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HomeMy WebLinkAboutCOMM. 004 1.,Q _ 4 R.B. Legaspi -`•`- Yasuki Arakaki COUNTY CLERK 4',..Co-F. = DEPUTY COUNTY CLERK A OFFICE OF THE COUNTY CLERK ELECTION DIVISION 25 AUPUNI STREET HILO. HAWAII 96720 January 2, 1979 Chairperson d Members Hawaii County Charter Couuuission Hilo, HI 96720 Congratulations on your appointments as Commissioners for the Hawaii County Charter: As election officials for the County of Hawaii, permit us to express our views on the ratification election which must be conducted after all your deliberations have been concluded. The election to approve the proposed changes may be held in one of two ways. 1. Special Election. Conducted separately from a regular election. Cost estimate to the County of Hawaii approximately $110,000. Turnout would probably be low judging from the Constitutional Convention Election when only 34% or 12,700 showed up at the polls. 2. 1980 General Election. Conducted together with General Election. Cost should be approximately one-half or less than the $110,000 figure since we could share expenses with the State. Turnout for General Elections have ranged in the 80%+ in recent years. It is of utmost importance to us as election officials that the Commission decide as soon as possible on one of the two alternatives. The reason being that the planning for an election must begin far in advance of the actual election date. Thus, we submit the following recommendations: 1. The date of the election should be decided upon immediately so that a practical timetable can be developed. This will be especially critical if a special election is to be held in 1979 or in early 1980. 4-----1 COMM. NO.—.n..--. OFFICE OF THE COUNTY CLERK HAWAII COUNTY BUILDING 25 AUPUNI STREET HILO. HAWAII 96720 Hawaii County CharterCommission Page 2 January 2, 1979 2. Ballot structure should be legal yet simple and concise. The Corporation Counsel, County Clerk, the Office of the Lieutenant Governor and the Office of the City Clerk should be consulted for assistance during the developmental stages. 3. The number of amendments should be restricted. 4. There should be a vigorous mass media campaign to familiarize voters of the issues as well as the ballot structure prior to the election. This will be the responsibility of the • Commission as the Clerk is charged only with the conduct of the election. However, the Office of the Lieutenant Governor may be called upon for assistance since they have a Voter Education Division. 5. All amendments must be translated into Japanese and Ilocano in compliance with the Voting Rights Act. 6. On any proposals dealing with the conduct of elections or relating to the subject of elections, the County Clerk should be consulted. In past elections we were informed by the Office of the Corporation Counsel that Article III, Section 3-3 of the Charter was unconstitutional. We feel that now is an appropriate time for the Commission to review the affected sections based on the legal opinions (enclosed). Review of . Article V, Section 5-1. 2 and Article IX, Section 9-2, also appears to be in order as they are similarly worded. Should there be any questions, please contact Ed Kozohara, Supervisor of Elections at 961-8277. R.B. Legasp. COUNTY CLE K Enc cc: M. Takushi, Office of the Lt. Governor K. Hashimoto, Office of the City Clerk,Honolulu A • • November 10, 1975 Hr. Clifford Lum . Corporation Counsel County of Hawaii Hilo, Hawaii In your opinion rendered on June 29, 1972 and reaffirmed on October 6, 1975, you advised that the two year resident elector requirement for a person to qualify for election to the County Council was unconstitutional and, therefore, unenforceable. An individual has drawn nonin_ation papers for the 1976 Elections seeking the Office of Councilman-At-Large in the County of Hawaii. He had been a lifetime resident of the State of Hawaii, a voter in the City and County of Honolulu and became a registered voter of this County on April 11, 1975. If the two year resident elector requirement is unconsti- tutional, is this person now qualified to file nomination papers for the Councilman-At-Large Office? Ted T. Su}uki COUNTY CLERK §62-3 General qualifications of officers. Any person shall be eligible - - to fill any elective office created by the provisiins of this chapter who: (1) Is It citizen of the United States and of'the State and (2) Has bun a duly qualified elector of the State and of the countylin 'which he is elected for at least one year next prior - to his election. Except as otherwise provided by law, as to the members of the board of supervisors. the same qualifications shall be required and, in addition thereto, except when elected at large, they shall continue to reside within the district from which they were elected durine the per- iod of their incumbency; provided, that no person shall be elected county attorney who shall not, in addition to the fore«oin; qualifica- tions, be a duly licensed attorney admitted to practice in the supreme court of the State and have practiced law for at least one year in the county in tivltich he is a candidate. [L 1905, c 39, §17; RL 1925, .