holding that the land court’s judgment was rendered void on the basis that the land court judge had automatically forfeited his office when he announced his candidacy for lieutenant governor
How later courts described this case
- holding that the land court’s judgment was rendered void on the basis that the land court judge had automatically forfeited his office when he announced his candidacy for lieutenant governor
- stating that this court is “always reluctant to decide that the constitutional draftsmen intended to accomplish what appears to be an absurd result”
- adopting the ordinary meaning of the word “candidate” as one who announces that he seeks or aspires to a particular office and rejecting the notion that one is not a candidate until he files nomination papers
- holding that a judicially noticed fact is taken as true unless rebutted
Written by the judges who cited it.
The opinion
DISSENTING OPINION OF
MARUMOTO, J„
WITH WHOM CIRCUIT JUDGE VITOUSEK JOINS
I dissent from the portion of the opinion of the court which holds that Judge Samuel P. King forfeited his office as a judge of the land court on February 3, 1970, when he made a statement touching upon his candidacy for governor, as reported in the Honolulu Star-Bulletin of that day and the Honolulu Advertiser of the following day.
*506 The information which this court has regarding Judge King’s statement is contained in identical materials attached as exhibits to the reply briefs of the attorney general and the contestants-appellants. The materials are (1) a photostatic copy of a portion of a page of the Star-Bulletin; and (2) a photostatic copy of a portion of a page of the Advertiser.
The photostatic copy from the Star-Bulletin only shows a headline of an article reading: “King Announces His Candidacy for Governor.” It does not contain the body of the article.
The photostatic copy from the Advertiser contains ah article written by Gerry Keir, politics writer of that newspaper. The article reported:
“As expected, the Republican situation solidified when Samuel P. King, Family Court judge, announced that he will step down from the bench March 16 to become Samuel P. King, Republican candidate for governor.
“King made his candidacy announcement at a gathering of family, supporters and the press in his newly-opened campaign headquarters in downtown Honolulu.
U* * *
“King said he has submitted his resignation to Gov. John A. Burns and Chief Justice William S. Richardson to take effect March 16. The lead time, he said is to allow adequate notice to the State Retirement System and to give Burns time to name a replacement.
“Until he leaves the bench, King said, he will make *507 no statements about a campaign program and will ‘continue to preside at Family Court , with 100 per cent of my heart and mind as I have done for so many years.’ ”
In connection with the newspaper report quoted above, it may be stated that Judge King was both a judge of the land court and a judge of the family court. Also, the statement in the second paragraph that the announcement was made in “his newly-opened headquarters” does not necessarily mean that Judge King established the headquarters. The headquarters might have been established by his supporters.
The forfeiture was declared under a provision in Article V, Section 3, of the Hawaii Constitution, which reads: “Any justice or judge who shall become a candidate for an elective office shall thereby forfeit his office.”
The question for decision in this phase of the case is: When does a judge become a candidate for an elective office, within the purview of that constitutional provision?
This court raised the question sua sponte. The question was not raised by any of the parties.
In the brief filed in response to the request of this court for additional briefing, the attorney general took the position that a judge should be deemed to have become a candidate for an elective office upon the filing of a nomination paper under HRS § 13-13. He stated:
“The Hawaii Constitution, Article V, Section 3, explicitly provides that ‘Any justice or judge who shall become a candidate for an elective office shall thereby forfeit his office.’ This constitutional provision is clear and unambiguous, and must be read in conjunction with Section 12-3, Hawaii Revised Statutes, which provides that a candidate’s name will not be printed on the primary or special election ballot unless he has filed nomination papers and Section 12-2, H.R.S., which provides that no person shall be a candidate at the general election unless nominated in the primary. Thus, in order to come within the forfeiture provision of Article V, Section 3 of the Hawaii Constitution, a justice or judge must be *508 a candidate for office and he is not officially a candidate until his nomination papers are filed.”
The attorney general changed his position in the reply brief which he subsequently filed. The position stated in the reply brief is that a j'udge becomes a candidate for an elective office when he opens his campaign headquarters and announces his candidacy for such office.
The attorney general’s revised position may be correct in construing the word “candidate” in the context of corrupt practices acts. Here, the phrase, “shall become a candidate for an elective office”, must be considered in the context of the constitutional provision in question. When the phrase is so considered, I think that the attorney general’s original position is correct.
The provision in question was adopted at the constitutional convention of 1950. The proceedings of that convention contain no discussion of the provision. So, there is no means of ascertaining the thinking of the members of the convention.
The task of this court here is to resolve the question upon a consideration and balancing of relevant factors. Hayes v. Gill, 52 Haw. 251, 254 , 473 P.2d 872, 875 (1970). I think that, in the context of the provision in question, a judge should be deemed to have become a candidate for an elective office upon the filing of a nomination paper under HRS § 13-13, for the following reasons:
(1) The provision involves a possibility of forfeiture of office. There appears to be no question that a forfeiture of judgeship thereunder is absolute. Once a judge becomes a candidate for an elective office, he has reached a point of no return. A renunciation of office will not restore the office to him. There is no locus penitentiae for the judge. 1
*509 (2) A forfeiture of judgeship affects not only the judge whose office is forfeited, but also the parties involved in the proceedings adjudicated by the judge. If such forfeiture occurs, a consequence which will naturally follow is that all decisions of the judge filed after the effective date of the forfeiture will be nullified. 2
(3) Because of the considerations mentioned above, the provision should be construed strictly, the test to determine when a judge becomes a candidate for an elective office should be simple, and the result should not depend on a statement or conduct which may be construed differently by different persons.
