84 Hawai'i 179, State ex rel. Bronster v. Yoshina, 19940

• Decision Date: 28 January 1997
• Docket Number: No. 19940,19940
• Citation: 932 P.2d 316,84 Hawaii 179
• Parties: 84 Hawai'i 179 STATE of Hawai'i, ex rel. Margery S. BRONSTER, Attorney General of the State of Hawai'i, Plaintiff-Appellant, v. Dwayne D. YOSHINA, Chief Election Officer of the State of Hawai'i; Paul T. Kawaguchi, Clerk of the Senate of the State of Hawai'i; and Patricia Maushimizu, Clerk of the House of Representatives of the State of Hawai'i, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 316

932 P.2d 316

84 Hawai'i 179

STATE of Hawai'i, ex rel. Margery S. BRONSTER, Attorney General of the State of Hawai'i, Plaintiff-Appellant, v. Dwayne D. YOSHINA, Chief Election Officer of the State of

Hawai'i; Paul T. Kawaguchi, Clerk of the Senate of the

State of Hawai'i; and Patricia Maushimizu, Clerk of the

House of Representatives of the State of Hawai'i,

Defendants-Appellees.

No. 19940.

Supreme Court of Hawai'i.

Jan. 28, 1997.

Dorothy Sellers and Ted Gamble Clause, Deputy Attorneys General, on the briefs, Honolulu, for plaintiff-appellant.

Jon M. Van Dyke and Robert J. Morris, on the briefs, Honolulu, for defendants-appellees Paul T. Kawaguchi and Patricia Mau-Shimizu.

James C. Paige, Deputy Attorney General, on the briefs, Honolulu, for defendant-appellee Dwight D. Yoshina.

Before KLEIN, Acting C.J., LEVINSON, NAKAYAMA and RAMIL, JJ., and LIM, Circuit Judge, in place of MOON, C.J., Recused.

KLEIN, Acting Chief Justice.

This appeal concerns the interpretation of article XVII, section 3 of the Hawai'i Constitution, which pertains to amending the constitution. The State of Hawai'i, through its attorney general, filed a complaint seeking (1) a declaratory judgment that certain proposed constitutional amendments put before the voters in 1994 had passed the legislature without proper notice to the governor, and (2) injunctions preventing certification of the election results on those amendments by Dwayne D. Yoshina, the chief election officer, and the clerks of the Senate and the House (collectively, "Defendants"). The circuit court dismissed for lack of jurisdiction, and held in the alternative that the proposed amendments had passed the legislature in conformity with the constitution. We reverse the court's jurisdictional holding, but otherwise affirm.

I. BACKGROUND

Article XVII, section 3 of the Hawai'i Constitution details the procedure for the passage of proposed constitutional amendments. The legislature may approve such an amendment by either of two methods: (1) in a single legislative session, both houses may approve the proposal by a two-thirds vote; or (2) the proposal may be passed by simple majority vote at two successive sessions. Article XVII, section 3 reads, in pertinent part:

SECTION 3. The legislature may propose amendments to the constitution by adopting the same, 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.

(Emphasis added.) ¹ The governor has no power to veto a proposed amendment, regardless of which method is used by the legislature. See article XVII, section 4.

At issue in this case is the timing of the notice to the governor pursuant to the procedure for adoption of proposed constitutional amendments in a single session. Specifically, this court is asked to declare that a number of constitutional amendments proposed by the 1994 legislature were not lawfully submitted to the electorate due to insufficient notice. The attorney general insists that each house, prior to voting, must give the governor ten days notice of the final form of any proposed amendment. Additionally, the attorney general asks us to enjoin Yoshina from certifying the 1994 election results on those amendments, and to enjoin the Senate and House clerks from certifying that any future proposed constitutional amendment meets the requirements of the Hawai'i Constitution, article XVII, section 3 unless ten days notice is given to the governor before each legislative chamber votes on the final form of the proposal.

According to the undisputed facts submitted by the parties, the Hawai'i Constitution has been amended forty-six times by legislative proposal pursuant to article XVII, section 3 since the constitution took effect August 21, 1959; in all but one instance, the "single-session, two-thirds vote" method has been followed. The groundwork for this lawsuit began to be laid in 1990, when the governor and the attorney general publicly took the position, based on their interpretation of the constitution, that notice was required from both houses. See Richard Borreca, "3 constitutional amendments in dispute are on voters ballots," Honolulu Star-Bulletin, Nov. 5, 1990. The governor reiterated this stand in 1992, when the legislature again followed the single-session procedure for placing constitutional amendments before the voters.