§1611; RL 1935, §2S09; RL 1945, §6209; RL 1955, §144-8) Case Notes What constitutes continued residency within district during incumbency of supervisor. 30 II. 887. County attorney as standing attorney of county in all legal matters not entitled to extra compensation for performing certain legal services for county- ?S H. 733. • E • t - I COUNTY OF HAWAII • Oh r'ICE OF THE CORPORATION COUNSEL • 25 Aupuni Street Hilo, Hawaii 96720 MEMORANDUM To: Ted T. Suzuki, County Clerk Dote February 3 ,. 1976 From: Katsuya Yamada, Deputy Corporation Counsel Subject: Your request for an opinion dated 11/10/75 pertaining to the 2-year resident elector requirement. In your letter of November 10 , 1975 , you advised this office that an individual who became a registered voter of this County on April 11 , 1975 has drawn nomination papers for the 1976 election , seeking the office of Councilman-At- Large in the County of Hawaii . You asked this office for a determination of whether the individual is now qualified to file nomination papers for the Councilman-At-Large office if the 2-year resident-elector requirement is unconstitutional. We answer your question in the affirmative. In ou opinion of June 29 , 1972 , we advised your office that the 2-year resident-elector requirement was unconstitutional and, therefore, unenforceable . Our opinion was based on the recent case of William C. Steele, Jr . v. City Clerk , U . S . Ciiil 72-3567. We further advised you that the Steele case involved the constitutionality of a similar 2-year elector requirement of the City and County of Honolulu which was at issue before the federal district court. Because of the close similarity between the Charter provision of the City and County of Honolulu, which was held to be unconstitutional , and that of the Charter provision pertaining to the 2-year resident- elector requirement of the office of Council-At-Large , we also advised you that our Charter provision is constitutionally suspect and, therefore , unenforceable . We reaffirm our opinion of June 29 , 1972 and still hold that the 2-year resident-elector requirement is unconstitutional and, therefore , unenforceable. t . Your request for an opinion dated November 10 , 1975 , however, poses a different question to this office. It essentially asks this office to examine the residency durational requirement of the Charter provision . Our earlier opinion , if you recall , arose on the situation where individuals upon obtaining the majority age of 18 would be precluded from running for office since they have not been an elector for the previous two years upon attaining the age of majority. Your present question deals only with the residency durational requirement since the individual who has drawn the nomination papers was already of majority age at the time that he became a resident of the County of Hawaii . Mr. Ted T. Suzuki -2- February 3, 1976 Before we proceed with our- opinion on the issue, we make the following.two observations : (1) Residency does not necessarily begin when an individual becomes a registered voter of this County, but rather is based on his intentions of making the County of Hawaii his domicile. Therefore, although he became a registered voter on April 11 , 1975 , you must nonetheless determine when he intended to become a resident of this County or to make this County his domicile. (2) Our second observation is that although we have already held the Charter provision to be unconstitutional and, therefore, unenforceable , it may altogether be possible to remove the elector requirement from the Charter and still retain the residency requirement. It is for that reason that we find it necessary at this point to examine the 3-year residency durational requirement, although by reaffirming our earlier decision we have already held that the 2-year resident-elector requirement is unconstitutional and unenforceable. The 3-year residency requirement for the offices of Mayor and Councilman was held to be uncoi.stitutional by the Supreme • Court of Colorado. Cowan v. City of Aspen, 509 P. 2d 1269 (1973) . The right to vote , as well as the right to be a candidate, has been determined by the courts to be a fundamental right which neither the state nor the county could abridge unless they can show that it is necessary to promote a compelling state interest . In the eyes of the court, the reason must be real, clear and compelling. Otherwise, the abridgement of any constitutional right which is determined to be a fundamental right is considered to be unreasonably discriminatory and, therefore , in violation of the equal protection clause of the Fourteenth Amendment of the U. S . Constitution. In the Cowan case noted above , supra , the Colorado Municipal Election Code established a one-year residency requirement. The Charter of Aspen , however; established a 3-year residency requirement for the offices of Mayor and Councilman. The court, in invalidating the charter provision, noted that since the code permitted a onejyear residency requirement, the municipality would be hard-pressed to justify a 3-year requirement. A federal court of appeals also found