Chapter 9: The Balance of Powers

All of the previous chapters have led up to this final one, in which we take a closer look at two key, related concepts: the separation of powers, and checks and balances. The separation of powers refers to the structure of the American government set up in the United States Constitution, which divides the government into three sections: the legislature to enact laws, executive to carry them out, and the judiciary to resolve disputes. While the text of the constitution does not label this set up “separation of powers,” that is how it has been referred to in many cases throughout the United States history.^[1] Hawaiʻi also follows that separation of powers doctrine.^[2]

As you have seen starting with the State Constitution and moving forward, each of the branches has a great deal of power, but only within a certain structure. This is true whether we are talking about the state level or the county level. The way in which we ensure that one branch of government does not encroach (infringe on) the rights of the other is what is called the “balance of powers.” This means that each of the three branches has supremacy in some area which allows it to block the otherwise lawful action of another branch. One well-known example of this, which was covered in chapter 4, is the governor’s ability to veto a bill from the legislature.

Interestingly, sometimes the one branch will deliberately not take an action that a party wants it to take, claiming that that branch could not act without violating the balance of powers.

One example of this is in the Yamasaki case of 1987.^[3]  In Yamasaki, the Trustees of the Office of Hawaiian Affairs (OHA) brought suit against the State seeking 20% of the proceeds derived by the State as damages from an illegal sand mining operation taking place on ceded lands.^[4] Briefly, the “ceded lands” are a portion of the remaining lands previously held by the royal government of Hawaiʻi: “Through the 1898 Joint Resolution and the 1900 Organic Act,22 the United States received 1.8 million acres of lands, formerly Crown and Government Lands under the Hawaiian Kingdom, and exempted these lands from the existing public land laws of the United States by mandating that the revenue and proceeds from these lands be “used solely for the benefit of the inhabitants of the Hawaiian Islands for education and other public purposes,” thereby establishing a special trust relationship between the United States and the inhabitants of Hawaiʻi. These lands are referred to as the “Ceded Lands” or the “Public Lands Trust.””^[5]  Responsibility for the ceded lands was turned over to the State upon admission, and codified in the Hawaiʻi Revised Statutes.

Although HRS § 10-13.5 provided that “[t]wenty per cent of all funds derived from the public land trust … shall be expended by the [O]ffice of Hawaiian Affairs,” the court held that it could not answer OHA’s question about how much of the money should be shared with OHA because the case presented a “political question” because no judicially discoverable and manageable standards existed for determining whether the damages amounted to “funds derived from the public land trust.”^[6] Resolving the case would require an initial policy determination that was typically reserved for nonjudicial discretion, the court held,^[7] and so the matter went to another branch, the state legislature, which attempted to resolve the issue in a series of laws, including those discussed in the 2001 and 2006 OHA v. State cases.

In our next section, we will look at six stories, each of one involving a different matchup of branches. Read the story and then see if you can answer the questions!

Story 1 – Should explosions be revealed to the public?

“In 2016, the Department of the Attorney General produced an explosive 555-page report documenting incompetence, deceptive practices, and workplace bullying in the Office of the Auditor (the Report). Honolulu Civil Beat, an investigative news organization, has been trying to get its hands on a copy of that report for over five years. We [the Hawaiʻi Supreme Court] decide whether Hawai‘i’s public information law – the Uniform Information Practices Act (UIPA) – requires the State AG to release the Report to Civil Beat.”^[8]

The supreme court was asking, if a state agency is acting improperly – if unethical and unprofessional conduct is taking place, if required reports are either being sensationalized and exaggerated, or neglected or made up – should the public have the right to know that under the public records law?  Or should the department that uncovered these facts just be allowed to report this up the chain and cut the public out under a public records law exemption? Here’s the backstory:

Under Hawaiʻi Constitution Article VII, § 10, the legislature is required to appoint an Auditor, whose office conducts audits of all state departments, offices, and agencies, and reports the Auditor’s findings and recommendations to the Governor and the Legislature. In April 2015, the Department of the Attorney General (the AG) began an investigation of the Office of the Auditor in response to information it received from a legislator. A year later, a reporter for Civil Beat contacted the AG, requesting a copy of the report under the general provisions of the state’s Uniform Information Practices Act (the “public records law”).^[9] Civil Beat is a Hawaiʻi-based independent non-profit news organization, specializing in public and government investigative and watchdog journalism.

