Watland v. Lingle

Concurring Opinion by

ACOBA, J.

Inasmuch as the matters set forth herein were largely raised in S.Ct. No. 25410 in November 2002, see majority opinion at 132 and at n. 5, 85 P.3d at 1083, and at n. 5 and I believed that at that time (1) this court had jurisdiction to hear the appeal in No. 25410, (2) there was a substantial likelihood that Plaintiffs1 would prevail because of Defendant Yoshina’s violation of Hawai'i Constitution article XVII, section 3 and therefore, (3) a temporary restraining order (TRO) should issue to enjoin the tabulation and certification of the voting results pending a decision of the merits (see dissenting opinion in S.Ct. 25410), I concur in the majority’s ultimate holding that the amendment was not validly *142ratified. Majority opinion at 141, 85 P.3d at 1092.

I write separately on two points. First, based on our precedent referred to in the discussion herein, this court should construe the publication and disclosure requirements of article XVII, sections 2 and 3 to be “substantial requirement[s]” dictating “strict observance.” Blair v. Cayetano, 73 Haw. 536, 543, 836 P.2d 1066, 1070, reconsideration denied, 73 Haw. 536, 836 P.2d 1066 (1992). Thus, I do not feel “a question ... appears to remain[,]” majority opinion at 141, 85 P.3d at 1092, surrounding these sections of article XVII. As much as our view of the proposed amendment must be content neutral, we must also ensure that the process by which an amendment is presented to the voters is procedurally correct.

Second, as mentioned, a TRO should have earlier issued against the tabulation and certification of this amendment, thereby avoiding the subsequent uncertainty generated by this litigation. Plaintiffs had raised substantial grounds to support a TRO, which grounds have ultimately, in the present case, led to invalidation of the voting results. It was important for the integrity of the voting process to ensure that the procedure by which the amendment was presented to the voters was correct, prior to tabulation and certification of the vote. Accordingly, for the reasons set forth below, preservation of the status quo (which had been the objective of the injunctive relief requested by Plaintiffs) pending an ultimate decision on the merits, would have been the better course.

I.

As noted by the majority, on “November 4, 2002, this court denied the emergency motion [for a TRO,2] based upon lack of appellate jurisdiction.” Majority opinion at 142, 85 P.3d at 1093.1 believe this court had jurisdiction to grant the motion for a TRO, for we have supervisory jurisdiction of the trial courts under Hawai'i Revised Statutes § 602-4 (1993), when it is necessary ‘“to prevent and correct errors and abuses therein where no other remedy is expressly provided for by law[.]’” State v. Kealaiki 95 Hawai'i 309, 317, 22 P.3d 588, 596 (2001) (quoting State v. Ui, 66 Haw. 366, 367, 663 P.2d 630, 631 (1983)). Hence, in order to prevent such an error, a jurisdictional basis upon which to rely was available to this court.

II.

In deciding whether to sustain a request for a TRO like the one filed, this court must balance the following considerations: 1) whether a plaintiff is likely to succeed on the merits; 2) whether the balance of irreparable harm favors the temporary injunctive relief; and 3) whether the public interest supports granting the temporary injunctive relief. Life of the Land v. Ariyoshi 59 Haw. 156, 158, 577 P.2d 1116, 1118 (1978). In that light, I reiterate the relevant considerations.

A.

In line with their prior request for a restraining order, Plaintiffs had shown a likelihood for success. The Hawai'i State Constitution plainly establishes the necessary procedures for a constitutional amendment:

Upon such adoption, the proposed amendments shall be entered upon the journals, with the ayes and noes, and published once in each of four successive weeks in at least one newspaper of general circulation in each senatorial district wherein such a newspaper is published, within the two months’ period immediately preceding the next general election.
At such general election the proposed amendments shall be submitted to the electorate for approval or rejection upon a separate ballot.

Hawai'i Const, art. XVII, § 3 (emphasis added). This court has construed the constitutional provisions to be mandatory and not merely directory. Blair, 73 Haw. at 543, 836 P.2d at 1070 (“[T]he provisions of a constitution which regulate its own amendment are *143not merely directory, but mandatory.”). Furthermore, this court has adopted a “strict observance” standard for procedural requirements relating to the ratification of an amendment. Id. (“[S]trict observance of every substantial requirement is essential to the validity of the proposed amendment.” (Internal quotation marks and citations omitted.)). The constitution sets forth a single, straight-forward procedure for submission of a proposed amendment, as to which no ambiguity exists or dispute can reasonably arise. See Bronster v. Yoshina, 84 Hawai'i 179, 187, 932 P.2d 316, 324 (1997) (“We read the language of article XVII, section 3 as expressing a series of related, straightforward requirements pursuant to which the legislature may propose amendments to the Hawai'i Constitution.”).

