 Think Tech Hawaii, civil engagement lives here. Hello everyone, my name is Peter Adler. I'm a planner, a mediator, an arbitrator, and also a member of Think Tech's board. And for the last several months I've been doing a deep dive on one of the biggest issues coming up for all of us on November 6th. I haven't decided which way I'm going to vote, but I'm committed to understanding the question. This special three-part Think Tech series is called Hawaii's Big Choice, Should We Have a New Constitutional Convention? And that question along with the second one regarding a special property tax to fund education will be on the ballot when we vote on November 6th. Today's series deals with the first question. Thus far we've had three con-cons. The first was in 1959 when we were required to have one if we were to be a state. The second one was in 1968 and the third was in 1978. 68 and 78 produced important amendments and revisions. This then 40 years have gone by and we haven't revisited the Constitution through a citizens convention. Should we? Is it time? If con-cons are a mirror of the times, are there new challenges and problems that a con-con should take up? And that is what you will be deciding on November 6th. In these three and a half hour segments we will take up different aspects of all of this. In this first one we will try and give you a better understanding of what is at stake and how a con-con works. In the second one we will take a look at some of the proposals that might come on the table if voters approve one on November 6th. And in the third we will try to confront some of the bright hopes and dark fears that are embedded in the whole question. The con-con issue isn't simple and has many different faces and textures. In fact it's a little bit like the proverbial blind man trying to figure out what an elephant is. If there is one big uber message to all three discussions is this. Let's get informed about what kind of elephant we are dealing with. Think about the big yes or no choice and above all get out and vote. Meanwhile to get us started I have invited two friends and colleagues here to help think it through. Avi Soyfer is Dean of the William S. Richardson School of Law at UH. He teaches constitutional law and is written extensively on the federal constitution. Also with us is Rebecca Soon, a graduate of Avi's Law School. One of the participants in the 2016 native Hawaiian constitutional convention. And Chief Executive Officer of Solutions Pacific, a consulting firm that helps clients navigate tough challenges. Avi, let's start with you. What is a constitution? Why does it matter? How does it link to all the other things we have that regulate us? Avi Well these days there are a lot of constitutions around the world but I guess Americans can claim pride of place. We were the first written constitution in the world and we have great reverence for the constitution. It's constantly debated, it's often changed by judges and by citizens and a constitution is kind of the highest law. And in the American tradition judges get to invoke it and sometimes to strike down what a more popular entity might have enacted a locality or the state. In Hawaii we have a sort of unusual thing in this every 10 years popular vote on whether the constitution should be amended or not. And as you mentioned it has infrequently been so but a lot of people think the 78 con con in particular was very important. One of the issues this time is well if it's opened up will it change much? And so part of the analysis is whether you're risk averse or not. And just what is a constitutional convention since that's what we're talking about? Avi Well it can vary and it's controlled by a number of different entities themselves including the legislature. But the con con puts forward is not the final word. People get to vote up or down on what the con con puts forward if there are reforms if there is a con con. Some of the issues that people these days talk about fear of losing our protections for public trust, native Hawaiian issues, unions and so on. One of the things that's changed is that it has become much easier for outside finances or money contributions to come to Hawaii or anywhere else. And so some of the fears are well there might be a big flow of outside money into Hawaii. The last time there was a con con there was a sort of concerted popular effort to keep politicians out. And it was a very interesting group of people many of whom first achieved recognition and later fame because of their role in the con con. And I guess I should reveal kind of the self interest of the law school. It would be terrific if we had a con con from that perspective because we would be all over it in terms of our students and graduates. Full Employment Act for the lawyers. Not lawyers but our graduates. Your graduates, all your graduates. One more quick question. What is the link between the constitution, the elements of the constitution, which are all on a website. They're easy to access. And the thinking that has to go on in both the legislature and in the executive branch and then on down into the county's charters and ordinances. What's the linkages here? Well, there are many. We have separation of powers, of course. So we have the legislature having its own authority. But sometimes the judges will say you went too far or not far enough. There is some control over the judiciary and change the way that the judges are selected and the legislature would do that. The executive actually has a lot of authority in Hawaii. So that even when appropriations are voted, for example, the governor decides whether or not to spend that money. In many places, governor doesn't have that discretion. So we'll come back to some of those. But Becky, talk to us a little bit about the mechanics of a con con. If voters decide yes, what happens after that? If they decide no, what happens after that? Sure. So it's almost easier to start with