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Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
20-DEC-2018
12:37 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
CITY AND COUNTY OF HONOLULU; COUNTY OF HAWAI‘I;
COUNTY OF MAUI; COUNTY OF KAUA‘I, Petitioners,
vs.
STATE OF HAWAI‘I; SCOTT T. NAGO, in his capacity as
Chief Election Officer, Respondents.
SCPW-XX-XXXXXXX
ORIGINAL PROCEEDING
(CIV. NO. 18-1-1326-08)
DECEMBER 20, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
The right of the people to shape the way in which they
are governed through free and fair elections is the basis of our
democratic society. At no time is this dynamic more pronounced
than when the public is called upon to approve revisions to the
Hawai‘i Constitution, the foundational document on which our
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state government is based. In order for the electorate to
effectively exercise this most basic of rights, however, a
ballot must be capable of rendering a knowing and deliberate
expression of voter choice. Thus, when a constitutional
amendment is presented to the electorate for ratification, both
our constitution and statutes require that the question posed to
voters must be clear and neither misleading nor deceptive. And
it is this court’s duty to preserve the integrity of the
electoral process by invalidating a question that fails to meet
this standard.
In this case, several counties of the State of Hawai‘i
challenged a ballot question authored by the state legislature
that would approve an amendment granting the State the authority
to impose a surcharge on investment real property. The
challengers argue that the ballot question was unclear and
likely to mislead or deceive an average voter. Upon review,
this court determined that the ballot question as written did
not comply with the requirement that its language and meaning be
clear and not misleading. We accordingly declared the ballot
question invalid, stating at the time that this opinion would
follow. We now elaborate as to our reasoning.
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I. BACKGROUND AND PROCEDURAL HISTORY
A. Real Property Taxation in Hawai‘i
From the beginning of statehood until 1980, the Hawai‘i
Constitution fully reserved the taxing power to the State,
delegable to the counties at the Hawai‘i legislature’s sole
discretion. County of Kaua‘i ex rel. Nakazawa v. Baptiste, 115
Hawai‘i 15, 20, 165 P.3d 916, 921 (2007) (quoting Haw. Const.
art. VII, § 3 (1968)). As a result, a hybrid system of real
property taxation developed within the state. Although the
counties were statutorily authorized to set the specific tax
rates applicable to land within their borders, the State
retained all other relevant responsibilities, including the
creation of exemptions, the administrative adjudication of tax
appeals, and the actual collection of tax funds. See Stand.
Comm. Rep. No. 42 in 1 Proceedings of the Constitutional
Convention of Hawai‘i of 1978, at 594-95 (1980). After the State
was reimbursed for its administrative expenses, all revenues
derived from real property taxes were remitted to the counties
for their operations. Id. The counties depended heavily on
these monetary transfers for their operating income, and by the
time of the 1978 Constitutional Convention, the shared
responsibility had become a “sore point between counties and the
State.” 2 Proceedings of the Constitutional Convention of
Hawai‘i of 1978, at 247 (1980).
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Prior to the 1978 Convention, county officials began
to express frustration that the patchwork of concurrent
authority had created confusion and a lack of accountability
between the State and counties, with voters unable to determine
“what level of government [was] responsible for the real
property tax bite.” Id.; accord Stand. Comm. Rep. No. 42 in 1
Proceedings of the Constitutional Convention of Hawai‘i of 1978,
at 594-95. Further, county officials contended that the
counties had differing needs and economic bases that were not
fully served by state-wide tax policies, and that it was unfair
that the counties were tasked with the full management of local
affairs but had little control over their primary source of
income. See Stand. Comm. Rep. No. 42 in 1 Proceedings of the
Constitutional Convention of Hawai‘i of 1978, at 595; 2
Proceedings of the Constitutional Convention of Hawai‘i of 1978,
at 247-48.
Responding to these concerns, the delegates adopted a
proposed amendment to the Hawai‘i Constitution granting the
counties exclusive authority over all functions related to the
taxation of real property.1 See 1 Proceedings of the
1
The County of Kalawao, which at the time was managed by the State
Department of Health and had no local government, was not included in the
transfer of power. See 2 Proceedings of the Constitutional Convention of
Hawai‘i of 1978, at 248.
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Constitutional Convention of Hawai‘i of 1978, at 1198 (setting
forth Haw. Const. art. VIII, § 3 as amended). A report from the
Committee on Local Government indicates the transfer was
intended to grant the counties full control over their finances,
eliminate public confusion as to which level of government was
responsible for real property taxes, further the democratic
ideal of home rule, and allow the counties flexibility in
addressing their unique local needs. Stand. Comm. Rep. No. 42
in 1 Proceedings of the Constitutional Convention of Hawai‘i of
1978, at 595. The amendment was subsequently approved by Hawai‘i
voters, and article VIII, section 3 of the Hawai‘i Constitution
now states in full as follows:
The taxing power shall be reserved to the State, except so
much thereof as may be delegated by the legislature to the
political subdivisions, and except that all functions,
powers and duties relating to the taxation of real property
shall be exercised exclusively by the counties, with the
exception of the county of Kalawao. The legislature shall
have the power to apportion state revenues among the
several political subdivisions.
(Emphasis added.) Thus, only the counties currently possess the
constitutional authority to levy a tax on real property within
the State of Hawai‘i.
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B. Senate Bill 2922
On January 24, 2018, Senate Bill 2922 (S.B. 2922) was
introduced in the Hawai‘i State Senate.2 S.B. 2922, 29th Leg.,
Reg. Sess. (2018). In the section of the bill setting forth
proposed legislative findings, the bill stated that article X,
section 1 of the Hawai‘i Constitution requires the State to
provide a system of public education.3 Id. The bill noted that
Hawai‘i is unique among the United States in that it funds and
administers its public school system at the State level rather
than assigning the responsibility to its counties or another
local political subdivision. Id. Citing a series of government
studies that placed Hawai‘i among the lowest ranked states in the
nation for teacher salary and education expenditures, the bill
asserted that the State was consistently failing to appropriate
adequate revenue for education from the state general fund,
which undermined the State’s mission of providing a quality
education to all of Hawai‘i’s children. Id. The bill concluded,
“It is necessary to develop a new means of funding Hawaii’s
2
The text of S.B. 2922 as originally introduced is available at
https://www.capitol.hawaii.gov/session2018/bills/SB2922_.HTM.
3
Article X, section 1 of the Hawai‘i Constitution provides in
relevant part as follows: “The State shall provide for the establishment,
support and control of a statewide system of public schools free from
sectarian control, a state university, public libraries and such other
educational institutions as may be deemed desirable, including physical
facilities therefor.”
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public education system to ensure that the State will be able to
prepare children to meet the social and economic demands of the
twenty-first century.”4 Id.
To this end, the bill proposed amending the Hawai‘i
Constitution pursuant to article XVII, section 3 to authorize
“the legislature to establish a surcharge on residential
investment property” for the purpose of funding public
education.5 Id. Following a series of revisions by both
legislative chambers, S.B. 2922 was passed in late April 2018.
