A Look at the Proposed Constitutional Amendments on Hawaii's 2014 Ballot

As we quickly approach Election Day, 2014, we thought it might be helpful to provide some history and analysis of the proposed amendments to the Hawaii Constitution to help voters get through the legal-ese.

Question 1:  Relating to Disclosure of Judicial Nominees.

Shall the judicial selection commission, when presenting a list of nominees to the governor or the chief justice to fill a vacancy in the office of the chief justice, supreme court, intermediate appellate court, circuit courts or district courts, be required, at the same time, to disclose that list to the public?

Analysis:  In the wake of the Star-Advertiser v. Abercrombie litigation, the Judicial Selection Commission passed a rule authorizing itself to publicly disclose the list of its nominees for judicial appointments concurrent with its submission of nominees to the appointing authority: the Governor's office for the Supreme Court, Intermediate Court of Appeals and Circuit Courts and the Chief Justice for the District and Family Courts. This amendment to the Constitution would elevate that practice to a requirement.

Question 2:  Relating to Agricultural Enterprises.

Shall the State be authorized to issue special purpose revenue bonds and use the proceeds from the bonds to assist agricultural enterprises on any type of land, rather than only important agricultural lands?

Analysis:  A special purpose revenue bond is a public financing tool that leverages the financial stability and rating of the government to obtain advantageous financing terms for private infrastructure.  Several categories of Hawaii's economy already have the authority to obtain these bonds, this change would authorize agricultural enterprises on non-"important agricultural lands" to use this tool:  

Under the Constitution, special purpose revenue bonds shall only be authorized or issued to finance facilities of or for, or to loan the proceeds of such bonds to assist, manufacturing, processing or industrial enterprises, certain not‑for‑profit private schools, utilities serving the general public, health care facilities provided to the general public by not‑for‑profit corporations, early childhood education and care facilities provided to the general public by not‑for‑profit corporations, agricultural enterprises serving important agricultural lands, or low and moderate income government housing programs. 

Question 3:  Relating to State Justices and Judges

Shall the mandatory retirement age for all state court justices and judges be increased from seventy to eighty years of age?

Analysis:  Hawaii's Constitution requires judges to retire at age 70. This mandatory retirement age has recently operated to cause Chief Justice Moon and Justices Duffy and Acoba to retire from the Hawaii Supreme Court. Some view this requirement as being the only way to generate churn on the judiciary.  Others view the mandatory retirement as forcing out jurists earlier than optimal.  If this looks familiar, it is:  the voters rejected this exact proposal in 2006 by a 58%-35% margin.  

Question 4:  Relating to Early Childhood Education

Shall the appropriation of public funds be permitted for the support or benefit of private early childhood education programs that shall not discriminate on the basis of race, religion, sex or ancestry, as provided by law?

Analysis:  [Full disclosure:  I am on the board of Good Beginnings Alliance - Children's Action Network which is funding advocacy and educational efforts in support of this amendment]. Hawaii's Constitution, Art. X, provides, in part: nor shall public funds be appropriated for the support or benefit of any sectarian or nonsectarian private educational institution. The Attorney General interpreted this provision as barring any use of appropriated funds to provide for pre-school. This provision would modify that bar and would permit the Legislature to appropriate funds to provide for early childhood education. More information here.

Question 5:  Relating to Dams and Reservoirs

Shall the State be authorized to issue special purpose revenue bonds and use the proceeds from the bonds to offer loans to qualifying dam and reservoir owners to improve their facilities to protect public safety and provide significant benefits to the general public as important water sources?

Analysis:  This failed to obtain the necessary number of "yes" votes in 2012 and the Legislature put this issue on the ballot again for 2014.  Since the demise of the sugar industry in Hawaii, there are many legacy [read: old] irrigation facilities (reservoirs, dams, ditches) that require maintenance or improvement which appear beyond the current owner's ability to finance.  This amendment would allow the State to authorize revenue bonds to help with that financing.

Stay tuned.  Election day is about a month away.  A popular adage here comes to mind:  If you no vote, no grumble.