The Con Am as we now know it, was born on January 24, 2018 as SB2922 with the primary introducer being Senator Michelle Kidani, Vice President of the Senate and Chair of the Senate Education Committee.  

After months of intense and divisive community debate, on October 18 the Con Am’s short but turbulent life was ended via a declaration by the Hawaii Supreme Court stating the measure was invalid.  According to the court, the proposal did not comply with legal requirements that ‘the language and meaning of the ballot question be clear and not misleading.

While the Con Am is now dead, it may be useful to review at least briefly, the twisted and somewhat unusual path of its legislative history.

Numerous Bills relating to the issue were introduced in the House and in the Senate during 2017 and in 2018, but it was SB2922 that for whatever reason was selected to be the vehicle for this well intended but ill fated public policy measure. 

For purposes of this narrative, the only language quoted will be the final key statements as to what would eventually be printed on the ballot.

The original SB2922 stated:

The question to be printed on the ballot shall be as follows:

“Shall the legislature fund a quality public education for all of Hawaii’s children, including the retention of teachers, public preschools, lower class sizes, special education programming, career and technical education, art, music, Hawaiian studies, Hawaiian language instruction, and afterschool programs, by establishing a surcharge on visitor accommodations and residential investment property valued at one million dollars or greater, excluding a homeowner’s primary residence, as provided by law?”

Originally referred to the Senate Committees EDU/ETT/JDC, WAM (Education/Economic Development/Tourism and High Technology/Judiciary, Ways and Means) – SB2922 was then “re-referred” to just EDU, JDC meaning only two committees in the Senate would review and potentially amend and/or vote on the issue.  WAM as the all powerful “money committee” which normally reviews all Bills having potential budget impacts was for some reason removed, as was ETT.  Re-referral decisions are made by “leadership” and ultimately the Senate President signs off in agreement.

The Senate Education Committee on February 5th conducted the one and only public hearing that was to be held in the Senate and passed out SB2922 “as is”.

On February 23, the Judiciary Committee (JDC) chaired by Senator Brian Taniguchi held a “Public Decision Making” meeting that does not permit public testimony to occur at the meeting (though the public is notified and written testimony is accepted). This is standard procedure in Senate “A bracket” committees and permitted within the Senate rules.  JDC then passed out SB2922SD1, that amended the original Bill in numerous ways including changing the language suggested to be printed on the ballot to:

SB2922SD1 – SECTION 4.  The question to be printed on the ballot shall be as follows:

“Shall the legislature be authorized to establish a surcharge on visitor accommodations and on residential investment property, excluding a home that qualifies for a homeowner’s exemption, valued at one million dollars or more to fund public education for Hawaii’s children, as provided by law?”

The full Senate then passed SB2922SD1 with only Senator Gil Riviere voting NO.

On March 6, SB2922SD1 was transmitted to the House of Representatives where on March 8 it was referred only to the House Finance (FIN) committee, chaired by Representative Sylvia Luke.

The measure sat without any activity in FIN for approximately 3 weeks and then on April 2 was “re-referred” (by House leadership) to the House Education (EDN) committee, chaired by Representative Justin Woodson who promptly scheduled a public hearing on the measure with 48 hours notice, for April 4.

The House EDN committee then passed out a further amended version SB2922HD1 that stated in SECTION 4: 

The question to be printed on the ballot shall be as follows:

“Shall the legislature be authorized to establish, as provided by law, a surcharge on investment real property to be used to support public education?”

This is the language that ultimately was placed on the ballot, and ruled invalid by the Hawaii Supreme Court. And it begs the question as to how the Chair of Education came about to amend the measure in such a manner?  These types of decisions do not happen by accident and do not occur in a vacuum.

Was the language change suggested to him by House Leadership?  Did the House staff attorneys make the suggestion? Nowhere in the written public testimony is there overt reference to the need to make such changes, and nothing in the committee report provides any hint as to the impetus for the move.  Normally the “subject matter chair” deals only with issues pertaining to the core subject matter, in this case that would be the measures impact on education. The legal language and other constitutional matters would be left to review of JUD, and in this case of course that vital part of the process was missing.

After the House EDN committee action, the House of Representatives voted unanimously in support.  Interesting, even all Republicans in the House while acknowledging “reservations”, ultimately were counted as YES votes.