what happens if voters vote no. So if voters say in November that, you know what, it's just not the right time for us to reopen our constitution and to revisit some of the fundamental questions of our legal basis here in the state of Hawaii. Then the question comes back up again in 10 years, as Dean Swiffer mentioned. And in the interim, we're able to use our representative democracy process. So we can continue to do what we've done for the last 40 years, which is to try to propose amendments through our legislature. And in fact, there's been 72 amendments that have been proposed through the legislature since 1980. And just over half of those passed and just under half of them didn't pass successfully by voters. But so there's still mechanisms in place to try to address some of the questions that would have to be taken up in the Constitution. But if voters say yes, it's time. And we want to reopen it for whatever reasons individual voters may have. Then it triggers a couple of different processes. First is sort of a logistics question. So the legislature has the authority to determine what the constitutional convention actually looks like. And it's almost more party planner than it is policymaking. I mean, the questions do have implications, certainly, over how successful the delegates might be. But the legislature will need to decide in the 2019 session, their normal legislative session, how many delegates, where they'll be in 1978. For example, there were two per house district. So it's 102, 51 house districts across the state. They'll need to decide questions like how long will it be? Again, in 78, it was 75 days. That was the length of the convention. Very few of those questions are answered within the Constitution itself. Really only a few questions like, you have to have the Constitution five months or more before the next general election. So we can't just indefinitely put it off. But the legislature has to make some of those decisions about, OK, are these delegates going to get paid? And that has some real implications over who can participate and who can't participate. If we're saying that delegates are not going to get paid, for example, then we can immediately start thinking about the people that that excludes from being able to really functionally be able to run as delegates. But the legislature will, in 2019, if the Constitutional Convention question is passed, they'll make a decision about all of those logistical questions, how long, how many, how much, and then some of the back support that we don't always think about. So where it'll be held? Yeah. Where it would be held. Where is it going to be? There are going to be staff support. I heard some of the delegates through your awesome con confalon, by the way, thanks for including me in that fun exercise. No, we heard from 68 and 78 delegates who talked about their ability to push through a number of their proposals really hinged on the LRB staff, the reference bureau staff, who were there doing research, who were there providing support, drafting. You mentioned when we opened that I participated in the metaphorian a-ha, the Constitutional Convention to create a constitution that we'll be putting forward to our community. And in that process, I mean, who sat down and wrote the provisions and proposed things drove the conversation. And I know for a fact that those were young lawyers in the law school did Leoman's work, including yourself. A lot of them were. Yeah, not everyone, but it's certainly a lot. And so what'll happen after that, once those decisions are made, is there will be some kind of a process for delegates to run, to be elected to those delegate seats. And from there, they'll hold a constitution, no convention, sorry, hold a constitutional convention, be able to probably set a lot of their own rules about how the convention's going to go, how the meetings are going to be held, is there going to be a chair. There'll be a lot of interesting maneuvering kind of stuff that we see at the legislature, honestly. So we're not stepping away from politics. I don't think so. I don't either. Yeah. And from there, so the last piece of it just is not whatever comes out of that convention, as Dean Swyfer mentioned, those proposals will be put back to the voters. So they don't automatically become part of the constitution. They're put back to the voters, likely at the next general election. There could be a special, but it's usually at the next general. And they would be voted on by all of us. And so there's really three perspective votes. The first one is on November 6. And that says yes or no. Will we have one? The second one is for delegates. And the third one, assuming the delegates come to conclusions and propose revisions, would come on somewhere around 2020, something like that. Though, if that goes forward. One thing to add, though, and I do hope everyone votes on November 6 for lots of reasons. But if there are ballots that are left blank, our courts have held that they count as negatives. So it's a sort of super majority that has to say yes. It has to be a majority of all the voters who say yes, we want to come. And that's one of those details that I think most people don't understand. It creates a bar, a higher bar for coming forward. Let's talk a little bit about what happened in 78. 