Tuesday, January 5, 2010

When Plain Language Becomes Ambiguous

Stop Rail Now v. De Costa (ICA December 30, 2009)

Background. A group of concerned citizens submitted to the Clerk of the City and County of Honolulu a petition purportedly signed by over 49,000 registered voters. The petition proposed an ordinance by initiative stating that Honolulu mass transit "shall not include trains or rail transit." The Clerk rejected the petition for a special initiative election because the City and County Charter did not allow initiative special elections within 180 days of a general election. The petition was withdrawn.

Stop Rail Now brought a lawsuit and a motion in the circuit court seeking a preliminary injunction that directed the Clerk to file and process a special initiative election and, if there were sufficient signatures, place the proposed ordinance on the general election ballot. The circuit court granted the motion and ordered the Clerk to accept the petition and determine whether there was sufficient signatures. The circuit court concluded that the petition needed 44,525 signatures. Stop Rail Now argued it needed only 29,454. The Clerk certified only 35,065 signatures. Stop Rail Now appealed.

Ten Percent of What? The City and County Charter provides three ways for the electorate to petition for an ordinance. For general and scheduled special elections, any petition must be filed within 90 days of the election and certified by the clerk. For initiative special elections--an election just for the petition--the petition must be signed "by duly registered voters equal in number to at least fifteen percent of the votes cast for mayor in the last regular mayoral election . . .; provided that if the clerk certifies less than fifteen percent but at least ten percent, the proposed ordinance shall be submitted at the next general election or scheduled special election." Charter § 3-404(3). The circuit court concluded that the "but at least ten percent" clause referred to ten percent of the registered voters in the last mayoral election, and not ten percent of the votes cast for the mayor.

Plain Language, Maybe, but still Ambiguous. The fundamental starting point of statutory construction is the language of the statute itself. State v. Bayly, 118 Hawai'i 1, 6, 185 P.3d 186, 191 (2008). The ICA rejected Stop Rail Now's argument that the ten percent referred to ten percent of actual votes cast for the mayor. According to the ICA, the court must also look at "the context of the entire chapter providing the initiative power to the electors[.]" As a general matter, all petitions for ordinance must be signed by "at least ten percent of the total voters registered" in the last mayoral election. Charter § 3-402(1). The ICA concluded that this percentage sets a threshold for every petition. Thus, a petition for a special initiative election still requires ten percent of registered voters. According to the ICA, if only ten percent of the actual votes cast for mayor is all that is required for a ballot question to get onto the general election, then it would render the general requirement in Charter § 3-402 meaningless.

The Pragmatic Court? The ICA admitted that when viewed in isolation, Stop Rail Now's argument makes sense. But in the contest of the rest of Article III, Chapter 4 and particularly § 3-402(1), it must fail. To do so, according to the ICA, would override the § 3-402(1) threshold requiring that an ordinance by initiative petition be signed by ten percent of registered voters. And thwarting the ten-percent requirement under § 3-402(1) made no sense to the ICA.

However, the ICA concluded that it did make sense "to allow an initiative question that does not quite meet a more-stringent special-initiative-election standard to be submitted to the voters at the next regularly-scheduled election, if it otherwise [met] the 'ten percent' standard required by the Charter[.]" In other words, all petitions must have ten percent of registered voters. And to have a special initiative election, the petition must also have fifteen percent of the votes actually cast for mayor. If that number is not certified, then it goes on the ballot for a general election. But is that fifteen percent really as "stringent" as the ICA said it is? Under the ICA's construction, a petition may get the requisite number for a special initiative election--fifteen percent of the votes cast for mayor--but fail to get ten percent of the registered voters. And if less than fifteen percent is certified, then nothing goes on the general election ballot.

What is a Statute Anyways? The ICA took the position that when read in the entire context of Chapter 4 in the Charter, it would make no sense to require ten percent of the actual votes cast. "We must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose." Franks v. City and County of Honolulu, 74 Haw. 328, 335, 843 P.2d 668, 671 (1993). The ICA cited Franks as authority to look beyond the narrow statutory language and examine all of Chapter 4. While this seems logical, it does raise an interesting question in statutory interpretation: what is a statute? Sure, the canons of construction require that a plain reading of unambiguous language must also harmonize with the entire statute so that parts of it are not rendered insignificant or superfluous. See Coon v. City and County of Honolulu, 98 Hawai'i 233, 259, 47 P.3d 348, 374 (2002). But that is not exactly what happened here.

Here we seem to have a statute--section 3-404(3)--that refers to a specific number--fifteen percent of the actual votes cast for mayor--and then later refers to an amount between fifteen and ten percent. The ICA looked beyond this statute and at the other related statutes in the chapter as part of its construction. Is this consistent with the well-established canon of construction? If not, then is this case authority for courts to look to the entire statutory scheme and related statutes--even when the language at issue is plain and unambiguous? Perhaps so.

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