Category Archives: Legislature

Sunday morning in Kahala & more

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It looked like rain, and we carried our umbrellas when we went walking this morning. But the rain never appeared, and we never had to deploy the umbrellas.

A couple of photos follow.

Top photo: It took about 6-8 minutes after sunrise for the sun to break out from behind Koko Head and the layer of clouds along the horizon. A few minutes later, a faint rainbow could be seen ahead, and reflected in the shallow water.

Meanwhile, two updates.

The House Judiciary Committee filed Senate Standing Committee Report No. 295 on SB 686 regarding the legalization of recreational use of cannabis which spells out the committee’s findings.

Your Committee finds that ten states and the District of Columbia have legalized the recreational use of cannabis by adults, and that others are in the process of considering legalization. Your Committee further finds that legalization in these states has avoided the criminalization of thousands of people, reduced opioid overdose deaths and untreated opioid use disorders, and lowered the number of arrests for driving under the influence of alcohol and other drugs. Your Committee additionally finds that recent polling indicates broad public support in Hawaii for the legalization of cannabis.

The committee amended SB686 to use the existing network of licensed medical marijuana dispensaries as providers of recreational marijuana, rather than requiring a second, parallel administrative bureaucracy for recreational sales.

You can keep up with progress of the recreational marijuana bill by using this link to its status.

And the House Judiciary Committee recommended that HB1311 be deferred, effectively killing it for now. The bill would have given the Senate veto power over the reappointment of judges and justices. Testimony opposing the bill came from the Judiciary, the board of the Hawaii State Bar Association (which voted unanimously to oppose the measure), the Judicial Selection Commission, Office of the Public Defender, American Judicature Society, League of Women Voters, State of Hawaii Organization of Police Officers, Japanese American Citizens League, and many other organizations and individuals.

The sharpest criticism of the bill came from Honolulu attorney Tom Farrell, whose testimony traced the legislative attacks on judicial independence back to the case of Nelson v. Dept. of Hawaiian Home Lands, which concerned when the Legislature was complying with the state constitutional provision requiring sufficient funds to be appropriated to the department. The Legislature retaliated with what Farrell calls “a campaign to degrade Hawaii’s judiciary and destroy judicial independence.” This is the fourth year that such bills have been filed.

We know exactly what will happen if our judges have to come before the Senate periodically in order to keep their jobs. If ever there was a living example of why the legislative branch should not be given the power to reconfirm judges, her name is Margery Bronster. She had to come back to the Senate to keep her job when Ben Cayetano was reelected and wanted to keep her as his Attorney General. She had the temerity to take on the Bishop Estate in Ben’s first term, and the Senate refused to reconfirm her in retaliation for it. That’s what we can expect the Senate to do with judges and, over time, the corrosive effect will be that no judge who wants to keep his job will dare to make a politically unpopular decision.

You can review all of the testimony presented to the House Judiciary Committee on HB1311 here.

Anyway, back to Sunday morning calm.

The continuing legislative attack on judicial independence

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Here we go again. Time for another rather distasteful attempt by legislative leaders to undermine the independence of the courts. We’ve been around this block several times in recent years as legislators fume about and attempt to retaliate against court decisions.

One of this year’s bills, HB1311, is up for a hearing Tuesday afternoon at 4 p.m. before the House Judiciary Committee, chaired by Rep. Chris Lee.

One major provision of HB1311 would scrap Hawaii’s current system for reviewing judges and justices when they seek renewals at the expiration of their current term. The current system puts the power of renewal in the hands of the independent Judicial Selection Commission, which has been nationally praised as a model for keeping politics out of the process of selecting and renewing judges. The bill would make the commission advisory to the Senate, empowering the Senate “to consent to or reject” the decision of the Judicial Selection Commission.

The bill was introduced by House Speaker Scott Saiki, who was joined by all the top House leadership team, Vice-Speaker Mark Nakashima, Majority Leader Della Au Belatti, Majority Leader Dee Morikawa, and Judiciary Committee Chairman Chris Lee.

Saiki introduced a similar bill during the 2017 session. His HB1 (2017) proposed similar changes to the process for judicial retention.

This is just the latest in a string of bills introduced in the past several years that have been widely seen as attacking the judiciary by threatening to undermine the independence of the courts via politicizing the appointment or retention process or, in other cases, punishing judges financially by proposing changes in their retirement plans.

This bill appears to be a replay of the 2017 legislative session, where a similar bill to insert the senate into the reappointment process was the very first bill filed in the House for that session.

And Saiki’s HB1 was simply a repeat of a similar bill that was Senate Judiciary Committee the year before, in 2016.

(SB2420) was “widely seen by observers as a political message being sent to the Judiciary, and likely at the Supreme Court in particular, accompanied by the threatened loss of judicial independence.”

In that 2016 post, I went on to describe the political landscape at the time.

