On the surface, there was nothing remarkable about Hawaii Chief Justice Mark Recktenwald’s State of the Judiciary speech at the Hawaii State Capitol on Thursday.

The chief justice extolled the benefits of Hawaii’s growing use of special courts to address the root problems at the heart of many crimes. He outlined innovations introduced in juvenile and family courts. And he spoke of efforts to increase access to the civil justice system for people who can’t afford an attorney.

Then Recktenwald turned to another topic, collaboration with the Legislature. More specifically, the chief justice, who is in charge of administering the sprawling legal system, said the Judiciary would be asking for money from the Legislature: to hire new judges and staff and to repair and maintain court buildings.

“We appreciate your consideration of our requests and stand ready to provide any information you may need,” Recktenwald said.

It would have seemed a routine request except for one thing: In recent years the relationship between the Judiciary and the Legislature has been anything but routine.

Supreme Court Chief Justice Mark Recktenwald speaks at the legislature.
Supreme Court Chief Justice Mark Recktenwald’s court has angered lawmakers in the past. Cory Lum/Civil Beat

The tension between the Legislature and Judiciary has been unusually tense. So tense, in fact, that current and former lawmakers have said the Legislature has taken steps to punish the courts for decisions lawmakers have said encroach onto the Legislature’s turf.

In 2017, some lawmakers even proposed cutting judges’ pensions and making renewals of their seats subject to Senate confirmation.

The question is whether the turf fight will flare up again this session.

Recktenwald was not available to comment. House Speaker Scott Saiki, meanwhile, said the two branches are working well together.

“I have a very positive working relationship with Chief Justice Recktenwald and his staff,” Saiki said.

ConAm Ballot Decision A Flash Point

That hardly means the Legislature isn’t going to flex its muscle.

Saiki said as much during his own address when the Legislature kicked off its 2019 session Jan. 16. The speaker pointed out the Legislature’s powers under the Hawaii Constitution: to enact laws, approve the state budget and appropriate public funds.

And he added: “No other branch has this authority. At times, the Legislature has abrogated this role to the executive and Judiciary branches. But to fulfill its constitutional purpose, we need to reassert the Legislature’s policymaking role.”

The speech came just months after the Hawaii Supreme Court took the sort of step that Saiki questions. In October, the high court threw out a ballot measure that would have let voters decide in November whether to amend the Hawaii Constitution.

The idea was to let the Legislature create a tax on investment real property — currently only the counties have the power to impose property taxes– and use the money to give teachers raises. Hawaii’s mayors opposed the change, saying the language drafted by the Legislature wasn’t clear. And although a lower court rejected the challenge, the Supreme Court overturned the lower court and ruled the ballot invalid.

The ballot language wasn’t clear, the court agreed. It didn’t use the word “tax,” for example, and didn’t ensure the tax actually would provide extra money for teachers, among other flaws, the court said.

To Saiki, the court’s action was flawed for multiple reasons. First, he questions why the court stepped in ahead of the election. The court could have allowed the public to vote on the measure – the question appeared on the ballot regardless – and keep the results under seal until the court decided the case, he said.

As it was, Saiki says, the court “usurped” the power of the public and Legislature.

“The Supreme Court seemed to be in a rush to decide this prior to the election,” he said.

In its opinion, the court said the law generally favors ruling on such matters before an election for myriad reasons. Disposing of the matter before administering a vote can avoid wasting money, for instance. Also, contrary to Saiki’s argument, the public sentiment that the court usurped the public’s power could be more vehement if the public had been allowed to vote only to have the court toss out what the voters wanted.

“No matter how justified a court may be in setting aside the results of a popular election, such an action may be perceived as a subversion of the directly expressed will of the people,” the court said.

It did not mention anything about keeping the results under seal, as Saiki suggested.

Speaker Scott Saiki looks out to the gallery on the opening day of the legislature.
House Speaker Scott Saiki says the Supreme Court’s recent decision on a constitutional amendment failed to provide clear guidance for future ballot questions. Cory Lum/Civil Beat

In addition, Saiki questioned what he said is a lack of guidance for future ballot questions. The language approved by the Legislature was, “Shall the legislature be authorized to establish, as provided by law, a surcharge on investment real property to be used to support public education?”

