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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCPW-XX-XXXXXXX
                                                              20-DEC-2018
                                                              12:37 PM




           IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

                                ---o0o---


         CITY AND COUNTY OF HONOLULU; COUNTY OF HAWAI‘I;
          COUNTY OF MAUI; COUNTY OF KAUA‘I, Petitioners,

                                    vs.

       STATE OF HAWAI‘I; SCOTT T. NAGO, in his capacity as
              Chief Election Officer, Respondents.


                            SCPW-XX-XXXXXXX

                          ORIGINAL PROCEEDING
                        (CIV. NO. 18-1-1326-08)

                           DECEMBER 20, 2018

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY POLLACK, J.

          The right of the people to shape the way in which they

are governed through free and fair elections is the basis of our

democratic society.     At no time is this dynamic more pronounced

than when the public is called upon to approve revisions to the

Hawai‘i Constitution, the foundational document on which our
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state government is based.      In order for the electorate to

effectively exercise this most basic of rights, however, a

ballot must be capable of rendering a knowing and deliberate

expression of voter choice.      Thus, when a constitutional

amendment is presented to the electorate for ratification, both

our constitution and statutes require that the question posed to

voters must be clear and neither misleading nor deceptive.             And

it is this court’s duty to preserve the integrity of the

electoral process by invalidating a question that fails to meet

this standard.

          In this case, several counties of the State of Hawai‘i

challenged a ballot question authored by the state legislature

that would approve an amendment granting the State the authority

to impose a surcharge on investment real property.           The

challengers argue that the ballot question was unclear and

likely to mislead or deceive an average voter.          Upon review,

this court determined that the ballot question as written did

not comply with the requirement that its language and meaning be

clear and not misleading.      We accordingly declared the ballot

question invalid, stating at the time that this opinion would

follow.   We now elaborate as to our reasoning.




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                I. BACKGROUND AND PROCEDURAL HISTORY

                A. Real Property Taxation in Hawai‘i

          From the beginning of statehood until 1980, the Hawai‘i

Constitution fully reserved the taxing power to the State,

delegable to the counties at the Hawai‘i legislature’s sole

discretion.   County of Kaua‘i ex rel. Nakazawa v. Baptiste, 115

Hawai‘i 15, 20, 165 P.3d 916, 921 (2007) (quoting Haw. Const.

art. VII, § 3 (1968)).     As a result, a hybrid system of real

property taxation developed within the state.          Although the

counties were statutorily authorized to set the specific tax

rates applicable to land within their borders, the State

retained all other relevant responsibilities, including the

creation of exemptions, the administrative adjudication of tax

appeals, and the actual collection of tax funds.           See Stand.

Comm. Rep. No. 42 in 1 Proceedings of the Constitutional

Convention of Hawai‘i of 1978, at 594-95 (1980).          After the State

was reimbursed for its administrative expenses, all revenues

derived from real property taxes were remitted to the counties

for their operations.     Id.   The counties depended heavily on

these monetary transfers for their operating income, and by the

time of the 1978 Constitutional Convention, the shared

responsibility had become a “sore point between counties and the

State.”   2 Proceedings of the Constitutional Convention of

Hawai‘i of 1978, at 247 (1980).


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             Prior to the 1978 Convention, county officials began

to express frustration that the patchwork of concurrent

authority had created confusion and a lack of accountability

between the State and counties, with voters unable to determine

“what level of government [was] responsible for the real

property tax bite.”      Id.; accord Stand. Comm. Rep. No. 42 in 1

Proceedings of the Constitutional Convention of Hawai‘i of 1978,

at 594-95.    Further, county officials contended that the

counties had differing needs and economic bases that were not

fully served by state-wide tax policies, and that it was unfair

that the counties were tasked with the full management of local

affairs but had little control over their primary source of

income.   See Stand. Comm. Rep. No. 42 in 1 Proceedings of the

Constitutional Convention of Hawai‘i of 1978, at 595; 2

Proceedings of the Constitutional Convention of Hawai‘i of 1978,

at 247-48.

             Responding to these concerns, the delegates adopted a

proposed amendment to the Hawai‘i Constitution granting the

counties exclusive authority over all functions related to the

taxation of real property.1       See 1 Proceedings of the


     1
            The County of Kalawao, which at the time was managed by the State
Department of Health and had no local government, was not included in the
transfer of power. See 2 Proceedings of the Constitutional Convention of
Hawai‘i of 1978, at 248.