a 2-year residency durational requirement to be unconstitutional. Green v. McKeon, 468 F. 2d 883 (1972) . In that case, the city argued that the 2-year requirement is necessary because every candidate for city office needs to be familiar with the local form of government and local problems . The court, Mr. Ted T. Suzuki -3- February 3 , 1976 however, did not find that arguxient ,to be convincing and found that the't2-year residency durational requirement classifies residence on the basis of recent travel. For that reason, it found that the 2-year requirement was too broad for the achievement of that purpose. It is not sufficient for the state to show that a residency durational requirement ' furthers a very substantial state interest, which in that case was a familiarity with the local form government and local problems . In pursuing that important interest, the state cannot choose means which unnecessarily burden or restrict constitutionally protected activity. The court went on to note that statutes affecting constitutional rights must be drawn with precision and must be tailored to serve the legitimate objectives . And, if there are other reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity , the state may not choose the way of greater interference. If it acts at all, it must choose the less drastic means . If the purpose of the County of Hawaii in adopting the 2-year resident-elector requirement was to familiarize the resident of the government problems of the County, then the Charter provision does not address itself to that problem- The reason is that individuals who have had experience in government elsewhere or who made a diligent effort to become well acquainted with the municipality would be precluded from becoming a candidate because of the 2-year requirement. On the other hand, just because an individual resides within the County for a period of two years , does not necessarily mean that the individual is acquainted with the problems of the community and of the government. It is for those reasons that we also find that the Charter provision of the County of Hawaii requiring a 2-year residency requirement classifies the individual according to recent travel and further is not designed to address itself to the problems pertaining to the knowledge of the individual . It is for those reasons that we also find our 2-year resident-voter requirement to be unconstitutional and unenforceable. While courts have been prone to find 2 , 3,, 4 , and 5-year residency requirements to be unconstitutional, they have also realized that some residency requirement is _necessary to prevent frivolous and fraudulent candidacy by persons who have had no previous exposure to the problems and desires of the electorate of a representative district. It was for that reason that the Supreme Court of Arizona upheld the constitutionality of a one-year residency requirement. Triano V. Nassion, 513 P . 2d 935 (1973) . The court in that - case, while cognizant that an extended durational residency T. Suzuki -4- Februar 3 , 1976 Mr. Ted y requirement cpuld be unconstitutional , nonetheless was concerned with frivolous and fraudulent candidacy by individuals . Therefore, it held that absent a durational requirement, carpetbaggers can be candidates . Carpetbaggers meaning individuals who have no desire to promote the concerns of a " particular community but to promote their own individual gains . The Colorado Supreme Court in Cowans v. City of Aspen, supra, also found that the one-year residency requirement of the City of Aspen to be constitutional. Section 62-3 , Hawaii Revised Statutes , establishes a one-year residency durational requirement for members of the board of supervisors . Since the Council is a succeeding organization of the board of supervisors , absent a valid Charter provision which establishes the residency durational requirement, Section 62-3 will apply . Therefore , while we have held that the 2-year resident-elector requirement of the Charter to be unconstitutional , it is not to say that there is no residency durational requirement at all. If th? County of Hawaii were to adopt a valid residency durational requirement, it would be superior to Section 62-3 , Hawaii Revised Statutes , since the Constitution of the State of Hawaii states that charter provisions pertaining to the structure and organization of a county government is superior to that of the general laws of the State of Hawaii . As in the Cowan v. City of Aspen , supra, case , we find the Charter provision establishing the residency requirement to be unconstitutional and, therefore, we adopt the one-year residency requirement established by Section 62-3 , Hawaii Revised Statutes . Section 62-3, HRS , however, also contains a provision requiring that the candidate be an electorate of the county for a period of one year. For the same reason that the court found the provision to be unconstitutional in the Steele case , we believe that the electorate portion of the statute should be severed from the remainder of the statute and utilize only the residency durational requireme t. 1 •TSUMADA • Deputy Corporation Counsel KY:ds