JOAN HAYES v. THOMAS P. GILL, LIEUTENANT GOVERNOR OF THE STATE OF HAWAII.
No. 5015.
SUPREME COURT OF HAWAII
AUGUST 26, 1970.
52 Haw. 251
RICHARDSON, C.J., MARUMOTO, ABE, LEVINSON AND KOBAYASHI, JJ.
This case is before us on a submission on agreed facts under
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.
On August 5, petitioner presented her nomination paper to respondent, with proper filing fee. Respondent found the nomination paper to be in order except for the certification required under
The first question which we are called upon to decide on this submission is whether
It is petitioner‘s contention that
In our opinion,
There is a slight ambiguity in
From the context of the statute in which the quoted words are used, and considering the apparent purpose for which
Under the rule of construction stated in
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
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 Report 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
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,
With regard to petitioner‘s contention that
Past actions in Congress under the provisions of the
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
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
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
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
| 5-yr. | 4-yr. | 3-yr. | 2-yr. | 1-yr. | 6-mo. | None | |
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| Alabama | X | ||||||
| Alaska | X | ||||||
| Arizona | X | ||||||
| Arkansas | X | ||||||
| California | X | ||||||
| Colorado | X | ||||||
| Connecticut | X | ||||||
| Delaware | X | ||||||
| Florida | X | ||||||
| Georgia (A) | X | ||||||
| Hawaii | X | ||||||
| Idaho | X | ||||||
| Illinois | X | ||||||
| Indiana | X | ||||||
| Iowa | X | ||||||
| Kansas | X | ||||||
| Kentucky | X | ||||||
| Louisiana | X | ||||||
| Maine | X | ||||||
| Maryland | X | ||||||
| Massachusetts | X | ||||||
| Michigan | X | ||||||
| Minnesota | X | ||||||
| Mississippi | X | ||||||
| Missouri | X | ||||||
| Montana | X | ||||||
| Nebraska | X | ||||||
| Nevada | X | ||||||
| New Hampshire | X | ||||||
| New Jersey | X | ||||||
| New Mexico | X | ||||||
| New York | X | ||||||
| North Carolina | X | ||||||
| North Dakota | X | ||||||
| Ohio | X | ||||||
| Oklahoma | X | ||||||
| Oregon | X | ||||||
| Pennsylvania | X | ||||||
| Rhode Island | X | ||||||
| South Carolina | X | ||||||
| South Dakota | X | ||||||
| Tennessee (A) | X | ||||||
| Texas | X | ||||||
| Utah | X | ||||||
| Vermont | X | ||||||
| Virginia | X | ||||||
| Washington | X | ||||||
| West Virginia | X | ||||||
| Wisconsin | X | ||||||
| Wyoming | X | ||||||
| 3 | 2 | 10 | 11 | 18 | 5 | 1 |
(A) Georgia and Tennessee require citizenship instead of residence.
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.
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.
DISSENTING OPINION OF LEVINSON, J.
I dissent for the following two reasons, each of which is sufficient, in my opinion, to grant the petitioner the relief she seeks: (1)
I. THE HAWAII CONSTITUTIONAL ISSUE
The Power of the Legislature to Judge the Qualifications of Its Own Members.
Article III, section 13 of the Hawaii constitution states: Each house shall be the judge of the elections, returns and qualifications of its own members.... I believe that
The majority opinion construes
The United States Senate has on at least four occasions been confronted with situations where it determined the constitutional qualifications of persons who presented themselves for membership. In the case of Rush D. Holt the Senate was confronted with the question as to when a
Resolved, That Rush D. Holt is entitled to his seat in the Senate of the United States as a Senator from the State of West Virginia, it appearing that he was 30 years of age at the time when he presented himself to the Senate to take the oath and to assume the duties of the office. S. Res. 155, 74th Cong., 1st Sess., 79 CONG. REC. 9841 (1935).
During the course of the two-day debate it was never doubted by any of the senators present that it was to the Senate alone that the power to interpret the age requirement belonged. Senator George of Georgia, chairman of the Committee on Privileges and Elections, in presenting the report recommending that Holt be seated reminded the Senate that it is, of course, well known that each House of the Congress—or, in this instance, the Senate—is the sole judge of the elections, the returns, and the qualifications of its own members. 79 CONG. REC. 9753 (1935).2
In early decisions of the United States Senate it decided not to seat Albert Gallatin (the vote being 14 to 12) and James Shields who at the times they presented themselves for membership had not been citizens of the United States
The Holt, Gallatin and Shields cases support my interpretation of the Hawaii constitution that each house of the legislature is the sole judge in determining when the residency qualification of its own members must be met. Powell v. McCormack, 395 U.S. 486 (1969) does not in any way alter this conclusion.
The Powell case involved an effort by the House of Representatives to add qualifications to the three standing qualifications laid down in article I, section 2 of the United States Constitution.3 The House excluded Powell not because he failed to meet any of the age, citizenship or inhabitancy qualifications but because he had in the past allegedly made false reports on his expenditures to the House. The Supreme Court struck down this action by the House not because the House of Representatives has no power to render a constitutional interpretation as to the three standing requirements set forth in article I, section 2 of the Constitution, but because the House had clearly exceeded its authority and excluded Powell on grounds which found no constitutional sanction. As Mr. Chief Justice Warren stated, speaking for the majority: Further, analysis of the textually commitment under Art. I, § 5... has demonstrated that in judging the qualifica-
If there is any ambiguity in this constitutional provision, I feel constrained to resolve such ambiguity in a manner which least impinges upon the petitioner‘s constitutionally protected right to be a candidate for elective office and which provides the greatest scope to the voters in selecting their representatives. Therefore, I would hold that in the instant case the fifth State legislature has exceeded its constitutional authority in attempting to pass judgment on the qualifications of the members of future legislatures, a power expressly denied it by article III, section 13 of the State constitution.
