Application of Pioneer Mill Company

OPINION OF THE COURT BY

ABE, J.

On June 28, 1919, Pioneer Mill Co. filed an application in the Land Court to register title to a parcel of Hawaii real estate. For reasons not apparent in the record, the matter was not heard until September of 1967. On November 15, 1967, the Land Court judge rendered an informal oral decision from the bench. No formal decision was written at that time, nothing was filed, and the judge expressly stated that the decision would be effective only when signed. The case then remained dormant until March of 1970 when Pioneer Mill submitted proposed findings of fact.

In the meantime, the Land Court judge, on February 3,1970 made a public announcement concerning his intention to seek public office.¹ Formal nomination papers were filed on August 13, 1970.

On March 13, 1970, some time after the announcement relating to his candidacy, the Land Court judge attempted to conclude the Pioneer Mill litigation. The formal decision that was filed was signed by both the Land Court judge and by the “Second Judge of the Land Court.” The latter had heard none of the evidence in the case and had not participatéd in the trial in any way. In addition, in a curious order dated March 13, 1970 the second judge of the Land Court appointed the first Land Court judge a “master” to report findings made in the trial held three years earlier.²

On this appeal the parties argued and briefed the question of whether the Second Circuit Court should have dismissed the State’s appeal from the Land -Court because the issues had not been framed within a certain time. Noting that a more basic issue was posed by the Land Court judge’s announcement relating to his candidacy for public office, we requested additional briefing. We have concluded that the Land Court judge had become a candidate for public office at the time he rendered the decision below, and that under the Hawaii Constitution, he had forfeited his judgeship. The case must be remanded for a new trial.

Haw. Const, art. V, Sec. 3 provides:

Any justice or judge who shall become a candidate for an elective office shall thereby forfeit his office.

In our view this provision seeks to accomplish two objectives: (1) to remove from the bench any judge whose impartiality might be affected by the fact that he is seeking public office; and (2) to avoid even the appearance that a judge might temper his decision so as to garner the most votes.

Neither the constitutional provision nor the convention’s record defines the moment at which a person becomes a candidate. In our view, however, if the drafters of Art. V intended to accomplish anything, they intended to disqualify a judge who, as here, has availed himself of a campaign headquarters set up for him and has made a public announcement that he will seek office. We see no distinction between a person who announces that he will become a candidate in one month and a person who announces that he is a candidate. In either case the constitutional draftsmen had reason to fear that a judge would either lack complete independence or would lack the appearance of independence.

We reject the position that a person becomes a candidate only when his formal nomination papers are filed. We think that when the constitutional draftsmen chose the word “candidate,” they intended the ordinary meaning of the word to apply. We do not believe that our constitution’s draftsmen would have used the broad term “candidate” if they had intended to disqualify a judge only after he has filed his nomination papers.

Under the dissent’s interpretation our constitutional draftsmen apparently had no objection to one of the Supreme Court justices’ remaining on the bench after announcing today that on the expiration of the term of his judgeship he would become a candidate for public office. He could make speeches at a campaign headquarters set up by his supporters, and they could actively solicit funds, enlist volunteer workers, and pursue the votes of the public. So long as the judge cloaks his references to his campaign with the magic words that he “will become” a candidate, he could remain on the bench. We think ouf constitution’s draftsmen intended otherwise.

The main thrust of the dissent seems to be that the constitutional disqualification is a rather silly provision and should be interpreted as strictly as possible. The dissent points out that the provision disqualifies judges when there is little likelihood that they are not impartial, that it burdens litigants by necessitating retrials of correctly decided cases, that it requires this court and potentially disqualified judges to make a complex factual determination of when a person becomes a “candidate” and that the provision creates dangers that a judge will be unwillingly catapulted into a candidacy by acts of overzealous supporters, or will announce his candidacy, and later revoke the announcement when it is too late to regain his judgeship.

