The Hawaii Supreme Court on Thursday declined to rule immediately on an emergency request by Hawaii counties to invalidate a measure that will let voters amend the Hawaii State Constitution.

Instead, the court took “under advisement” the request to block the measure, which would change the Hawaii constitution to give state lawmakers the power to impose property taxes to support public education.

Currently, only the counties can impose property taxes, which are their main source of funding. The state, meanwhile, pays for public schools using revenue sources such as the Hawaii general excise tax.

Aliiolani Hale, the home of the Hawaii State Supreme Court. It is the former seat of government of the Kingdom of Hawaii and the Republic of Hawaii. 9.16.14
The Hawaii Supreme Court took “under advisement” a request to invalidate a constitutional amendment measure on general election ballot to allow the state to impose property taxes to support public education.. PF Bentley/Civil Beat/2014

The measure would allow the Legislature to impose a property tax, although lawmakers would still have to pass legislation detailing the scope of the taxes and how they would be used.

The crux of the controversy involves the specific language of the ballot measure, which reads: “Shall the legislature be authorized to establish, as provided by law, a surcharge on investment real property to be used to support public education?”

The counties have argued that the wording isn’t clear enough for voters to understand exactly what they’re voting on. They’ve asked the high court to invalidate the measure even though it’s on the Nov. 6 general election ballot.

On Thursday, the court’s five justices heard a 90-minute oral argument from Honolulu Corporation Counsel Donna Leong and Maui Deputy Corporation Counsel Brian Bilberry calling for invalidation of the measure and from Hawaii Attorney General Russell Suzuki arguing that the court should allow the measure to go forward.

The justices peppered both sides with questions, drawing concessions from each.

In Leong’s case, some of the toughest questions focused on the standards the court should use when deciding whether to effectively overturn a measure passed by the Legislature, which would prevent voters from having the chance to decide the matter.

Chief Justice Mark Recktenwald, for instance, asked how much deference the court should give the Legislature, which crafted the ballot language, and Justice Michael Wilson asked what standard the court should use to determine whether the language was clear.

Leong conceded there was “no case law on point” to provide guidance.

Meanwhile, the toughest questions for Suzuki focused on whether the language was clear in explaining what sorts of investment properties could be taxed and how the money could be used. Suzuki conceded that residential property owned by local people could be taxed.

Hawaii State Supreme Court Associate Justice Sabrina McKenna questions attorney’s during oral arguments Civil Beat vs city. 1 june 2017. photograph by Cory Lum/Civil Beat
Hawaii State Supreme Court Associate Justice Sabrina McKenna, pictured here during a 2017 hearing, pointed out that the measure would not ensure increased funding for education. Cory Lum/Civil Beat

Justice Sabrina McKenna pushed Suzuki to further concede that there was nothing in the measure to ensure that a property tax would result in a net increase in money for education.

“Nothing would prevent the Legislature from funding education exclusively with real property surcharges,” McKenna said at one point.

“That’s a possibility,” Suzuki said.

The hearing came weeks after Circuit Judge Jeffrey Crabtree refused to block the measure from appearing on the ballot. The counties have appealed that ruling, but under rules of appellate procedure, the Supreme Court wouldn’t be able to hear the matter before the election. As a result, the counties filed a separate request asking the court to act immediately.

Whether the court will now act before the election isn’t clear. But parties on both side expressed optimism.

“They lost before in the courts, and we think they’re going to lose again” Cory Rosenlee, president of the Hawaii State Teachers Association, said of the counties.

Honolulu Mayor Kirk Caldwell said he was proud of Leong’s presentation to the court, but said the matter was now out of the counties’ hands.

“I’m hopeful,” Caldwell said, but added, “You never know what the Supreme Court is going to do.”

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