HomeMy WebLinkAboutComm No 0011.01 - Section 13-1 - Definition of Vacancy - Resign to Runllarry Kim
Mayor
Joseph K. Kamelamela
Corporation Counsel
Renee N.C. Schoen
Assistant Corporation
Counsel
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720 • Phone (808) 961-8251 • Fax (808) 961-8622
December 4, 2018
Douglas Shipman Adams, Chair
and members of the 2018-2020 Hawai'i County Charter Commission
Re: Analysis of Article XIII, Section 13-1 (f) (9) regarding the definition of
"vacancy"
Dear Honorable Chair Adams and members of the Charter Commission:
At the October 12, 2018 Charter Commission meeting, the Commission
discussed one of the definitions of "vacancy" under Article XIII, Section 13-1 (f) (9) of
the Hawai'i County Charter and whether a Hawai'i County Council member is required
to resign from office upon the filing of nominations papers for the Hawai'i State Senate.
The purpose of this memo is to provide the Charter Commission with our analysis of
Article XIII, Section 13-1 (f) (9) of the Hawai'i County Charter.
I. Question Presented.
Whether a Hawai'i County Council member is required to resign from office upon
the filing of nomination papers for the Hawai'i State Senate?
II. Short Answer.
A Hawai'i County Council member is not required to resign their position as a
Council member upon filing of nomination papers for the Hawaii State Senate.
III. Discussion.
A. Plain meaning of Section 13-1 (f) (9).
In the Hawaii State Supreme Court cases of Rees v. Carlisle, 113
Hawai'i 446, 452, 153 P.3d 1131, 1137 (2007) Thompson, 84 Hawai'i at
106, 929 P.2d at 1356, Dejetley v. Kaho'ohalahala, 122 Hawai'i 251, 262,
226 P.3d 421, 432 (2010), the Courts found that "The interpretation of the
charter is similar to the interpretation of a statute.", therefore the following
interpretation will follow statutory interpretation. We begin our analysis by
looking at the plain meaning of Section 13-1 (f) (9). The Hawai'i Supreme
Court has established the following rules for statutory construction:
Comm. No. 11.1
Hawaii County is an Equal Opportunity Employer and Provider
First, the fundamental starting point for statutory interpretation is the
language of the statute itself. Second, where the statutory language is
plain and unambiguous, our sole duty is to give effect to its plain and
obvious meaning. Third, implicit in the task of statutory construction is our
foremost obligation to ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the language contained
in the statute itself. Fourth, when there is doubt, doubleness of meaning,
or indistinctiveness or uncertainty of an expression used in a statute, an
ambiguity exists.
Applying this framework to Hawai'i County Charter Article XIII, Section 13-1 (f)
states, "Vacancy' shall have the following meaning: Any elective office shall become
vacant on the happening of any of the following events before expiration of the term:
(9) Upon filing nomination papers for another elective office if the term of the
office sought begins before the end of the term of the office held.
Currently, the term of office for a Hawai'i State Senator is four years and the term
of office for a Hawai'i County Council member is two years. Applying the plain meaning
of Section 13-1 (f) (9) means that a vacancy would occur if the term of office sought
(Hawai'i State Senate) begins before the end of the term of the office held (County
Council). In this case, the terms of office of a Hawai'i County Council member and a
Hawai'i State Senator are both completed at the end of the 2018 term. Since there is no
overlapping of terms, a Hawai'i County Council member is not required to resign from
office.
However, if hypothetically, the term of office for a Hawai'i County Council
member (or any other elected County official) was four years (instead of two years) and
he or she was in the middle of their four year term (year two), then they would be
required to resign upon filing of nomination papers for another elected office because
the term of the office being sought (Hawai'i State Senate) would begin before the end of
the term of office being held (middle of four year term),
B. Legislative History.
A review of the legislative history for Section 13-1 (f) (9) confirms my analysis
that a vacancy would occur when the term being sought overlaps with the term currently
held. Ordinance 96-86 amended Section 13-1 (f) (9) as follows: "Upon filing nomination
papers for another elective office [during the officer's own term of office.] if the term of
the office sought begins before the end of the term of the office held." A copy of
Ordinance 96-86 is attached as Exhibit "A". Prior to this amendment, County elected
officials were required to resign upon the filing of nomination papers for another elective
office. The intent and purpose of Ordinance 96-86 was stated as:
Intent and Purpose. The change reflected in this ordinance is viewed by
the Council as a sincere effort to bring the County Charter into harmony
with the Constitution of the State of Hawai'i and the Hawai'i Revised
Statutes.