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Constitutional Convention of Hawai‘i of 1978, at 1198 (setting

forth Haw. Const. art. VIII, § 3 as amended).          A report from the

Committee on Local Government indicates the transfer was

intended to grant the counties full control over their finances,

eliminate public confusion as to which level of government was

responsible for real property taxes, further the democratic

ideal of home rule, and allow the counties flexibility in

addressing their unique local needs.        Stand. Comm. Rep. No. 42

in 1 Proceedings of the Constitutional Convention of Hawai‘i of

1978, at 595.   The amendment was subsequently approved by Hawai‘i

voters, and article VIII, section 3 of the Hawai‘i Constitution

now states in full as follows:

          The taxing power shall be reserved to the State, except so
          much thereof as may be delegated by the legislature to the
          political subdivisions, and except that all functions,
          powers and duties relating to the taxation of real property
          shall be exercised exclusively by the counties, with the
          exception of the county of Kalawao. The legislature shall
          have the power to apportion state revenues among the
          several political subdivisions.

(Emphasis added.)    Thus, only the counties currently possess the

constitutional authority to levy a tax on real property within

the State of Hawai‘i.




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                           B. Senate Bill 2922

            On January 24, 2018, Senate Bill 2922 (S.B. 2922) was

introduced in the Hawai‘i State Senate.2         S.B. 2922, 29th Leg.,

Reg. Sess. (2018).      In the section of the bill setting forth

proposed legislative findings, the bill stated that article X,

section 1 of the Hawai‘i Constitution requires the State to

provide a system of public education.3         Id.    The bill noted that

Hawai‘i is unique among the United States in that it funds and

administers its public school system at the State level rather

than assigning the responsibility to its counties or another

local political subdivision.        Id.   Citing a series of government

studies that placed Hawai‘i among the lowest ranked states in the

nation for teacher salary and education expenditures, the bill

asserted that the State was consistently failing to appropriate

adequate revenue for education from the state general fund,

which undermined the State’s mission of providing a quality

education to all of Hawai‘i’s children.         Id.   The bill concluded,

“It is necessary to develop a new means of funding Hawaii’s


      2
            The text of S.B. 2922 as originally introduced is available at
https://www.capitol.hawaii.gov/session2018/bills/SB2922_.HTM.
     3
            Article X, section 1 of the Hawai‘i Constitution provides in
relevant part as follows: “The State shall provide for the establishment,
support and control of a statewide system of public schools free from
sectarian control, a state university, public libraries and such other
educational institutions as may be deemed desirable, including physical
facilities therefor.”




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public education system to ensure that the State will be able to

prepare children to meet the social and economic demands of the

twenty-first century.”4      Id.

            To this end, the bill proposed amending the Hawai‘i

Constitution pursuant to article XVII, section 3 to authorize

“the legislature to establish a surcharge on residential

investment property” for the purpose of funding public

education.5    Id.   Following a series of revisions by both

legislative chambers, S.B. 2922 was passed in late April 2018.

     4
            These proposed findings, which are provided for context, were not
included in the final version of the bill passed by the legislature. See
S.B. 2922, S.D.1, H.D.1, 29th Leg., Reg. Sess. (2018),
https://www.capitol.hawaii.gov/session2018/bills/SB2922_HD1_.htm.
     5
            Article XVII, section 3 provides in full as follows:

            The legislature may propose amendments to the constitution
            by adopting the same, in the manner required for
            legislation, by a two-thirds vote of each house on final
            reading at any session, after either or both houses shall
            have given the governor at least ten days' written notice
            of the final form of the proposed amendment, or, with or
            without such notice, by a majority vote of each house on
            final reading at each of two successive sessions.

            Upon such adoption, the proposed amendments shall be
            entered upon the journals, with the ayes and noes, and
            published once in each of four successive weeks in at least
            one newspaper of general circulation in each senatorial
            district wherein such a newspaper is published, within the
            two months' period immediately preceding the next general
            election.

            At such general election the proposed amendments shall be
            submitted to the electorate for approval or rejection upon
            a separate ballot.

            The conditions of and requirements for ratification of such
            proposed amendments shall be the same as provided in
            section 2 of this article for ratification at a general
            election.




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In its final form, the act proposed two changes to the Hawai‘i

Constitution.

