Retired Judge Daniel Foley joins producer/host Coralie Chun Matayoshi to discuss State Constitutional and County Charter proposals on the General election ballot this year, the history behind Hawaii voters approving a constitutional amendment in 1998 giving power to the Legislature to ban same-sex marriage, why Hawaii has a citizens initiative process at the County but not State level, and the significance of leaving your ballot blank (blank votes count as “no” for Constitutional amendments). Q.  Hawaii’s General Election ballots just dropped in the mail this week and voters have until November 5th to return them.  On the ballot are 2 proposed State Constitutional amendments and numerous County Charter amendments.  First, let’s talk about how these proposals get on the ballot in the first place. State Constitution – a proposed amendment to the State Constitution can be initiated by the Legislature if it passes both houses (Senate and House of Representatives) by a two-thirds vote in one session, as was the case here, a majority vote in two successive sessions or proposed by delegates to a Hawaii Constitutional Convention. No proposal for amendment of the Constitution adopted in either manner is subject to veto by the Governor.  Proposals are placed on the next General Election ballot for the voters to decide. Hawaiʻi changed the entire world forever in 1993. Meet the people, stories who made it happen County Charters – every county operates a little differently, but all four counties in Hawaii allow proposed amendments to be initiated by the County’s Charter Commission, County Council, or by citizen initiative.  Any county initiative must be consistent with the State Constitution and statutes.  Each initiative must have a committee to collect a certain number of signatures from registered voters, which are verified by the county clerk. The initiative is then placed on the ballot for a vote. Q.  You have a long history with one of the Constitutional amendments that proposes to repeal the Legislature's authority to ban same-sex marriage.  Can you tell us more about how the issue of same-sex marriage got handled in Hawaii decades ago and what is at stake today? Checking the box matters for marriage, judges In November 1998 Hawaii voters approved a constitutional amendment giving the power to the Legislature to ban same-sex marriage. The amendment overturned decisions of Hawaii courts that ruled same-sex couples had the right to marry under the Bill of Rights in Hawaii’s Constitution that prohibited discrimination based on sex and guaranteed equal protection of the law. This was the first time the Hawaii Constitution’s Bill of Rights was amended to deny rights recognized by our courts and single out a minority group for discrimination. The proposed constitutional amendment on the ballot would repeal this discriminatory amendment (Section 23 of Article I of the State Constitution) adopted in 1998 and restore our Bill of Rights to protect same-sex couples and marriage from discriminatory action by the Legislature as it did prior to the amendment. Q.  Some other states like California have a citizens initiative process that allows voters to gather a certain number of signatures to get their proposal directly onto the ballot.  All four Hawaii counties have an initiative process as well.  Why doesn’t Hawaii have an initiative process at the state level for Constitutional amendments? 23% of us believe safety is the most important factor During this election season, there has been a lot of discussion about whether Hawaii should adopt statewide initiative. Statewide initiative would allow citizens to bypass the Legislature by getting enough signatures on a petition to put a measure on the ballot to amend the state Constitution or enact any law. Currently only the Legislature has the power to enact state law, subject to veto by the governor, and, along with a constitutional convention, the power to propose a constitutional amendment.  Statewide initiative was considered and rejected by Hawaii constitutional conventions in 1950, 1968 and 1978. It was again recently considered and rejected in 2022 by the Commission to Improve Standards of Conduct, a commission that I chaired.  I am very familiar with initiative. We have it at the county level where I have represented various groups in getting measures on the ballot, including the Save Sandy Beach Initiative Coalition. Any county initiative must be consistent with the state Constitution and statutes. These are real safeguards in protecting rights enshrined in our state Constitution and statutes. Statewide initiative, as proposed by many candidates for the Legislature and by political commentators, dispenses with these safeguards allowing for direct amendment of the state Constitution and elimination of rights of minorities, workers, Native Hawaiians, ethics codes and the right to a clean and healthy environment. Under these proposals, any well-financed special interest group could put a constitutional amendment on the ballot and spend unlimited sums to get it adopted.  The U.S. Supreme Court decision in Citizens United prevents a state from limiting what political action committees (formed by special interest groups) can spend in pushing for their constitutional amendments.  Delegates to our constitutional conventions wisely thought of an alternative to having just the Legislature proposing constitutional amendments.  