These points should be presented not to us, but to the drafters of the Constitution. Our task as judges is not to rewrite the Constitution. Our system of government depends on each branch’s recognition of the limitations to its power. The constitutional drafters wrote the Constitution which the people adopted. Our task is to apply the language in particular factual settings. When interpreting ambiguous provisions we attempt to determine the purposes which the provision was designed to achieve. We are always reluctant to decide that the constitutional draftsmen intended to accomplish what appears to be an absurd result. But when we conclude that the constitution’s draftsmen intended to use the word candidate in its ordinary meaning, the inquiry stops. We do not go on to decide whether or not the provision is sensible, and we do not, if we feel a provision is unwise, simply indulge in an exacerbated interpretation of a commonly used term.

In any event, we think the need to preserve both actual and apparent integrity of the judicial system warrants the imposition of whatever difficulties are posed for individual judges.

Our holding is supported both by reason and precedent. A very early case, Leonard v. Commonwealth, 112 Pa. 607, 4 A. 220 (1886), dealt with a provision of the Pennsylvania Constitution which provided that “any person who shall, while a candidate for office ... be guilty of . . . willful violation of any election law, shall be forever disqualified from holding any office . . . .” The Pennsylvania court was called upon to decide whether an official had been a “candidate” at the time he violated an election law. Although the facts and constitutional provisions involved in that case are not identical to those before us now, we find the court’s analysis of the word “candidate” instructive:

The clause of the constitution referred to must receive a liberal construction. It is to be interpreted so as to carry out the great principles of government, not to defeat them. It is not to receive a technical construction, like a common-law instrument or statute .... The object aimed at in the constitutional provision was the purification of our elections. . . . It recognizes the fact that many of the frauds which affect elections, and sometimes thwart the will of the people, are perpetrated in what may be termed the preliminary stages of an election, — in those proceedings by means of which candidates are selected for the people to vote for at the general election. . . .

The word “candidate” in the constitution is to be understood in its ordinary popular meaning, as the people understood it whose votes at the polls gave that instrument the force and effect of organic law. Webster defines the word to mean “one who seeks or aspires to some office or privilege, or who offers himself for the same.” This is the popular meaning of the word “candidate.” It is doubtless the meaning which the members of the constitutional convention attached to it, and the sense in which the people regarded it when they came to vote. We therefore say, in every-day life, that a man is a candidate for an office when he is seeking such office. It is begging the question to say that he is only a candidate after nomination, for many persons have been elected to office who were never nominated at all. We hold, therefore, that the defendant was a candidate for office within the meaning of the constitution ....

112 Pa. at 624, 4 A. at 224.

In Adams v. Lansdon, 18 Idaho 483, 110 P. 280 (1910), which again dealt with provisions and acts somewhat different than those before us, the Idaho court construed a provision of a corrupt practices act governing the conduct and limiting the expenditures of “candidates.” The court held that “a man is a candidate for an office at the time he begins to seek such office or lay his plans to procure the nomination for such office.” 18 Idaho at 506, 110 P. at 287. The court said:

The contention that a person is not a candidate until after he files his nomination papers is not in accord with the clear purpose and intent of the primary election law .... The law was intended to apply to all persons who may in any way be candidates to be voted for at the primary election and all such are amenable to the provisions of the law. It is clear to us that a man is a candidate for an office at the time he begins to seek such office or lay his plans to procure the nomination for such office .... So, under our primary election law, a person is considered to be and is a candidate for an office when he begins to seek a nomination for that office, and, if we give the narrow construction contended for by counsel to the term “candidate,” the very object and purpose of the statute would be defeated and a candidate for office might resort to all manner of bribery, promises, and expenditures of money in procuring his nomination up to the time he filed his nomination papers, and if he should after that time not commit any bribery, not make any promises, and not make any expenditures of money in aid or promotion of his nomination, he would wholly evade the penal provisions of said statute .... [I]f a candidate were permitted to expend any amount of money he desired to expend prior to the date of filing his nomination papers, and only had to account for the money that he expended between the filing of said papers and the primary election, there would be no motive for him to violate the law. A person seeking a nomination under our primary election law for an office becomes a candidate whenever he begins to lay his plans to aid or promote his nomination. Any other construction placed upon said act would be contrary to the letter as well as the spirit of said act, for the clear intention is to bring every person seeking a nomination at a primary election within the prohibitory provisions of said act just as soon as he does some overt act or thing in promoting his candidacy or in aid or promotion of his nomination. We therefore hold that a person who begins and continues to seek a nomination for a public office under the provisions of said act up to and including the day of the primary election must file the itemized account provided for by said sections 24 and 25, and is subject and amenable to the penal provision of said act.