In 1994, the legislature passed six bills, containing eight proposed amendments to the Hawai'i Constitution. Four of the bills, S.B. No. 2182, S.B. 2294, S.B. 2513, and S.B. 2515, concerned the judicial selection and confirmation process. H.B. 3657 related to the powers of the Board of Education, and H.B. 2692 (Act 280) concerned the financing of child care. In an August 4, 1994 memorandum to the lieutenant governor, the attorney general gave his opinion that S.B. 2513--concerning Judicial Selection Commission terms--had "not yet fulfilled the requirements under article XVII, section 3 of the Hawai[']i Constitution." The attorney general recommended that the lieutenant governor withhold the amendment from the ballot for the upcoming election. ² By letters dated August 5 and August 15, the attorney general took the same position vis-a-vis S.B. 2294 (nominations to the Judicial Selection Commission) and Act 280 (educational revenue bonds).

The lieutenant governor informed the president of the Senate and the speaker of the House of the attorney general's concerns on August 24, 1994. In a September 9 letter, the clerks of the House and the Senate certified that "the constitutional notice requirements were met for the above-referenced bills." On September 12, the lieutenant governor forwarded this letter to the attorney general and took the position that his office "has no choice but to place the proposed constitutional amendments contained in the aforementioned bills on the November 1994 ballot." He suggested that the attorney general take expedited legal action to resolve any remaining concerns, because the ballots were then in the process of being printed.

On September 22, 1994, the attorney general sent a memorandum to the lieutenant governor, the president of the Senate and the speaker of the House, informing them of the plan for the litigation that was then impending:

Once we have determined the agreed upon facts, we plan to file suit no earlier than Wednesday, November 9, 1994, against the Lieutenant Governor to enjoin the certification of voting results on the proposed constitutional amendments and against the Clerks of the Senate and of the House of Representatives to enjoin the certification of fulfillment of constitutional notice requirements for bills that have not met the ten-day notice requirement. We plan to file suit after the general election of 1994 because the constitutional amendment ballots are already being printed and, as a practical matter, the amendments are contained in the disputed bills and cannot be 'kept off the ballot' at this time. Moreover, since the proposed constitutional amendments will be on the ballots, we do not wish to discourage the ratification vote on the substantive contents of the proposed amendments by publicizing before the general election the potential invalidity of the ratification vote, especially if the Supreme Court rules that the constitutional notice requirements were met.

Seven of the proposed constitutional amendments were approved by the voters at the November 8, 1994 election. ³ On November 21, 1994, the attorney general filed a complaint in the First Circuit Court, naming as defendants the lieutenant governor as well as T. David Woo, Jr., clerk of the Senate, and Patricia Mau-Shimizu, clerk of the House of Representatives. The case was submitted on undisputed facts. The clerks moved jointly to dismiss and/or for summary judgment; the attorney general also moved for summary judgment.

On May 20, 1996, the trial court granted the clerks' motion. Resting its order on several alternative grounds, the court ruled that the state's challenge amounted to an "election contest," and the circuit courts therefore had no jurisdiction because "[a]ny challenge or contest to the validity of the results of the election is governed by Hawai'i Revised Statutes [HRS] sections 11-171, 11-172, and 11-174.5[,]" which pertain to election contests; in the alternative, the court ruled that "all such requirements [of article XVII, section 3] have been fully complied with as to all six (6) amendments[.]" ⁴ The attorney general's complaint for declaratory judgment was dismissed with prejudice for lack of jurisdiction; the requested injunctions were denied. The attorney general took this timely appeal on behalf of the state.

II. DISCUSSION

A. Subject Matter Jurisdiction

As a threshold matter, we must determine that we have subject matter jurisdiction over this appeal. A trial court's dismissal for lack of subject matter jurisdiction is a question of law, reviewable de novo. Norris v. Hawaiian Airlines, Inc., 74 Haw. 235, 239, 842 P.2d 634, 637 (1992), aff'd, Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994).

Our review is based on the contents of the complaint, the allegations of which we accept as true and construe in the light most favorable to the plaintiff. Dismissal is improper unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

Id. (quoting Love v. United States, 871 F.2d 1488, 1491 (9th Cir.1989)).

The circuit court held that it was without jurisdiction because the state's cause of action was an "election contest" and, thus, under HRS Chapter 11, had to be filed as an original action in the...