January 14, 2000

7832-A

 

ADVISORY MEMORANDUM

TO: All Legislators

FROM: Susan Jaworowski

Mark Rosen

Research Attorneys

SUBJECT: Elected Hawaiian Homes Commission

 

Introduction

This memorandum responds to a joint request from the President of the Senate and Speaker of the House of Representatives for research concerning the establishment of an elected Hawaiian Homes Commission. The study follows the outline suggested in the President’s and Speaker’s letter on the issues presented (see Appendix A), and examines these issues as applicable for both the House and Senate versions of H.B. No. 235, H.D. 2, S.D. 2 (1999), which would have provided for an elected Commission.

Although this memorandum makes several recommendations regarding the substantive provisions of the House and Senate versions of H.B. No. 235, it should be noted at the outset that the Bureau recommends that the Legislature follow the recommendations of the Attorney General on two important points as follows:

  1. Rice v. Cayetano. In testimony presented on March 24, 1999, to the Senate Committee on Judiciary and the Senate Committee on Water, Land and Hawaiian Affairs regarding H.B. No. 235, H.D. 2, S.D. 2 (see Appendix B), the Attorney General recommended that the bill be deferred until after the United States Supreme Court has issued a decision in Rice v. Cayetano, a case that "directly impacts on the voting right of native Hawaiians." In particular, the Attorney General noted that "H.B. 235, H.D. 2, among other things, proposes that members of the Hawaiian homes commission be elected in the same way as OHA trustees rather than appointed.… If this bill becomes law before the U.S. Supreme Court rules, any resulting election of the Commission members would be subject to the U.S. Supreme Court ruling. Prudence requires that the bill be deferred until the U.S. Supreme Court rules in the Rice case." Accordingly, the Bureau recommends that the Legislature follow the Attorney General’s recommendation to defer consideration of H.B. No. 235 until the resolution of Rice by the United States Supreme Court.

  2. Constitutional Amendment. In testimony on March 19, 1996, before the Senate Committee on Judiciary and the Senate Committee on Hawaiian Affairs regarding H.B. No. 3919, H.D. 3 (see Appendix C), the Attorney General testified that an elected Hawaiian Homes Commission may violate the provisions of Article V, Section 6 of the State Constitution. The third paragraph of that section states that "[e]xcept as otherwise provided in this constitution, whenever a board, commission or other body shall be the head of a principal department of the state government, the members thereof shall be nominated and, by and with the advice and consent of the senate, appointed by the governor." Citing this express language and the legislative history of this language in the proceedings of the Constitutional Conventions of 1950 and 1968, the Attorney General stated: "Given the intent expressed by the drafters of section 6, article V, of the State Constitution, this bill may violate that provision." Assuming that the position of the Attorney General has not changed since 1996, the Bureau recommends that the Legislature follow the Attorney General’s opinion, i.e., that a constitutional amendment is necessary before statutory amendments can be made.

The Legislature may wish to request a formal opinion of the Attorney General on these issues and other legal issues presented in this memorandum if for no other reason than to obtain their position in advance. Another issue on which the Legislature may wish to obtain a legal opinion is whether Congressional consent is required to amend the Hawaiian Homes Commission Act to provide for the election of commissioners. A 1998 Report to the Legislature on a proposal to provide for an elected Hawaiian Homes Commission noted the following arguments for and against obtaining Congressional approval:

Section 202 of the HHCA sets forth the composition of the HHC and how the commissioners are selected. Establishing an election process for selecting the commissioners will require amending §202, accordingly.

Section 4 of the Admission Act which is also incorporated as Article XII, Section 3, of the State Constitution provides that certain sections of the HHCA, including §202, can be amended in the State Constitution or in a manner required for State legislation without Congressional approval. Based on Section 4 and Article XII, Section 3, several attorneys who have worked closely with the HHCA believe that amending Section 202 of the HHCA to provide for elected commissioners will not require Congressional approval.

However, although Congressional approval would probably not be required, pursuant to a 1987 agreement between the State and the federal government, all amendments to the HHCA are to be submitted to the U.S. Secretary of the Interior for review. Under the agreement, the DHHL is required to submit any amendments to the Secretary of Interior within 180 days of the close of the legislative session along with a legal opinion regarding whether Congressional approval is required. The Secretary then transmits the amendments to Congress along with the Department of the Interior’s own recommendation concerning Congressional approval.

Whether or not Congressional approval is required to amend the Hawaiian Homes Commission Act to provide for the election of commissioners, the Bureau recommends that any bill passed by the Legislature seeking to amend that Act include the Bureau’s standard severability boilerplate language, which is generally included in bills that seek to amend the Hawaiian Homes Commission Act, as follows:

The provisions of the amendments made by this Act to the Hawaiian Homes Commission Act of 1920, as amended, are declared to be severable, and if any section, clause, or phrase, or the application thereof to any person or circumstance is held ineffective because there is a requirement of having the consent of the United States to take effect, then that portion only shall take effect upon the granting of consent by the United States and the effectiveness of the remainder of this Act or the application thereof shall not be affected.

Additionally, it should further be noted at the outset that the joint request from the President and Speaker requesting this memorandum is fairly limited in scope, and asks that the Bureau focus specifically on the House and Senate versions of H.B. No. 235 as a base, in order to continue deliberations on this measure during the year 2000 Regular Session. Accordingly, the Bureau has generally confined its remarks to the issues presented as it relates to that bill, as applicable, except where a discussion of other areas is pertinent.

Finally, as used in this report, the following terms have the following meanings:

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