4
These proposed findings, which are provided for context, were not
included in the final version of the bill passed by the legislature. See
S.B. 2922, S.D.1, H.D.1, 29th Leg., Reg. Sess. (2018),
https://www.capitol.hawaii.gov/session2018/bills/SB2922_HD1_.htm.
5
Article XVII, section 3 provides in full as follows:
The legislature may propose amendments to the constitution
by adopting the same, in the manner required for
legislation, by a two-thirds vote of each house on final
reading at any session, after either or both houses shall
have given the governor at least ten days' written notice
of the final form of the proposed amendment, or, with or
without such notice, by a majority vote of each house on
final reading at each of two successive sessions.
Upon such adoption, the proposed amendments shall be
entered upon the journals, with the ayes and noes, and
published once in each of four successive weeks in at least
one newspaper of general circulation in each senatorial
district wherein such a newspaper is published, within the
two months' period immediately preceding the next general
election.
At such general election the proposed amendments shall be
submitted to the electorate for approval or rejection upon
a separate ballot.
The conditions of and requirements for ratification of such
proposed amendments shall be the same as provided in
section 2 of this article for ratification at a general
election.
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In its final form, the act proposed two changes to the Hawai‘i
Constitution.
First, the act proposed amending article VIII, section
3 as follows:
TAXATION AND FINANCE
Section 3. The taxing power shall be reserved to the
State, except so much thereof as may be delegated by the
legislature to the political subdivisions, and except that
all functions, powers and duties relating to the taxation
of real property shall be exercised exclusively by the
counties, with the exception of the county of Kalawao[.];
provided that the legislature may establish, as provided by
law, a surcharge on investment real property. The
legislature shall have the power to apportion state
revenues among the several political subdivisions.
S.B. 2922, S.D.1, H.D.1, 29th Leg., Reg. Sess. (2018) (proposed
deletion bracketed and proposed addition underlined). Second,
the bill proposed making the following addition to article X,
section 1:
PUBLIC EDUCATION
Section 1. The State shall provide for the establishment,
support and control of a statewide system of public schools
free from sectarian control, a state university, public
libraries and such other educational institutions as may be
deemed desirable, including physical facilities therefor.
There shall be no discrimination in public educational
institutions because of race, religion, sex or ancestry;
nor shall public funds be appropriated for the support or
benefit of any sectarian or nonsectarian private
educational institution, except that proceeds of special
purpose revenue bonds authorized or issued under section 12
of Article VII may be appropriated to finance or assist:
1. Not-for-profit corporations that provide early
childhood education and care facilities serving the general
public; and
2. Not-for-profit private nonsectarian and sectarian
elementary schools, secondary schools, colleges and
universities.
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Funding of public education shall be determined by the
legislature; provided that revenues derived from a
surcharge on investment real property pursuant to section 3
of article VIII shall be used to support public education.
Id. (proposed addition underlined).
Lastly, the act set forth the ballot question to be
posed to the electorate for a vote on ratifying the proposed
amendment, as is required for enactment under Hawaii Revised
Statutes (HRS) § 11-118.5 (2011)6 and article XVII, section 3 of
the Hawai‘i Constitution. See supra note 5. The ballot question
stated 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?” S.B. 2922,
S.D.1, H.D.1.
C. The Circuit Court Action (Civ. No. 18-1-1326-08)
On August 22, 2018, the City and County of Honolulu
filed suit in the Circuit Court for the First Circuit (circuit
court) against the State of Hawai‘i and various state election
officials in their official capacities.7 The action sought
6
HRS § 11-118.5 provides in full as follows:
Any constitutional amendment proposed by the legislature
shall include in final form the exact constitutional
ratification question to be printed on a ballot. The
constitutional ratification question shall be phrased in a
manner to enable voters to express their choice on the
constitutional amendment by providing a “yes” or “no”
response. The language and meaning of a constitutional
amendment shall be clear and it shall be neither misleading
nor deceptive.
7
The Honorable Jeffrey P. Crabtree presided.
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declaratory and injunctive relief invalidating S.B. 2922 and
enjoining the ballot question from being placed on the November
6, 2018 election ballot. In a second amended complaint filed
the following week, the Counties of Hawai‘i, Maui, and Kaua‘i
joined the City and County of Honolulu (collectively, the
Counties8) as additional plaintiffs. Then, on August 31, 2018,
the Counties filed a Motion for Preliminary Injunction.9
In support of their motion, the Counties argued in
their submissions that the S.B. 2922 ballot question was
misleading and deceptive in violation of HRS § 11-118.5.10 They
8
For purposes of clarity, this opinion uses the capitalized
“Counties” when referring to the specific litigants in this case and the
lower-case “counties” when generally referencing the state’s political
subdivisions.
9
Three days before, the Counties filed an ex parte motion to
shorten time on the forthcoming Motion for Preliminary Injunction. Although
the motion to shorten time is not included in the filings to this court, it
appears from the filings in the record that the Counties asserted that the
ballots would be submitted for printing on or about September 7, 2018, and
thus an expedited schedule would be necessary to prevent the ballot question
from being printed should the Counties prevail. With its response, the State
included a declaration by the Chief Election Officer. The declaration stated
that, while September 7 was the deadline to submit the ballots to the
printer, the logistics of compiling and translating over 240 different ballot
types in time to comply with procedural safeguards and laws relating to the
distribution of absentee ballots had already rendered it impracticable to
make substantive changes to the ballots. The Chief Election Officer stated
that, should the Counties prevail, he could instead be ordered to issue a
proclamation declaring that the ballot question should be considered stricken
and any votes for or against it would have no effect.
10
Before the circuit court, the Counties also argued that the title
under which the ballot question was to be printed was deceptive and
misleading. Thereafter, the Hawai‘i Chief Election Officer chose to remove
the title entirely, reasoning that it was not legally required. The Counties
did not challenge this decision.
In addition to HRS § 11-118.5, the Counties’ motion relied on
Kahalekai v. Doi, in which this court indicated that the ratification
(continued . . .)
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argued that the ballot question’s use of the term “surcharge”
did not accurately reflect the substantive nature and effect of
the proposed amendment, which would be to alter a constitutional
provision entitled “Taxation and Finance” to grant a new
taxation power to the state legislature. The ballot question
also did not indicate that the proposed amendment would
fundamentally change the allocation of authority between the
State and counties by making the counties’ authority over real
property taxation nonexclusive, the Counties continued. The
Counties additionally argued that the phrase “investment real
property” was vague and overbroad in that virtually any purchase
of real property could be characterized as an investment. And
the Counties contended that the phrase “as provided by law” was
misleading because voters may believe it indicated that the
proposed practice was already authorized under current law, and
in any event they would not know which law was being referred to
as a limitation on the legislature’s new taxing power. Lastly,
the Counties argued that the phrase “to be used to support
public education” was likely to mislead voters to believe
funding for public education would necessarily increase if the
(. . . continued)
processes prescribed in article XVII of the Hawai‘i Constitution inherently
require that an amendment ballot question be sufficiently clear to allow “a
knowing and deliberate expression of voter choice.” 60 Haw. 324, 333, 590
P.2d 543, 550 (1979); see infra note 15.