The AG denied the request for the report in May, and Civil Beat sued for access under the state’s public records law.  At trial, the AG moved for summary judgment (a ruling that it should win the case at this point without having to go through the trial) based on attorney-client privacy privilege, and the trial court ruled in favor of the AG, stating that the report was a confidential communication between an attorney (the AG) and its client (the Legislature). Civil Beat appealed to the ICA, and the case was transferred to the Hawaiʻi Supreme Court.^[10]

The supreme court disagreed with the trial judge, finding that :

“The Department [of the Attorney General] failed to meet its burden to prove that the Department and the legislature were acting within the context of a lawyer-client relationship with regard to the report.”^[11] The court found that an investigation is not automatically covered by the lawyer-client privilege and that this report was a factual report and not intended to provide legal advice, so it was not covered by the attorney-client privilege.

The case was remanded (sent back down) to the trial court who was instructed to consider two issues: whether disclosure of the report would constitute a clearly unwarranted invasion of personal privacy (the privacy exemption) and whether the report must remain confidential to avoid the frustration of a legitimate government function (the frustration exemption), both exemptions under HRS sec. 92F-13.^[12]

Back down at the trial level, the court again granted summary judgment to the AG, but this time on different grounds – that the report fell within both the frustration and the privacy exemptions and was therefore exempt from the public record disclosure requirements. Civil Beat appealed again.

In its second appeal, the supreme court found that: “Though there are significant privacy interests in the Report as a ‘personnel-related’ record, these interests are mostly outweighed by the public’s overwhelming interest in the Report’s disclosure.”^[13]

The court found that releasing the report would advance three distinct public interests.

• First, the public’s interest in assessing how the Office of the Auditor carries out its official duties….
• Second, the public’s interest – distinct from its general interest in oversight of government operations – in “monitoring the conduct of individual government employees or officials.” … The Report’s release would advance this interest by allowing the public to assess whether the Subjects conscientiously and ethically carried out their respective duties while working in the Office of the Auditor.
• Third, the public’s interest in assessing the manner in which the government investigates complaints and allegations of wrongdoing.^[14]

The court also found significant : 

The court found that to the extend there was a little information in the report that impacted people’s privacy interest, that information could be easily redacted (blacked out) in the report, but the rest must be reported. The AG was given 60 days to produce the report to Civil Beat.^[16]

Do you think that as a member of the public, this report should be made available?

Do you think that the privacy rights of the people being investigated are more important and should prevent disclosure?

Story 2 – Racing down the Pali

People who live in Nuuanu, along the Pali Highway, often feel that drivers are going dangerously fast, which makes it difficult to cross the road. Senator Karl Rhoads is one of the senators who represents people who live along the highway. Several years ago, the legislature put money in the budget to put in signal lights at two intersections on the Pali Highway to make it safer for pedestrians to cross it. This money was put into the state budget, which is proposed by the Governor and reviewed and revised by both chambers.^[17]  Instead of putting in the expensive signal lights, the State Department of Transportation put in raised crosswalks, which have little ramps before and after them and large white stripes to signal drivers to slow down. See photo above of one of the actual crosswalks.

In a Transportation committee hearing prior to the start of the 2022 legislative session, Senator Rhoads questioned the Deputy Director of the Department of Transportation about why the signal light was not installed and why the low tech raised crosswalks (what the Deputy Director call a “table” were installed instead.

Do you think that this was a just result?

If not, how could it be implemented differently?

Story 3 – Who should be a judge, part I

As we discovered in an earlier chapter, Hawaiʻi has appointed, not elected judges.  In 2021, there was an opening for a judge on the ICA. The Hawaiʻi Judicial Selection Commission gave the names of six candidates to the Governor. The Governor selected an attorney, Daniel Gluck, who was the lone white man on a list of candidates that included four women, one of whom was a judge. Gluck was the executive director of the State Ethics Commission and did not have a comparable amount of appellate court experience as the other candidates did.

The Senate Judiciary committee first held a hearing on Gluck’s nomination. The Committee’s job is to review the qualifications of the nominee and make a recommendation to the full Senate, which would then provide its advise and consent vote to the governor. There was an outcry in the community, which was echoed by some of the members of the Judiciary committee, on the fact that Gluck was a while male. At that time, three of the five Supreme Court justices were white males, as was one of the five judges on the ICA. The Sierra Club of Hawaii, in its testimony on Gluck’s nomination, pointed out that over his two terms, Governor Ige consistently appointed men as a substantial majority of his nominees. See chart from the testimony. Seventy-nine agencies and individuals testified in favor of his nomination, while 145 testified against.

