Cobb v. State by Watanabe

DISSENTING OPINION OF

NAKAMURA, J.,

WITH WHOM INTERMEDIATE COURT OF APPEALS ASSOCIATE JUDGE HEEN, JOINS

The court chooses not to give effect to a constitutional provision *567because it is ambiguous. Unlike my colleagues who reach this conclusion, I find article II, section 7 of the Hawaii Constitution clear and unambiguous and would give effect to the intention of the framers and the people who adopted it by ruling that a member of the State Legislature cannot use his elected office “as a safe haven from which to make [a] political forayQ and return if he proves unsuccessful.” Standing Committee Report No. 72, Committee on Bill of Rights, Suffrage and Election, Proceedings of the Constitutional Convention of Hawaii of 1978, Vol. I, at 678.

I.

Article II, section 7 was proposed for adoption during the latest decennial review of the State’s fundamental law. The proposal was advanced by the Committee on Bill of Rights, Suffrage and Election of the Constitutional Convention of 1978, whose members felt

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.

Id. The “Committee [thus] presented] for consideration [by the constituent assembly] the following language:

‘Section . An elected public officer shall resign from that office before being eligible as a candidatefor another public office, if the term of the office sought begins before the end of the term of the office held.”’

Id. (underscoring in original).

That this language was expressly designed to discourage political opportunism was reiterated when the Committee went on to say:

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 *568office by using it as a safe haven from which to make political forays and return if he proves unsuccessful.

Id. My colleagues in the majority condone an opportunistic foray condemned as a breach of public trust because it “cannot [be said] with any certainty that the drafters of article II, section 7 intended for it to apply to candidates for federal offices.” I cannot agree, for the drafters have said in no uncertain terms that a holdover state senator must resign to run for another public office.

II.

The court’s opinion concedes “the fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it.” HGEA v. County of Maui, 59 Haw. 65, 80-81, 576 P.2d 1029, 1039 (1978) (citations omitted). Yet the majority reaches a conclusion that the framers could not have meant to apply the resign-to-run provision in the situation before us. The decision to pay no heed to the clear command of article II, section 7 and its manifest purpose and policy is rationalized on the ground that the provision “is ambiguous on its face” because the word “public” may have two meanings. I am mindful, of course, that when language susceptible of two constructions is employed in a criminal statute, normally that “ ‘which is more favorable to the offender will be adopted’ ” by the court. State v. Rodgers, 68 Haw. 445, 450, 718 P.2d 275, 278 (1986) (quoting People v. Ralph, 24 Cal. 2d 575, 581, 150 P.2d 401, 404 (1944)) (citations omitted). But we are expounding a constitutional provision, and the notion that an ambiguity is to be resolved by construing a word strictly against the drafters is foreign to constitutional interpretation.

If the language in question is ambiguous as claimed, it is then incumbent upon the court to construe the provision with the “object sought to be accomplished and the evils sought to be remedied ... in mind.” HGEA v. County of Maui, 59 Haw. at 81, 576 P.2d at 1039. For the “State constitution^ must be construed with due regard to the intent of the framers.” State v. Lester, 64 Haw. 659, 667, 649 P.2d 346, 352-53 (1982) (citation omitted). By disregarding its purpose, the majority renders article II, section 7 ineffectual where the most sizeable group of officeholders capable of launching political forays for more powerful, prestigious, and lucrative federal offices from the safe haven of state *569offices is concerned. “If we remember that ‘it is a Constitution we are expounding,’ we cannot rightly prefer, of the possible meanings of its words, that which will defeat rather than effectuate the constitutional purpose.” United States v. Classic, 313 U.S. 299, 316 (1941).