          First, the act proposed amending article VIII, section

3 as follows:

          TAXATION AND FINANCE

          Section 3. The taxing power shall be reserved to the
          State, except so much thereof as may be delegated by the
          legislature to the political subdivisions, and except that
          all functions, powers and duties relating to the taxation
          of real property shall be exercised exclusively by the
          counties, with the exception of the county of Kalawao[.];
          provided that the legislature may establish, as provided by
          law, a surcharge on investment real property. The
          legislature shall have the power to apportion state
          revenues among the several political subdivisions.

S.B. 2922, S.D.1, H.D.1, 29th Leg., Reg. Sess. (2018) (proposed

deletion bracketed and proposed addition underlined).            Second,

the bill proposed making the following addition to article X,

section 1:

          PUBLIC EDUCATION

          Section 1. The State shall provide for the establishment,
          support and control of a statewide system of public schools
          free from sectarian control, a state university, public
          libraries and such other educational institutions as may be
          deemed desirable, including physical facilities therefor.
          There shall be no discrimination in public educational
          institutions because of race, religion, sex or ancestry;
          nor shall public funds be appropriated for the support or
          benefit of any sectarian or nonsectarian private
          educational institution, except that proceeds of special
          purpose revenue bonds authorized or issued under section 12
          of Article VII may be appropriated to finance or assist:

          1. Not-for-profit corporations that provide early
          childhood education and care facilities serving the general
          public; and

          2. Not-for-profit private nonsectarian and sectarian
          elementary schools, secondary schools, colleges and
          universities.




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           Funding of public education shall be determined by the
           legislature; provided that revenues derived from a
           surcharge on investment real property pursuant to section 3
           of article VIII shall be used to support public education.

Id. (proposed addition underlined).

           Lastly, the act set forth the ballot question to be

posed to the electorate for a vote on ratifying the proposed

amendment, as is required for enactment under Hawaii Revised

Statutes (HRS) § 11-118.5 (2011)6 and article XVII, section 3 of

the Hawai‘i Constitution.     See supra note 5.      The ballot question

stated 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?”           S.B. 2922,

S.D.1, H.D.1.

         C. The Circuit Court Action (Civ. No. 18-1-1326-08)

           On August 22, 2018, the City and County of Honolulu

filed suit in the Circuit Court for the First Circuit (circuit

court) against the State of Hawai‘i and various state election

officials in their official capacities.7         The action sought

     6
           HRS § 11-118.5 provides in full as follows:

           Any constitutional amendment proposed by the legislature
           shall include in final form the exact constitutional
           ratification question to be printed on a ballot. The
           constitutional ratification question shall be phrased in a
           manner to enable voters to express their choice on the
           constitutional amendment by providing a “yes” or “no”
           response. The language and meaning of a constitutional
           amendment shall be clear and it shall be neither misleading
           nor deceptive.
     7
           The Honorable Jeffrey P. Crabtree presided.




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declaratory and injunctive relief invalidating S.B. 2922 and

enjoining the ballot question from being placed on the November

6, 2018 election ballot.       In a second amended complaint filed

the following week, the Counties of Hawai‘i, Maui, and Kaua‘i

joined the City and County of Honolulu (collectively, the

Counties8) as additional plaintiffs.         Then, on August 31, 2018,

the Counties filed a Motion for Preliminary Injunction.9

            In support of their motion, the Counties argued in

their submissions that the S.B. 2922 ballot question was

misleading and deceptive in violation of HRS § 11-118.5.10             They

     8
            For purposes of clarity, this opinion uses the capitalized
“Counties” when referring to the specific litigants in this case and the
lower-case “counties” when generally referencing the state’s political
subdivisions.
     9
            Three days before, the Counties filed an ex parte motion to
shorten time on the forthcoming Motion for Preliminary Injunction. Although
the motion to shorten time is not included in the filings to this court, it
appears from the filings in the record that the Counties asserted that the
ballots would be submitted for printing on or about September 7, 2018, and
thus an expedited schedule would be necessary to prevent the ballot question
from being printed should the Counties prevail. With its response, the State
included a declaration by the Chief Election Officer. The declaration stated
that, while September 7 was the deadline to submit the ballots to the
printer, the logistics of compiling and translating over 240 different ballot
types in time to comply with procedural safeguards and laws relating to the
distribution of absentee ballots had already rendered it impracticable to
make substantive changes to the ballots. The Chief Election Officer stated
that, should the Counties prevail, he could instead be ordered to issue a
proclamation declaring that the ballot question should be considered stricken
and any votes for or against it would have no effect.
     10
            Before the circuit court, the Counties also argued that the title
under which the ballot question was to be printed was deceptive and
misleading. Thereafter, the Hawai‘i Chief Election Officer chose to remove
the title entirely, reasoning that it was not legally required. The Counties
did not challenge this decision.

