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Oral Argument Before the Hawaii Supreme Court — No. SCPW-18-0000733

No. SCPW-18-0000733, Thursday, October 18, 2018, 8:45 A.M.

CITY AND COUNTY OF HONOLULU; COUNTY OF HAWAII; COUNTY OF MAUI; COUNTY OF KAUAI, Petitioners, vs. STATE OF HAWAII; SCOTT T. NAGO, in his capacity as Chief Election Officer; RONALD D. KOUCHI, in his capacity as President of the Hawaii Senate, SCOTT K. SAIKI, in his capacity as Speaker of the Hawaii House, Respondents.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Aliiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for petitioner City and County of Honolulu:

Donna Y. L. Leong, Corporation Counsel; Robert M. Kohn and Nicolette Winter, Deputies Corporation Counsel

Attorneys for petitioner County of Maui:

Patrick Wong, Corporation Counsel; Brian A. Bilberry, Deputy Corporation Counsel

Attorneys for petitioner County of Hawaii:

Joseph K. Kamelamela, Corporation Counsel; Laureen L. Martin, Deputy Corporation Counsel

Attorneys for County of Kauai:

Mauna Kea Trask, County Attorney; Matthew M. Bracken, First Deputy County Attorney

Attorneys for respondents State of Hawaii and Scott Nago:

Russell A. Suzuki, Attorney General; Patricia Ohara and Valri L. Kunimoto, Deputy Attorneys General

Attorney for Office of Elections:

Aaron H. Schulaner


[  Listen to the entire audio recording in mp3 format  ]

Brief Description:

During the 2018 legislative session, the Hawaii State legislature passed Senate Bill 2922, S.D. 1, H.D. 1, which proposed a constitutional amendment to article VIII, section 3 and article X, section 1 of the Hawaii Constitution.

The legislature specified the language to be printed on the ballot for the November 6, 2018 general election. 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?

In August 2018, petitioners City and County of Honolulu, County of Hawaii, County of Maui, and County of Kauai (Counties) filed a declaratory action in the Circuit Court of the First Circuit (circuit court) against the State of Hawaii and other state defendants (State Defendants) seeking declaratory and injunctive relief invalidating the Senate Bill 2922 ballot question.

On August 31, 2018, the Counties filed a motion for a preliminary injunction. The Counties argued that the terms “surcharge,” “as provided by law,” and “investment real property” as used in the ballot question are unclear and misleading, in violation of the requirements of Hawaii Revised Statutes (HRS) § 11-118.5. The State Defendants countered that the ballot question did not violate HRS § 11-118.5 as the challenged terms may be interpreted in accordance to law and future implementing legislation.

On September 20, 2018, the circuit court entered its findings of fact, conclusions of law, and order. The circuit court concluded that HRS § 11-118.5 does not require a detailed description of all the possible effects of the proposed amendment and that the ballot question was not deceptive. Though the circuit court found that the language of the ballot question is not as clear as it could be, the court determined that the language is clear enough to satisfy HRS § 11-118.5. The circuit court thus concluded that the Counties were not likely to prevail on the merits, and the motion for preliminary injunction was denied.

On September 26, 2018, the Counties filed a petition seeking relief from this court. The Counties present the following issues in their petition:

1. Should the ballot question be invalidated as unclear and misleading?
2. Are the Counties entitled to pre-election relief?