Our state Constitution requires putting a question to the voters every 10 years on whether a constitutional convention should be convened. A constitutional convention has many of the safeguards built into the legislative process. However, since the 1978 Constitutional Convention, voters have chosen not to convene another convention, but eventually they will. The question will appear on the ballot again in 2026. Had we had statewide initiative in 1993, when our Hawaii Supreme Court ruled same-sex couples had the right to marry unless the state could demonstrate a compelling state interest in denying them licenses, there is no doubt in my mind that there would have been a proposed constitutional amendment on the ballot in November 1994 limiting marriage to a man and woman.  Because there was no statewide initiative, those supporting equal rights for our LGBTQ community were able to fight proposed constitutional amendments in the Legislature during the 1994, 1995 and 1996 sessions, and we had our day in court where the state failed to demonstrate its purported compelling state interest to deny marriage licenses to same-sex couples.  We became the first state to recognize same-sex marriage. Unfortunately, in its 1997 session, the Legislature ultimately succumbed to political pressure and proposed the constitutional amendment that was adopted in 1998. The amendment, however, only gave the power to the Legislature to ban same-sex marriage — rather than writing the ban into the Constitution as statewide initiative would have done. Voters are not without a voice. Every two years they vote. Every 10 years they decide whether we should have a constitutional convention.  Change can and does happen under our current constitutional system without the threat to our constitutional rights that statewide initiative will bring. (Source:  8/1/24 Honolulu Star Advertiser editorial by Dan Foley) Q.  Considering the U.S. Supreme Court’s more conservative views on marriage equality and its overturning of Roe v. Wade, is the best way to ensure same-sex marriage and women’s rights to an abortion in Hawaii through a State Constitutional amendment? The U.S. Supreme Court ruled in 2015 that states could not ban same-sex marriage, but the Court has grown increasingly conservative and threatens to reverse that decision as it has with its prior decision recognizing a woman’s right to choose an abortion. A woman’s right to an abortion is currently protected under Hawaii’s Bill of Rights, Section 6 of Article I, the right to privacy. When the right to privacy was adopted in 1978, the delegates the Hawaii’s Constitution Convention made it clear that a woman’s right to an abortion and contraceptives came within this newly established right. So, a constitutional amendment on the right to an abortion may not be necessary but would make the right explicit in the constitution. The proposed constitutional amendment on the ballot in November taking power away from the Legislature to ban same-sex marriage is necessary because same-sex marriage is not currently protected under our state constitution.  If the constitutional amendment is adopted and Section 23 of Article I is repealed, then same-sex marriage will be protected in Hawaii even if the U.S. Supreme Court changed its mind. Q.  The other proposed Constitutional amendment on the ballot this year is to make the process for appointing and confirming judges more uniform.  Can you explain? Nominees to the Hawaii Supreme Court, Intermediate Court of Appeals and state Circuit Court are appointed by the Governor and nominees to the state District Court are appointed by the Chief Justice of the Hawaii Supreme Court.  Appointments of all state court justices and judges are subject to confirmation by the State Senate. This would remain the same but the process for appointing and confirming state District Court judges would be amended to make it the same for other state court justices and judges:      (1)  The Judicial Selection Commission to present the Chief Justice with a list of not less than four and not more than six nominees for a vacancy;      (2)  A district court appointee to be automatically considered appointed if the Senate fails to reject the appointment within thirty days of receiving the appointment notice;      (3)  The Chief Justice to make another appointment from the list of district court nominees within ten days if the Senate rejects an appointment; and      (4)  The appointment and consent procedure to be followed until a valid appointment is made, or failing this, the Judicial Selection Commission to make the appointment from the list of nominees, without Senate consent. Currently the Judicial Selection Commission gives the Chief Justice no less than six names for a District Court vacancy and the Commission appoints the district court judge if the Senate does not hold a public hearing and vote on an appointment within thirty days. The proposed amendment would change this to bring uniformity to the selection of judges and justices. Q.  Each county has a number of Charter amendments on the ballot regarding a wide range of topics like increasing real property taxes for a Climate Resiliency Fund, capping Council member salaries, filling vacancies on Boards and Commissions and adding youth members to them.  