4 :30 p.m. on the fiftieth
day prior to the special primary or special election. . . , "
(emphasis added) , i .e. , the Act allows 10 additional days to
file the nomination papers than heretofore permitted.
t�
Honorable Stephen K. Yamashiro
Page 3
May 22, 1990
The definition of "special election" in §11-1, HRS, does not
apply in this contest but the words "special primary election"
and "special general election" in the said section are
construed as follows:
"Special primary election" and "special general
election, " elections held only (a) whenever any vacancy
occurs in the offices of United States senator, United
States representative, state senator, or state
representative because of failure to elect a person at an
uncontested general election or (b) as specified in
county charters. (emphasis added. )
The Hawaii County Charter does not provide for a special
election as such where a vacancy occurs, however, it provides
in §5-1.5 that the "successor [be] duly elected at the state or
state and county election and seated. "
The question posed here is whether the election contemplated in
§5-1. 5 of the Hawaii County Charter is a "special" election.
In Kenfield v Irwin, 52 Cal . 164, 165, the court concluded
that a "special election" is an election held to supply a
vacancy in office occurring before the expiration of the full
term for which the incumbent was elected. See also, State p
rel . Fish -v,. Howell, 110 P. 386, 388, 59 Wash. 492, in which
the court held that it was not necessarily the time or manner
of holding an election to fill a vacancy that makes it a
' special election, ' but the fact that it is held at a time
other than that fixed by law to elect an officer for the
regular or defined term. Based on these and other authorities
on the subject of special elections, we hold that the elections
contemplated in §5-1.5 of the County Charter are "special"
elections.
Thus, it is possible under Act 35 for a candidate to resign and
file his nomination papers "not later than" the 50th day prior
to the primary election.
Very truly yours,
RICHARD I . MIYAMOTO
Corporation Counsel
By`Jl�A
PATRICIA K. O'TOOLE
Deputy Corporation Counsel
PKO:de
Enclosures
cc: Mayor
Managing Director