Category Archives: Legislature

Legislature’s attacks on judges tied to past failure to fund Hawaiian Homes

With a key legislative deadline looming Thursday at midnight, the Legislature still on a collision course with the State Supreme Court as it pursues an apparent game of chicken in a dispute over the power of the courts to enforce provisions of the state Constitution.

House and Senate conferees are scheduled to meet at 1:30 Thursday afternoon on a bill that would strip future state judges and justices of 1/3 of the retirement benefits they would earn under current law.

The conference committee meeting is set just hours before Thursday’s midnight deadline for final decking of non-budget bills, which have to be filed in their final form in order in order to be voted on before the annual legislative session wraps up next week.

The bill, SB 249, which faced virtually unanimous opposition during public hearings, is widely seen as a bargaining chip in a behind-the-scenes effort by legislative leaders to muscle the Hawaii Supreme Court into backing off from enforcing a constitutional provision requiring the legislature to provide “sufficient” funds for the administrative and operational budget of the Department of Hawaiian Home Lands.

The bill, introduced by Senator Gil Keith-Agaran, is the latest in a series of anti-Judiciary bills introduced over the past several years, and has gotten farther than any of the prior measures. The only difference between the House and Senate versions is their effective dates, a technical change often inserted simply to force a bill to conference. Observers say agreement seems simple to reach, if legislators want to push this battle to the next stage.

And that next stage is already set. The lawsuit challenging the insufficient funding for Hawaiian Homes, Nelson v. Hawaiian Homes Commission, will return to the Hawaii Supreme Court for consideration of an appeal by the state, and a counter-appeal by the original plaintiffs, on July 6.

The focus of that hearing seems to be on arguments in a legal brief filed on behalf of the Legislature which asserts the courts do not have the power to determine just what the Legislature must do to comply with the constitution. In particular, the Legislature objects to the courts putting a dollar value on what would be a “sufficient” DHHL budget to comply with the constitution.

The Amicus brief filed by former Attorney General Mark J. Bennett, now in private practice, argues that a 2015 Supreme Court decision was misinterpreted in later proceedings, which he asserts caused a major violation of legislative prerogatives under the “separation of powers” doctrine.

The Hawaii Legislature respectfully submits that neither this Court, nor any judge or justice, has the power to either determine the amount of any appropriation, order any appropriation, or impose any penalty should the Hawaii Legislature, in fulfilling its constitutional role, decide how much to appropriate (or not appropriate) to DHHL.

There’s a long history to this case.

A 1978 amendment to the state constitution adopted by voters was intended to take away the Legislature’s discretion and assure these Hawaiian programs adequate funding in the future, according to records of that year’s constitutional convention.

But despite the constitutional amendment, the increased funding never materialized. In the Hawaii Supreme Court’s 2012 decision in the case, the high court found the Legislature had failed to meet the constitution’s funding requirement for most of the past 40 years. And a subsequent 2015 ruling by First Circuit Court Judge Jeanette Castagnetti found that more than $28 million was required to comply with the constitutional mandate in 2016.

Legislative leaders called it a violation of the separation of powers, an argument which had been raised before the Supreme Court but proved unpersuasive. So in fit of legislative pique, they launched a thinly disguised campaign of intimidation aimed at judges and justices, putting forward bills threatening to require Senate approval for reappointment of any sitting judges, calling for judicial elections rather than merit selection, and in the latest case, singling out judges for a large cut to retirement benefits. All the measures were seen as undermining the independence of the courts.

You could almost hear House and Senate leaders taunting the high court. “If you want your independence, you’d better keep your hands off of ours,” they seemed to be loudly signaling.

But plaintiffs in the Nelson case accuse the Legislature of using the separation of powers argument as a smokescreen, “nothing more than a rhetorical gambit.”

They argue that the courts didn’t create the constitutional mandate. It came from the people when voters approved the 1978 constitutional amendment.

“Constitutions are the work of the people, not of the courts, not of the legislature. It was neither the courts nor any other branch of government that decided to impose a mandate upon the State to fund DHHL. It was the people of the state of Hawai`i who made this social contract with the beneficiaries of the Hawaiian homelands trust.

It is the essential role of this court to uphold and enforce this social contract. The amicus brief asks the Court to abdicate this role. Under the guise of the separation of powers doctrine, the amicus brief asks our courts to cede their power to declare whether the constitution has been violated and to order appropriate relief.”