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proposed amendment were enacted, which the amendment did not
actually require.11 A preliminary injunction was appropriate,
the Counties concluded, because they were likely to prevail on
the merits and the public interest weighed in favor of
protecting the integrity of the election.
In its responsive arguments, the State contended that
every enactment of the legislature is presumptively valid and
the ballot question clearly reflected the nature and effect of
the proposed amendment. “Surcharge” is a well understood term
that often appears in statutes, the State argued, and it was
properly used in the amendment and ballot question according to
its legal definition: “[a]n additional tax, charge, or cost.”
(Citing Surcharge, Black’s Law Dictionary (10th ed. 2014).) The
State further argued that the proposed amendment would not
fundamentally change the allocation of power between the State
and counties because it would not restrict the counties’ power
to tax real property; rather, it would simply authorize the
legislature to impose a charge in addition to any real property
tax imposed by the counties, which the ballot question
11
The Counties additionally argued before the circuit court that
the process by which the legislature adopted S.B. 2922 was improper, that the
amendment should be made only through a constitutional convention, and that
the amendment would intrude on the University of Hawai‘i’s and the Board of
Education’s autonomy by granting the legislature sole authority to determine
funding for public education, which the ballot question did not disclose.
These arguments are not raised before this court, and they therefore are not
further addressed.
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appropriately reflected. Further, the State argued, the phrase
“as provided by law” simply indicated that the provision was not
self-executing and would require subsequent legislation to be
implemented. And even if the question and amendment were
unclear, the State argued, a preliminary injunction would
nonetheless be inappropriate because the Counties could avail
themselves of judicial remedies to invalidate the ballot
question after the election if the measure were to pass, and
thus there was no risk of irreparable harm. In contrast, the
State concluded, ordering a change to the ballot would risk
derailing the general election and would deprive the public of
its right to vote on the proposed amendment, and the public
interest therefore favored denial of the injunction.
The State further clarified its position during a
September 7, 2018 hearing on the Counties’ Motion for
Preliminary Injunction. During the hearing, the State
maintained that the surcharge contemplated by the proposed
amendment was not itself a tax on real property, but rather an
independent tax calculated based on the amount of real property
tax imposed by the counties. The legislature is authorized to
enact such a fee pursuant to its general taxation power under
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article VII, section 1 of the Hawai‘i Constitution,12 the State
argued, and the term “surcharge” distinguishes this extra fee
from a direct tax on real property. There was therefore a
“clear, rational basis” for using the word “surcharge” instead
of tax, the State concluded, making the choice of language
neither deceptive nor unclear.
On September 20, 2018, the circuit court issued its
Findings of Fact, Conclusions of Law, and Order Denying
Plaintiff Counties’ Motion for Preliminary Injunction, Filed on
August 31, 2018 (Order Denying Injunction). The court found
that the language of the proposed amendment was not deceptive,
noting that HRS § 11-118.5 does not require a constitutional
amendment to contain a detailed description of all of the issues
and possible effects associated with the change. Although the
court acknowledged that the proposed language was not as clear
as it could have been, the court found that it was clear enough
to satisfy HRS § 11-118.5, reasoning that many of the most
important constitutional rights are phrased in general or vague
terms. The court thus found that the Counties were not likely
to prevail on the merits and, in any event, allowing the public
to vote on the ballot question would not cause irreparable harm.
12
Article VII, section 1 of the Hawai‘i Constitution provides as
follows: “The power of taxation shall never be surrendered, suspended or
contracted away.”
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The court also found that, because the public has both an
interest in not allowing a deficient question to appear on the
ballot and an interest in voting on properly adopted non-
deficient ballot questions, the public interest on each side of
the question balanced evenly and did not “tip the scale in favor
of issuing the injunction.”
The following day, the circuit court certified for
interlocutory appeal its Order Denying Injunction and issued a
stay of proceedings pending the issue’s final resolution.
D. Petition for Extraordinary Writ
On September 26, 2018, the Counties filed with this
court a Petition for Extraordinary Writ Seeking Pre-Election
Relief. The Counties explained that they intended to file a
“prompt notice of appeal” to challenge the circuit court’s Order
Denying Injunction, but given the standard rules and deadlines,
it would be virtually impossible to present the issue to this
court through the normal appellate process prior to the November
6, 2018 general election. The Counties therefore contended that
an extraordinary writ was their only practical way to obtain
pre-election relief, which this court’s precedents establish is
strongly preferred in contrast to post-election challenges.
(Citing State ex rel. Bronster v. Yoshina, 84 Hawai‘i 179, 185,
932 P.2d 316, 322 (1997).) They accordingly requested that this
court issue an order to the Chief Election Officer directing him
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to issue a public proclamation stating that the ballot question
should be considered stricken and that any votes for or against
the measure would not be counted and would have no impact.
In addition to reiterating their arguments before the
circuit court regarding the ways in which the ballot question
was misleading, the Counties contended that the point of view of
the average voter should be the “touchstone” by which the ballot
question’s clarity and potential for deception should be
measured. The average voter is much more likely to know what a
“tax” is than to know what a “surcharge” means, the Counties
argued, and it therefore should be impermissible to make no
reference to a tax in the ballot question--particularly when the
sole purpose of the amendment is to raise government revenue.
The Counties asserted that the use of the alternate term
“surcharge” was deceptive, suggesting that it was likely
motivated by a desire to circumvent the average voter’s
reluctance to approve new taxes.
On October 4, 2018, this court directed the State
respondents to file an answer to the Counties’ petition. In its
response, the State restated its arguments that the ballot
question and amendment were neither deceptive nor misleading.
The State also argued that the petition should be denied because
the Counties were improperly seeking a more favorable forum to
relitigate a matter that had been decided against them in the
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circuit court action. The State further contended that, if
construed as a petition for a writ of mandamus directed at the
circuit court, the Counties’ petition was an attempt to
circumvent the required appellate procedures. The circuit court
properly exercised its discretion in denying the preliminary
injunction, the State continued, and an extraordinary writ
should not be used to interfere with or control a trial court’s
decision-making even when the decision is erroneous.13
This court heard oral argument on October 18, 2018,
and the following day we issued an order granting the Counties’
petition, declaring the ballot question invalid, and directing
the Chief Election Officer to issue a public proclamation
stating that no votes for or against the measure would be
counted or have any impact. Our order deferred issuance of the
present opinion due to the time constraints.
13
The State also contended that two of the Respondents, Senate
President Ronald D. Kouchi and Speaker of the House Scott K. Saiki, were
improperly named in the petition because the Counties had failed to state a
claim for relief against them. The Counties argued in reply that the
legislators were properly joined in the action to allow them an opportunity
to be heard on the issue. During oral argument in this case, counsel for the
Counties indicated that they had no objection to the dismissal of the
legislators, who had chosen not to appear. Oral Argument at 00:08:45-
00:09:05, City & Cty. of Honolulu v. State of Hawai‘i (No. SCPW-18-733),
http://oaoa.hawaii.gov/jud/oa/18/SCOA_101818_SCPW_18_733.mp3. This court
issued an order dismissing the two legislative respondents on October 19,
2018.