As long as an elected County official fulfills his/her duties to the office,
there is no reason to force the elected official to vacate that office simply
because papers are filed to run for another office which begins after that
respective term ends. A County elected official who wishes to run for an
elected office that begins after his/her term should be treated equally
without regard to the office being sought.
However, if a County elected official wishes to run for an office, the term of
which begins before the end of his/her current elected office, that seat
should be considered vacant at the time one's nomination papers are filed
to run for election to a non -coterminous office.
C. Hawai'i State Constitution.
Hawaii State Constitution Article II, Section 7, states 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."
By letter dated May 16, 1986, Council Member Patsy Mink requested an opinion
from the Attorney General of the State of Hawaii as to whether Article 11, Section 7
required her to resign to run for another office, the term of which begins on the first
Monday of December 1986 and her present council term ends on January 2, 1987. The
Attorney General issued Opinion No. 86-17 on July 11, 1986 (hereinafter referred to as
"Opinion") wherein she concluded: "We are of the opinion that section 7, article 11 was
never intended to apply to officeholders whose successors would be elected at the
same election in which they are candidates for another office." A copy of this Opinion is
attached as Exhibit "B".
The Attorney General's Opinion cited Standing Committee Report No. 72 and
included the following discussion to explain the underlying rationale for the "resign to
run" provision in the State constitution:
Your Committee believes it would be justified to require a person to resign
from office before becoming eligible to run for another public office with an
overlapping term. By running for another office, the person is in effect
saying that he no longer wishes to fulfill the responsibilities of the office to
which he was elected, and accordingly he should resign from that office.
The voters should not be saddled with an elected public official who no
longer wishes to fulfill the duties of the office to which he was elected and
will do so only if he fails to win election to the other office. This is not fair
to the voters, who elected him to serve a full term, and is a violation of the
public trust.
1. Proceedings of the Constitutional Convention of Hawaii of 1978, at 678.
In explaining their underlying intent, the framers distinguish between
officeholders whose offices were to be filled by an upcoming election and
those whose offices were not then subject to election:
Your Committee does not believe it would be warranted for a candidate to
resign if the office he is seeking has a concurrent term. In this case, he is
in effect resigning since, if he loses the election, he does not have an
office to return to. He is not abusing his elected office by using it as a safe
haven from which to make political forays and return if he proves
unsuccessful.
Id. (emphasis added in original). (page 2 of Opinion).
The Attorney General also addressed the issue of the various beginning and
ending dates of the terms for Hawai'i's federal, state and county offices.
Nothing in the constitutional history allows us to conclude that the framers
intended to distinguish between incumbent state legislators or board of education
members or Office of Hawai'ian affairs trustees, whose terms begin and end at a
general election and who would never need to resign if they were candidates
during the last year of their terms irrespective of the office sought, and federal
incumbents, the governor or the lieutenant governor, or elected county
incumbents who were completing the last year of their terms but seeking offices
with terms which begin chronologically before the term of the offices held end.
Moreover, the Attorney General explained that "If relying upon a literal or "plain
meaning" interpretation of "term" or the phrase "begins before the end" to distinguish
between incumbents' whose terms begin and end at a general election and those
whose terms do not, would lead to an unreasonable or unconstitutional result, that
interpretation should be avoided. We believe that such a distinction is not likely to
withstand the judicial scrutiny to which it would be put by a challenge based on the First
Amendment or the Equal Protection Clause."
Therefore, under Section 7, Article II of the Hawai'i State Constitution, the term of
office is considered broadly rather than by a particular start and end date for each office.
Thus, even though a Hawai'i State Senator is deemed to be elected on day of the
election (November 6, 2018) and a Hawai'i County Council member term begins on the
first Monday of December after their election (December 3, 2018), the proper
interpretation of Section 7, Article II is that both the Hawai'i State Senate office and
Council office end during the same term (2018). As such, a Hawai'i County Council
member is not required to resign upon the filing of nomination papers for a Hawai'i State
Senate office under Section 7, Article II of the Hawai'i State Constitution.