And one interesting thing to note is that no one in the Senate is taking responsibility for the implicit message. No one has stepped forward to say what decisions of the court have drawn the wrath of the Senate, or at least the Senate leadership, which presumably has backed the bills. No one has identified problems in the current reappointment process that might have prompted the bills. Instead, we’re apparently back to back room discussions in which unknown senators use the judicial selection process as a bargaining chip in furtherance of their unstated political goals.

From Standing Committee Report No. 2725 on SB2420 described the testimony it received on the bill.

Your Committee received testimony in support of this measure from one individual. Your Committee received testimony in opposition to this measure from the Judiciary; Office of the Public Defender; Hawaii State Bar Association; West Hawaii Bar Association; Kauai Bar Association; Hawai‘i County Bar Association; Hawai‘i Women Lawyers; American Judicature Society; Hawaii Government Employees Association, AFSCME Local 152, AFL-CIO; William S. Richardson School of Law Student Bar Association; and twenty-eight individuals.

Despite the overwhelming opposition, the bill was approved by the Senate Judiciary Committee. However, it was ultimately pulled before a final floor vote and sent back to the committee, effectively killing it.

It appears that nothing much has changed over the past few years, including the desire of legislative leadership to slap down the Judiciary because of decisions, actually or potential, that are seen as challenging the Legislature’s absolute political freedom.

In 2016 and 2017, leaders at the capitol were angry over decisions in a case that raised the question of whether the Legislature had violated the State Constitution by failing to provide sufficient funding to the Department of Hawaiian Home Lands. See “Legislature’s attacks on judges tied to past failure to fund Hawaiian Homes,” ilind.net, April 26, 2017, and “Hawaii Lawmakers Needlessly Renew Assault On The Judiciary,” Civil Beat, January 26, 2017.

This time around, it’s likely legislators are trying to send a warning to the courts to keep their hands off the controversial procedural maneuver known as “gut and replace.”

This is when a legislative committee takes a bill that is alive, and has at least a distantly related title, and totally replaces it’s contents with another measure that would otherwise be dead.

The League of Women Voters of Honolulu and Common Cause Hawaii filed a lawsuit challenging “gut and replace” last year. Although not named as a defendant in the case, the Legislature took it very seriously, hiring former congresswoman Colleen Hanabusa to file argue against the nonprofit groups’ challenge. The case was dismissed last month, but an appeal is almost certain, and the case will likely eventually reach the State Supreme Court.

And rather than trusting that they are holding a winning legal hand, it looks like legislators are again trying to send a stern message to the Judiciary–don’t mess with us or our powers, or we can make life miserable for you.

They appear to believe that might is right, in law as well as in other spheres of life. But the public relies on an independent Judiciary to protect our rights against those who would abuse their powers. The dogged pursuit of anti-Judiciary legislation over several years and different legislative sessions displays an ugly side of those who might otherwise be seen as politically astute and somewhat progressive leaders.

By the way, both Saiki and Belatti are practicing attorneys. According to financial disclosure forms filed with the State Ethics Commission, both earn between $50,000 and $100,000 annually from their legal work.

Testimony on HB1311, positive or negative, can easily be submitted online. See the hearing notice for more information.

Senate committee approves bill legalizing recreational marijuana

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The Senate Judiciary Committee, chaired by Honolulu Democrat Karl Rhoads, passed SB686 this week, which would legalize the recreational use of marijuana by adults 21 or older.

The committee report is not yet available, but the bill describes four purposes.

(1) Decriminalize and regulate small amounts of marijuana for personal use;

(2) Establish a licensing scheme for the cultivation, sale, and use of small amounts of marijuana for personal use;

(3) Tax marijuana sales in the same manner as state excise taxes; and

(4) Subject income derived from marijuana sales to state income taxes.

I applaud Sen. Rhoads and his committee for taking this step, although the measure is a long way from passing out of the legislature. It has a double referral, and faces a review by the Ways & Means Committee next.

But I was disappointed to eavesdrop on Facebook as several friends attacked the bill and the committee action, most saying they fear dramatic growth in the number of stoned drivers and attendant safety issues. They also site the conflict with federal law, which still considers marijuana a controlled substance. That’s the same position taken by Gov. David Ige’s administration and law enforcement agencies.

The Attorney General’s Office submitted testimony stating that “federal laws regarding the nonmedical use of marijuana cannot be ignored.”

Well, this is no longer persuasive. Those same federal laws apply to marijuana used for medical purposes as well as for recreational use. And those concerns about federal laws have not prevented Hawaii’s medical marijuana law from being implemented and cannabis shops opening for business.

Proponents of the bill state the obvious. First, they point to polling showing that nearly two-thirds of Americans support the legalization of recreational marijuana. In Hawaii, a 2016 poll by Civil Beat found 73% of Hawaii residents in support. SB686 is in step with the changing views of the American public.