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II. DISCUSSION
A. The Propriety of an Extraordinary Writ
The State urges that, notwithstanding any error on the
part of the circuit court, an extraordinary writ is
inappropriate under the circumstances. This court has indeed
often stated that an extraordinary writ will not be issued when
alternative relief is available. See, e.g., State ex rel.
Marsland v. Ames, 71 Haw. 304, 307, 788 P.2d 1281, 1283 (1990);
Sapienza v. Hayashi, 57 Haw. 289, 293, 554 P.2d 1131, 1135
(1976). As such, an extraordinary writ is not a substitute for
an appeal, and it will not lie to control a trial court’s
discretion even when that discretion is exercised in error.
Honolulu Advertiser, Inc. v. Takao, 59 Haw. 237, 241, 580 P.2d
58, 62 (1978).
Nevertheless, we have seen fit to depart from this
rule in “rare and exceptional situations” in which “the special
and exigent circumstances of the particular case” compel this
court to act. Sapienza, 57 Haw. at 293, 554 P.2d at 1135. In
Sapienza v. Hayashi, for instance, a trial court judge issued an
order disqualifying the entire City and County of Honolulu
Prosecutor’s Office from participating in a grand jury inquiry
because the City Prosecutor was a political appointee of the
Mayor who was accused of wrongdoing in the underlying matter.
57 Haw. at 291–92, 554 P.2d at 1133–34. Upon being petitioned
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for extraordinary relief, this court held that the order was
overbroad. Id. at 293, 554 P.2d at 1135. Although the trial
court’s order was presumably subject to challenge through normal
appellate procedures, this court reasoned that “[t]o allow the
matter to rest until the appeals process has run its course
would forestall the expeditious presentation of legitimate
criminal charges to the grand jury by the prosecuting attorney.”
Id. at 294, 554 P.2d at 1135. “Obviously, this would not be in
the public interest,” we stated, “and [it] would work upon the
public irreparable harm.” Id. This court thus held that
issuance of an extraordinary writ was appropriate. Id. at 293,
554 P.2d at 1135; see also Gannett Pac. Corp. v. Richardson, 59
Haw. 224, 226-27, 580 P.2d 49, 53 (1978) (holding that news
media representatives were entitled to issuance of an
extraordinary writ in their challenge to a district court’s
closure to the public of a high profile preliminary hearing
notwithstanding the representatives’ failure to appeal a
previous denial of a petition for the same relief filed in
circuit court “because it appear[ed] to us only too clear that
the district courts [were] in immediate need of direction from
this court on a procedural and substantive matter of public
importance”).
Even if the Counties had sought to expedite an appeal
of the circuit court’s order through normal channels, they could
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not have obtained final resolution of this matter before the
November 6 general election given the timeline established by
our court rules governing appellate procedure. See Hawai‘i Rules
of Appellate Procedure (HRAP) Rule 28 (2016) (setting forth the
required timeline for briefing cases on appeal); HRAP Rule
11(b)(1) (2016) (providing the time limit for the assembly,
certification, and filing of the record on appeal). Had the
normal appeal process been followed, this court would have had
the authority to grant post-election relief by invalidating the
results of a ballot question, and the Counties thus would not
have been entirely without alternative relief if the amendment
had been ratified during the pendency of this case. See, e.g.,
Taomae v. Lingle, 108 Hawai‘i 245, 250, 118 P.3d 1188, 1193
(2005) (invalidating constitutional amendment following
ratification by the electorate because the State defendants
failed to follow constitutionally mandated procedural
requirements prior to the vote); Watland v. Lingle, 104 Hawai‘i
128, 132-33, 85 P.3d 1079, 1083-84 (2004) (same).
However, our precedents make clear that pre-election
challenges are favored whenever feasible. See State ex rel.
Bronster v. Yoshina, 84 Hawai‘i 179, 185, 932 P.2d 316, 322
(1997) (“[T]he better practice would have been to expedite legal
action prior to the election.” (citing Blair v. Cayetano, 73
Haw. 536, 836 P.2d 1066 (1992)). The reasons for this
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preference for pre-election challenges are myriad. Resolving
legal challenges to a ballot’s validity before an election
generally conserves public resources and discourages
gamesmanship by preventing litigants from “gambl[ing] on the
outcome of the election contest then challeng[ing] it when
dissatisfied with the results.” Id.
But more importantly, settling such challenges before
the votes are tallied protects the integrity of our most sacred
democratic institutions. The right of the citizenry to shape
the way in which it is governed through free and fair elections
is “the foundation of our representative society.” Hayes v.
Gill, 52 Haw. 251, 269, 473 P.2d 872, 883 (1970). Just as
actual arbitrary or artificial restrictions on that right
undermine the true “legitimacy of representative government,”
id. (citing Kramer v. Union Free School District No. 15, 395
U.S. 621, 626 (1969)), the appearance that the right is being
denied undermines public perceptions of legitimacy on which our
system is equally dependent. 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. See Watland, 104 Hawai‘i at 143,
85 P.3d at 1094 (Acoba, J., concurring) (“Count first, and rule
upon legality afterwards, is not a recipe for producing election
results that have the public acceptance democratic stability
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requires.” (quoting Bush v. Gore, 531 U.S. 1046, 1047 (2000)
(Scalia, J., concurring))). Invalidating an electoral result
thus threatens public confidence in both the efficacy of voting
and the independence of our justice system, and this risk of
irreparable harm is to be avoided if practicable.
In light of the concerns inherent in the after-the-
fact invalidation of a democratically approved ballot measure,
we hold that it was in the public interest to resolve this case
prior to the November 6, 2018 general election, and we therefore
turn to the merits of the Counties’ petition for extraordinary
relief.
B. The Proposed Amendment and Ballot Question
Article XVII of the Hawai‘i Constitution sets forth two
alternative processes by which the constitution may be amended.
See Haw. Const. art. XVII, § 1. Under the first, amendments can
be proposed through a constitutional convention called by a
majority vote of the electorate. Haw. Const. art. XVII, § 2.
Under the second, the legislature may propose amendments through
either a two-thirds vote of each house or a simple majority vote
during two successive legislative sessions. Haw. Const. art.
XVII, § 3. In either case, proposed amendments must be
submitted to and ratified by the electorate before they are
formally incorporated into the Hawai‘i Constitution. Haw. Const.
art. XVII, §§ 2-3.
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This court considered the details of this ratification
requirement in Kahalekai v. Doi, 60 Haw. 324, 590 P.2d 543
(1979). In Kahalekai, the plaintiffs argued that a series of
proposed constitutional amendments that had been approved by a
majority vote of the electorate were not validly ratified due to
the format of the ballot, which they contended made it
inherently more difficult for a voter to mark a “no” vote than a
“yes” vote. 60 Haw. at 331–32, 590 P.2d at 549. In reviewing
the plaintiffs’ challenge, this court stated that it was nearly
impossible to eliminate all possible bias from the layout of a
ballot, as even basic formatting choices, such as listing
candidates in alphabetical order, could arguably favor some
contenders over others. Id. at 332 n.4, 590 P.2d at 549 n.4.