IV. Conclusion.
Based on the foregoing, Article XIII, Section 13-1 (f) (9) of the Hawaii County
Charter is consistent with Article II, Section 7 of the Hawai'i State Constitution and a
Hawai'i County Council member is not required to resign their position as a Council
member upon filing of nomination papers for the Hawai'i State Senate under the facts as
presented.
Please let me know if I can be of further assistance.
J YOSHIMOTO
Enclosures
COUNTY OF HAWAII STATE OF HAWAII
BILL NO. 273
( DRAFT 2 )
ORDINANCE NO. 96 86
A BILL FOR AN ORDINANCE TO INITIATE A CHARTER AMENDMENT OF THE
HAWAII COUNTY CHARTER (1991), AS AMENDED, ARTICLE XIII, SECTION 13-1,
RELATING TO GENERAL PROVISIONS
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Intent and Purpose. The change reflected in this ordinance is viewed by
the Council as a sincere effort to bring the County Charter into harmony with the Constitution of
the State of Hawaii and the Hawaii Revised Statutes.
As long as an elected County official fulfills his/her duties to the office, there is no
reason to force the elected official to vacate that office simply because papers are filed to run for
another office which begins after that respective term ends. A County elected official who
wishes to run for an elected office that begins after his/her term should be treated equally
without regard to the office being sought.
However, if a County elected official wishes to run for an office, the term of which
begins before the end of his/her current elected office, that seat should be considered vacant at
the time one's nomination papers are filed to run for election to a non -coterminous office.
SECTION 2. Section 13-1 of the Hawaii County Charter (1991), as amended, relating to
General Provisions is hereby amended to read as follows:
"ARTICLE XIII
GENERAL PROVISIONS
Section 13-1. Definitions. As used in this charter:
(a) "Agency" means any office, department, board, commission or other
governmental unit of the county.
(b) "Executive Agency" means any agency or department of the executive branch of
the county government.
(c) "Employee" means any person, except an officer, employed by the county or any
agency thereof but the term shall not include an independent contractor.
(d) "Officer" includes the following:
(1) Mayor and members of the council.
(2) Any person elected or appointed as administrative head of any agency of
the county or appointed as a member of any board or commission
provided for in this charter.
(3) Any person appointed by a board or commission as the administrative
head of any agency of the county.
Exhibit A
(4) Deputy, assistant or division chief appointed by the administrative head of
any agency of the county.
(5) Assistant or deputies of the corporation counsel and prosecution attorney.
(e) "State" means the State of Hawaii.
(f) "Vacancy" shall have the following meaning:
Any elective office shall become vacant on the happening of any one of the following
events before expiration of the term:
(1) Death.
(2) Resignation.
(3) Upon the determination by the county clerk that the officer was not a duly
qualified elector of the county, and, if required, not a duly qualified
elector of the district of which the officer was elected immediately
preceding the election or appointment.
(4) Ceasing to be a resident voter of the county as determined by the county
clerk and in the case of an officer elected to a seat requiring residency in a
district, ceasing to be a resident voter of that district as determined by the
county clerk.
(5) Absence from the county, unless on county authorized business, for a
period of three consecutive months, without good cause.
(6) Removal by recall as provided by this charter.
(7) Removal by impeachment proceedings for malfeasance, misfeasance,
nonfeasance, or maladministration in office as provided by this charter.
(8) Upon the determination by three impartial, licensed physicians selected by
the council that the officer is mentally or physically infirm or disabled and
will be unable to discharge the officer's duties for the remainder of the
term. Such action shall be initiated by a majority vote of the entire
council.
(9) Upon filing nomination papers for another elective office [during the
officer's own term of office.] if the term of the office sought begins before
the end of the terms& the office held.
(10) Upon the conviction of any felony in any jurisdiction.
If any of the above events occurs after the election, but prior to the commencement of the
term, office is vacant at the time the term commences."
SECTION 3. New material is underscored. Material to be repealed is bracketed. In
printing this ordinance, the brackets, bracketed material and underscoring need not be included.
