Category Archives: Legislature

Will a lottery or other form of legalized gambling get more traction in the legislature this year?

I really don’t know why there’s so much concern about legalizing some form of gambling in Hawaii.

Gambling is already pretty well established without benefit of legalization. Some gamble here in quasi-public game rooms that aren’t much of a secret. Others head to Vegas.

This morning I scanned the Travel section in the Sunday Star-Advertiser, and there’s a large ad pitching tours to UH football games on the mainland.

Fly to Detroit for a game against Michigan, including Detroit tours, a tailgate party, etc. And after four nights, fly to Las Vegas for another three nights. Game against Arizona? Same drill. Go to the game, take a few tours, then return via several nights in Vegas. Perhaps some of those people just go to Vegas for the shows. But let’s face it, a lot of them are gambling. Why? They enjoy it.

There are a lot of ways to throw away your money. Gambling is just one of the many available ways, legal or not.

I don’t give much weight to the claims that gambling is somehow immoral, especially since so much of it goes on every day in so many forms. Social impact? Maybe, but since we already tolerate widespread illegal gambling, it’s hard to make the case that there will be a vastly different impact if it is legalized.

Personally, I’m not a gambler. But I don’t think the state should be arbitrarily prohibiting legalized gambling.

Several bills to establish a state lottery have been introduced this year (HB1830, HB2536, SB2626. I’ll be interested to see if they get more traction this time around.

Legislature again considering bill to make consumer complaints secret

Rep. Isaac Choy is at it again, this time with a bill that would amend the state’s public records law to totally remove complaints about those holding state professional and vocational licenses from the public record.

Choy’s bill, HB 1565, is scheduled to be heard by the House Committee on Consumer Protection and Commerce on Monday afternoon, February 1, at 2 p.m.

State law currently provides that “record of complaints” about “an individual’s fitness to be granted or to retain a license” is a public record, “including all dispositions.”

Choy’s bill would simply delete this provision from the law, making all information about consumer complaints, including their existence, state secrets.

So what complaints are we talking about?

The state’s Professional and Vocational Licensing office lists the following categories of licensed professionals and activities.

Accountancy
Acupuncture
Barbering and Cosmetology
Boxing
Chiropractor
Contractor
Dentist and Dental Hygienist
Electrician and Plumber
Elevator Mechanic
Engineer, Architect, Surveyor and Landscape Architect
Massage Therapy
Medical and Osteopathy (MD, DO, EMT-Basic, EMT-Paramedic, Physician Assistant, and Podiatrist)
Motor Vehicle Industry
Motor Vehicle Repair
Naturopathic Medicine
Nursing
Optometry
Pest Control
Pharmacy and Pharmacist
Physical Therapy
Private Detective and Guard
Psychology
Real Estate
Speech Pathology and Audiology
Veterinary

Activity Desk
Athletic Trainers
Behavior Analysts
Cemetery and Pre-Need Funeral Authority
Collection Agency
Condominium Property Regimes
Dispensing Optician
Electrologist
Employment Agency
Hearing Aid Dealer and Fitter
Marriage and Family Therapist
Mental Health Counselor
Mixed Martial Arts Contests
Nurse Aide
Nursing Home Administrator
Occupational Therapist
Port Pilot
Real Estate Appraiser
Respiratory Therapist
Social Worker
Subdivision
Time Share
Travel Agency
Uniform Athlete Agents

You get the idea. Complaints filed against licensees provide an early warning to consumers of possible problems, and are one of the most important types of information used to protect consumers.

These are people who affect many different parts of our lives. Avoiding the occasional “bad apple” is often very important to individual consumers. And tracking how complaints are handled gives us a chance to evaluate how well the government agencies are going their jobs of protecting the public.

Losing access to such information would mark a return to the dark ages, back when consumers had no rights.

Choy has been on this secrecy kick for years, and has repeatedly sought to block the public from information about complaints filed against the service providers we rely on.

I wrote about Choy’s role in passage of a similar (but less sweeping) bill back in 2010 (“Bill to limit consumer’s rights makes last-minute stealth move“).

Here’s what I wrote at that time. The 2010 bill would only have allowed the public to know about a complaint if the complaint were finally upheld by state regulators. Choy’s current bill would block disclosure of any and all information about consumer complaints, even if multiple complaints were found to be valid.

Under current law, information concerning “an individual’s fitness to be granted or to retain a license” is considered private and confidential, except for records of complaints resulting in disciplinary action, and the “record of complaints including all dispositions.”

This bill, in its current form, would strip the “record of complaints” from the public record.

The problem here is that complaints take months, sometimes years to be investigated, so someone can rack up a long list of complaints before the first disciplinary action is finally taken. And a short list of complaints that result in actual disciplinary action may mask a much longer list of outstanding consumer complaints. Under the terms of this bill, the public would be left to fend for themselves without access to this key bit of consumer background.

Testimony on HB1565 can be submitted online. The system requires you to register and create an account in order to submit online testimony. Click here for the instructions for this simple process.

Only a few early bird legislators have filed personal financial disclosures

The deadline for legislators to file their annual personal financial disclosures is February 1, just over a week away.

As of this morning, just six members of the 51 member state House, and three members of the 25-person Senate, have filed their disclosures.

Senator Russell Ruderman gets the “First to File” award for getting his disclosure filed at 10:46 p.m. on Sunday, January 3.