How are voters expected to decide these issues?  What about the cost to implement an amendment?  Does a blank vote mean “no?” Voters will need to take some initiative (no pun intended) to understand these county initiatives. The Hawaii Office of Elections will be posting a digital voters guide for the general election as recommended by the League of Women Voters and the Commission to Improve Standards of Conduct. This guide should have a description of what each county initiative is intended to accomplish. I don’t know how adequate this will be as this will be the first year this will be done. Voters can also check with media coverage of the initiatives. Civil Beat is always good and puts out its own voter guide. I recently read an excellent review of the Honolulu County initiatives in a September 15, 2024, Star Advertiser Kokua Line review by Christine Donnelly. Many voters will not vote on these initiatives for lack of understanding or interest. But unlike proposed state constitutional amendments, failure to vote on an initiative will not count as a no vote. If it did, these initiatives would likely not pass. Only the yes and no votes count. State Constitutional amendments – a blank vote on a proposed constitutional amendment is counted as a no vote. A constitutional amendment is adopted only if approved by a majority of the total votes cast in a general election.  See State v. AFL-CIO v. Yoshina, https://search.app/LUhpRLeCabLKzH2z9. County Charter amendments – only yes and no votes are counted. A county charter amendment is approved if there are more yes than no votes. Honolulu Charter amendment proposals Charter Question #1 (Resolution 23-162 CD1) “Shall the Revised City Charter be amended to require that the City Council appropriate, without having to simultaneously increase real property tax rates to fund the appropriation, one-half of one percent of the City’s estimated real property tax revenues in each fiscal year’s budget and capital program, to be deposited into a Climate Resiliency Fund, the purpose of which is to support initiatives and projects aimed at mitigating the impacts of climate change, enhancing the resilience of the City’s infrastructure and communities, and promoting sustainable practices?”  Charter Question #2 (Resolution 23-239 CD1, FD1):“Shall the Revised City Charter be amended to establish the Department of Emergency Management as an independent agency of the City Executive Branch by assigning the Department of Emergency Management a separate chapter in the City Charter similar to the chapters assigned to all other City departments; to provide that all Department of Emergency Management positions, including its Director and Deputy Director, are subject to the civil service laws; and to specify a minimum level of qualifications for the civil service position of the Director of Emergency Management, with additional minimum qualifications to be determined in accordance with civil service laws?” Charter Question #3 (Resolution 24-050 FD1):“Shall the Revised City Charter be amended to establish an Ocean Safety Commission to review and make recommendations on certain activities of the Department of Ocean Safety and to appoint the Chief of Ocean Safety?”                                                                  Charter Question #4 (Resolution 24-105 CD1):“Shall the Revised City Charter provisions relating to the salaries for Councilmembers be amended to cap any annual increase at no more than five percent, require that any changes be tied to the average annual salary changes of city employees in the City’s collective bargaining units, and remove the Council’s authority to vote on its own raises?” Hawaii County Charter amendment proposals       County Council Vacancy in Office       “Shall the Hawai’i County Charter be amended to provide that any vacancy on the County Council that occurs or exists after a person was duly elected to fill that seat for the upcoming Council term shall be filled by that duly elected successor for the remainder of the unexpired term?”       Mayoral Appointment of Department Heads       “Shall the Hawai’i County Charter be amended to require the Mayor to appoint department heads within 30 days of the start of each mayoral terms and within 60 day for any vacancy in office that occurs during the mayoral term?”       Term of Office for the Cost of Government Commissions “Shall the Hawai’i County Charter be amended to increase the term length for members of the Cost of Government Commission from eleven to twenty-two months and extend the deadline for the Commission to submit its report from eleven months after appointment to twenty months after appointment?” Maui County Charter amendment proposals       Salary Commission “Shall the Charter be amended to require the Salary Commission to determine ‘salaries’ instead of ‘compensation’ for elected officials and appointed directors and deputy directors to maintain consistency with the Constitution of the State of Hawai’i and remove fiscal barriers to create equity through benefits such as reimbursement of travel costs?” To learn more about this subject, tune into this video podcast. Disclaimer:  this material is intended for informational purposes only and does not constitute legal advice.  The law varies by jurisdiction and is constantly changing.  For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.