SECTION 4. Severability. If any provision of this ordinance, or the application thereof
to any person or circumstance, is held invalid, such invalidity shall not affect other provisions or
applications of the ordinance which can be given effect without the invalid provision or
application, and to this end, the provisions of this ordinance are declared to be severable.
2
SECTION 5. This ordinance shall take effect upon its approval by the electors of the
County.
Hilo, Hawaii
Date of Introduction:
Date of 1st Reading:
Date of 2nd Reading:
Date of 3rd Reading:
Effective Date:
REFERENCE; Comm/
i
• r
June 3, 1996
June 19, 1996
July 3, 1996
July 18, 1996
July 26, 1996
1169.01
n c1996
lq
. 77
INTRODUCED BY:
OUNCIL MEMBER, COUNTY OF HAWAII
3
Introduced By:
Date Introduced:
First Reading:
Published:
OFFICE OF THE COUNTY CLERK
County of Hawaii
Hilo , Hawaii
Keiko Bonk -Abramson
June 3, 1996
June 3, 1996
N/A
REMARKS:
06/03/96 - Close file, failed to acquire the
required two -third vote
Second Reading:
To Mayor:
Returned:
Effective:
Published
REMARKS:
ROLL CALL VOTE
AYES
NOES
ABS
EX
Arakaki
X
Bonk -Abramson
X
Childs
X
De lima
X
Domingo
X
Osorio
X
Rath
X
Ray
X
Smith _
X
5
4
0
0
ROLL CALL VOTE
AYES
NOES
ABS
EX
Arakaki
Bonk -Abramson
Childs
De Lima
Domingo
Osorio
Rath
Ray
Srnith
1 DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as
indicated above.
Approved/Disapproved this day
of , 19.
MAYOR, COUNTY OF HAWAII
COUNCIL CHAIRMAN
COUNTY CLERK
Bill No.: 273 (Draft 2)
Reference: C-1169/FC/261
Ord. No.:
Introduced By:
Date Introduced:
First Reading:
Published:
OFFICE OF THE COUNTY CLERK
County of Hawaii
Hilo . Hawaii
Keiko Bonk -Abramson
June 3, 1996
June 19, 1996
N/A
REMARKS:
06/19/96 - Reconsideration of 06/03/96 lst
reading vote
Second Reading:
To Mayor:
Returned:
Effective:
Published
REMARKS:
July 3, 1996
N/A
(DRAFT 2)
ROLL CALL VOTE
AYES
NOES
ABS
EX
Arakaki
X
X
Bonk -Abramson
x
Childs
X
De Lima
x
Domingo
X
Osorio
X
Rath
x
Ray
x
Smith
X
7
1
1
0
ROLL CALL VOTE
AYES
NOES
ABS
EX
Arakaki
X
Bonk -Abramson
X
Childs
X
De lima
X
Domingo
X
Osorio
X
Rath
X
Ray
X
Smith
X
8
1
0
0
I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as
indicated above.
Approved/Disapproved this day
of 119
MAYOR, COUNTY OF HAWAII
COUNCIL CHAIRMAN
COUNTY CLERK
BillNo.: 273 (Draft 2)
Reference: C-1169/FC-261
Ord. No.:
Introduced By:
Date Introduced:
First Reading:
Published:
REMARKS:
OFFICE OF THE COUNTY CLERK
County of Hawaii
Hilo , Hawaii
JL t _ -
Third
Reading: July 18, 1996
To Mayor: July 19, 1996
Returned: July 26, 1996
Effective: July 26, 1996
Published August 2, 1996
REMARKS:
ROLL CALL VOTE
AYES
NOES
ABS
EX
Arakaki
X
Bonk -Abramson
x
Childs
X
De Lima
X
Domingo
X
Osorio
X
Rath
X
'Y
x
s •.
X
6
3
0
0
(DRAFT 2)
ROLL CALL VOTE
AYES
NOES
ABS
EX
Arakaki
X
Bank -Abramson
x
Childs
X
De Lima
X
Domingo
X
Osorio
X
Rath
X
Ray
x
Smith
X
6
3
0
0
1 DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as
indicated above.