            In addition to HRS § 11-118.5, the Counties’ motion relied on
Kahalekai v. Doi, in which this court indicated that the ratification

                                                           (continued . . .)


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argued that the ballot question’s use of the term “surcharge”

did not accurately reflect the substantive nature and effect of

the proposed amendment, which would be to alter a constitutional

provision entitled “Taxation and Finance” to grant a new

taxation power to the state legislature.          The ballot question

also did not indicate that the proposed amendment would

fundamentally change the allocation of authority between the

State and counties by making the counties’ authority over real

property taxation nonexclusive, the Counties continued.             The

Counties additionally argued that the phrase “investment real

property” was vague and overbroad in that virtually any purchase

of real property could be characterized as an investment.              And

the Counties contended that the phrase “as provided by law” was

misleading because voters may believe it indicated that the

proposed practice was already authorized under current law, and

in any event they would not know which law was being referred to

as a limitation on the legislature’s new taxing power.             Lastly,

the Counties argued that the phrase “to be used to support

public education” was likely to mislead voters to believe

funding for public education would necessarily increase if the

(. . . continued)

processes prescribed in article XVII of the Hawai‘i Constitution inherently
require that an amendment ballot question be sufficiently clear to allow “a
knowing and deliberate expression of voter choice.” 60 Haw. 324, 333, 590
P.2d 543, 550 (1979); see infra note 15.




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proposed amendment were enacted, which the amendment did not

actually require.11     A preliminary injunction was appropriate,

the Counties concluded, because they were likely to prevail on

the merits and the public interest weighed in favor of

protecting the integrity of the election.

           In its responsive arguments, the State contended that

every enactment of the legislature is presumptively valid and

the ballot question clearly reflected the nature and effect of

the proposed amendment.       “Surcharge” is a well understood term

that often appears in statutes, the State argued, and it was

properly used in the amendment and ballot question according to

its legal definition: “[a]n additional tax, charge, or cost.”

(Citing Surcharge, Black’s Law Dictionary (10th ed. 2014).)                 The

State further argued that the proposed amendment would not

fundamentally change the allocation of power between the State

and counties because it would not restrict the counties’ power

to tax real property; rather, it would simply authorize the

legislature to impose a charge in addition to any real property

tax imposed by the counties, which the ballot question

     11
            The Counties additionally argued before the circuit court that
the process by which the legislature adopted S.B. 2922 was improper, that the
amendment should be made only through a constitutional convention, and that
the amendment would intrude on the University of Hawai‘i’s and the Board of
Education’s autonomy by granting the legislature sole authority to determine
funding for public education, which the ballot question did not disclose.
These arguments are not raised before this court, and they therefore are not
further addressed.




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appropriately reflected.      Further, the State argued, the phrase

“as provided by law” simply indicated that the provision was not

self-executing and would require subsequent legislation to be

implemented.   And even if the question and amendment were

unclear, the State argued, a preliminary injunction would

nonetheless be inappropriate because the Counties could avail

themselves of judicial remedies to invalidate the ballot

question after the election if the measure were to pass, and

thus there was no risk of irreparable harm.          In contrast, the

State concluded, ordering a change to the ballot would risk

derailing the general election and would deprive the public of

its right to vote on the proposed amendment, and the public

interest therefore favored denial of the injunction.

          The State further clarified its position during a

September 7, 2018 hearing on the Counties’ Motion for

Preliminary Injunction.     During the hearing, the State

maintained that the surcharge contemplated by the proposed

amendment was not itself a tax on real property, but rather an

independent tax calculated based on the amount of real property

tax imposed by the counties.      The legislature is authorized to

enact such a fee pursuant to its general taxation power under




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article VII, section 1 of the Hawai‘i Constitution,12 the State

argued, and the term “surcharge” distinguishes this extra fee

from a direct tax on real property.         There was therefore a

“clear, rational basis” for using the word “surcharge” instead

of tax, the State concluded, making the choice of language

neither deceptive nor unclear.