68 also, but 78 was a pretty momentous convention. Why was it important, Tommy? What sticks out? Well, as I mentioned, some of those issues that people are now worried about losing were really articulated. The time was right. It was a relatively youthful convention. And I would say that they were not so risk averse. They said we want to do some things for native Hawaiians. And the public trust doctrine ought to be important in this state, and so on. The unions got more protection than they had had. A lot more than they have in most states. So it was a moment of, in retrospect, I think people would say progressive ideals being enacted into our law. Becky, anything you want to add on 78, especially, but on either of those, the importance of those conventions? Yeah, so we talk about some of the real flagship things that were past 78, public workers rights of bargaining, collective bargaining in 78, private workers' rights to collective bargaining. And we think about those things broadly, but they have some real particular things that happen for them. These amendments set some of the foundational pathways that advocates and citizens could then try to enact on and to implement. And so you look at things like the bargaining units. And it's real easy to take it for granted. But each county and state now has bargaining units that it bargains with and then it negotiates with. And so the rights that they protect around anything from whether or not individuals that are working for our government have a grievance process, if they have any kind of negative action taken against them, or whether they have the right to take sick leave. I mean, these are things that we sort of take for granted today in both the public and the private sector, but they were not easily won things. And so those changes really set the groundwork to allow that to happen. Are those things that both of you are talking about, items that could have been done by the legislature? In other words, one of the ideas of a con con is that a citizen's convention can essentially go over the heads of the legislature in forming some of the fundamentals. And some of those things, I'm wondering if they could have been done. Legally, sure. I mean, I would say so. Take the water commission, the water code. Yeah. So one of the important things that Dean Zuifer talked about was the public trust doctrine. And so when we look at Article 11 that was really created, taking part Article 10 and adding into additional protections, really enshrined this idea that the state holds in its trust for, on behalf of the people of Hawaii, protections around all natural resources, and then very clearly stated land, water, et cetera. And with respect to water, you talked about the water code came very quickly after that and then became the foundation upon which the commission on water resource management was formed and then became the basis for lawsuits when there was belief that the commission on water resource management wasn't making decisions in accordance with that constitutionally protected right. And so absolutely all those things could have happened through a legislative process. The question of would they have happened, would there have been a political will, or the foresight and ability to pull all those pieces together, I think is a separate question. And there's a certain underscoring of its importance if it happens in a constitutional context. On the other hand, the Constitution sits there and the judges can use it to strike down legislation. There's an interesting question that we talk about, I suppose, only with our common law students about could there be an unconstitutional constitutional amendment. I don't think we have to face that, although there is an argument in the federal constitution that there are some. But this would be kind of super legislation in a sense. And then the courts will construe it. That's the interplay between the branches of government, which is very important. But the Constitution lays down some of the fundamentals that define the rights of individuals and the rights of the state. And it isn't just symbolic. It is important to people, to the populace as a whole. And it becomes sometimes legally important as well. If I could add another example of that. I mean, we talk about some of these big watershed issues. But one thing that happened in 1978 was the protection of the right to privacy within our Constitution. And it specifically states that right to privacy has to be held to strict scrutiny, which federally is generally the case, what the Supreme Court already does. But that could change over time. And we're saying on the state level that regardless of what happens, that we're requiring that strict scrutiny, the highest level of scrutiny of government action is going to be held to protect people's privacy rights, which covers everything from illegal search and seizure to a woman's right to choose to reproductive health options. So it's just to underscore what Dean Sucker's saying. We're going to go to a break. And then we'll come back and keep the discussion going on some of what happened in 1978. Hey, Stan Energyman here on Think Tech Hawaii. And they won't let me do political commentary. So I'm stuck doing energy stuff. But I really like energy stuff. So I'm going to keep on doing it. So join me every Friday on Stan Energyman at lunchtime, at noon, on my lunch hour. We're going to talk about everything energy, especially if it begins with the word hydrogen. We're going to definitely be talking about it. We'll talk about how we can make Hawaii cleaner, how we can make the world a better place, just basically save the planet. Even Miss America can't even talk about stuff like that anymore. We got it nailed down here. So we'll see you on Friday at noon with Stan Energyman. Aloha. Aloha. My name is Mark Shklav. I am the host of Think Tech Hawaii's Law Across the Sea. Law Across the Sea is on Think Tech Hawaii every other Monday at 11 AM. Please join me, where my guests talk about law topics and ideas and music and Hawaiiana all across the sea from Hawaii and back again. Aloha. Welcome back. Let's talk a little more about 78. I'm interested in what each of you from your own political views consider the most important things that came out of 78. I've been compiling a bit of a list. As Becky mentioned, I've convened some meetings. I called it the Kan-Kan Salon. And we had a lot of discussions. Becky was a part of that. And we were really trying to think it through, as opposed to taking positions and just debating. And I'm for, I'm against. We