Approved/Dtaapprevrd this 24. day
of .J. 19 RL
OR, COUNTY .2 HAWAII
COUNCIL CHAIRMAN
Hilt No.:
Reference:
Ord, No.:
273 (Draft 2)
C-1169/FC-261
Ordinances 96-82 through 96-88
I hereby certify that the following Ordinances passed
second and final reading at the meeting of the County Council on
July 18, 1996, by vote as listed below:
ORDINANCE 96-83 (Bill 149): An Ordinance amending Chapter 24
(Traffic Schedule), of the Hawaii County Code 1983, as amended,
relating to Traffic Regulations. AYES: Councilmembers Arakaki,
De Lima, Domingo, Childs, Osorio, Rath, Ray, Smith, and
Council Chairwoman Bonk -Abramson - 9.
NOES: None.
ORDINANCE 96-84 (Bill 269, Draft 3): An Ordinance Amending
Section 25-114 (City of Hilo Zone Map), Article 3, Chapter 25
(Zoning Code) of the Hawaii County Code, by changing the district
classification from Single Family Residential (RS -10) to General
Commercial (CG -10) at Waiakea, South Hilo, Hawaii, covered by
TMK:2-2--24:1. AYES: Councilmembers Arakaki, De Lima, Domingo,
Childs, Osorio, Rath, Ray, Smith, and
Council Chairwoman Bonk -Abramson - 9.
NOES: None.
ORDINANCE 96-85 (Bill 271): An Ordinance amending the State Land
Use Boundaries Map, H-2 for the County of Hawaii, by changing the
district classification from the Agricultural to the Urban District
at Honokohau 2nd, North Kona, Hawaii covered by
TMK:7-4-O8:Portion of 26. AYES: Councilmembers Arakaki, Domingo,
Childs, Osorio, Rath, Ray, Smith, and
Council Chairwoman Bonk -Abramson - 8. NOES: None.
ABSENT & EXCUSED: Councilmember De Lima - 1.
ORDINANCE 96-86 (Bill 273, Draft 2): A Bill for an Ordinance to
initiate a Charter Amendment of the Hawaii County Charter (1991), as
amended, Article XIII, Section 13-1, relating to General Provisions.
AYES: Councilmembers Arakaki, Childs, Rath, Ray, Smith and
Chairwoman Bonk -Abramson - 6. NOES: Councilmembers De Lima,
Domingo, and Osorio - 3.
ORDINANCE 96-87 (Bill 283, Draft 2): An Ordinance amending
Section 25-102 (Laupahoehoe-Ninole Zone Map), Article 3, Chapter 25
(Zoning Code) of the Hawaii County Code, by changing the district
classification from Agricultural (A -20a) to Agricultural (A -5a) at
Kihalani, North Hilo, Hawaii, covered by TMK:3-5-5:2.
AYES: Councilmembers Arakaki, Childs, Domingo, Osorio, Rath, Ray,
Smith - 7. NOES: Council Chairwoman Bonk -Abramson - 1.
ABSENT & EXCUSED: Councilmember De Lima - 1.
i
COUNTY OF HAWAII STATE OF HAWAII
BILL NO. 273
ORDINANCE NO.
AN ORDINANCE TO INITIATE A CHARTER AMENDMENT OF THE HAWAII COUNTY
CHARTER (1991), AS AMENDED, ARTICLE XIII, SECTION 13-1, RELATING TO
GENERAL PROVISIONS
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1, Intent and Purpose. The change reflected in this ordinance is viewed by
the Council as a sincere effort to bring the County Charter into harmony with the Constitution of
the State of Hawaii, and the Hawaii Revised Statutes.
As long as an elected County official fulfills their duties to the office there is no reason to
force the elected official to vacate their office simply because they file papers to run for another
office which begins after their current term ends. All County elected officials who wish to run
for an elected office which begins after their term should be treated equally without regard to
which office they wish to run for.
However, if a County elected official wishes to run for an office, the term of which
begins before the end of their current elected office, their seat should be considered vacant as
soon as they file papers to run for election to a non -coterminous office.
