Mayor can quit on his own schedule

By Jerry Burris
Advertiser Editorial Editor

There's little chance that Jeremy Harris will be forced to quit his post of mayor of Honolulu sooner than he wishes to leave. And that seems fair when you think about it.

After all, the so-called "resign-to-run" provision of the state Constitution has heretofore been applied to candidates who actually file for local office, not to those who simply talk about their candidacy.

Talk is cheap. But under state election law, you are not legally a candidate until you file your papers.

Still, the questions raised by former legislator and state District Judge Russell Blair are intriguing. Blair's point is that despite what other laws might say, the intent of those who wrote the resign-to-run provision into the Constitution in 1978 was clear. There's ample evidence in the records of the '78 Constitutional Convention to suggest precisely what those delegates had in mind.

Delegates directly rejected the idea of using the filing of papers as the triggering point for resignation. They wanted the requirement to be imposed earlier in the process. Their thinking was this: Once a person decides to be an active candidate for another post, he or she simply can't give full justice to the current job.

Unfortunately, the language they came up with doesn't make all of this clear. It says a person has to resign as a condition of eligibility for the other office. In short, incumbency in a political office that overlaps the one sought makes a person ineligible, just as noncitizenship does or some other disqualifying characteristic.

But of course, all this has an Alice-in-Wonderland quality. At the moment, Jeremy Harris is legally ineligible to run for governor in 2002 because he is in the middle of a mayoral term that doesn't expire until 2004. But he could cure that little problem any time he wants to.

Blair essentially is arguing the old legal theory that if it walks like a duck and quacks like a duck, it is a duck. And he has some legal support, in the form of the 1972 Hawai'i Supreme Court led by former Justice William Richardson. That case involved Sam King, then a state judge, who let it be known he would soon quit the bench because he was going to run for governor. The state Constitution said any judge who becomes a candidate for public office forfeits his judgeship.

The Supreme Court concluded that King became a "candidate" the day he made a public announcement of his intentions. Effectively, he ceased to be a judge that day, the court said. This threw out a batch of cases King handled in his last month on the bench.

"We reject the position that a person becomes a candidate only when his formal nomination papers are filed," the majority said then.

Granted, this case involved a sitting judge, not a sitting elected official. But the logic is interesting and could be seen as applying to Harris.

But think of it this way: Yes, under the 1978 Constitution, Jeremy Harris is now ineligible to run for governor. That's a problem, to be sure, but one he can cure at a time and place of his choosing.

And that time and place, obviously, is not here and now.

Reach Jerry Burris through letters@honoluluadvertiser.com.