Rather than imposing “an impractical standard of perfection,”
id., the court indicated that the constitution’s use of the term
“ratification” inherently implies the informed, purposeful
approval of the amendment by the electorate. Id. at 333, 590
P.2d at 550.
Thus, reasoned the Kahalekai court, the pivotal
inquiry is whether the ballot generates “a knowing and
deliberate expression of voter choice.” Id. The “broad
authority” to propose amendments for ratification, we
elaborated, “is subject to the limitation that the ballot must
enable the voters to express their choice on the amendments
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presented and be in such form and language as not to deceive or
mislead the public.”14 Id. at 338, 590 P.2d at 552–53. The
court stated that this requirement can be met in part by the
provision of supplemental voter information regarding the
context and implications of a proposed amendment. Id. at 339–
40, 590 P.2d at 553-54. “[W]here information placed before the
electorate is neither deceptive nor misleading,” we held, “and
they are given sufficient time within which to familiarize
themselves with the contents and effect of the proposed
amendments, they will be deemed to have cast informed ballots.”
Id. at 339–40, 590 P.2d at 553.
Kahalekai appears to have significantly informed the
Hawai‘i State Legislature’s 1996 enactment of various statutory
requirements related to the ratification of proposed
constitutional amendments. See 1996 Haw. Sess. Laws Act 173, §§
1-3 at 391-93. Notably, the Act closely tracked language in
Kahalekai in setting forth the rule that, when proposed by the
legislature, “[t] he language and meaning of a constitutional
14
Although Kahalekai appeared to rely on the “ratification”
language in what is now article XVII of the Hawai‘i Constitution, the court
also approvingly cited Kohler v. Tugwell, in which the federal district court
indicated a similar requirement inheres in notions of due process. See 292
F.Supp. 978, 981 (E.D. La. 1968) (“The procedure followed by Louisiana does
not deprive the plaintiffs of Due Process for it is sufficient that
Louisiana’s voters were informed by the ballot of the subject of the
amendment, were given a fair opportunity by publication to consider its full
text, and were not deceived by the ballot’s words.”), aff’d, 393 U.S. 531
(1969).
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amendment shall be clear and it shall be neither misleading nor
deceptive.”15 HRS § 11-118.5.
Thus, proposed amendments and their corresponding
ballot questions are both constitutionally and statutorily
required to be phrased in clear language that is not likely to
deceive or mislead voters as to their nature and effect.16 We
15
It is noted that, by its plain text, HRS § 11-118.5 refers to
“the language and meaning of a constitutional amendment” rather than the
language and meaning of the corresponding ballot question submitted to the
voters for approval or rejection of the proposed constitutional amendment.
We nonetheless hold that, given the clear parallels between HRS § 11-118.5
and our holding in Kahalekai, the legislature intended the statute to
incorporate our precedent requiring that a ballot question be neither
misleading nor deceptive. The litigants appear to have presumed this
interpretation to be correct throughout the proceedings in this case, and no
party has argued that HRS § 11-118.5 is inapplicable to the S.B. 2922 ballot
question.
Along with establishing HRS § 11-118.5, the 1996 Act also tasked
the Chief Election Officer with “coordinat[ing] the preparation of
appropriate voter education materials with the legislative reference bureau,”
including “[a] summary, factsheet, and digest of the proposed constitutional
amendment” that specified the amendment’s purpose, intent, and ramifications,
as well as arguments for and against ratification. See 1996 Haw. Sess. Laws
Act 173, §§ 2-3 at 392-93. This requirement was repealed in 2003, however,
see 2003 Haw. Sess. Laws Act 8, § 1 at 16, and the ballot question itself is
now the only statutorily required mechanism for providing voters with
sufficient information to express a knowing and deliberate choice regarding
ratification, as is constitutionally required. Kahalekai, 60 Haw. at 333,
590 P.2d at 550.
16
In considering the validity of amendments proposed by the
legislature, this court has stated that “every enactment of the legislature
is presumptively constitutional, and a party challenging the statute has the
burden of showing unconstitutionality beyond a reasonable doubt.” Blair v.
Cayetano, 73 Haw. 536, 542, 836 P.2d 1066, 1069 (1992) (quoting Schwab v.
Ariyoshi, 58 Haw. 25, 31, 564 P.2d 135, 139 (1977)). We note that proposed
amendments and their corresponding ballot questions are not statutes, and the
Counties’ challenge is based at least in part on statutory rather than
constitutional grounds. Nevertheless, article XV, section 3 of the Hawai‘i
Constitution specifically entrusts the legislature with the power to propose
amendments, and courts owe deference to their coequal branch of government in
its performance of constitutionally assigned functions. Thus, we will act to
invalidate a legislatively proposed amendment or ballot question only when it
is clearly incompatible with a statutory or constitutional mandate. See id.
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therefore consider whether this standard is met by the ballot
question: “Shall the legislature be authorized to establish, as
provided by law, a surcharge on investment real property to be
used to support public education?” In making this
determination, we consider how the average lay voter would
interpret the ballot question.17 W. Petroleum Importers, Inc. v.
Friedt, 127 Wash.2d 420, 424, 899 P.2d 792, 794-95 (1995)
(quoting Estate of Turner v. Dep’t of Rev., 106 Wash.2d 649,
654, 724 P.2d 1013, 1015 (1986)).
1. The Ballot Question Is Unclear and Inherently Misleading in
That It Does Not Disclose the Nature of the Proposed Change to
the Constitution.
It is fundamental that, to provide a voter “with
sufficient information to make an informed decision about the
true nature of the proposed constitutional amendment,” a ballot
question must “at least put [voters] on notice of the changes
being made” to the constitution. In re Initiative Petition No.
409, 376 P.3d 250, 252, 254 (Okla. 2016) (addressing
requirements for the “statement of the gist of the proposition”
included in the header of an initiative petition proposing a
constitutional amendment); see also HRS § 11-118.5 (“The
language and meaning of a constitutional amendment shall be
17
Based on the declaration by the Chief Election Officer, the full
text of the amendment at issue in this case would have been available to
voters upon request.
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clear . . . .” (emphasis added)). “When the major effect of a
proposed measure would be a substantive change in existing law,
the ballot [] should inform the reader of the scope of the
change.” Rasmussen v. Kroger, 351 Or. 195, 198 (2011).