SECTION 2. Section 13-1 of the Hawaii County Charter (1991), as amended, relating to
General Provisions is hereby amended to read as follows:
ARTICLE XIII
GENERAL PROVISIONS
Section 13-1. Definitions. As used in this charter:
(a) "Agency" means any office, department, board, commission or other
governmental unit of the county.
(b) "Executive Agency" means any agency or department of the executive branch of
the county government.
(c) "Employee" means any person, except an officer, employed by the county or any
agency thereof but the term shall not include an independent contractor.
(d) "Officer" includes the following:
(1) Mayor and members of the council.
(2) Any person elected or appointed as administrative head of any agency of
the county or appointed as a member of any board or commission
provided for in this charter.
(3) Any person appointed by a board or commission as the administrative
head of any agency of the county.
(4) Deputy, assistant or division chief appointed by the administrative head of
any agency of the county.
(5) Assistant or deputies of the corporation counsel and prosecution attorney.
(e) "State" means the State of Hawaii,
(f) "Vacancy" shall have the following meaning:
Any elective office shall become vacant on the happening of any one of the following
events before expiration of the term:
(1) Death.
(2) Resignation.
(3) Upon the determination by the county clerk that the officer was not a duly
qualified elector of the county, and, if required, not a duly qualified
elector of the district of which the officer was elected immediately
preceding the election or appointment.
(4) Ceasing to be a resident voter of the county as determined by the county
clerk and in the case of an officer elected to a seat requiring residency in a
district, ceasing to be a resident voter of that district as determined by the
county clerk.
(5) Absence from the county, unless on county authorized business, for a
period of three consecutive months, without good cause.
(6) Removal by recall as provided by this charter.
(7) Removal by impeachment proceedings for malfeasance, misfeasance,
nonfeasance, or maladministration in office as provided by this charter.
(8) Upon the determination by three impartial, licensed physicians selected by
the council that the officer is mentally or physically infirm or disabled and
will be unable to discharge the officer's duties for the remainder of the
term. Such action shall be initiated by a majority vote of the entire
council.
(9) Upon filing nomination papers for another elective office [during the
officer's own term of office] if the term of the office sought begins before
the end of the term of the office held.
(10) Upon the conviction of any felony in any jurisdiction.
If any of the above events occurs after election, but prior to the commencement of the
term, office is vacant at the time the term commences.
SECTION 3. New material is underscored. Material to be repealed is bracketed. In
printing this ordinance, the brackets, bracketed material and underscoring need not be included.
SECTION 4. Severability. If any provision of this ordinance, or the application thereof
to any person or circumstance, is held invalid, such invalidity shall not affect other provisions or
applications of the ordinance which can be given effect without the invalid provision or
application, and to this end, the provisions of this ordinance are declared to be severable.
SECTION 5. This ordinance shall take effect upon its approval by the electors of the
County.
INTRODUCED BY:
COUNCIL MEMBER, COUNTY OF HAWAII
Hilo, Hawaii
Date of Introduction: June 3, 1996
Date of 1st Reading: June 19, 1996
Date of 2nd Reading:
Date of 3rd Reading:
Effective Date:
REFERENCE Comm. 1 1 a ......,,..
3:E a aR : Ve 1
6:11D'416
LQ0144E K. A wt-AtiAbE
AT70I E• GENEMAL
■YT.. I. TS.A...o.
STATE OF HAWAII itesT ',troy ■TT0AlL. LEkfRAL
DEPARTMENT OF THE ATTORNEY GENERAL
STATE CArITQL
0$OLIJLV ..AWAIT OW
11101 6Y l'60
July 11, 1986
The Honorable Patsy T. Mink
Councilmember, 9th District
City and County of Honolulu
Honolulu Hale
Honolulu, Hawaii 96813
Dear Councilmember Mink:
Re: Section 7, Article 11, Hawaii State
Constitution, *Resignation from Public Office'
This is in reply to your letter dated May 16, 1986, in
which you requested an opinion as to whether section 7, article
1I of the State Constitution requires you to resign to run for
another office, the term of which begins on the first Monday of
December 1986. Your present city council term expires on
January 2, 1987.
We are of the opinion that section 7, article I1 was never
intended to apply to officeholders whose successors would be
elected at the same election in which they are candidates for
another office. Accordingly, we do not believe you are
required to resign under the circumstances described in your
letter.
