The ConAm, as we now know it, was born on Jan. 24, 2018, as Senate Bill 2922, with the primary introducer being Sen. Michelle Kidani, vice president of the Senate and chair of the Senate Education Committee.

After months of intense and divisive community debate, on Oct. 18 the ConAm’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 ConAm is now dead, it may be useful to review, at least briefly, the twisted and somewhat unusual path of its legislative history.

From left:  Gov. David Ige, Schools Superintendent Christina Kishimoto, HSTA President Corey Rosenlee, Board of Education Chairwoman Catherine Payne and Senate Education Chairwoman Michelle Kidani at a Monday press conference in the aftermath of the court ruling. Suevon Lee/Civil Beat

Numerous bills relating to the issue were introduced in the House and in the Senate during 2017 and in 2018, but it was SB 2922 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 SB 2922 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 after-school 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 on Education, Economic Development, Tourism and High Technology, Judiciary and Ways and Means, SB 2922 was then “re-referred” to just Education and Judiciary, meaning only two committees in the Senate would review and potentially amend and/or vote on the issue. WAM, 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 Feb. 5 conducted the one and only public hearing that was to be held in the Senate and passed out SB 2922 “as is.”

On Feb.  23, the Judiciary Committee chaired by Sen. Brian Taniguchi held a “Public Decision Making” meeting that did not permit public testimony to occur (though the public was notified and written testimony was accepted). This is standard procedure in Senate “A bracket” committees and permitted within the Senate rules. Judiciary then passed out SB 2922 SD1 that amended the original bill in numerous ways, including changing the suggested ballot language 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 SB 2922 SD1 with only Sen. Gil Riviere voting “no.”

On March 6, SB 2922 SD1 was transmitted to the House of Representatives where on March 8 it was referred only to the House Finance Committee, chaired by Rep. Sylvia Luke.

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

The House Education Committee then passed out a further amended version SB 2922 HD1 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 the Education  Committee 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 measure’s impact on education. The legal language and other constitutional matters would be left to review of Judiciary, and in this case of course that vital part of the process was missing.

After the House Education 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 conferees, and potentially further amendments. But in this case, on April 18 the Senate discharged its conferees and simply agreed to the House version of the bill.

Upon reviewing the legislative history, there are numerous actions and inactions that stand out as unusual.

While SB 2922 HD1 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 attorney general 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:

No. 1. Only two public hearings were held during the entire process, one in the Senate with three days’ notice and another in the House with two days’ notice.

No. 2. Only three committees were involved, Education and Judiciary in the Senate and only Education in the House.

No. 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 where the Finance Committee has a history of being used as a “backstop” 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, given past practice and the huge significance of this measure, bypassing both WAM and FIN seems out of character.

No. 4. The House Judiciary Committee chaired by Rep. 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 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 Education Committee did not insist on review by House Judiciary, is also difficult to fathom.

• Perhaps there was an “informal review” by the chair and/or legal staff that gave House leadership and the Judiciary chair a level of comfort that they felt holding a hearing unnecessary?

• Or perhaps the Judiciary 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 Judiciary, did not occur.

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

No. 6. Nowhere in the public record of testimony does there seem to be any input from the Attorney General’s 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.

No. 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 and Senate leadership scramble to accomplish the essential survival tool code-named CYA.

Suffice it to say that it was everyone’s (i.e., 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.

An Election Year

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 the Hawaii State Legislature’s website. Simply type into the search box SB 2922. All the information is there.

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