18 Idaho 503-06, 110 P. at 287-88.

More recent cases, although involving different statutes and facts, have similarly held that a person becomes a candidate when he announces his intention to run for office. In State v. Swanson, 291 N.W. 481 (Neb. 1940), for example, the court held that “a person becomes a candidate for an office when he announces that he will seek election to the office .... To permit violations of the corrupt practices act on the eve of filing . . . would amount to a circumvention of the statute. The intention of the legislature is clear and it becomes the duty of the court to make it effective . . . .” 291 N.W. at 482-83. Accord, Mayer v. Hemphill, 411 Pa. 1, 190 A.2d 444 (1963).

We recognize that HRS § 12-1 ff. (Supp. 1971) which deals with the mechanics of filing nomination papers and the printing of ballots, uses the term “candidate” to mean only those who have filed nomination papers. That statute, however, uses the word candidate for its own purposes, that is, the regulation of the mechanics of filing nomination papers. Its use of the word is therefore of little utility in interpreting the broader purpose of the Constitution. We also recognize that some cases interpreting criminal statutes have construed the term “candidate” more strictly [See e.g., State ex rel. Brady v. Bates, 102 Minn. 104, 112 N.W. 1026 (1907)]. Those cases may be distinguishable since criminal statutes receive strict construction, while statutes seeking to provide litigants with an unbiased tribunal should receive liberal construction. To the extent such cases are not distinguishable, we find them unpersuasive.

Nor do we believe that the de facto officer doctrine validates the Land Court judge’s decision. While ordinarily acts of a person who has the reputation and appearance of a public officer are of the same validity as acts of a true office holder,³ where a judge is disqualified from holding office because of “basic constitutional protections designed in part for the benefit of litigants,” the de facto officer doctrine is inapplicable, and the case must be retried. Glidden Co. v. Zdanok, 370 U.S. 530, 535-38 (1962).⁴ And because the language of the constitutional provision manifests an intention to create an absolute disqualification which is jurisdictional in nature, we must reach the issue despite the parties’ failure to raise the matter either in the court below or in this court. Glidden Co. v. Zdanok, 370 U.S. 530, 535-38 (1962); United States v. Amerine, 411 F.2d 1130 (6th Cir. 1969); United States v. Tod, 1 F.2d 246, 249-50 (2d Cir. 1924); Fry v. Tucker, 146 Tex. 18, 202 S.W.2d 218 (1947).

We think it equally clear that the signature of the second judge of the Land Court cannot validate the decree entered. Obviously the second judge could not make a decision when he had taken no part in the trial of the case. Nor could he, on March 13, 1970, validly appoint the first judge of the Land Court to be a master. A land court judge could not serve in a single case as a judge and as a master, and a master cannot be appointed to render conclusions on the basis of evidence already heard. Nor could the second judge enter a decree on the basis of the first judge’s oral decision, since the decision was not filed, was not complete, and was not intended to be effective until signed.⁵ Lopez v. Tavares, 51 Haw. 94, 451 P.2d 804 (1969).

DonaldE. Scearce (Robert B. Bunn with him on the briefs, Cades, Schutte, Fleming & Wright of counsel) for applicant-appellant. Allen W. Wooddell (Stephen M. Okano and Franklin K. Mukai on the briefs, Wooddell, Mukai, Wirtz & Ichiki of counsel) for contestants-appellants. Andrew S. O.Lee, Deputy Attorney General (George Pai, Attorney General and Gerald Y. Y. Chang, Deputy Attorney General, with him on the briefs), for appellee.

The case is remanded for a new trial. No costs to be awarded for this appeal.