Section 7 provides as follows:
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. [Emphasis
added.)
The Hawaii Supreme Court has stated over and over again
that the fundamental principle in construing a constitutional
provision is to give effect to the inrenrion of the framers and
AG Op. No. 86-17
Exhibit 8
The Honorable Patsy T. Mink
July 11, 1986
Page 2
the people adopting it. Hawaii Government Employees'
Association v. County of Maui, 59 Hawaii 65, 80-81, 576 P.2d
1029, 1039 (1978). See also City and County of Honolulu v�
Ariyoshi, 67 Hawaii , 689 P.2d 757 (198(); State v.
Mu , 66 Hawaii a-67771 P.2d 1351 (1983); Hui ui v.
Shimoda, 64 Hawaii 527, 644 P.2d 968 (1962); State v, ester,
64 Hawaii 659, 649 P.2d 346 (1982); State v. Miyasaki, 62 Haw.
269, 614 P.2d 915 (1980). Although the court has said that the
constitution itself should be the first point of reference to
discern this intent, and that the constitutional provision
should control if it is not. ambiguous, State v. Kahlbum, 64
Hawaii 197, 201, P.2d 309 (1981), the court more recently has
advised that we look to a provision's constitutional history
which allows us to examine the debates, proceedings and
committee reports, if available and useful, to give full effect
to the intent of the framers and the people. Kaiama v.
Aguilar, 67 Hawaii 549, 696 P.2d 839 (1985); Black Construction
v. Agsalud, 64 Hawaii 274, 639 P.2d 1088 (1982), quoting United
hates v. American Trucking Association, 310 U.S. 534, 543-44,
60 Sup. Ct. 1059, 84 L.Ed. 1345 (1940) (where the Court
stated: '(w]hen aid to construction of the meaning of words,
as used in the statute are available, there certainly can be no
'rule of law' which forbids its use, however clear the words
may appear on 'superficial examination''.) In addition, the
history of the times and the state of being when the
constitutional provision was adopted may be used to further
ascertain the intention of the framers and the people adopting
the provision. City and County of Honolulu v. Ariyoshi, 67
Hawaii , 689 P.2d 757 (1984). Finally, interpretations
which leave us with unreasonable or absurd results should be
avoided if at all possible. Schwab v. Ariyoshi, 58 Hawaii 25,
564 P.2d 135 (1977); Application of Pioneer Mill Company, 53
Hawaii 496, 497 P.2d 549 (1972). With these principles of
constitutional construction in mind, we turn to an examination
of section 7, its constitutional history, and the laws in
effect at the time the section was adopted.
Section 7 of article fI was added to the Hawaii State
Constitution in 1978. Standing Committee Report No. 72
included the following discussion to explain the underlying
rationale for including the 'resign to run' provision in the
constitution:
Your Committee believes it would be justified to
require a person to resign from office before becoming
eligible to run for another public office with an
overlapping term. By running for another office, the
AG Op. No. 86-17
The Honorable Patsy T. Mink
July 11, 1986
Page 3
person is in effect saying that he no longer wishes to
fulfill the responsibilities of the ?ffice to which he was
elected, and accordingly he should resign from that
office. The voters should not be saddled with an elected
public official who no longer wishes to fulfill the duties
of the office to which he was elected and will do so only
if he fails to win election to the other office. This is
not fair to the voters, who elected him to serve a full
term, and is a violation of the public trust.
I Proceedings of the Constitutional Conventon of Hawaii of
1978, at 678.
In explaining their underlying intent, the framers
distinguish between officeholders whose offices were to be
filled by an upcoming election and those whose offices were not
then subject to election:
Your Committee does not believe it would be warranted
for a candidate to resign if the office he is seeking has
a concurrent term. In this case, he is in effect
resigning since, if he loses the election, he does not
have an office to return to. He is not abusing his
elected office by using it as a safe haven from which to
make political forays and return if he proves
unsuccessful.
Id. (emphasis added).
The committee report indicates that it was not the
delegates' intent to require an elected officeholder to resign
if the term of the office sought was 'concurrent" with that of
office held. It appears that the delegates intended the phrase
"if the term. . begins before the end of the term of the
office held" tobe synonymous with the committee's reference to
"concurrent term." The discussion concerning 'safe havens"
suggests that offices with concurrent terms' meant offices
which were filled at the same election.
