Guntert v. Richardson

• Decision Date: 27 July 1964
• Docket Number: No. 4436,4436
• Citation: 47 Haw. 662,394 P.2d 444
• Parties: Carl J. GUNTERT, Leo B. Rodby, Jr., Victor K. Boyd, Jr., Tadao Okimoto, Turk T. Tokita, and Yoneto Yamaguchi, v. William S. RICHARDSON, Lieutenant Governor of Hawaii.
• Court: Hawaii Supreme Court

Page 444

394 P.2d 444

47 Haw. 662

Carl J. GUNTERT, Leo B. Rodby, Jr., Victor K. Boyd, Jr. Tadao Okimoto, Turk T. Tokita, and Yoneto Yamaguchi, v. William S. RICHARDSON, Lieutenant Governor of Hawaii.

No. 4436.

Supreme Court of Hawai'i.

July 27, 1964.

Syllabus by the Court

1. At least in the initial stages of the problem presented by the invalidity, on equal protection grounds, of Article III, section 2 of the State Constitution, relating to the composition and apportionment of the State Senate, the question whether such invalidity can be cured by act of the legislature itself, or requires an amendment of the State Constitution, is one of local law, not federal constitutional right.

2. Article XV, section 2, paragraph 6 of the State Constitution plainly contemplates that any change in the representation from senatorial districts will be by constitutional amendment.

3. In the initial stages of the problem presented by invalidity, on equal protection grounds, of Article III, section 2 of the State Constitution, relating to the composition and apportionment of the State Senate, it will be assumed that the legislature, being then in special session, will take suitable action, and this possibility provides justification for a court of equity to stay its hand temporarily.

4. In a suit against the State official charged with the conduct of elections, the court will not render a declaratory judgment as to the validity or invalidity of the composition and apportionment of the legislature, apart from the plaintiffs' rights with respect to a future election or elections.

5. A legislature though elected under an invalid apportionment scheme is nonetheless a legislature empowered to act.

6. A court of equity will not render a decree it cannot enforce.

7. A submission on an agreed statement of facts (chapter 227, Revised Laws of Hawaii 1955) precludes the taking of evidence and must contain sufficient facts to permit an adjudication.

8. A submission on an agreed statement of facts (chapter 227, Revised Laws of Hawaii 1955) affords no opportunity for other parties to intervene in the usual manner.

Charles M. Tonaki (Oshiro, Burns, Rubin & Tonaki, Honolulu, of counsel), for plaintiffs.

Robert G. Dodge, Honolulu, for defendant.

J. Garner Anthony, Bert T. Kobayashi, Atty. Gen. of Hawaii, Honolulu, amici curiae.

Kazuhisa Abe, Hilo (Ernest Kubota, Hilo, of counsel), for Jack Suwa and Julian R. Yates, on motion to intervene.

Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

PER CURIAM.

This is a submission upon an agreed statement of facts. ¹ The plaintiffs, who are individual residents, taxpayers and voters of districts hereinafter noted, aver that no further election of members of the State Legislature should be held under existing provisions of law. Defendant, the Lieutenant Governor of Hawaii, charged by law with the responsibility for the conduct of elections, contends that to attempt to change the election process at this time would be contrary to the best interest of the public and that there should be no interference with the 1964 elections. Defendant further avers 'that this Court lacks jurisdiction to order a new election or to reapportion the legislature prior to the exercise of reasonable efforts of the people and of their elected representives, acting under the provisions of the State Constitution, to adopt and approve an apportionment plan submitted to them either by a constitutional convention or by the legislature in the form of a proposed amendment to the Constitution.'

For present purposes we can assume the invalidity of the composition and apportionment of the State Legislature, in whole or in part. So assuming, we nevertheless agree with the defendant that we should not interfere with the 1964 elections. There is ample precedent for our refusal to so interfere.

