The Hawaii Senate zipped through a pile of bills ahead of a major legislative deadline looming Thursday, addressing airport contract reforms, jurisdictional issues with disputed roads and treating mentally ill patients against their will.

But the House was a different story, with members tussling Tuesday over a measure to scale back pensions for state judges.

Republicans, who have just five representatives in the 51-member House, tried to shelve the legislation, noting it received no testimony in support as it made its way through the legislative process.

Rep Andria Tupuola speaks abortion on floor. House Capitol. 11 april 2017
Rep. Andria Tupola, speaking on the House floor Tuesday, tried unsuccessfully to kill a bill that scales back the pensions of judges. Cory Lum/Civil Beat

They had the support of some Democrats, too.

Rep. Sharon Har, for instance, said that “it’s highly unusual” for employees of a single branch of state government to be singled out for a pension cut, rather than one that also includes the legislative and executive branches.

When Minority Leader Andria Tupola introduced a motion to recommit Senate Bill 249, Majority Leader Scott Saiki ordered a recess so that the legislators could talk privately about the kerfuffle.

What followed was a series of recesses, some inflammatory language in floor speeches and the sight of Saiki and four other Democratic leaders huddled in what appeared to be an intense exchange of words with Tupola and two other Republicans.

Ultimately, SB 249 passed.

But the fact that the five Republicans and seven Democrats voted against it, and that six Democrats voted in favor but with reservations, illustrates significant uneasiness with the legislation.

House Speaker Joe Souki, one of those voting “yes” with reservations, said he hoped differences would be hammered out in conference committee, which begins April 17. That’s when members from the House and Senate meet to work out the final language of bills or in some cases just kill measure if they can’t reach an agreement.

Singling Out The Judiciary?

SB 249 has been something of a head-scratcher all session long.

Introduced by Sen. Gil Keith-Agaran, it calls for reducing to 2 percent the average final compensation used to calculate the retirement allowance for Hawaii judges.

It would be the second time in five years that pension benefits for judges have been chopped. In 2011 the retirement allowance was decreased from 3.5 percent to 3 percent.

There is no mention of any support for the bill in the four committee reports on the measure. Nor is there much explanation for why the pension change is necessary.

Abortion bill Rep Cedric Asuega Gates rubs his face during lengthy discussion of abortion bill on floor of the House. Capitol. 11 april 2017
Rep. Cedric Gates during lengthy deliberations on the House floor. Cory Lum/Civil Beat/2017

In his own committee report on his bill, Keith-Agaran, chairman of Senate Judiciary and Labor, wrote only that “Your committee finds that there have been various revisions to the Employees’ Retirement System, and implementation of this measure is necessary to maintain reasonable and fair benefits under the Employees’ Retirement System.”

Opponents of the legislation are many and include the state Judiciary, the Hawaii Government Employees Association, AFSCME Local 152, AFL-CIO; the Hawaii Fire Fighters Association; the University of Hawaii Professional Assembly; the Community Alliance on Prisons; the Hawaii County Bar Association; the American Board of Trial Advocates; and the State of Hawaii Organization of Police Officers.

Testimony from board members of the Hawaii State Trial Judges Association, led by President Jeannette Castagnetti, serves to sum up the opposition argument:

“There is no stated purpose or rationale in the bill or in any committee report for the reduction of judicial retirement benefits only. As far as we know, there has been no policy report or analysis indicating that reducing the retirement allowance for new judges will amount to any real savings or benefit to the State.

“Alexander Hamilton recognized the problem of financial influence over judges in The Federalist No. 79 when he wrote, ‘[n]ext to the permanency in office, nothing can contribute more to the independence of judges than a fixed provision for their support … In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.’

“With all due respect to the legislature, singling out judges for a reduction in retirement benefits erodes the public trust in government and diminishes the role of the courts in our democracy.”

Rep. Cynthia Thielen, a Republican, called SB 249 an affront to the concept of separation of powers and a “classic case of bad policy.” She also said the bill amounted to “punishing” the judiciary, something she later retracted (at Saiki’s insistence) and replaced with the word “impacting.”

HouseSpeaker Joe Souki speaks on floor in support of rail. Capitol House. 11 april 2017
Though his voice was hoarse and strained, Speaker Joe Souki argued for completion of the Honolulu rail project. Cory Lum/Civil Beat

Republican Rep. Gene Ward asked for a roll call vote on the matter, and when that idea was shot down he said it amounted to “a little bit of censorship.”

That led to yet another recess and to Ward withdrawing his characterization of the dispute.