1 We take judicial notice of the fact that on February 3, 1970, the Land Court judge, in his newly opened campaign headquarters, made an announcement concerning his candidacy for public office.

Rule 806(3) of the American Law Institute’s Model Code of Evidence provides that reviewing courts may take judicial notice of a fact whether or not the trial court did so. Rule 802(c) sanctions judicial notice of “propositions of generalized knowledge which are capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy.” Parties in the present case have attached photocopies of newspaper articles noting the fact that an announcement was made, the date of the announcement, and the fact that it concerned the Land Court judge’s intention to become a candidate.

We subscribe to the position of IX Wigmore, Evidence § 2567 at 535-536 (1940), and United States v. Aluminum Co. of America, 148 F.2d 416, 446 (2d Cir. 1945) that the effect of judicial notice is that a fact is taken to be true unless rebutted.

If we felt the facts in this case were unclear, we would remand for a resolution of the issues raised. We would not simply assume that the facts were as the dissent suggests.

2 It appears odd that the judges undertook these curious acts if none of the parties and the judges had any doubts as to the legality of Judge King’s signing the decree as implied in the dissenting opinion.

3 In re Sherretz, 40 Haw. 366 (1953); Note, The De Facto Doctrine, 63 Colum. L. Rev. 909 (1963); A. Soled, The Ultimate Fiction, 44 Denv. L. J. 584, 603-07 (1967); E. Beiser, The Status of a Malapportioned Legislature, 72 Dick. L. Rev. 553, 556 ff. (1968).

4 See also United States v. Allocco, 305 F.2d 704 (2d Cir. 1962), cert. den., 371 U.S. 964 (1963); United States v. Montanez, 371 F.2d 79 (2d Cir. 1967); United States v. Machado, 306 F. Supp. 995 (N.D. Cal. 1969); Note, The De Facto Officer Doctrine, 63 Colum. L. Rev. 909, 916 ff. (1963).

Glidden was a consolidated case in which two petitioners sought reversal of federal court decisions on the ground that the judges assigned to their cases were not judges whose tenure and amount of compensation were protected by Article III, which provides for lifetime appointment and compensation which cannot be reduced during a judge’s term of office. One of the petitioners was objecting to a Court of Appeals decision, at which one of the judges was a substitute judge from the Court of Claims. The other petitioner was objecting to the fact that a retired judge from the Court of Customs and Patent Appeals had heard his case in the Federal District Court.

In the Supreme Court it was argued that even if the judges had not been properly designated to serve in the federal courts, they were “de facto” officers whose authority could not be contested by the petitioners. The Supreme Court held that Article III, giving federal judges lifetime tenure and guaranteed compensation, was designed to provide litigants with an impartial tribunal and was a basic constitutional protection designed to protect their interests. The petitioners could thus challenge the defect in the judge’s authority without regard to the de facto officer doctrine and despite their failure to raise the issue in the courts below.

5 The normal rule, of course, is that only the judge who conducted the trial may enter a decision in a case. Atlas Financial Corp. v. Oliver.......Vt........ 274 A.2d 687 (1971); Cram v. Bach, 1 Wis. 2d 378, 83 N.W.2d 877 (1957). Rule 63 of the Haw. Rules of Civ. Pro., although inapplicable to Land Court Proceedings [Rule 81(a)], enables one judge to perform duties in a case after a disabled judge has returned a verdict or filed findings of fact and conclusions of law. The rule seeks to allow the successor judge to complete the formal acts necessary to conclude the litigations, such as entering formal judgment, issuing injunctions, awarding costs, and hearing post trial motions. However, the rule can only be invoked where a complete and final decision has been rendered by the disabled judge. The danger that one judge might misinterpret a prior judge’s informal notes or oral statements, or err in attempting to judge the credibility of witnesses from a transcript is thought to be sufficiently great that the judicial system should be put to the inconvenience of conducting a new trial. Bromberg v. Moul, 275 F.2d 574 (2d Cir. 1960). Hence, even if Rule 63 were applicable to land court proceedings, we could not avoid the necessity of awarding a new trial in this case.