Here’s the list of those who had filed by the time of this posting. I haven’t looked through all the disclosures yet, but I give these legislators credit for not procrastinating.

2016

To check the current list of filers, click here. The links on that page will also take you directly to the online forms.

Remaining to be seen–how many legislators will miss the February 1 deadline altogether.

Sen. Thielen questions “separation of powers” argument in case of Hawaiian funding

Are Hawaii State Constitutional Public Trust obligations enforceable? And if so, by whom?

Those were the questions state Senator Laura Thielen addressed in a post on her legislative blog this week.

Her questions were prompted by the Supreme Court’s ruling that the state has violated its constitutional obligation to provide sufficient funding for operations of the Department of Hawaiian Home Lands, and the announcement that the state would be appealing the decision, with support from the legislature.

The state is expected to argue that the “separation of powers” prevents the Supreme Court from imposing a duty on the legislature.

Thielen asks what happens if the legislative and executive branches just blow off their constitutional duties? She says some suggested that the response is to vote those who fail in the duties out of office.

Thielen then pointed out the limits of this idea.

But what happens when the public trust is an obligation to a group who happens to be a minority of voters (for example, current and potential DHHL beneficiaries)? Even if they band together, they can’t vote out officials because they’re a minority. And isn’t one of the purposes of elevating a matter to the constitutional level to ensure the majority doesn’t infringe on the constitutional rights of the minority?

What happens when the public trust obligation is to future generations – who aren’t around today to vote? Ask any youngster, and they would gladly vote for more protection of our public trust natural and cultural resources. Sorry! No remedy for you until you turn 18 (if those resources are still around then).

I would suggest two places to find answers. First, there’s the earlier 2012 decision by the Hawaii Supreme Court in an earlier round of this same case involving funding for the Hawaiian Homes Commission and DHHL.

That decision rested on whether the separation of powers would prevent the court from intervening in the funding question. The court concluded that one part of the larger case–the question of whether the state had provided “sufficient sums” for administrative and operating expenses of DHHL as mandated by the state constitution–was subject to judicial interpretation.

So reviewing that court decision may provide sufficient answers to the current controversy.

And then I started looking to the State of Washington, where its Supreme Court not only ruled that the state’s system of school funding is unconstitutional, but found the legislature in contempt of court for failing to implement changes to comply with the state constitution. The case obviously raises similar “separation of powers” issues.

Documents filed in the long running case are publicly available on the Washington state court system’s website.

There’s also a Harvard Law Review article that is on point (“McCleary v. State/Washington Supreme Court Holds Legislature in Contempt for Failing to Make Adequate Progress Toward Remedying Unconstitutional Education Funding Scheme“).

The Washington Supreme Court has long recognized the power to work cooperatively with the legislature in vindicating the constitutional right to education.

McCleary made clear that the judicial role in that project is twofold: first, the court draws a baseline to ensure that the legislature has “done enough” to fulfill its constitutional duty; and second, once the legislature has defined the specifics of its duty through education policies, the court enforces the legislature’s self-drawn standards. The court’s approach thus stands as a modest judicial principle: a legislature must keep its promises regarding constitutional duties. This judicial posture toward legislative discretion is unlike the federal separation of powers scheme, in which constitutional grants of legislative or executive discretion weigh heavily if not absolutely in favor of judicial forbearance.

For Washington’s education clause jurisprudence, the opposite is true. Standing “idly by” even at the remedy stage would “abdicate the court’s own duty.” Accordingly, each “unfulfilled promise” by the legislature in the McCleary litigation prompted further mistrust from its Article IX partner, and thus appropriately triggered increasingly aggressive judicial enforcement.

The law review article includes footnotes to additional commentaries on the separation of powers issues.

It looks to me as if the state is simply stalling to put off the need to provide the constitutionally mandated funding. But perhaps some of the lawyers out there could provide some suggestions on how we should be interpreting these earlier rulings.

Improving laws on campaign and lobbyist disclosure

There are two new reports from the National Institute on Money in State Politics that assess how well California does in regulating campaign spending and lobbying disclosures.

Here’s how they describe the two reports.

California state and local governments have instituted many effective disclosure policies when it comes to money in politics. But two new reports that look at the accessibility, completeness, and timeliness of providing that information to the general public find that California state and local governments have room for improvement.

In ”Best Practices for Local Campaign Finance Disclosure in California,” we looked at the rules and their actual implementation in five cities and two counties in California. Overall, it appears that local governments are doing well but can do more to expand transparency when it comes to money in politics.

In ”Improving Disclosure & Transparency: A Review of California’s Political Disclosure System,” we reviewed California’s political disclosure system for campaign finances and lobbying expenses. As with the local governments, we found that California has thorough political campaign disclosure laws. However, the systems that are used to share that information with the public can be enhanced, and the report identifies practices in other states that might help.

I found the section on lobbying disclosure laws, part of the second report, very interesting. It first reviews California’s laws regulating lobbying and requiring public disclosure of spending. In many respects, California’s definition of lobbying and what it requires to be made public is much better than Hawaii’s lobbyist law, but the report goes further by suggesting additional improvements. It would be great to see a bill drafted to bring Hawaii’s law up to the recommended California standard, and then see how Hawaii’s lawmakers would respond.

In any case, these are both excellent reports that suggest what a “state of the art” system for campaign and lobbying disclosures would look like.