According to the Judiciary Committee’s Standing committee report, “Testimony in favor of Mr. Gluck’s appointment focused on the candidate’s broad legal expertise and his ability to be an effective judge on the Intermediate Court of Appeals. Testimony in opposition highlighted his inexperience in courtroom work compared to other candidates reviewed by the Governor. Many of those in opposition also noted that consenting to his appointment would not advance the goal of diversifying the Judiciary.”^[18]

The Judiciary committee voted 4-3 to recommend to the full Senate that they not consent to the nomination, and the full Senate did reject the nomination 17-6.^[19].  The Governor was forced, under the Constitution, to go back to the list of nominees and select another candidate. Article VI. section 3 provides: “If the senate shall reject any appointment, the governor shall make another appointment from the list within ten days thereof.” The Governor selected Sonja McCullen, who, as you can see from the chart above, has the most experience with appellate cases, 311 to Gluck’s 5.

So the next questions are for you to answer:

Why is this not a story about the Judicial branch, as this involves selecting a judge?

Do you think that this was just?

Story 4 – When what you see isn’t what you get

As you know from an earlier chapter, the Hawaiʻi Constitution requires each bill passed by the Legislature to have three readings in each chamber. For many years, while the letter of this law has been upheld, the spirit has sometimes been violated by a procedure called called “gut and substitute.” The constitution does not say that the contents of each bill has to be similar for each reading, but it does require that “Each law shall embrace but one subject, which shall be expressed in its title.”^[21] So the Legislature has long followed the practice of having broad, general titles for its bills, for example, “relating to schools” rather than “relating to Holomua Elementary School.” This means that if the Legislature finds that the bill needs to be broadened, it can do so without violating the constitution. For example, if there was a bill to provide supplemental air conditioning for Holomua Elementary school using the narrower “relating to Holomua Elementary School” title, and then the Legislature finds out that nearby Ewa Elementary school also needs to upgrade its air conditioning. Ewa Elementary cannot be added to the bill whose narrow title only covers Holomua Elementary, but if the title was simply “schools” then both schools could be covered in the same bill.

An example like this makes the broader titles seem reasonable, but sometimes the legislature carries this to extremes by radically changing the content of a bill so, while it technically falls under the same title, It covers a completely different subject. When this happens late in the session, it’s called a “”gut and substitute” or “gut and replace.” If the gut and substitute is done late enough in the session, it comes after the time the public can provide input.

For these reasons, the League of Women Voters and Common Cause sued the State of Hawaiʻi. In this case, a 2018 Senate Bill’s title was “relating to public safety,” and it originally required annual reporting of recidivism (repeat offenders) statistics by the the Department of Public Safety, which runs the state prisons. The Senate amended this bill twice, focusing on the key performance indicators and consolidation of reports.^[22]

The House, however, gutted the bill, as described in its committee report:

The key here seems to be that the House committee stated that it had already passed its bill earlier that session. That earlier bill, House Bill no. 2452, established new construction standards for buildings to resist hurricane damage, and had nothing at all to do with the topic of the original Senate bill.

The House Bill had been passed by the whole House and transmitted to the Senate on March 1, but the Senate took no action after the bill was referred to its first committees.

After two weeks of the Senate’s failure to act on its bill, the House committee gutted the Senate Bill and replaced it with its own building standards bill. There were no further changes to the bill until conference, when the conference committee removed some of the language about the standards and inserted others about constructing new public schools capable of providing shelter.^[24]. The bill passed both chambers and was signed by the governor and became Act 84 in June 2018.

The League and Common Cause (the plaintiffs) filed a complaint in Circuit Court, challenging the enactment of this bill on the grounds of a constitutionality as the final version of the bill did not have the three required readings in the Senate, in violation of Article 3, section 15 of the constitution.^[25] While on its face, Senate Bill 2858 had three readings in the Senate, and then a final reading in the Senate after the CD 1, plaintiffs argued that Act 84 did not satisfy the three readings requirement because of hurricane shelter version of S. B. 2858 only received one reading in the Senate before it was signed into law.^[26]

The trial court found in favor of the State and the plaintiffs appealed to the ICA, and the appeal was later transferred to the supreme court.

On appeal, the plaintiffs “argue that the three readings requirement must be interpreted in light of its purpose, which is to provide opportunity for a full and informed debate, prevent hasty and ill-considered legislation, and provide notice of proposed legislation to allow for meaningful participation by the public in the legislative process.”^[27] The State, which was joined by the Legislature on appeal, argues that the Constitution does not require the three readings to begin again after an amendment.^[28]

The court held that “a historical purpose of the three readings requirement is to ‘provide the opportunity for full debate,'”^[29], it also ensures that each house has given sufficient consideration to the effect of the bill,^[30], and is intended to prevent hasty and poorly considered legislation.”^[31]

The court also find that another key purpose of the three readings requirement is to provide the public with notice of the proposed legislation and an opportunity to comment.^[32] The court found that “in order to effectuate this intent, a bill must retain some common attributes between readings.” Id at 39. In other words, the bill had to have some resemblance to previous versions to be considered the same bill, which the court labeled “germaneness” (relevancy). The court reminded this case to the trial court with instructions to grant the plaintiffs motion for summary judgment, meaning that Act 84 would be voided as being unconstitutional. The legislature the court indicated that the abolition of gut and substitute would apply going forward.^[33]

Should the Legislature’s need to amend a bill in a short, fast-paced session, even to the extent of gutting it, override, the technical language of the constitution?