             On September 20, 2018, the circuit court issued its

Findings of Fact, Conclusions of Law, and Order Denying

Plaintiff Counties’ Motion for Preliminary Injunction, Filed on

August 31, 2018 (Order Denying Injunction).           The court found

that the language of the proposed amendment was not deceptive,

noting that HRS § 11-118.5 does not require a constitutional

amendment to contain a detailed description of all of the issues

and possible effects associated with the change.            Although the

court acknowledged that the proposed language was not as clear

as it could have been, the court found that it was clear enough

to satisfy HRS § 11-118.5, reasoning that many of the most

important constitutional rights are phrased in general or vague

terms.     The court thus found that the Counties were not likely

to prevail on the merits and, in any event, allowing the public

to vote on the ballot question would not cause irreparable harm.

      12
            Article VII, section 1 of the Hawai‘i Constitution provides as
follows: “The power of taxation shall never be surrendered, suspended or
contracted away.”




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The court also found that, because the public has both an

interest in not allowing a deficient question to appear on the

ballot and an interest in voting on properly adopted non-

deficient ballot questions, the public interest on each side of

the question balanced evenly and did not “tip the scale in favor

of issuing the injunction.”

          The following day, the circuit court certified for

interlocutory appeal its Order Denying Injunction and issued a

stay of proceedings pending the issue’s final resolution.

                 D. Petition for Extraordinary Writ

          On September 26, 2018, the Counties filed with this

court a Petition for Extraordinary Writ Seeking Pre-Election

Relief.   The Counties explained that they intended to file a

“prompt notice of appeal” to challenge the circuit court’s Order

Denying Injunction, but given the standard rules and deadlines,

it would be virtually impossible to present the issue to this

court through the normal appellate process prior to the November

6, 2018 general election.      The Counties therefore contended that

an extraordinary writ was their only practical way to obtain

pre-election relief, which this court’s precedents establish is

strongly preferred in contrast to post-election challenges.

(Citing State ex rel. Bronster v. Yoshina, 84 Hawai‘i 179, 185,

932 P.2d 316, 322 (1997).)      They accordingly requested that this

court issue an order to the Chief Election Officer directing him


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to issue a public proclamation stating that the ballot question

should be considered stricken and that any votes for or against

the measure would not be counted and would have no impact.

            In addition to reiterating their arguments before the

circuit court regarding the ways in which the ballot question

was misleading, the Counties contended that the point of view of

the average voter should be the “touchstone” by which the ballot

question’s clarity and potential for deception should be

measured.    The average voter is much more likely to know what a

“tax” is than to know what a “surcharge” means, the Counties

argued, and it therefore should be impermissible to make no

reference to a tax in the ballot question--particularly when the

sole purpose of the amendment is to raise government revenue.

The Counties asserted that the use of the alternate term

“surcharge” was deceptive, suggesting that it was likely

motivated by a desire to circumvent the average voter’s

reluctance to approve new taxes.

            On October 4, 2018, this court directed the State

respondents to file an answer to the Counties’ petition.            In its

response, the State restated its arguments that the ballot

question and amendment were neither deceptive nor misleading.

The State also argued that the petition should be denied because

the Counties were improperly seeking a more favorable forum to

relitigate a matter that had been decided against them in the


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circuit court action.      The State further contended that, if

construed as a petition for a writ of mandamus directed at the

circuit court, the Counties’ petition was an attempt to

circumvent the required appellate procedures.           The circuit court

properly exercised its discretion in denying the preliminary

injunction, the State continued, and an extraordinary writ

should not be used to interfere with or control a trial court’s

decision-making even when the decision is erroneous.13

           This court heard oral argument on October 18, 2018,

and the following day we issued an order granting the Counties’

petition, declaring the ballot question invalid, and directing

the Chief Election Officer to issue a public proclamation

stating that no votes for or against the measure would be

counted or have any impact.       Our order deferred issuance of the

present opinion due to the time constraints.




     13
            The State also contended that two of the Respondents, Senate
President Ronald D. Kouchi and Speaker of the House Scott K. Saiki, were
improperly named in the petition because the Counties had failed to state a
claim for relief against them. The Counties argued in reply that the
legislators were properly joined in the action to allow them an opportunity
to be heard on the issue. During oral argument in this case, counsel for the
Counties indicated that they had no objection to the dismissal of the
legislators, who had chosen not to appear. Oral Argument at 00:08:45-
00:09:05, City & Cty. of Honolulu v. State of Hawai‘i (No. SCPW-18-733),
http://oaoa.hawaii.gov/jud/oa/18/SCOA_101818_SCPW_18_733.mp3. This court
issued an order dismissing the two legislative respondents on October 19,
2018.




