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.