Testimony also pointed to the undesirable effects of of current drug laws. First, they result in criminal charges and convictions for simple marijuana possession, cases that add unnecessarily to the workload of police officers, boost judicial caseloads, and cause needless human suffering. Those with resulting arrest records face future hurdles in employment, personal finance, and other areas. And, in Hawaii, that burden falls most heavily on Hawaiians and part-Hawaiians, according to testimony.

Then there’s the aspect of prohibition that we don’t like to talk about. Keeping drugs and gambling illegal forces all of that demand over to illegal sources. It would appear that organized crime likely benefits the most from existing laws in both those areas. Legalization would take a major bite out of these economic pillars of organized crime.

And proponents of legalization point out that legal access to marijuana is likely to reduce the crisis in opioid use, now recognized as a dangerous and costly health issue.

In any case, here’s a link to the testimony submitted to the Senate Judiciary Committee.

I’ll add a link to the committee report when it’s filed.

And you can use the link at the beginning of this post to track the status of the bill as it moves forward.

Ethics, Campaign Spending bills set for Friday hearing in House JUD

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I received a request to give a little visibility to a hearing of the House Judiciary Committee scheduled for Friday, February 1, at 2 p.m. (Room 325). On the agenda are three bills put forward by the State Ethics Commission, as well as a couple by the Campaign Spending Commission as part of their respective legislative packages.

I give these higher priority because they’ve already been vetted by the commissions, and deserve a closer look than bills submitted by legislators that have not already had similar scrutiny.

These three bills are part of the Ethics Commission package:

HB 171
Status
RELATING TO LOBBYISTS.
Removes statutory remnants from when violations of the lobbyist law resulted in criminal penalties. Allows the state ethics commission to assess an administrative fine pursuant to a settlement agreement.
Referral: JUD, FIN

HB 170
Status
RELATING TO ETHICS.
Restores statutory protection for legislators when carrying out a legislative function. Clarifies public disclosure requirements for task force members.
Referral: JUD

HB 169
Status
RELATING TO THE STATE ETHICS CODE.
Clarifies the State Ethics Code by clarifying provisions regarding gift disclosure statements, retention of financial disclosure statements, and ethics training.
Referral: JUD

And from the Campaign Spending Commission:

HB 164
Status
RELATING TO ELECTIONEERING COMMUNICATIONS.
Amends the definition of “disclosure date” in section 11-341(d), HRS, to mean the date when the electioneering communication is publicly distributed. Expands the definition of “electioneering communication” in section 11-341(d), HRS, to apply to advertisements sent by any mail rate and those that are expenditures of an organization. Repeals section 11-341(e), HRS.
Referral: JUD

HB 162
Status
RELATING TO VIOLATIONS OF CAMPAIGN FINANCE LAW.
Increases the fine that may be assessed, for campaign spending law violations, against a noncandidate committee making only independent expenditures and that has received at least 1 contribution of more than $10,000, or spent more than $10,000 in an election period. Allows the Campaign Spending Commission to order that payment of a fine assessed against a noncandidate committee, or any portion thereof, be paid from the personal funds of an officer of the noncandidate committee.
Referral: JUD, FIN

There are, of course, other bills that will be heard at the same time.

• HB 1280, lowering the voting age to 16.

• HB1381, extending the period during which former legislators and executive appointees who were confirmed by the Senate are not allowed to serve as lobbyists to two years (24 months) after they leave government service.

• HB 627, a grandly terrible bill with two provisions (thanks to Natalie, a.k.a. Bike Mom, for calling specific attention to this one). One provision would allow the Campaign Spending Commission to fine a candidate’s campaign or a political action committee $1,000 if they use a photograph of a person in campaign materials without their authorization. And to track such matters, it would assign an arbitrary $1 value to any photograph and require that it be treated as an in-kind campaign contribution that would have to be tracked by the campaign. If the person donated another $100, their contributions (including the photo) would have to be publicly disclosed.

It sounds a lot like one of the bill’s sponsors, or one of their friends, faced an opponent whose campaign used one of those implied endorsement photos without permission. Typically, it’s the kind of error that costs the candidate using the photo and, therefore, is pretty much self-correcting. It’s never good for a candidate to appear to be ginning up fake endorsements. But I guess if you’ve got legislative power, any little thing that gets your attention seems like a reason to draft new legislation. For the rest of us, though, it just seems silly.

And the bill has an additional provision that’s even worse. It provides that if an independent committee campaigns in a candidate’s favor, without having any connection to the candidate, then the candidate must include the value of the independent expenditures in their own campaign reports. And if the expenditures are against a candidate, the value would have to be divided up and reported by each of their opponents. Again, since independent committees are prohibited from coordinating with campaigns, it’s hard to figure how they would be able to report those expenditures.

It just goes to show that there are a whole lot of ideas stuffed into bills each legislative session, and some of them deserve to be quickly killed.

Testimony can be submitted online (for or against each bill).

WEB: For testimony less than 20MB in size, transmit from http://www.capitol.hawaii.gov/submittestimony.aspx.