The next step in the process would normally be “Conference Committee” and a process of further review by House and Senate Conferee’s, and potentially further amendments.  But in this case, on April 18th the Senate discharged its Conferees and simply agreed to the “House version” (that contained the final language that ultimately was used on the ballot and then found invalid by the Hawaii Supreme Court).

While SB2922HD1 was “enrolled to the governor” on May 3, the Governor does not have the power to veto these types of proposals and apparently simply receives them.  For normal Bills the process would be for the AG to review and make recommendations to the Governor if there were concerns that might warrant a veto.  In this case, the Hawaii State Constitution states in Section 4: “No proposal for amendment of the constitution adopted in either manner provided by this article shall be subject to veto by the governor.”

Upon reviewing the legislative history there are numerous actions and inactions that stand out as unusual.  Bear in mind that we are discussing a fundamental change in the Hawaii Constitution.

1)  Only two public hearings were held during the entire process, one in the Senate with 3 days notice and another in the House with 2 days notice.  

2)  Only three committee’s were involved, Education and Judiciary in the Senate & only Education in the House.

3)  Neither the Senate Ways and Means Committee, nor the House Finance Committee reviewed or voted on the measure.  It should be noted that both money committees normally review all legislation that will have a potential budget impact.  This is especially true in the House of Representatives where the House Finance Committee has a history of being used as a “back stop” to review and filter/amend/block any and all legislation regardless of budget implications.  One could argue I suppose that there would be no immediate budget impact and so a “money committee” review was not needed.  Still yet, given past practice and the huge significance of this measure, bypassing both WAM and FIN seems out of character.

4) The House Judiciary Committee (JUD) chaired by Representative Scott Nishimoto did not review or vote on this measure.  

• This is probably the most significant factor which violates both past practice and best practice.  Why the House Judiciary Committee (JUD) whose subject matter purview is core to the proposal of a constitutional amendment chose not to review this matter is significant.
• Why House leadership or why the EDU Committee did not insist on review by House JUD, is also difficult to fathom.
• Perhaps there was an “informal review” by the Chair and/or legal staff that gave House leadership and the JUD chair a level of comfort that they felt holding a hearing unnecessary?  
• Or perhaps the JUD Chair did not support nor want to hear the Bill, and in that case House Leadership kept his committee off the referral list? It is inconceivable that the discussion over whether or not to refer the measure to JUD, did not occur.

5) Except for Senator Gil Riviere, no other member of the House or Senate voted in opposition to the proposal.

6) Nowhere in the public record of testimony does there seem to be any input from the Attorney Generals (AG) office. The caveat to this is that searching the public testimony files can be an imperfect exercise and it is possible that the AG did in fact consult with members of the legislature on this measure, however if so that is not readily apparent. It is also not clear whether any legislator actually requested an AG opinion.

7) The governor is ostensibly absolved of responsibility for the language, as per our constitution, he does not have the legal authority to veto proposed constitutional amendments.

At this point, I do not believe climbing aboard the “blame game train” is a productive exercise.  You can be sure there is plenty of this going on right now in the back rooms at the Capitol as both key staff, committee chairs and House/Senate leadership scramble to accomplish the essential survival tool code-named CYA.

Suffice it to say that it was everyones (ie the majority) fault in both the House and the Senate.  The House approved a referral process that failed to include its own Judiciary Committee and allowed and accepted key changes to the ballot question language proposed by the House Education Committee.  And the Senate, then acquiesced to those same House changes by failing to engage the Conference Committee process.

For context, this all occurred in an election year and involved an issue supported by one of the strongest constituent groups in the State.  The pressure from teachers, parents and community supporters was intense and I am sure many in the legislature simply felt, “they had to pass something”.

It is fascinating to review the history and speculate on why certain decisions were made along the way.  But clearly what is more useful and essential at the moment, is for leadership at all levels, legislative, community and business, to unite behind the common goal of increased funding for public education.  Our teachers, students, families…and our communities future deserve that much.

Note: I encourage all to review the source information contained at http://capitol.hawaii.gov Simply type into the search box SB2922. All the information is there.

First published in Civil Beat on October 24th, 2018