In Sincock v. Terry, D.C., 210 F.Supp. 396 (Oct. 16, 1962), a three-judge federal court in Delaware considered the situation there presented with respect to the November 1962 election. The action had been commenced on June 5, 1962, and the court had stayed the proceedings until August 7, 1962 to enable the legislature to propose a constitutional amendment. 207 F.Supp. 205. In the second opinion reported in 210 F.Supp. 396 the court noted that a constitutional amendment had been proposed and denied a preliminary injunction, thereby permitting the holding of the November 1962 election. As a result, it was the constitutional amendment adopted in 1963 which finally came before the court. It was held invalid, 215 F.Supp. 169, aff'd sub nom. Roman v. Sincock, 84 S.Ct. 1449 (June 15, 1964). The Supreme Court nevertheless left it to the court below to determine whether the 1964 election might be held under the invalid 1963 amendment, saying:

'* * * Acting under general equitable principles, the court below must now determine whether it would be advisable, so as to avoid a possible disruption of state election processes and permit additional time for the Delaware Legislature to adopt a constitutionally valid apportionment scheme, to allow the 1964 election of Delaware legislators to be conducted pursuant to the provisions of the 1963 constitutional amendment, or whether those factors are insufficient to justify any further delay in the effectuation of appellants' constitutional rights. * * *'

In Lisco v. McNichols, D.C., 208 F.Supp. 471 (Aug. 10, 1962), a three-judge federal court found that the record was inadequate for devising of a court plan of reapportionment, and that 'in view of the magnitude of the task, the time is wholly inadequate.' Final adjudication was postponed until holding of a further hearing. The District Court concluded that the case was not one for temporary injunctive relief 'and that there should be no impediment to the orderly conduct of the election or interference with the electorate in the free expression of their opinions on the initiated measures [for constitutional amendments effecting reapportionment] at the coming election * * *.' The cause was continued until after the November 1962 election. After an extended trial and a further opinion, 219 F.Supp. 922, the case came before the Supreme Court sub nom. Lucas v. General Assembly, 84 S.Ct. 1459 (June 15, 1964). The Supreme Court approved the action below as to the November 1962 election, saying: 'Because of the imminence of the November 1962 election, and the fact that two initiated proposals relating to legislative apportionment would be voted on by the State's electorate at that election, the District Court properly stayed its hand and permitted the 1962 election of legislators to be conducted pursuant to the existing statutory scheme.' Disagreeing with the court below as to the validity of the constitutional amendment, adopted at the November 1962 election, the Court remanded the case for determination 'whether the imminence of the 1964 primary and general elections requires that utilization of the apportionment scheme contained in the constitutional amendment be permitted, for purposes of those elections * * *.'

Previously the Court had stated: '* * * And we conclude that the fact that a practicably available political remedy, such as initiative and referendum, exists under state law provides justification only for a court of equity to stay its hand temporarily while recourse to such a remedial device is attempted or while proposed initiated measures relating to legislative apportionment are pending and will be submitted to the State's voters at the next election.'

We note that the Supreme Court has said that '[o]nce a state's legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan.' Reynolds v. Sims, 84 S.Ct. 1362, (June 15, 1964). But the Court continued in that case:

'* * * However, under certain circumstances, such as where an impending election is imminent and a State's election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment scheme was found invalid. In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles. With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in adjusting to the requirements of the court's decree. * * *'

In the light of the decisions handed down by the United States Supreme Court on June 15, 1964, we take cognizance of the indisputable invalidity of Article III, section 2 of the State Constitution, relating to the composition and apportionment of the State Senate. The problems thus raised will be considered first from the standpoint of permanent reapportionment and then from the standpoint of a temporary reapportionment plan.

At least in the initial stages of the problem presented by the invalidity of this provision, the question whether such invalidity can be cured by act of the legislature itself, or requires an amendment of the State Constitution, is one of local law, not federal constitutional right. We note that the Supreme Court has said that 'the delay inherent in following the state constitutional prescription for approval of constitutional amendments * * * cannot be allowed to result in an impermissible deprivation of [the] right to an adequate voice in the election of legislators * * *.' Roman v. Sincock, supra. But that was said in a case where, at the time of rendition of the...