Schwab v. Ariyoshi

• Decision Date: 03 November 1976
• Docket Number: No. 6179,6179
• Citation: 57 Haw. 348,555 P.2d 1329
• Parties: William SCHWAB and Richard 'ike'Sutton, Plaintiffs-Appellants, v. George R. ARIYOSHI et al., Defendants-Appellees, and William S. Richardson et al., Defendants.
• Court: Hawaii Supreme Court

Page 1329

555 P.2d 1329

57 Haw. 348

William SCHWAB and Richard 'ike'Sutton, Plaintiffs-Appellants, v. George R. ARIYOSHI et al., Defendants-Appellees and William S. Richardson et al., Defendants.

No. 6179.

Supreme Court of Hawai'i.

Nov. 3, 1976.

Syllabus by the Court

Under the doctrine of necessity, the Justices of the Supreme Court must hear and determine an appeal although parties to the proceeding and pecuniarily interested in the issue, when no disinterested substitutes can be designated and disqualification would prevent a determination of the proceeding. HRS § 601-7(a).

Edward C. Kemper, Honolulu, (Kemper & Watts, Honolulu, of counsel), for plaintiffs-appellants.

Nobuki Kamida, Deputy Atty. Gen., Honolulu, (Ronald Y. Amemiya, Atty. Gen., Honolulu, of counsel), for defendants-appellees. Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

PER CURIAM.

This appeal requires us to determine the validity and effectiveness of Act 58 of the Eighth State Legislature, Regular Session of 1975, which was signed by the Governor on May 7, 1975 and provided by its terms that it would become effective on July 1, 1975. Act 58 amended various sections of the Hawaii Revised Statutes relating to the salaries of state officers and employees, including Section 602-2, which fixes the salaries of the members of this court, and Section 603-5, which fixes the salaries of circuit court judges. All of the members of this court and of the circuit courts, together with district judges, other judicial officers and employees and state officers and employees, are defendants in these proceedings. The complaint alleges that Act 58 was not validly enacted and seeks to permanently enjoin the making pursuant to Act 58 of payments of salary to the defendants and to require them to repay all amounts paid to them pursuant to Act 58. The members of this court and Judge Kawakami, Second Judge of the First Circuit Court, did not answer or otherwise file a responsive pleading. The remaining defendants answered and moved for summary judgment, which was granted by Judge Kawakami. The complaint was thereafter dismissed as to the non-answering defendants, on their motion. The plaintiffs appealed and now move to disqualify all members of this court and to advance the case on the calendar of the court.

Consideration of these motions has been deferred pending the completion of briefing of the appeal. An opening brief has been filed, and an answering brief has been filed by all defendants other than the members of this court and Judge Kawakami. The period for filing a reply brief has expired without such filing. We have considered the motions upon the memoranda filed in support and in opposition thereto.

The motion to disqualify all of the members of this court is founded on HRS § 601-7(a), which reads:

§ 601-7 Disqualification of judge; relationship, pecuniary interest, previous judgment, bias or prejudice. (a) No person shall sit as a judge in any case in which his relative by affinity or consanguinity within the third degree is counsel, or interested either as a plaintiff or defendant, or in the issue of which the judge has, either directly or through such relative, any pecuniary interest; nor shall any person sit as a judge in any case in which he has been of counsel or on an appeal from any decision or judgment rendered by him.

Each of the members of this court has a direct pecuniary interest in the outcome of this case, since Act 58 fixes the salaries received by them subsequent to July 1, 1975, and to be received by them in the future, at rates in excess of those which would be applicable if Act 58 were held to be invalid and ineffective. All of the judges of the circuit courts have the same pecuniary interest. In the event of disqualification of any member of this court, the statutory provision is as follows:

§ 602-11 Full court; substitute justices. Parties shall be entitled to a hearing before a full court. In case of a vacancy, or if a justice of the supreme court is disqualified from sitting in any case pending before the supreme court, or is unable to attend, the vacancy or the place of such justice may be temporarily filled by a circuit judge designated by the chief justice or by the appointment of a justice who has retired from the supreme court. Such retired justice chosen to serve as substitute justice shall not be actively engaged in the practice of law, nor have attained the age of seventy years. A retired justice, when sitting as substitute justice, shall be compensated at a rate of pay of associate justices of the supreme court. When necessary, the court may consist of five circuit judges, so designated or five retired justices so appointed or any combination of circuit judges and retired justices.

The movants recognize that appontment of circuit court judges to sit as substitutes in place of the members of this court would not provide a disinterested court, since all circuit judges are directly pecuniarily interested in the outcome of the appeal for the same reason as are the members of this court. Movants suggest that substitutes be designated from among the retired justices of this court, as authorized by HRS § 602-11. However, no retired justice may be so designated who is actively engaged in the practice of law or has attained the age of seventy years. We are aware that there is no retired justice who is eligible to serve as a substitute justice pursuant to HRS § 602-11. In any event, since a retired justice, when sitting as substitute justice, is to be compensated at the rate of pay of associate justices of this court and such rate of pay depends upon the validity of Act 58 a retired justice would be subject to the same disqualification for pecuniary interest as a member of this court. There is no way by which this court can be constituted so as to remove the pecuniary interest and no other appellate tribunal to which this appeal can be taken.

HRS § 601-7(a) was enacted by Act 57 of the first special session of the First State Legislature, in 1959, to incorporate into the state statutes the substance of Section 84 of the Organic Act. The legislative history of HRS § 601-7(a) discloses no consideration by the legislature of the present problem. However, the legal principle was then well established that 'disqualification will not be permitted to destroy the only tribunal with power in the premises'. Brinkley v. Hassing, 83 F.2d 351, 357 (10th Cir. 1936). This 'rule of necessity' requires a judge to participate in a decision, notwithstanding his personal interest, if the case cannot be heard otherwise ¹ and has been applied consistently by federal and state courts. ²

In Evans v. Gore, 253 U.S. 245, 40 S.Ct. 550, 64 L.Ed. 887 (1920), the question before the court was whether the salary of a federal judge was subject to taxation under federal taxing statutes. Each of the members of the United States Supreme Court was directly pecuniarily interested in the outcome of the case, since the taxability of his own salary was involved. The court said:

Because of the individual relation of the members of this court to the question, thus broadly stated, we cannot but regret that its solution falls to us; and this although each member has been paying the tax in respect of his salary voluntarily and in regular course. But jurisdiction of the present case cannot be declined or renounced. The plaintiff was entitled by law to invoke our decision on the question as respects his own compensation, in which no other judge can have any direct personal interest; and there was no other appellate tribunal to which under the law he could go. . . . 253 U.S. at 247-48, 40 S.Ct. at 551.

The rule of necessity has been applied by state courts, without any exception of which we are aware, to require judges to sit on matters involving their own salaries. McCoy v. Handlin, 35 S.D. 487, 153 N.W. 361 (1915); State ex rel. Gardner v. Holm, 241 Minn. 125, 62 N.W.2d 52 (1954); Higer v. Hansen, 67 Idaho 45, 170 P.2d 411 (1946); Gordy v. Dennis, 176 Md. 106, 5 A.2d 69 (1939). In Wheeler v. Board of Trustees, 200 Ga. 323, 37 S.E.2d 322 (1946), the validity of a new state constitution was in question. The new constitution, among other things, raised the salaries of the justices of the supreme court and of the judges of the superior court. Constitutional and statutory provisions disqualified any judge or justice from sitting in any cause in which he was pecuniarily interested and provided for replacement of disqualified supreme court justices only by designation of superior court judges. In holding that the justices of the supreme court were obliged to decide the case, although...