Do you think that as a member of the public, the gut and substitute process was fair?

Story 5 – Who should be a judge, part II

In October 2020, Governor Ige  appointed judge Todd Eddins, a circuit court judge for three years, to the Hawaiʻi Supreme Court. The Senate was notified of this appointment on November 4, came into session, and approved the appointment on November 19, 2020. Justice Eddins started his term in December 2020.

Which two branches were involved in this story, and which prevailed?

Why is this result different than the appointment of Dan Gluck described in Story 3?

Story 6 – Tell us that we’re doing the right thing

Why would a bill pass the legislature when no one testifies in favor of it? Who is the curious and ongoing story of Senate Bill no. 2347, from the 2022 session, whose fate, at the time this book has been written, has not yet been determined. One thing we do know is that no one testified in favor of it. Let’s take a closer look and see if we can figure out this mystery.

At first glance, this bill looks straightforward and as though it would benefit the public: it amends the statutes to state that any proposed constitutional amendment and its ratification question be “simple, concise, and direct to the extent possible.”^[34]  the legislature had run into issues years earlier when the proposed ratification language was alleged to be to favorable to one side. So, perhaps with that in mind, the bill added the language “upon a written request by the president of the senate, the speaker of the house of representatives, or both, a written opinion of the justices of the Supreme Court, or a majority thereof, stating whether a proposed amendment to the Hawaiʻi Constitution and the corresponding constitutional ratification question is simple, concise, and direct to the extent practical, within 48 hours.^[35]

At the first hearing, the Administrative Director of the Courts submitted testimony on behalf of the Judiciary, stating that “Due to the significant constitutional issues implicated by this bill, it is inappropriate for the Judiciary to take a position on this proposed legislation. The Judiciary, however, offers the
following comments.”^[36]  In summary, the comments were that

• No other state does this. possibly as a result of separation of powers issues.
• The proposal provides no opportunity for the public, whose interests might be affected by the constitutional amendment or ratification question, to be heard.
• The proposal does not indicate what factual record would be submitted to the court to assess the adequacy of the question.
• The proposal does not provide the court with sufficient time (only 48 hours) to review the potentially complex issues^[37]

No other testimony was presented.

At the second hearing, the Judiciary brought up the same issues, except for the last one, as the bill had been amended to provide one week for the review, and so the testimony now read:

• Nor does it provide the court with sufficient time (only 1 week) to review the potentially complex issues that are often posed by the constitutional amendment or ratification question, particularly when advocacy and adversarial testing, which are fundamental tenets of our jurisprudence, are absent from the court’s review.^[38]

Only one other person submitted testimony, and she opposed the bill.

At the third hearing, the Judiciary submitted the same testimony, the League of Women Voters presented comments indicating that “The League is concerned that the proposed time frame in which the Hawaiʻi Supreme Court must render an opinion is insufficient, nor does it allow interested parties sufficient time to provide supporting or opposing testimony to the Court ^[39]

The bill went to conference, at which no public testimony is taken, and this time the bill was amended to allow the court 15 days^[40] to submit its evaluation.^[41]

The bill passed the Legislature and is now awaiting action by the Governor.

Why would the Legislature want to give some of its power to draft bills by requiring the court to review the bill before it passes the Legislature?

Why might the court not want this power?

What do you think is the right thing to do here: let the legislature try to get preapproval of their bills from the court, or require the legislature to provide their best possible version of a bill without court interference?

Conclusion

The State of Hawaiʻi and your fellow citizens need your participation in government in order to have it function best. The purpose of this book was to show you how the state government functions and ways in which you can exercise your rights and participate. If you were taking this as part of a course, I hope you have internalized enough information for your purposes, but for everyone who reads this book, please feel free to use this as a reference going forward, keeping in mind that the first edition of this book was published in 2022. As is stated at many points during these materials, the sites and the functions may change over time. However, all of this information should still be available somewhere on the Legislature’s, Judiciary’s, and Executive branches’ websites. I’ve done my best to hand you the appropriate amount of citizen power; it is up to you how much of an active role you will take going forward to help to change things for the better in Hawaiʻi through your participation in the government.