This distinction is echoed in the floor debate of the
committee of the whole. The chairman of the committee to which
the "resign to run' provision was first referred summarized it
as follows:
There is a new provision with reference to forced
resignations, when any public official who intends to run
for an office which happens to overlap his present office
would be required to resign.
II Proceedings of the Constitutional Convention of Hawaii of
1978, at 701.
AC ❑p. No. 86-17
The Honorable Patsy T. Mink
July 11, 1985
Page 4
In Delegate Chong's mind, what was meant by •overlapping*
clearly seems to have been those instances when an incumbent to
an office with a four-year term sought another office midterm,
i.e. after two years. Id. at 709. Similarly, even though he
opposed the proposal, De3egate Miller seemed to understand that
it applied only to persons, such as state senators and a mayor
of one county, who by the duration of their terms and when they
began, would be precluded from running without resigning. Id.
at 710. Delegate Shon referred to the result which he __..
understood the 'resign to run' provision would prevent as the
"switch[ing of) horses in midstream." Id. Delegate Hale seems
to have equated the phrase 'begins before the end' to language
in the Hawaii County charter which mandates that an office is
vacant when its incumbent seeks another elective office during
an "off -county election.` Id. at 711.
Presently, and when section 7 was adopted, the terms of
federal offices are set by section 1, article XX of the United
States Constitution. Congressional terms begin and end on the
next January 3 after the general election in which the officer
is elected. The United States President's term begins on
January 20. State elective office terms are specified in
section 4, article III for legislators (begin and end at
general election), section 1, article V for the Governor and
the Lieutenant Governor (begin and end at noon on the first
Monday of December), and in sections 13-4 and 13D-5, Hawaii
Revised Statutes, for the members of the Board of Education and
trustees of the office of Hawaiian Affairs, respectively (begin
and end at special election). The terms of elected county
officers are even more varied: in the City and County of
Honolulu and Maui County, terms begin at noon on January 2, see
sections 3-102, 5-101 and 8-102, Revised Charter of the City
and County of Honolulu, and sections 3-2 and 7-2, Charter of
Maui County; in Hawaii County, terms begin at noon on the first
Monday of December, see sections 3-2, 5-1.1, and 9-1, Charter
of Hawaii County; ancTon the last working day of December in
the County of Kauai, see sections 3.03, 7.01 and 9A.01, Charter
of Kauai County.
We may presume that the framers were aware of the various
beginning and ending dates of the terms for Hawaii's federal,
state, and county offices. Nothing in the constitutional
history allows us to conclude that the framers intended to
distinguish between incumbent state legislators or board of
education members or Office of Hawaiian affairs trustees, whose
terms begin and end at a general election and who would never
need to resign if they were candidates during the last year of
their terms irrespective of the office sought, and federal
incumbents, the governor or the lieutenant governor, or elected
county incumbents who were completing the last year of their
terms but seeking offices with terms which begin
chronologically before the term of the offices held end.
AG Op. No. 86-17
The Honorable Patsy T. Mink
July 11, 1986
Page 5
Constitutional provisions are presumed to be
constitutional. City and County of Honolulu v. Ariyoshi, 67
Haw. at , 689 P.2d at 763. Hence, the framers of a
constl.tutional provision cannot be presumed to have intended an
unconstitutional result when they adopted that provision. If
relying upon a literal or 'plain meaning" interpretation of
'term' or the phrase 'begins before the end' to distinguish
between incumbents' whose terms begin and end at a general
election and those whose terms do not, would lead to an
unreasonable or unconstitutional result, that interpretation
should be avoided. We believe that such a distinction is not
likely to withstand the judicial scrutiny to which it would be
put by a challenge based on the First Amendment or the Equal
Protection Clause.
In view of these considerations, it is our opinion that
you do not have to resign your present seat as a councilmernber
in order to be eligible as a condidate for the office of
Governor.
APPROVED:
Corinne K. A. Watanabe
Attorney General
LLH:na
31311
Yours very truly,
awrence L. Hines
Deputy Attorney General
AG Op. No. 66-17