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                             II. DISCUSSION

             A. The Propriety of an Extraordinary Writ

          The State urges that, notwithstanding any error on the

part of the circuit court, an extraordinary writ is

inappropriate under the circumstances.         This court has indeed

often stated that an extraordinary writ will not be issued when

alternative relief is available.         See, e.g., State ex rel.

Marsland v. Ames, 71 Haw. 304, 307, 788 P.2d 1281, 1283 (1990);

Sapienza v. Hayashi, 57 Haw. 289, 293, 554 P.2d 1131, 1135

(1976).   As such, an extraordinary writ is not a substitute for

an appeal, and it will not lie to control a trial court’s

discretion even when that discretion is exercised in error.

Honolulu Advertiser, Inc. v. Takao, 59 Haw. 237, 241, 580 P.2d

58, 62 (1978).

          Nevertheless, we have seen fit to depart from this

rule in “rare and exceptional situations” in which “the special

and exigent circumstances of the particular case” compel this

court to act.    Sapienza, 57 Haw. at 293, 554 P.2d at 1135.           In

Sapienza v. Hayashi, for instance, a trial court judge issued an

order disqualifying the entire City and County of Honolulu

Prosecutor’s Office from participating in a grand jury inquiry

because the City Prosecutor was a political appointee of the

Mayor who was accused of wrongdoing in the underlying matter.

57 Haw. at 291–92, 554 P.2d at 1133–34.         Upon being petitioned



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for extraordinary relief, this court held that the order was

overbroad.   Id. at 293, 554 P.2d at 1135.        Although the trial

court’s order was presumably subject to challenge through normal

appellate procedures, this court reasoned that “[t]o allow the

matter to rest until the appeals process has run its course

would forestall the expeditious presentation of legitimate

criminal charges to the grand jury by the prosecuting attorney.”

Id. at 294, 554 P.2d at 1135.        “Obviously, this would not be in

the public interest,” we stated, “and [it] would work upon the

public irreparable harm.”      Id.   This court thus held that

issuance of an extraordinary writ was appropriate.           Id. at 293,

554 P.2d at 1135; see also Gannett Pac. Corp. v. Richardson, 59

Haw. 224, 226-27, 580 P.2d 49, 53 (1978) (holding that news

media representatives were entitled to issuance of an

extraordinary writ in their challenge to a district court’s

closure to the public of a high profile preliminary hearing

notwithstanding the representatives’ failure to appeal a

previous denial of a petition for the same relief filed in

circuit court “because it appear[ed] to us only too clear that

the district courts [were] in immediate need of direction from

this court on a procedural and substantive matter of public

importance”).

          Even if the Counties had sought to expedite an appeal

of the circuit court’s order through normal channels, they could


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not have obtained final resolution of this matter before the

November 6 general election given the timeline established by

our court rules governing appellate procedure.          See Hawai‘i Rules

of Appellate Procedure (HRAP) Rule 28 (2016) (setting forth the

required timeline for briefing cases on appeal); HRAP Rule

11(b)(1) (2016) (providing the time limit for the assembly,

certification, and filing of the record on appeal).           Had the

normal appeal process been followed, this court would have had

the authority to grant post-election relief by invalidating the

results of a ballot question, and the Counties thus would not

have been entirely without alternative relief if the amendment

had been ratified during the pendency of this case.           See, e.g.,

Taomae v. Lingle, 108 Hawai‘i 245, 250, 118 P.3d 1188, 1193

(2005) (invalidating constitutional amendment following

ratification by the electorate because the State defendants

failed to follow constitutionally mandated procedural

requirements prior to the vote); Watland v. Lingle, 104 Hawai‘i

128, 132-33, 85 P.3d 1079, 1083-84 (2004) (same).

          However, our precedents make clear that pre-election

challenges are favored whenever feasible.         See State ex rel.

Bronster v. Yoshina, 84 Hawai‘i 179, 185, 932 P.2d 316, 322

(1997) (“[T]he better practice would have been to expedite legal

action prior to the election.” (citing Blair v. Cayetano, 73

Haw. 536, 836 P.2d 1066 (1992)).         The reasons for this


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preference for pre-election challenges are myriad.           Resolving

legal challenges to a ballot’s validity before an election

generally conserves public resources and discourages

gamesmanship by preventing litigants from “gambl[ing] on the

outcome of the election contest then challeng[ing] it when

dissatisfied with the results.”       Id.