The requirements mentioned above are met by treating the filing of a nomination paper as the determinative act.
The matter is so handled in Alaska by a specific language in its constitution. A provision in Article IV, Section 14, reads: “Any supreme court justice or superior court judge filing for another elective public office forfeits his judicial position.”
It may be argued that if the framers of our constitution intended that a judge should be deemed to have become a candidate for an elective office upon the filing of a nomination paper, they would have specifically so provided.. The answer to such argument is that if they intended some other act, such as public announcement of candidacy, to be the determinative act, they would have provided so specifically, as the framers of the Philadelphia Home Rule Charter of *510 1951 did. Section 3-400 of the Philadelphia charter prohibits the mayor from becoming a candidate for any other elective office during his term. It further provides: “Should he announce his candidacy for any other office he shall be automatically disqualified to continue to serve as Mayor, and the office shall be deemed vacant.”
The test set forth in the opinion of the court is that a judge is deemed to have become a candidate for an elective office when he has “made a public announcement concerning his intention to seek public office.” The holding is that Judge King became a candidate for governor under that test on February 3, 1970.
The statement of the test and its application to Judge King pose troublesome questions, which I will state and discuss below.
One question is: If a judge announces his decision to seek an elective office and at the same time announces that he will become a candidate for the office as of a particular future date, does he become a candidate for the office the moment he makes the announcement, although he does nothing else with respect to his candidacy until the announced date of candidacy?
The information before this court is that on February 3, 1970, Judge King made a statement that he would step down from the bench on March 16, 1970, to become Samuel P. King, Republican candidate for governor; that he had submitted his resignation as judge to take effect on March 16; and that, until then, he would preside at the family court with 100 percent of his heart and mind, as he had done for so many years.
This court has no evidence that Judge King did anything with respect to his candidacy for governor between February 3, 1970, and March 16, 1970, other than to make the statement on the former date. Thus, it must be assumed that, during that period, he devoted his full time in discharging his judicial duties.
It appears that Judge King’s statement was not a state *511 ment of present candidacy; rather, it was a statement of future candidacy. I think that it is reasonable to construe the statement to mean that Judge King would become a candidate for governor on March 16,1970, not that he became a candidate on February 3, 1970.
Apparently, such was the construction placed on Judge King’s statement by the attorney general and the other attorneys in this case, and the attorneys involved in the divorce and adoption proceedings adjudicated by the judge after February 3,1970. None of them questioned Judge King’s authority'to act in the proceedings between February 3, 1970, and March 16, 1970.
The other question is: If conducting an active campaign is a necessary element in the test to determine whether a judge may be deemed to have become a candidate for an elective office, is there any evidence before this court which establishes that Judge King was conducting an active campaign for governor between February 3,1970, and March 16, 1970?
There is no material in the record, hearsay or otherwise, which shows that Judge King personally engaged in any political activity, after he made the reported statement on February 3, 1970, and before he left the bench on March 16, 1970.
I do not think that it can be said that Judge King conducted an active campaign unless he did so personally.
The newspaper article reported that Judge King made his statement at “his newly-opened campaign headquarters.” I do not think that such report alone furnishes a sufficient basis for a finding that Judge King was conducting an active campaign for governor before March 16, 1970.
Because the constitutional provision in question involves serious consequences previously discussed, any test to determine the time that a judge becomes a candidate for an elective office should be strictly applied. If the test stated in the opinion of the court is strictly applied, a reasonable result *512 to be arrived at from such application will be that Judge King became a candidate for governor and forfeited his office on March 16, 1970, three days after he signed the decision in this case.
Thus, in this case, it will make no difference whether the court’s test is followed or the test which I have advanced in this dissent is followed.
The discussion above underscores the point I made earlier, that the test to determine the time that a judge becomes a candidate for an elective office should be simple and that the determination should not depend on a statement or conduct which may be construed differently by different persons.
The filing of a nomination paper is a simple and unequivocal act. There can be no difference of opinion as to whether a nomination paper was filed or was not filed. Nor can any argument arise as to when it was filed. Those matters can be easily resolved from the records kept at the offices where the nomination papers are required to be filed.
A different consideration applies to the construction of the word “candidate” under corrupt practices acts. In Adams v. Lansdon, 18 Idaho 483 , 110 P. 280 (1910), it is stated that, under the Idaho corrupt practices act, a person “seeking *509 a nomination under our state primary election law for an office becomes a candidate whenever he begins to lay his plans to aid or promote his nomination.” But the opinion also states, with regard to a person who withdraws at the last minute: “In such a case, if the person did not enter the race for the office to the extent of having his name placed on the primary ballot or voted for at the election, he would not be required to render an account of the money so expended, and, of course, would not have to file an itemized statement of his expenditures.”
It is my information that Judge King signed no land court decisions' after February 3, 1970, other than the decision in this case. However, I am informed that, as a family court judge, he signed two divorce decrees and more than 20 adoption decrees, which were filed after February 3, 1970. I view such decrees to be nullified by the holding of the court in this case.