In some instances, this necessary information will not
be self-evident. For example, a proposal to establish a new
governmental power or limitation suggests by negative
implication that no such power or limitation exists under
current law. Cf. Sprague v. Cortes, 636 Pa. 542, 564 (2016)
(opinion of Todd, J.) (“By omitting any indication that there is
a current mandatory retirement age in the Constitution, the
plain import of the unadorned ballot question language is that a
brand new provision requiring all judges of the Commonwealth to
retire at age 75 is being added.” (emphases added)). When this
implication creates an inaccurate or incomplete impression of
the law, the failure of the ballot to correct the misconception
will render it unclear, misleading, and deceptive. As stated by
Justice Todd of the Pennsylvania Supreme Court,
In everyday human interaction, in the arts and literature,
as well as in legal documents, statutes, and constitutional
provisions which govern our day-to-day affairs, there is a
categorical difference between the act of creating
something entirely new and altering something which already
exists. Language which suggests the former while, in
actuality, doing the latter is, at the very least,
misleading, and, at its worst, constitutes a ruse.
Id. at 556–57.
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A number of courts from other jurisdictions have drawn
such a distinction when considering the validity of ballot
measures aimed at amending existing law. In Askew v. Firestone,
for example, the Supreme Court of Florida considered a
legislatively proposed change to a provision of the state
constitution that prohibited elected officials from lobbying for
two years after leaving office. 421 So.2d 151, 152-53 (Fla.
1982). The proposal would have amended the provision to instead
permit such lobbying when the former public official first filed
a full public disclosure statement. Id. at 153. The
legislative description of the amendment to be placed on the
ballot would have informed voters that the amendment prohibited
“former legislators and statewide elected officers from
representing other persons or entities for compensation before
any state government body for a period of 2 years following
vacation of office, unless they file full and public disclosure
of their financial interests.” Id.
In holding the ballot description invalid, the Florida
Supreme Court observed that the “ballot summary neglect[ed] to
advise the public that there [was] presently a complete two-year
ban on lobbying before one’s agency.” Id. at 155. The Askew
court explained that, although the ballot accurately stated that
the amendment would “require the filing of financial disclosure
before anyone may appear before any agency for the two years
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after leaving office,” the description did not disclose the
“amendment’s chief effect,” which was “to abolish the present
two-year total prohibition.” Id. (emphasis omitted). The court
thus stated, “The problem . . . lies not with what the summary
says, but, rather, with what it does not say.” Askew, 421 So.2d
at 156.
The Florida Supreme Court held that the description
failed “to give fair notice” that it would establish “an
exception to a present prohibition.” Id. The ballot was
therefore “misleading to the public concerning material changes
to an existing constitutional provision,” the court concluded.
Id.; see also Wadhams v. Bd. of Cty. Comm'rs of Sarasota Cty.,
567 So.2d 414, 416 (Fla. 1990) (holding that a ballot that
informed voters solely of how the amended constitutional
provision would read if the amendment was approved was invalid
for failing to disclose the language or effect of the provision
prior to amendment); Lane v. Lukens, 48 Idaho 517 (1929)
(holding that a ballot question that asked whether the state
constitution should be amended such that the terms of office of
various officials “shall be limited to four years” was invalid
for failing to disclose that terms were already limited to two
years under then-existing law).
Such is the case with the S.B. 2922 ballot question.
By asking the voter only whether “the legislature [shall] be
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authorized to establish, as provided by law, a surcharge on
investment real property to be used to support public
education,” the ballot question suggests surcharges on
investment real property are not authorized under current law.18
But this implication provides an inaccurate picture of the law
as it stands and the manner in which it would be altered by the
proposed amendment.
Under article VIII, section 3 of the Hawai‘i
Constitution, the counties currently have the exclusive
authority to tax real property within the State of Hawai‘i. As
stated, the ballot question reads 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?” The question contains no information from
which a voter could ascertain that the counties already have the
constitutional authority to impose the property tax at issue
and, consequently, that the “chief effect” of the amendment
would be to allow two different government entities to tax the
same property. Askew, 421 So.2d at 155. Thus, as in Askew, the
amendment does not give notice that it would establish “an
18
Alternatively, as discussed below, a voter could read the phrase
“as provided by law” to imply that specifically the state legislature is
already empowered to establish the surcharge at issue and therefore infer
that a vote in favor of the provision would preserve the status quo. See
infra section II.B.2.c.
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exception to a present prohibition,”--namely, the current
prohibition on the State taxing real property. 421 So.2d at
156; see also Kahalekai, 60 Haw. at 338 n.7, 590 P.2d at 553 n.7
(“[T]he ballot should contain a description of the proposition
submitted in such language as to constitute a fair portrayal of
the chief features of the proposition, in words of plain
meaning, so that it can be understood by persons entitled to
vote.” (emphasis added) (quoting Wright v. Bd. of Trustees of
Tatum Indep. Sch. Dist., 520 S.W.2d 787, 792 (Tex. Civ. App.
1975))).
Indeed, to fully appreciate the scope of the proposed
change, a voter would need to know that the Hawai‘i Constitution
provides independent taxing power to the counties; that the
constitution currently allows only the counties to tax real
property to the exclusion of all other government entities; and
that the proposed amendment would make an exception to this
exclusive authority of the counties by granting the State
concurrent authority to tax what is presumably a subset of real
property. None of this information is conveyed by the ballot
question, which is instead likely to leave the average lay voter
with the false impression that a vote in favor of the amendment
would allow investment real property to be taxed in the first
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instance.19 The ballot question is thus “misleading to the
public concerning material changes to an existing constitutional
provision.”20 421 So.2d at 156.
If the legislature believes that an exception should
be made to the constitutional prohibition placed upon the State
as to the imposition of property taxes in order to fund public
education, it is appropriate for the legislature “to ask the
citizens to modify that prohibition. But such a change must
stand on its own merits . . . .” Id. The dearth of information
contained in the S.B. 2922 ballot question does not reveal the
true effect of the proposed amendment, and the average lay voter
may be duly misled as a result. This alone would be sufficient
to hold that the ballot question is clearly incompatible with
19
The necessary context could have been concisely conveyed by
asking, for example: “Should the exclusive authority of the counties to tax
real property provided in the constitution be amended to also provide
authority to the State legislature to establish a surcharge on investment
real property?”
20
The State alternatively contended in the circuit court and during
oral argument that, because the fee contemplated by the proposed amendment
would be a surcharge on the property taxes collected by the counties rather
than an independent tax imposed directly upon real property, the State is
already constitutionally authorized to enact such a fee pursuant to its
general taxation power. Assuming arguendo that the State’s interpretation is
accurate, it would appear to render the proposed amendment superfluous as it
would grant no powers to the State that it does not currently have. Further,
it would make the language of the amendment, which states the surtax is to be
imposed on “real property” rather than on real property taxes, inaccurate.
And, the discussed implication of the ballot question--that the State is not
authorized to impose the discussed surcharge under current law--would also be
incorrect. Given the difficulties and inconsistencies that arise under the
State’s argued interpretation, we again can hardly say that the ballot
question is sufficient to inform the average voter of the scope of the
proposed change.
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the requirements of HRS § 11-118.5 and article XVII of the
Hawai‘i Constitution. The deficiency is even more pronounced
when viewed in light of the multiple other incidental ways in
which the language of the ballot question is unclear or
confusing.