A. The Compelling State Interest Test.
This case involves the right to be considered for public service, a right which is fundamental to the concept of democracy and which has been afforded constitutional protection. Turner v. Fouche, 396 U.S. 346, 362-63 (1970). The right to run for elective office and right to vote for candidates running for such office uphold a fundamental principle of our representative democracy which is, in Alexander Hamilton‘s words, quoted by Mr. Chief Justice Warren, that the people should choose whom they please to govern them. Powell v. McCormack, 395 U.S. 486, 547 (1969).5 As Madison pointed out at the Constitutional Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. Powell v. McCormack, supra at 547.
The respondent acknowledges the fundamental nature of the right to run for elective office and that such right enjoys constitutional protection equal in scope to that afforded the exercise of the right to vote. Furthermore, the respondent contends that the power given the states to impose restrictions upon the right of suffrage, Carrington v. Rash, 380 U.S. 89, 91 (1965), is co-extensive with the power of the states to regulate the right to run for office. I do not quarrel with this contention. However, I do take issue with the majority opinion which holds that when the implementation of this power takes the form of a durational residency requirement for running for elective office and such implementation is challenged as a denial of equal protection of the laws as guaranteed by the fourteenth amendment to the Federal Constitution, the state is only
In the area of voting rights the Supreme Court departed from the traditional standard when judging legislative classification in the apportionment case, Reynolds v. Sims, 377 U.S. 533 (1964). The Court held that the equal protection clause demanded that a statutory restriction on the exercise of the franchise receive special examination.
Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. 377 U.S. at 562.
The Court extended the use of this stricter test to a non-apportionment voting rights case in Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), invalidat-
We have long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined. 383 U.S. at 670.7
In Kramer v. Union Free School District, 395 U.S. 621, 627 (1969), the Court again held that where a right as fundamental as the right to vote is at issue the state is required to do more than merely show a rational basis for a restrictive classification. The Kramer case struck down a New York property ownership requirement as a condition for voting in a local school board election.8 The Court reasoned:
This careful examination is necessary because statutes distributing the franchise constitute the foundation of our representative society. Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government. 395 U.S. at 626 (emphasis added).
This rationale would, of course, apply with equal force to state restrictions on the right to run for elective office, for the right to vote and the right to run for public office are equal in their fundamental importance, as the respondent acknowledges. Indeed, the United States Supreme Court has stated that a restriction upon the voter‘s choice of candidates is as much of an infringement upon his rights as a restriction upon the franchise itself. Powell v. McCormack
A recent Michigan federal district court decision, Stapleton v. Clerk for City of Inkster, 311 F. Supp. 1187, 1189 (E.D. Mich. 1970), after an examination and analysis of the Kramer case and some of the other authorities cited above, expresses the same conclusion I have reached that in testing state qualifications on the right to run for public office the state must demonstrate a compelling state interest in order to justify the qualification.9
Finally, any doubts that the compelling state interest test must be applied in determining the validity of residence requirements as well as property10 and monetary restrictions11 should be laid to rest by Evans v. Cornman, 398 U.S. 419 (1970). In Evans, the Court struck down the decision of a Maryland County Registry Board that persons living on a federal enclave located within the geographical boundaries of Maryland were not to be considered Maryland residents for voting purposes. In commenting on the test to be used in judging the rationale put forward by the state for this restriction the Court said:
The sole interest or purpose asserted by appellants to justify the limitation on the vote in the present case is essentially to insure that only those citizens who are primarily or substantially interested in or affected by electoral decisions have a voice in making them. Without deciding the question, we have assumed that such an interest could be sufficiently compelling to justify limitations on the suffrage, at least with regard to some
elections.... However, it is clear that such a claim cannot lightly be accepted. 398 U.S. at 422 (emphasis added).12
A three-judge district court in Massachusetts has within the last two months filed a decision, citing Evans, which strikes down a Massachusetts durational residency requirement, placed on the right to vote, as failing to promote any compelling state interest. Burg v. Canniffe, 315 F. Supp. 380 (Mass. 1970).
On the basis of the authorities discussed above I believe that this court has no alternative except to use the compelling state interest test in determining the validity of the Hawaii three-year residency requirement under the equal protection clause of the fourteenth amendment to the United States Constitution.
B. The Lack of a Compelling State Interest.
The sole state interest put forth by the respondent and the majority opinion in support of the three-year residency requirement is the desire to ensure that a legislator representing the people is familiar with them and their needs. To achieve this result the Hawaii state constitution creates an unrebuttable presumption that all persons residing in this state for less than three years are wanting in sufficient familiarity with local issues to represent their constituents properly. The state has made no attempt to demonstrate that there are not means available to achieve its ends more finely tailored than a three-year residency restriction. Turner v. Fouche, 396 U.S. 346, 364 (1970).
Indeed, it would seem that the electoral process itself provides a more finely tuned method for filtering out unqualified candidates. It is, after all, a competitive process and thus the state may be assured that the qualifications of the various candidates will be forcefully presented to the people, who may then exercise their franchise in order to reject those who they feel will not effectively represent their interests. I am not impressed by the schedule appearing in the majority opinion showing residency requirements for representatives in the various states. A similar schedule could have been prepared at the time of Baker v. Carr, 369 U.S. 186 (1962), showing the extent of malapportionment in the various state legislatures. It merely indicates the extent to which the Constitution is being violated.