          But more importantly, settling such challenges before

the votes are tallied protects the integrity of our most sacred

democratic institutions.      The right of the citizenry to shape

the way in which it is governed through free and fair elections

is “the foundation of our representative society.”           Hayes v.

Gill, 52 Haw. 251, 269, 473 P.2d 872, 883 (1970).           Just as

actual arbitrary or artificial restrictions on that right

undermine the true “legitimacy of representative government,”

id. (citing Kramer v. Union Free School District No. 15, 395

U.S. 621, 626 (1969)), the appearance that the right is being

denied undermines public perceptions of legitimacy on which our

system is equally dependent.      No matter how justified a court

may be in setting aside the results of a popular election, such

an action may be perceived as a subversion of the directly

expressed will of the people.       See Watland, 104 Hawai‘i at 143,

85 P.3d at 1094 (Acoba, J., concurring) (“Count first, and rule

upon legality afterwards, is not a recipe for producing election

results that have the public acceptance democratic stability


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requires.” (quoting Bush v. Gore, 531 U.S. 1046, 1047 (2000)

(Scalia, J., concurring))).      Invalidating an electoral result

thus threatens public confidence in both the efficacy of voting

and the independence of our justice system, and this risk of

irreparable harm is to be avoided if practicable.

          In light of the concerns inherent in the after-the-

fact invalidation of a democratically approved ballot measure,

we hold that it was in the public interest to resolve this case

prior to the November 6, 2018 general election, and we therefore

turn to the merits of the Counties’ petition for extraordinary

relief.

          B. The Proposed Amendment and Ballot Question

          Article XVII of the Hawai‘i Constitution sets forth two

alternative processes by which the constitution may be amended.

See Haw. Const. art. XVII, § 1.       Under the first, amendments can

be proposed through a constitutional convention called by a

majority vote of the electorate.         Haw. Const. art. XVII, § 2.

Under the second, the legislature may propose amendments through

either a two-thirds vote of each house or a simple majority vote

during two successive legislative sessions.          Haw. Const. art.

XVII, § 3.   In either case, proposed amendments must be

submitted to and ratified by the electorate before they are

formally incorporated into the Hawai‘i Constitution.           Haw. Const.

art. XVII, §§ 2-3.


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          This court considered the details of this ratification

requirement in Kahalekai v. Doi, 60 Haw. 324, 590 P.2d 543

(1979).   In Kahalekai, the plaintiffs argued that a series of

proposed constitutional amendments that had been approved by a

majority vote of the electorate were not validly ratified due to

the format of the ballot, which they contended made it

inherently more difficult for a voter to mark a “no” vote than a

“yes” vote.    60 Haw. at 331–32, 590 P.2d at 549.         In reviewing

the plaintiffs’ challenge, this court stated that it was nearly

impossible to eliminate all possible bias from the layout of a

ballot, as even basic formatting choices, such as listing

candidates in alphabetical order, could arguably favor some

contenders over others.     Id. at 332 n.4, 590 P.2d at 549 n.4.

Rather than imposing “an impractical standard of perfection,”

id., the court indicated that the constitution’s use of the term

“ratification” inherently implies the informed, purposeful

approval of the amendment by the electorate.          Id. at 333, 590

P.2d at 550.

          Thus, reasoned the Kahalekai court, the pivotal

inquiry is whether the ballot generates “a knowing and

deliberate expression of voter choice.”         Id.   The “broad

authority” to propose amendments for ratification, we

elaborated, “is subject to the limitation that the ballot must

enable the voters to express their choice on the amendments


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presented and be in such form and language as not to deceive or

mislead the public.”14      Id. at 338, 590 P.2d at 552–53.        The

court stated that this requirement can be met in part by the

provision of supplemental voter information regarding the

context and implications of a proposed amendment.            Id. at 339–

40, 590 P.2d at 553-54.       “[W]here information placed before the

electorate is neither deceptive nor misleading,” we held, “and

they are given sufficient time within which to familiarize

themselves with the contents and effect of the proposed

amendments, they will be deemed to have cast informed ballots.”

Id. at 339–40, 590 P.2d at 553.