2. The Language and Effect of the Ballot Question is Potentially
Confusing in a Number of Other Ways.
There are a number of additional ways in which the
amendment and its corresponding ballot question, “Shall the
legislature be authorized to establish, as provided by law, a
surcharge on investment real property to be used to support
public education?” are likely to confuse or mislead the average
lay voter. When these ambiguities and concerns of potential
misapprehension are considered together and in conjunction with
the ballot question’s failure to disclose the overarching nature
of the change it would enact, the problematic nature of the
ballot question is only magnified.
a. “Surcharge”
Relying on Boyd v. Jordan, 35 P.2d 533 (Cal. 1934),
the Counties argue that it is misleading to ask voters to
authorize a new tax without ever using the term “tax.” In Boyd,
a constitutional amendment was proposed by citizens’ initiative
that would have overhauled California’s tax system by, inter
alia, allowing the State to impose a tax on all gross receipts.
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Id. at 471-72. In considering the validity of the initiative’s
short title, “Initiative Measure Providing for Adoption of Gross
Receipts Act,” the California Supreme Court noted that “[t]he
essential features . . . and the sole purpose of the proposed
measure, is to levy a tax to maintain the state and its
political subdivisions.” Id. at 471-72. Because “[t]he short
title used in this petition ma[de] no reference to a tax or to
the fact that the proposed amendment [was] a revenue measure,”
the court held that the title demonstrated neither the nature
nor subject of the petition, and it was therefore likely to
mislead the electors who were asked to sign the initiative. Id.
at 472; see also Walton v. McDonald, 97 S.W.2d 81, 82 (Ark.
1936) (invalidating a ballot entitled “An Act to provide for the
assistance of aged and/or blind persons and funds therefor, the
administration and distribution of same, penalties for the
violation of Act, and for other purposes” for failing to
disclose that the measure would impose a series of taxes).
In this case, the parties dispute whether the
amendment would in fact authorize the imposition of a tax on
real property. The State argues that, because the additional
charge would be levied on the real property taxes imposed by the
counties, it was appropriate for the legislature to use the word
“surcharge”--a commonly used term meaning “[a]n additional tax,
charge, or cost.” (Citing Surcharge, Black’s Law Dictionary
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(10th ed. 2014).) But this is contrary to the plain text of the
amendment and ballot question, which ask voters to authorize the
legislature to establish “a surcharge on investment real
property”--not on real property taxes imposed by the counties.
If the amendment would indeed allow the State to impose an
independent tax on real property, it is apparent that the term
surcharge does not obviously convey this meaning. See Boyd, 35
P.2d at 534. If, instead, the amendment would authorize only a
dependent, supplemental charge added to an existing tax, the
ballot question fails to accurately state upon what basis the
surcharge will be calculated and levied. In either event, the
language and effect of the amendment and ballot question cannot
be said to be clear in this regard as HRS § 11-118.5 requires.
b. “Investment Real Property”
The Counties also challenge the legislature’s failure
to define the term “investment real property” in the ballot
question and amendment. Pointing out that earlier versions of
S.B. 2922 specifically limited the provision to property “for
which the owner does not qualify for a homeowner’s [tax]
exemption,” the Counties contend that virtually any real
property can be considered a form of investment in the absence
of such a limitation. (Citing S.B. 2922, 29th Leg., Reg. Sess.
(2018) and S.B. 2922, S.D.1, 29th Leg., Reg. Sess. (2018).) The
amendment and ballot question is therefore misleading and
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deceptive, the Counties argue, in that it falsely conveys to
voters that the surcharge would be limited to a subset of real
property that does not include personal residences when in
reality the amendment would permit the legislature to tax all
real property.
This court has specifically stated that “real estate
may be purchased with an intent to reside on the parcel of
property and, concurrently, with an intent to hold the property
in anticipation of an appreciation in the parcel’s resale
value.” Cieri v. Leticia Query Realty, Inc., 80 Hawaii 54, 67,
905 P.2d 29, 42 (1995). We accordingly held that “the plain and
obvious meaning of the term ‘personal investment’ includes real
estate or residences.” Id. It would thus appear that the plain
language of the amendment, considered in isolation, would allow
the legislature to tax virtually any real property.21 Indeed,
the State contended during oral argument that, if the amendment
were enacted, determining what real property qualified as an
21
In practice, this court interprets a constitutional provision in
harmony with other constitutional provisions and “in the light of the
circumstances under which it was adopted.” Hanabusa v. Lingle, 105 Hawai‘i
28, 32, 93 P.3d 670, 674 (2004) (quoting Blair v. Harris, 98 Hawai‘i 176, 179,
45 P.3d 798, 801 (2002)).
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investment subject to the surcharge would fall within the
discretion of the legislature.22
Yet this is not the impression conveyed by the
amendment’s and ballot question’s use of the term “investment
real property.” If the amendment was meant to grant the
legislature the unrestrained discretion to tax any real
property, it could have achieved this effect without employing
the word “investment.” By qualifying the “real property” that
the surcharge would apply to with the term “investment,” the
amendment and ballot question suggest that the legislature would
be empowered to impose the surcharge on only some real property-
-namely, non-owner-occupied real estate acquired solely to
generate revenue for the property owner. To the extent this
implication is inaccurate, the ballot question is unclear and
misleading.
c. “As Provided By Law”
The Counties further argue that the ballot question’s
and amendment’s use of the phrase “as provided by law” is
deceptive and misleading in that the average lay voter is likely
to believe the legislature is already authorized under current
law to impose the contemplated surcharge. The State responds
22
Oral Argument at 00:34:27-00:34:34, City & Cty. of Honolulu v.
State of Hawai‘i (No. SCPW-18-733),
http://oaoa.hawaii.gov/jud/oa/18/SCOA_101818_SCPW_18_733.mp3.
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that the phrase merely indicates that the provision is not self-
executing and would require implementing legislation once
enacted.
The expression “as provided by law” appears throughout
the Hawai‘i Constitution, and this court has in the past
recognized that the construction is inherently ambiguous. In
some instances, “a reference to a right being exercised ‘as
provided by law’ may reflect an intent that implementing
legislation is anticipated.” Cty. of Hawai‘i v. Ala Loop
Homeowners, 123 Hawai‘i 391, 412, 235 P.3d 1103, 1124 (2010). In
State v. Rodrigues, for example, this court considered article
I, section 11, which provides that “[w]henever a grand jury is
impaneled, there shall be an independent counsel appointed as
provided by law” whose term and compensation are “as provided by
law.” 63 Haw. 412, 414, 629 P.2d 1111, 1113 (1981). Upon
review, we held that the framers had used the phrase “as
provided by law” to indicate “further legislation was required
to implement the amendment.” Id. at 416, 629 P.2d at 1114.