Defendant Yoshina had failed to publish the full text of the proposed amendment in a newspaper of general circulation in each senatorial district for four successive weeks in the two months prior to the election. Instead, Defendant undertook to publish the text only six days before the election, after a significant portion of the population may have already voted. Even if substantial compliance rather than strict compliance were considered the test, the actions Defendant took do not appear to be substantially compliant. Thus, at the time Plaintiffs applied for the TRO, it was evident that the “procedural mandate of article XVII, section 2 and 3” had been disregarded. Majority opinion at 141, 85 P.3d at 1092.

B.

Although it may have been arguable whether adoption of the amendment would cause irreparable harm to Plaintiffs, it was contrary to the public interest to tabulate and certify the results when there was a substantial likelihood that Plaintiffs would ultimately prevail. The preservation of the status quo pending a decision on the merits could have been practicably and conceptually maintained in this case if tabulation3 and official certification of the results were postponed. See Bush v. Gore, 531 U.S. 1046, 1047, 121 S.Ct. 512, 148 L.Ed.2d 553 (2000) (Scalia, J., concurring) (“Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.”). Because the status quo was not maintained, announcement of the vote count was clouded by the outstanding litigation. There was little reason, under such circumstances, to tabulate and certify the votes.

C.

It may have been questionable whether Plaintiffs could have claimed injury if the proposal had been rejected. Nonetheless, the likely invalidity of the amendment process itself subverted the legitimacy of whatever outcome may have resulted. Thus, the public interest factor weighed heavily in favor of determining beforehand the question of procedural validity raised by Plaintiffs. The answer to that question would have determined whether tabulation and certification were necessary or warranted.

III.

On balance, as viewed when Plaintiffs applied for it, the circumstances indicated a TRO should have issued with respect to tabulation and certification by Defendants. With all due respect, the public interest would have been best served by avoiding the uncertainty and the potential for voter frustration and confusion flowing from denial of the TRO.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO CLARIFY, TO STAY FILING OF JUDGMENT, FOR EXPEDITED CONSIDERATION, AND FOR ORAL ARGUMENT

In Watland v. Lingle, No. 25487, the plaintiffs, forty-six residents and registered voters in the State of Hawai'i, challenged in an original proceeding the validity of a constitutional amendment authorizing the initiation of felony prosecutions by written information *144[hereinafter, the amendment], which was presented to and approved by a majority of voters in the November 5, 2002 general election [hereinafter, the general election]. The plaintiffs contended that: (1) the ratification process was procedurally invalid inasmuch as the State defendants [hereinafter, the defendants] failed to comply with requirements set forth in the Hawaii Constitution regarding publication and disclosure of the text of the amendment; and (2) the ratification process was fundamentally flawed (a) inasmuch as the defendants provided voters with misinformation regarding the amendment and (b) due to knowing misconduct by election officials.

On February 24, 2004, this court filed a published opinion in Watland, finding merit in the plaintiffs’ first contention and holding that the amendment was not validly ratified in accordance with the mandate of article XVII, sections 2 and 3 of the Hawaii Constitution. Watland v. Lingle, No. 25487, Op. at 130, 85 P.3d at 1081 (Haw. Feb. 24, 2004). On March 3, 2004, State defendants1 [hereinafter, the defendants] filed a “Motion to Clarify, to Stay Filing of Judgment, for Expedited Consideration, and for Oral Argument” [hereinafter, motion for clarification], requesting:

an order which:
(1) Clarifies that because “this court has clearly characterized the instant action as an election contest, albeit not a typical election contest customarily governed by [Hawaii Revised Statutes (HRS)] § 11— 172,” rather than a challenge to the process the Legislature used to propose an amendment to Article I, Section 10 of the State Constitution, Watland v. Lingle, 2004 WL 335159 at 8 [at 132, 85 P.3d at 1083] (Hawaii), the ensuing remedy is publication of the full text of the proposed amendment and a redux of the 2002 general election on the ballot question that was placed before the voters—Ballot Question 3—through the special election called-for in Haw.Rev.Stat. § 11-174.5, or one ordered pursuant to the inherent power of this Court to make orders “for the promotion of justice,” under Haw.Rev.Stat. § 602-5(7); and
(2) Stays the filing of the judgment in this election contest until at least July 7, 2004, so that the special election that is held “to redux” the 2002 general election on Ballot Question 3 may be held in conjunction with the 2004 presidential and general election to minimize costs and place the proposed constitutional amendment before the largest group of voters.