wanted to go beyond that. And some of the things that you've already mentioned are on that list. But there were things also like partially public financed elections came out of 78, term limits for the governor and the lieutenant governor, an annual balanced budget requirement, judicial selection commission, I think Aviou mentioned that, council on revenues, tax review commission. So 78 was kind of a watershed year. And one of my understandings, and one of the things I've learned was, in particular, the big issue going into it was initiative, recall, and referendum. Those were the, and we should explain what those terms mean, because a lot of people don't know. But there were also surprise issues. And two of those were heralded by two powerful women. One was Frenchie de Soto, who almost single-handedly pushed Hawaiian as a second language. And the creation of the Office of Hawaiian Affairs rallied up people like John Wahey and others. And the other was Charlene Ho, who really had been working very hard on water issues and really pushed the public trust doctrine and its implications for water. Don't underestimate those Hawaiian women. No, tough, tough, tough. You too, including you. So I'm curious what else that, from your own personal point of view, has had the biggest repercussions over the last couple of decades. It's been 40 years since we had a concon. And the question is sort of what has really shifted as a result of it, in your own political thinking, in your own views? Well, there are a lot of factors, of course. The context matters a great deal. So you talked about campaign finance. That's changed because of the United States Supreme Court. So you couldn't do some of the things that were done. And in my own view, that's a shame because the First Amendment has been held. Basically, the Supreme Court has said that dollars are expression, and therefore, we have to protect dollars. I think that one could, there are still some ways that a state could try to fence that in or perhaps get around it. So it's not all is lost, but it does make a difference. In terms of outside money coming in to try to influence what the state does. That's right. I think your point about initiative referendum and recall is an important one because some people think that California has become an ungovernable state. It's more than a state in many ways because every time there is something and it tends to be progressive legislation, there's an initiative, and people tend to vote it down. So if it's too easy to do that, it doesn't all go in one direction. So you have to worry about it. So just to define terms, what is an initiative? It's in California, they call them propositions, I think. Right. And what does it do? So for example, this is a, it went to the US Supreme Court, open housing laws, and then they say, wow, this is a terrible thing. Let's do something about this statewide. And they say, OK, you can't do that. They put it in the Constitution. Similarly with some protections for those like LGBT in Colorado. And they said, well, we won't let Boulder and a few other places protect them. Not going to be able to do that. And the US Supreme Court stepped in and said, wait a minute, that's an unconstitutional thing you've done, even though you put it in the Constitution. So it's when the populist may be too populist, if you will. And these days, I think in particular in this country, we're aware of that danger. Yeah. And what about referendum and recall? What are those things for people who may be hearing those terms and puzzling them out? Becky, any comments? Yeah, so in both initiative and referendum are ways that citizens can get measures directly and on to a ballot, it's supposed to have to go through their legislative process. And so it's seen as sort of direct citizen action as opposed to going through the representative democracy. And there's lots of arguments on both sides of that. And frankly, I think they're probably in part shaped by which issue, what issue you're talking about and whether or not you think it should be subject. And then lastly, recall would be, again, a citizen opportunity to undo essentially something that's been passed, if you want to add to that. In my understanding in 1978, that was the big issue. Those were the three big issues that everybody knew were going to come on the table. And they actually pretty quickly got voted away by narrow margins. That's how I understand it. And then the other, many other issues came on the table in the form of proposed amendments and revisions. Becky, I want to go back, and maybe we could put up slide three. And I want to go back to the sequence and the timing. And this slide may be useful, may not be. But can you talk us through this? So everybody understands, here's what's going to happen roughly in the time frame. So this first Navy blue box vote on con con is assured. So we're going to have a vote on whether or not to have a constitutional convention coming up this general election, November 6, 2018. And we hope that everyone votes. The second question, the legislature, likely in the 2019 legislative session, although they could do it in a special session, but likely in the 2019 normal legislative session, which begins January 2019, the legislature would determine by the last day, which is in May 2019, what the structure is going to look like, where, when, how much, how many delegates, et cetera. And they'll likely also set up a schedule for how the delegates will be elected and then when there will be an election for those delegates. Then there will be some period of time that people, citizens, basically anyone who's eligible to vote in the state of Hawaii will be able to run as a delegate to the constitutional convention. And there will probably be some traditional campaigning happening. Encourage people who want to run to knock on doors and go and meet people in their community and hear what their community cares about. But