In other contexts, however, the use of “as provided by
law” in a constitutional provision may be “simply referring to
an existing body of statutory and other law on a particular
subject.” Ala Loop Homeowners, 123 Hawai‘i at 412, 235 P.3d at
1124. In United Public Workers, AFSCME, Local 646, AFL-CIO v.
Yogi, for instance, this court held that, in guaranteeing the
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right of public employees “to organize for the purpose of
collective bargaining as provided by law,” the provision now
codified as article XIII, section 2 was intended to incorporate
the body of “pre-existing federal and state statutes,
constitutional provisions, and court cases which give meaning to
the term ‘collective bargaining.’” 101 Hawai‘i 46, 51, 62 P.3d
189, 194 (2002).
To determine in which sense the phrase was intended,
this court considers the history of the provision in addition to
its plain language. Ala Loop Homeowners, 123 Hawai‘i at 412–13,
235 P.3d at 1124–25. The average lay voter, however, does not
have the benefit of reviewing the legislature’s or framers’
committee reports while in the voting booth and must rely on the
language of the amendment and ballot question to determine the
words’ intended meaning.
In general, the phrase “as provided by law” follows
the portion of the constitutional provision that is defined by
some other sources of law. When article I, section 11 specifies
that “[w]henever a grand jury is impaneled, there shall be an
independent counsel appointed as provided by law,” for instance,
it is the appointment process of the independent counsel that is
implemented through legislation. Similarly, in article XIII,
section 2’s guarantee of the right to “collective bargaining as
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provided by law,” it is the collective bargaining that is
defined through the body of relevant statutes and case law.23
Thus, based on the natural reading of the question
“Shall the legislature be authorized to establish, as provided
by law, a surcharge on investment real property to be used to
support public education?” it is not the surcharge on investment
real property that is defined by some other source of law, but
rather the legislature’s authorization to establish such a
surcharge. In other words, the placement of the phrase within
the ballot question may lead the average lay voter to believe
that the legislature is already authorized by some other source
of law to impose the surcharge at issue and that a vote in favor
of the amendment maintains the status quo.24 Given this likely
confusion, the Counties are correct that the language of the
amendment and ballot question is unclear and misleading in this
respect.
23
See also, e.g., Haw. Const. art. IX, § 3 (empowering the State to
provide social services to “persons who are found to be in need of and are
eligible for such assistance and services as provided by law”); Haw. Const.
art. XVI, § 3.5 (calling for “a commission on salaries as provided by law”).
24
This misconception is further reinforced because the concept of
implementing legislation is already embodied in the ballot question’s
reference to “the legislature” “establish[ing]” the contemplated surcharge.
In other words, had the ballot question simply read, “Shall the legislature
be authorized to establish a surcharge on investment real property to be used
to support public education?” it would have wholly conveyed that the
amendment would allow the legislature to enact subsequent legislation
imposing the surcharge in question. The phrase “as provided by law” is
redundant in achieving this result, and the average lay voter may assign
other significance to its inclusion in order to make the clause non-
superfluous.
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d. “To Support Public Education”
Lastly, the Counties contend that the ballot
question’s reference to “support[ing] public education” is
likely to mislead the average lay voter into believing state
spending on public education will necessarily increase if the
amendment is enacted, when in actuality the amendment does not
require a net increase in education spending. The State
responds that the funds raised through the surcharge would be
required to be used to fund public education, as the ballot
question indicates. But, as the Counties aptly argue,
“[m]oney,” including the legislature’s budgetary expenditures,
“is fungible.” Holder v. Humanitarian Law Project, 561 U.S. 1,
31 (2010). An increase in funding from one source, including
the proposed surcharge, can be offset by a decrease from other
sources. Indeed, the State acknowledged during oral argument
that, should the amendment be enacted, nothing would prevent the
legislature from funding public education entirely through
revenues raised through the surcharge while repurposing all
other funds.25
An entreaty “to support public education” is “an
appeal to all humane instincts,” and a voter would not be
25
Oral Argument at 00:45:54, City & Cty. of Honolulu v. State of
Hawai‘i (No. SCPW-18-733),
http://oaoa.hawaii.gov/jud/oa/18/SCOA_101818_SCPW_18_733.mp3.
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unreasonable in assuming that such a measure would in fact
result in an increase in funding for public education. Walton,
97 S.W.2d at 82. Yet by its plain text, the ballot question and
amendment make no such guarantee, and no explanatory materials
were provided that would dispel this misconception.
The legislature in its wisdom enacted HRS § 11-118.5
to ensure that the language of a proposed amendment and ballot
question clearly conveys the amendment’s meaning when feasible.
When it becomes apparent, however, that practical textual
constraints in stating the ballot question may prevent it from
being set forth with the specificity or clarity necessary to
prevent the average voter from forming an incorrect impression,
the legislature should consider whether complementary materials
may aid in clarifying the decision voters are to be tasked with
making.26
26
This court has in the past noted that supplemental materials
similar to those that the Chief Election Officer was formerly tasked with
preparing are an effective method of informing the electorate of the details
of proposed amendments. See supra note 15; Kahalekai, 60 Haw. at 340 n.9,
590 P.2d at 554 n.9 (“We think the ‘Con-Con Summary’ was an excellent method
of informing the voter of the proposed amendments. The Convention, however,
could have devoted more space than it did to a comparative analysis of the
substantive effect of the proposed amendments.”). However, when the ballot
question fails to appropriately disclose the scope and effect of the proposed
change, even providing supplemental voter materials will not serve to cure
the deficiency as may be possible in instances where optimum specificity or
clarity is not present. See supra section II.B.1.
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III. CONCLUSION
The Hawai‘i Constitution vests “broad authority” in the
legislature to propose amendments to its provisions to be
ratified by the electorate. Kahalekai v. Doi, 60 Haw. 324, 338,
590 P.2d 543, 552-53 (1979). “But such a change must stand on
its own merits” and “cannot fly under false colors.” Askew v.
Firestone, 421 So.2d 151, 156 (Fla. 1982). As the legislature
recognized in enacting HRS § 11-118.5, the provisions of our
constitution are of such foundational importance that the utmost
care must be taken to apprise citizens of the effect of their
vote on a proposed constitutional amendment. When the language
or effect of a proposed amendment or its corresponding ballot
question is unclear, misleading, or deceptive, the ballot is not
capable of generating the “knowing and deliberate expression of
voter choice” necessary for ratification. Kahalekai, 60 Haw. at
333, 590 P.2d at 550. The ballot question in the present case
is flawed in not presenting the information necessary to produce
such a choice, and this court thus invalidated the ballot
question in accordance to our law.
Donna Y.L. Leong /s/ Mark E. Recktenwald
Robert M. Kohn
Nicolette Winter /s/ Paula A. Nakayama
for petitioner
City and County of Honolulu /s/ Sabrina S. McKenna
Brian A. Bilberry /s/ Richard W. Pollack
for petitioner
County of Maui /s/ Michael D. Wilson
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Laureen L. Martin
for petitioner
County of Hawai‘i
Matthew M. Bracken
For petitioner
County of Kaua‘i
Russell A. Suzuki
Valri Lei Kunimoto
Patricia Ohara
for respondent
Thomas Yamachika
for amicus curiae
Tax Foundation of Hawai‘i
44