First off, let me say how disappointed I am in Governor Abercrombie’s decision to keep the names of nominees for the Hawaii Supreme Court secret.
That’s not part of any “new day” in my book. It’s back to the bad old days before “transparency” became an accepted part of our political language.
According to the Star-Advertiser:
“The governor believes getting the names out is detrimental to attracting prospective judicial applicants,” his spokeswoman Donalyn Dela Cruz said yesterday.
“His approach in making judicial appointments is to ensure the confidentiality of these applicants.”
Pardon my French, but that’s just plain BS. In all but the most unusual and unlikely circumstances, I’m sure any attorney would love to have it publicly known that they made it to the short list for an appointment to the Supreme Court.
If you’re worried about the applicants, wouldn’t it be best to have problems or questions raised privately in response to disclosure of the short list of those being considered, rather than in the glare of publicity in a subsequent Senate hearing?
All the secrecy really does is push the public out of a key stage of the process.
More importantly, I’m worried that it signals the priorities of this governor’s administration. To those inside the 5th floor bubble, it might sound good right now. But a bad attitude towards openness and public participation is the kind of thing that is going to cause big headaches for Neil before too long. Hopefully, he’ll see the light, or, as we say, the sunshine.
Then, from Civil Beat, here’s a collection of articles that were written in advance of the FACE Equity Summit held last week at the University of Hawaii. (FACE stands for Faith Action for Community Equity).
Finally, a couple of comments from readers.
From Ed:
The Governor’s proposal to divert Tourism Authority funds to basic government services (using examples that benefit the visitor as much as the resident taxpayer) may be resisted strenuously by industry lobbyists this session but certainly has a lot going for it.
The issue raises the decades long argument of how much State government (i.e. taxpayers) should pay for generic tourism promotion of Hawaii versus the industry itself.
Today the Authority presents itself as the State’s premier tourism promotion agency while continuing to fund the Hawaii Visitors & Convention Bureau seemingly as a sideline. I would hope the Star-Advertiser would layout how much of the TA’s funds are channeled directly to the HVCB and what the split is today between private sector and TA support for the Bureau.
As far as the idea of taxing retirees, specifically State and County retirees, my State pension dates back nearly 25 years, now about equal with my Social Security so the medical coverage is of the most value at this point. Personally I’m willing to forgo the medicare reimbursement angle but being on such fixed income that’s all, thank you, especially when the real property tax “break” for low income elderly is such a sick joke!
And J.T., a regular reader, added this email comment about Frenchy DeSoto:
Yes, Frenchy De Soto was a force to be reckoned with. When I worked for the late Abe Poepoe in the Mayor’s Office of Information and Complaint (1979-81), she was head of the Waianae Satellite City Hall. (I think I’m remembering that correctly.) Abe wasn’t afraid of very many people, but he always watched himself around Frenchy. At the same time, he worried about her, because she really wasn’t in good healthy even way back then. Somebody who really knew her should write a book. She was that interesting a person.
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The Governor’s proposal to tax pensions, includng State employees’ pensions, will also probably face legal obsticals. Article XVI, section 2 of the Hawaii Constitution provides:
EMPLOYEES’ RETIREMENT SYSTEM
Section 2. Membership in any employees’ retirement system of the State or any political subdivision thereof shall be a contractual relationship, the accrued benefits of which shall not be diminished or impaired. [Ren Const Con 1978 and election Nov 7, 1978]
See also HRS 88-91:
§88-91 Exemption from taxation and execution. The right of a person to a pension, an annuity or a retirement allowance, to the return of contributions, the pension, annuity or retirement allowance itself, any optional benefit or death benefit, any other right accrued or accruing to any person under this part and the moneys in the various funds created under this part are exempted from any tax of the State and, except as in section 88-92 provided, shall not be subject to execution, garnishment or any other process and shall be unassignable except as in this part specifically provided.
There is also an Oregon Supreme Court ruling from 1992 holding that the State could not tax state employee pensions that were earned prior to the proposed change in the law. Hughes v. State of Oregon, 838 P.2d 1018 (1992)
i guess the retirement question turns on whether the state’s policy of not taxing any pensions is a benefit to state pensioners for purposes of the constitutional provision or not. it would seem curious that such a provision would foreclose the state from changing a general tax policy especially if the exemption was never negotiated or subject to collective bargaining.
on the secrecy issue, this looks ripe for a UIPA request to the governor’s office. if i’m not mistaken, only the Judicial Selection Commission gets a pass on disclosure. There is no protection from disclosure on submissions to the governor.
The “benefits” were accrued when they were non taxable and the Oregon Supreme Court decision based on a comparable provision suggests that the State cannot tax the portion of the pension income that accrued prior to the change in the tax law.
yes, but the exemption for all other non state employer pensioners was not a “benefit” subject to connection you are making. comparable provisions from another jurisdiction are not controlling. the recent splitting of hairs over general versus special powers of the legislature by the Hawaii Supreme Court makes this issue much more open to speculation than the confidence you give your position.
According to the brief summary in the Star-Advertiser, the
Governor’s proposals to balance the budget take more than $300
million directly from public workers, retirees, and the poor.
Wasn’t this supposed to be a Democratic administration?
It’s not totally surprising that the governor would make such a push for secrecy. When he was on the Honolulu Council he attempted to push through legislation that would make the council exempt from Sunshine Law provisions – similar to that in place for the state Legislature.
If the Governor won’t release the names, why doesn’t the Judicial Selection Commission? I didn’t see that there was anything against that in their rules. Each applicant signs a Waiver, Authorization and Release Form with his/application so the Judiciary or the Commission could promote the public’s confidence in the process by releasing the names. If a secret society like the Hawai’i Bar can reveal their evaluations of judicial nominees, then the Commission should too.
There is a 1992 OIP Opinion holding that the JSC does not have to release the list due to provisions of the Hawaii Constitution making their deliberations confidential. That does not apply to the Governor’s office, but there are other OIP opinions saying that finalists for high ranking appointive office don’t have to be disclosed but Governor’s Cayetano and Lingle did release the lists.
Rather than fight the issue of taxing the pensions, public
worker unions should focus on using the additional revenues to
shore up the underfunded pension plan and the EUTF medical plan.
Workers might find it more palatable to know that their benefits
are going to be taxed if there was some assurance that the money
will actually be there when they retire.
Since when is asserting a protective constutional right “fighting” taxing pensions. What’s next? Instead of “fighting” scaling back First Amendment Freedoms?
your interpretation of the statute and constitution violates some of the fundamental tenets of statutory construction in Hawaii case law so I don’t think the leap to protecting constitutional rights is necessary warranted at this moment for a question of first impression in Hawaii law. Some people don’t accept your interpretation and for the law, reasonable people can differ.
Kimo raises some interesting points. I was talking to a county retiree yesterday and he was upset at Neil’s proposal saying that they were “promised” when they entered civil service that their pensions would never be taxed.
I find that hard to believe since it’s not part of the collective bargaining agreement and most new hires really don’t think about whether they are going to be taxed on their pension when they retire in 30 years or so.
That said, a more productive dialogue would be how does the state balance its budget? What taxes, if any, should be raised? What services, if any should be cut?