anyhow, that'll likely happen probably spring 2020. But again, that's sort of up to what the legislature decides during session. Then we'll have the convention. It should vote on it. The convention will convene. It must be at least five months before the 2020 general, which is in November 2020. But it could be earlier than that. Again, it sort of depends on what the legislature decides. The convention must adjourn. And the convention delegates must put forward to citizens the proposed amendments or revisions at least 30 days before the general election. I would suspect that what we know about how early ballots are printed, it would hopefully be more than 30 days. But the constitution requires at least 30 days. And then on November 3, 2020, which is the general election, two years from now, those proposed amendments will be, there be any, will be on the ballot for all anyone who votes. Well done. And clearly so. But it also emphasizes how close 2020 is. Not so far away. It isn't. It's a tight timeline, actually, when you think about it. Let me add, I want to go back to one of those, which is the actual election of delegates. Can anybody be a delegate? What do you have to qualify if you decide to run? If you wanted to run, I wanted to run, not that I'm campaigning. I think the legislature would, within some parameters, be able to set that. My assumption is anyone who is an eligible voter could run. Any citizen of the state. Could they exclude, for example, sitting politicians? Probably not, constitutional. They're citizens. They still get to do that. They could discourage, but I don't think they could exclude. They could certainly try. I mean, the legislature has all kinds of things that are constitutionally questionable. But that would be open to challenge. In 78, one of my understandings, that we heard Becky in the Con Con Salon, was that the media, when we had a more solidified media, really lobbied against having the sitting politicians jump in and become delegates. They really wanted it to be a citizen. Of course, the media, and it did, it seemed to have worked. Almost entirely out. Today is a different game. There's a very different. We have the scrapbooks. Our librarians have been keeping an archive on the Con Con from 78. Do you think one of the things we've heard from a couple of people who were the alumni and veterans of the 1978 Con Con, was that a constitutional convention is sort of a mirror of the times. It's the temper of the times that kind of sits on people's mind. If I can ask you, what's your sense of the mirror? When you look in the mirror, what do we got going on here that may push votes for or against? It's a tough question, but why not? Yeah, I mean, I think everybody's gonna have a different space to talk about what they're seeing and what are important to them individually. I think collectively, consolidating issues in the state of Hawaii are at the forefront of people's minds, or at the forefront. I think Sybil Beat just published a poll not a week ago talking about affordable housing and other cost of living related issues being the number one issue on voters' minds right now. So I think that those questions will drive things, but how they drive things exactly, what that means, is I think it's yet to be known. Certainly, I think that where some of the fear comes from, including fear that I myself hold, is about whether or not sort of the same environment that existed in 78 to bring life to some of the protections for native Hawaiians, whether or not that's an environment that we have today, or whether or not, for a wide range of reasons that there are questioning as to whether or not the things that have been established to try to protect those rights continue to be the right way to do it, or whether protecting those rights at all continue to be important. And so, for someone like myself who's really interested in not only protecting those rights, but in fact, fulfilling them, because many of them remain, I think, unfulfilled, remains a concern. But okay, are the same forces that have prevented us from, for example, the Office of Hawaiian Affairs as a 5F, so Admissions Act 59. There was a section that talked about the use of public trust lands, seated lands, and how those revenues were to be utilized, and they were called 5F purposes, just the section, just the article. And one of those purposes is for the betterment of native Hawaiians. There remains, I mean, it's not even really a question, but I mean, there's certainly not 20% of seated land revenues going to the Office of Hawaiian Affairs today. And so, when we still have sort of these open, are the same forces that are preventing that from happening? And I'm not even talking necessarily about, you know, bad forces, just sort of maybe lack of interest forces or lack of understanding of the direness. I mean, there's sort of a variety of things that could influence how people think and feel about whether or not native Hawaiian should be recipients of 5F revenues that if those same forces roll in to a constitutional convention, does that put at risk whether or not an organization like Office of Hawaiian Affairs, Department of Hawaiian Homeland, I mean, there's a number of things that were really critical in 78 that we're still trying to fulfill. So I think that, yeah, I think, so the big question, cost of living. So we only have a couple seconds left and I just want to first thank you both for joining us. But also I want to, kind of, it's a good segue. We're going to talk in two more segments later on with a couple other people about these same issues from different angles. But my pitch to everybody is that if you have an issue you want to protect, get involved and get out there and vote. And if you have an issue you want to advocate for, get out there and vote on November 6th. An important issue that faces us all and could affect the future of the state of Hawaii. Thank you so much for joining us. Thank you.