And plaintiffs paint the underlying issue this way:

If not the courts, then to whom does the legislature answer when their actions run afoul of the Hawaii Constitution and the mandates embodied therein? And if not now, after running afoul for more than forty years, then when if ever will the legislature be held to answer?

They point out that although the courts initially held back in order to give the state, and the Legislature, time to address the lack of DHHL funding in their own manner, the Legislature and the state did not act.

Lawyers for DHHL point to testimony during an evidentiary phase of the case in which the state’s representative said they did not know what it cost to operate the Department of Hawaiian Home Lands, and had not set up any mechanism for determining what would be sufficient. Instead, they were waiting on the court to provide a framework for making that determination.

But now the Legislature asserts that by doing just that, the courts have improperly trampled on legislative turf.

It’s an ugly scene. On the one hand, you’ve got judges and justices trying to apply the law, as they are required to do. On the other side, legislators hiding in the shadows, none of them willing to publicly explain or even acknowledge what they’re doing, are pushing bills like SB249 that have not a shred of public support.

They appear to be saying, “forget the law, just stay out of our business.”

If it were simply a legal issue, the appeal of the ruling would have been enough, and we wouldn’t have seen this spate of bills aimed at punishing the Judiciary, and its judges and justices.

At least we don’t have long to wait to find out just how far this strategy of extra-legal intimidation of the courts is going to be pursued by the Legislature. The final decking deadline is tomorrow night.

Reso on federal constitutional convention needs to be killed

Thanks to Sophie Cocke for the update in today’s Honolulu Star-Advertiser on HCR 50, a resolution now pending in the State Senate that would put Hawaii on record favoring a “limited-purpose” federal constitutional convention to “restore free and fair elections.”

The idea of rolling back the U.S. Supreme Court’s ruling in the case of Citizens United, which gave corporations the same rights as individuals to throw money behind candidates and issues in elections, is certainly appealing.

The problem, as pointed out in testimony offered by the state’s Attorney General, is that it is legally unclear whether a constitutional convention can be contained to a limited subject, as called for in this resolution.

“…[M]ost importantly, it is not known whether an Article V convention can be limited to one topic or must be a general convention, which could hypothetically propose amendments for any provision of the federal constitution, or propose a totally novel amendment unrelated to existing constitutional provisions.

I was stunned by a statement by Sen. Karl Rhoads, quoted in Cocke’s story.

“If we don’t do anything we take a risk; if we do something we take a risk,” Rhoads is quoted as saying. “But I’m looking for the downside risk, and I don’t know if I see it.”

Apparently Senator Rhoads hasn’t noticed all the downside risk we’re experiencing these days, with Congressional district gerrymandering, voter intimidation and suppression, a federal attorney general who doesn’t think its right for courts to hold presidential power in check, ethics laws ignored, and rights being eroded, not to mention that pesky Russian interference.

We have everything to lose, and that’s very real downside risk, whether Rhoads wants to admit it or not.

As Common Cause Hawaii noted in its testimony: “Simply put, a Constitutional Convention would create an unpredictable Pandora’s Box. There is far too much at stake to risk putting the entire Constitution up for a wholesale re-write as part of a Constitutional Convention.”

You can find recent testimony on this bill by going to its status page, and clicking on links to testimony on the right side of the page.

Update: The reso has been quietly recommitted to committee. This appears to mean that it is dead for this year, at least.

Bill targeting pensions of judges should be killed

The House Finance Committee will hold a public hearing at 2 p.m. today (April 4) on SB 249, somewhat innocuously titled, “Relating to Retirement.”

The bill would cut the pension benefits of future judges by one-third, while leaving the retirements of other key public employees and officials—police officers, fire fighters, and elected officials, including of course legislators themselves—unscathed.

It’s the latest move in a series of attempts by certain legislative leaders to single out state judges for punishment, apparently for unstated political transgressions.

Former Chief Justice Ronald Moon, in earlier testimony, called the bill “unfair and unjust by singling out—and discriminating against—judges.”

Moon called it right. The bill, if approved, would single out judges from all other public employees.

And recently retired Circuit Court Judge Steve Alm pointed out the legislation represents the same kind of disrespect for the an independent judiciary that has brought so much criticism of President Trump.

Testifying before the House Committee on Labor and Public Employment, Alm called out Democratic lawmakers who have allowed the measure to move forward.