Afterward, Vice Speaker John Mizuno said from the podium that his colleagues had exchanged in an “extreme, robust discussion.”

Also passing out of the House on Tuesday were bills to levy surcharges on residential investment properties and visitor accommodations to fund public education, to require all “limited service” pregnancy centers to disclose the availability of and enrollment information for reproductive health services, to extend for two years Oahu’s tax surcharge to pay for rail, and to have the attorney general defend any civil action against a county involving a county lifeguard working at a state beach park.

Each measure likely heads to conference committee, where members will be appointed by House and Senate leaders in the coming days.

Hospitals, Airports And Roads

The House drama over judicial pensions contrasted with a mundane floor session in the Senate.

Members breezed through dozens of bills in an hourlong session, passing all of those on the “second crossover” agenda with little to no opposition or discussion. Thursday marks the deadline for bills to cross back over to the chamber in which they were introduced.

Bills dealing with the transfer of state roads to counties, airport contracts and the medical treatment of mentally ill patients over their objection were among the few that elicited comments from senators.

House Bill 115 would require the City and County of Honolulu to take ownership and jurisdiction over all roads for which there is a dispute over ownership and jurisdiction between the state or any of its political subdivisions and a county or a private party.

Sen. Breene Harimoto testifies on a bill involving disputed roads on Oahu. Nathan Eagle/Civil Beat

Sen. Breene Harimoto said this would put a “a huge burden” on the city and that the impacts have yet to be assessed. Some of the roads in dispute are in Kakaako.

“This may be an unfunded mandate that may be illegal,” Harimoto told his colleagues.

Honolulu Mayor Kirk Caldwell said in his written testimony earlier this session that “the City believes that the State cannot determine the ownership of privately-owned property without a court judgment in an eminent domain action or without the consent of all owners of real estate interests in the subject lands.”

Bank of Hawaii and the Hawaii Association of Realtors were among those supporting the bill, with representatives calling it a practical solution to a perennial issue.

The measure passed 24-1, with Harimoto casting the lone “no” vote.

House Bill 997 was another measure that drew some concern from a handful of members.

The bill would exempt the operation of airport concessions from a bidding requirement. Specifically, it says monetary amounts should not be the sole or most compelling factor and basis for awarding concessions at Hawaii’s airports, according to the Department of Transportation’s testimony supporting the measure last month.

Senator Donna Kim address Senate President Kouchi on Senate floor. 11 april 2017
Senator Donna Kim opposed a bill regarding airport concessions. Cory Lum/Civil Beat

“Awarding a concessionaire agreement through a negotiation process, as compared to the highest bid, should result in improved quality food, products and services,” the DOT testimony says. “Furthermore, most mainland airports award terminal concession agreements through a negotiation process. Quality products and services offered will increase volume and sales, which in turn will increase airport concession fees.”

The bill passed with Sens. Laura Thielen, Gil Riviere, Russell Ruderman and Donna Mercado Kim voting against it.

Kim, the former Senate president, said she found it interesting that the current leadership, headed by President Ron Kouchi, did not refer the bill to the Government Operations Committee that she chairs despite the subject matter making it a logical referral.

House Bill 554 would authorize psychiatric treatment by administrative order despite a patient’s objection for patients admitted to the Hawaii State Hospital and pretrial detainees or committed persons in the custody of the Department of Public Safety.

The measure passed 23-2, with Thielen and Ruderman voting no.

“We’re talking about people who have absolutely no power,” Ruderman said, explaining his opposition to the legislation allowing state agencies to give medication to people against their will.

“These treatments could include being sedated the rest of your life,” he said.

The bill takes away the need for a court order, which supporters said can cause delays of up to 17 days.

Sens. Roz Baker, left, and Brian Taniguchi at work during Senate deliberations Tuesday. Nathan Eagle/Civil Beat

Sen. Roz Baker said patients who are court-ordered to stay at the Hawaii State Hospital while awaiting their trial may be so unwell that they do not realize it and object to medication that could help them.

Institute of Human Services Executive Director Connie Mitchell said the institute strongly supports the bill because of the quick access it provides people with psychiatric treatment through the creation of a psychiatric review board.

“IHS is serving more and more unsheltered homeless each year, on the streets,” Mitchell said in her written testimony to lawmakers. “Many of these individuals have been known for over a decade, and many have clear signs and symptoms of mental illness. Nonetheless, because they have the right to refuse treatment for mental illness, it is not until they commit a crime do they get picked up and taken into custody.”

With the current system, Mitchell said, clients often serve their time and are discharged without being treated.

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