We initially viewed defendants’ motion as one seeking reconsideration of this court’s opinion; however, upon further review, we agree that the motion is proper pursuant to HRAP Rule 27. Therefore,

IT IS HEREBY ORDERED that defendants’ motion to clarify is granted as follows:

HRS § ll-174.5(b) does not apply to the present case. See Watland, Op. at 134, 85 P.3d at 1085 (“This is not a typical election contest wherein a complainant challenges the results of an election pursuant to HRS § 11-172 (1993).” (Emphasis added.)); Watland, Op. at 137, 85 P.3d at 1088 (repeating that the instant case “is not a typical election contest customarily governed by HRS § 11-172” (emphasis added)). Although this court •based its jurisdiction over this election contest in relevant part on HRS chapter 11, Part XI,2 and HRS §§ 602-5(6) and 602-5(7) (1993), this court, as in Kahalekai v. Doi, 60 Haw. 324, 590 P.2d 543 (1979), did not apply HRS § 11-172 or any other provision of HRS chapter 11, Part XI, in reaching the merits of the plaintiffs’ claims. See Watland, Op. at 135, 137-141, 85 P.3d at 1086, 1088-1092. Additionally: (1) article XVII, section 3 of the Hawaii Constitution clearly and *145unambiguously provides that proposed amendments must be adopted

in the manner required for legislation, by a two-thirds vote of each house on final reading at any session, after either or both houses shall have given the governor at least ten days’ written notice of the final form of the proposed amendment, or, with or without such notice, by a majority vote of each house on final reading at each of two successive sessions.
[And,] [u]pon such adoption, the proposed amendments shall be entered upon the journals, with the ayes and noes, and published once in each of four successive weeks in at least one newspaper of general circulation in each senatorial district wherein such a newspaper is published, within the two months’ period immediately preceding the next general election^;]

and (2) the general provisions of HRS § 11— 174.5(b) mandating that a special election be held within 120 days after judgment in an election contest conflict on their face with the specific mandate of the Hawai'i Constitution regarding proposed amendments being considered in a general election. (Emphases added.) Accordingly, HRS § ll-174.5(b) cannot apply in the present matter. See Blair v. Cayetano, 73 Haw. 536, 543, 836 P.2d 1066, 1070, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992) (In interpreting constitutional provisions, “[t]he general rule is that, if the words used in a constitutional provision ... are clear and unambiguous, they are to be construed as they are written.” ‘ (Quoting Spears v. Honda, 51 Haw. 1, 6, 449 P.2d 130, 134 (1968)); State v. Coney, 45 Haw. 650, 662, 372 P.2d 348, 354 (1962) overruled in part on other grounds, 54 Haw. 385, 507 P.2d 1084 (1973) (“[Wjhere general provisions, terms or expressions in one part of a statute are inconsistent with more specific or particular provisions in another part, the particular provisions must govern or control.”).

Finally, the remainder of defendants’ motion is denied. Plaintiffs are directed to submit a proposed judgment forthwith.

. Plaintiffs A. Joris Watland and Eric Gene Schneider in the present case were the plaintiffs in S.Ct. No 25410.

. As noted by the majority, S.Ct. No. 25410 included both a notice of appeal from the circuit court's November 1, 2002 order and the emergency motion for a temporary restraining order. Majority opinion at 142, 85 P.3d at 1093.

. The facts did not indicate how tabulation was done. Tabulation should be enjoined only to the extent it would not prevent other election results from being counted.

. Following the automatic substitution of various parties during the pendency of this case pursuant to Hawaii Rules of Appellate Procedure (HRAP) Rule 43(c)(1) (2000), the current State defendants are Governor Linda Lingle, Dwayne D. Yoshina, in his official capacity as Chief Election Officer for the State of Hawaii, and Ken H. Takayama, in his official capacity as Acting Director of the State of Hawai'i Legislative Reference Bureau.

. This court did not, as the defendants erroneously state, base its jurisdiction over the instant matter on the specific provisions of HRS § 11-174.5.