Alm noted that the anti-judiciary bills began surfacing after a November 2015 decision by First Circuit Court Judge Jeannette Castagnetti which called on the legislature to increase its funding for the Department of Hawaiian Home Lands in order to meet its constitutional obligations to Native Hawaiian beneficiaries.

“This decision lead to a certain amount of reported consternation at the Hawaii Legislature,” Alm said. And that, in turn, led to speculation that the bills were intended as a political response to the judge’s legal decision.

Nationally, we are seeing a different branch of government, the Executive this time, respond to specific court rulings regarding the travel ban in negative terms. President Trump has called Seattle Federal District Court Judge James Robart, a “so-called judge” and he has criticized Hawaii Federal District Court Judge Derrick Watson’s recent decision as “political.” Fortunately, these federal judges are protected by the Constitution with lifetime appointments to make decisions as the Constitution, statutes, and the facts of a specific case call for, and not have to fear adverse action by the other two branches of government in response to their decisions.

I cannot imagine the Hawaii legislature, with so much to be proud of in its storied history, would in any way want to be lumped together with President Trump in responding officially against another branch of government based on a ruling in a specific case.

The worst thing about this and other bills that have attacked the judiciary over the past two sessions is that none of the bills’ sponsors have taken responsibility and explained what problem they have been intended to fix, or what court decisions raised their ire.

The sponsors have been silent. No justifications have been offered. No problems identified. Just silent, sullen pressure to move the bills forward.

SB 249 was introduced by Senators Gil Keith-Agaran, Lorraine Inouye, Donovan Dela Cruz, and Donna Mercado Kim. The House companion, which died earlier, was introduced by Speaker Joe Souki, “by request.”

The whole episode is giving the legislature a black eye. Seeking to pass legislation for reasons no one is willing to articluate and, as a result, remain secret, is unbecoming our Democratic majority. The public has a keen interest in maintaining an independent judiciary, and Democratic lawmakers should be called to account for their actions.

This bill, like the others aimed at punishing judges, should be killed now.

Column examines issues of proposed new jail and prison

The state and the legislature are approaching decisions on the future of our prison system on two separate tracks.

Just how this process is unfolding was the subject of my Civil Beat column this week (“Ian Lind: Count On Hawaii To Ignore Logical Prison Report/In the rush to build a new prison, the Legislature is likely to shunt aside the work of a task force it created just last year“).

On the one hand, the legislature last year approved over $5 million for planning of a replacement for the aging Oahu Community Correctional Center, the state’s largest jail. And a new bill moving ahead this year calls for setting aside that plan, and instead beginning planning on a new and much larger prison. The current prison at Halawa would then be used as the new jail. That new plan got the quick endorsement of the head of the state’s prison system, despite the obvious problem that facilities are normally designed around their intended functions, and so the design of the current prison is much different than what is needed in a jail. And a new larger prison is likely to cost upwards of $1 BILLION, a figure likely to make even stalwart proponents gasp.

But last year’s legislature also created a task force charged with reviewing correctional “best practices” in use elsewhere that could be used to reduce Hawaii’s jail and prison population, allowing any new facilities to be downsized rather than enlarged. The task force, unfortunately, was not endowed with any budget, but has been meeting since last June without benefit of funding.

The task force has released an interim report, with its final report and recommendations due prior to the opening of the 2018 legislative session. It’s well worth reading.

Here’s my brief summary:

“To improve outcomes and bring costs under control, Hawaii must chart a new course and transition from a punitive to a rehabilitative correctional model,” the task force says in its preliminary report. The move is driven by “the fact that all but a few of the men and women who go to prison will one day return to the community.” Therefore, the task force says, the question for public policy is how to use their time in prison to shape their lives for the better and change the behavior that landed them in prison.

The report proposes moving away from viewing prison as punishment and instead treating incarcerated persons “with aloha” as a core value.

One key is education and training for prison and jail workers, and the task force recommends creation of a corrections academy for employees in both the executive and judicial branches.

It recommends setting targets for reducing the prison population through diversion programs, bail reform and efficiencies in processing pre-trial detainees, and “focused, evidenced-based rehabilitative programs for those in prison.”

“The question should not be how large a new jail needs to be, but how small the jail can be with successful diversion programs? Overbuilding would be one of the worst mistakes the State could make,” the report states.

In any case, a messy issue. Check my take in Civil Beat. Feel free to comment here.