“We said ‘no’ to a lot of their money. They reversed some of their decisions. We gave them some money. So the tension worked.” — Senate Majority Leader J. Kalani English

The court said the measure wasn’t clear, as required by statute. But Saiki said the court provided no guidance or standard for clarity that lawmakers can follow to ensure future ballot measure pass the court’s scrutiny. Saiki, who is a lawyer, said this will likely lead to more court challenges to block ballot measures to amend the constitution.

“This decision will create confusion in the future,” he said.

Did Lawmakers Improperly Pressure Courts?

The more immediate question, though, is whether it will prompt a retaliatory backlash by lawmakers.

“What the Legislature has done over the past few years and appears to still be doing is to exert inordinate and unprecedented pressure over the Judiciary to rule on cases in a certain way,” said David Kimo Frankel, a lawyer who frequently represents Native Hawaiian plaintiffs in cases against the government.

Frankel was the attorney in a pair of decisions known as Nelson I and Nelson II, which are frequently cited as the prime examples of the turf war.

In the first case, Native Hawaiian beneficiaries sued the state for failing to provide money to cover administrative expenses of the Department of Hawaiian Home Lands, as required by the Hawaii Constitution. Although DHHL was the defendant, the Legislature would be affected because it could have to provide money to the department depending on the outcome.

The government argued that funding for DHHL was a political question that the Legislature was in charge of sorting out, not the courts. But the Supreme Court disagreed. It ruled for the plaintiffs and sent the matter back to the lower court to decide how much money was needed to fund DHHL. The lower court came up with a sum of about $28 million. The government appealed that decision too.

 “What the Legislature has done over the past few years … is to exert inordinate and unprecedented pressure over the Judiciary to rule on cases in a certain way.” — David Kimo Frankel, lawyer

While the appeal was pending, in 2017, the Legislature proposed some measures that would have a direct effect on state judges.

One proposed to reduce pension benefits for judges, another to require Senate confirmation to renew terms of judges and justices.

Neither passed, but it was viewed as a signal: It wasn’t beyond the Legislature to use its power over money to try to influence the courts.

Senator J Kalani English and Sen Kidani presser after the Governor Ige State of State address.
Sen. J. Kalani English last year said the Legislature has “had some tension with the Judiciary. That was very healthy as well.” Cory Lum/Civil Beat

In February 2018, the Supreme Court backed away from its decision in Nelson I and said the court had gone too far in saying DHHL should get $28 million. The most DHHL should get was $1.3 million in 1978 dollars, adjusted for inflation, a sum more like $5 million to $6 million.

Speaking at a Civil Beat forum after the 2018 legislative session, Senate Majority Leader J. Kalani English described tit-for-tat spatting between the branches.

“We also had some tension with the Judiciary,” he said. “That was very healthy as well. They did some rulings that we thought was stepping into the legislative arena. They were trying to legislate from the bench. We control the purse strings. We said ‘no’ to a lot of their money. They reversed some of their decisions. We gave them some money. So the tension worked.”

In an interview, Saiki denied that lawmakers proposed bills to retaliate for Nelson. The Legislature let its position be known in briefs filed with the court, he said.

But Saiki did say the Nelson cases are relevant to the ongoing discussion concerning what he says is a lack of clarity in court opinions. Like the court’s opinion concerning the constitutional amendment ballot question, Saiki said, Nelson I was flawed because it failed to provide adequate guidance to the lower court.

The result was a ruling that the Supreme Court had to come back and overturn in a second case

“The first decision didn’t provide sufficient clarity to the lower court,” he said.

So far, there’s no sign that the tensions will flare again the way they did just a few years ago. There is a bill to re-do the judges pensions but it hasn’t been scheduled for a hearing so far.

Correction: an earlier version of this story said there was not a pension bill this year but in fact there is.

Lt. Gov. Josh Green, who was a senator during the height of the tension, said things seem much calmer.

“I sense that the relationship is much better now between the Judiciary and the leadership,” Green said.

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