           Kahalekai appears to have significantly informed the

Hawai‘i State Legislature’s 1996 enactment of various statutory

requirements related to the ratification of proposed

constitutional amendments.       See 1996 Haw. Sess. Laws Act 173, §§

1-3 at 391-93.     Notably, the Act closely tracked language in

Kahalekai in setting forth the rule that, when proposed by the

legislature, “[t] he language and meaning of a constitutional

     14
            Although Kahalekai appeared to rely on the “ratification”
language in what is now article XVII of the Hawai‘i Constitution, the court
also approvingly cited Kohler v. Tugwell, in which the federal district court
indicated a similar requirement inheres in notions of due process. See 292
F.Supp. 978, 981 (E.D. La. 1968) (“The procedure followed by Louisiana does
not deprive the plaintiffs of Due Process for it is sufficient that
Louisiana’s voters were informed by the ballot of the subject of the
amendment, were given a fair opportunity by publication to consider its full
text, and were not deceived by the ballot’s words.”), aff’d, 393 U.S. 531
(1969).




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amendment shall be clear and it shall be neither misleading nor

deceptive.”15    HRS § 11-118.5.

           Thus, proposed amendments and their corresponding

ballot questions are both constitutionally and statutorily

required to be phrased in clear language that is not likely to

deceive or mislead voters as to their nature and effect.16             We

     15
            It is noted that, by its plain text, HRS § 11-118.5 refers to
“the language and meaning of a constitutional amendment” rather than the
language and meaning of the corresponding ballot question submitted to the
voters for approval or rejection of the proposed constitutional amendment.
We nonetheless hold that, given the clear parallels between HRS § 11-118.5
and our holding in Kahalekai, the legislature intended the statute to
incorporate our precedent requiring that a ballot question be neither
misleading nor deceptive. The litigants appear to have presumed this
interpretation to be correct throughout the proceedings in this case, and no
party has argued that HRS § 11-118.5 is inapplicable to the S.B. 2922 ballot
question.

            Along with establishing HRS § 11-118.5, the 1996 Act also tasked
the Chief Election Officer with “coordinat[ing] the preparation of
appropriate voter education materials with the legislative reference bureau,”
including “[a] summary, factsheet, and digest of the proposed constitutional
amendment” that specified the amendment’s purpose, intent, and ramifications,
as well as arguments for and against ratification. See 1996 Haw. Sess. Laws
Act 173, §§ 2-3 at 392-93. This requirement was repealed in 2003, however,
see 2003 Haw. Sess. Laws Act 8, § 1 at 16, and the ballot question itself is
now the only statutorily required mechanism for providing voters with
sufficient information to express a knowing and deliberate choice regarding
ratification, as is constitutionally required. Kahalekai, 60 Haw. at 333,
590 P.2d at 550.
     16
            In considering the validity of amendments proposed by the
legislature, this court has stated that “every enactment of the legislature
is presumptively constitutional, and a party challenging the statute has the
burden of showing unconstitutionality beyond a reasonable doubt.” Blair v.
Cayetano, 73 Haw. 536, 542, 836 P.2d 1066, 1069 (1992) (quoting Schwab v.
Ariyoshi, 58 Haw. 25, 31, 564 P.2d 135, 139 (1977)). We note that proposed
amendments and their corresponding ballot questions are not statutes, and the
Counties’ challenge is based at least in part on statutory rather than
constitutional grounds. Nevertheless, article XV, section 3 of the Hawai‘i
Constitution specifically entrusts the legislature with the power to propose
amendments, and courts owe deference to their coequal branch of government in
its performance of constitutionally assigned functions. Thus, we will act to
invalidate a legislatively proposed amendment or ballot question only when it
is clearly incompatible with a statutory or constitutional mandate. See id.




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therefore consider whether this standard is met by the ballot

question: “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 making this

determination, we consider how the average lay voter would

interpret the ballot question.17        W. Petroleum Importers, Inc. v.

Friedt, 127 Wash.2d 420, 424, 899 P.2d 792, 794-95 (1995)

(quoting Estate of Turner v. Dep’t of Rev., 106 Wash.2d 649,

654, 724 P.2d 1013, 1015 (1986)).

 1. The Ballot Question Is Unclear and Inherently Misleading in
 That It Does Not Disclose the Nature of the Proposed Change to
                        the Constitution.

           It is fundamental that, to provide a voter “with

sufficient information to make an informed decision about the

true nature of the proposed constitutional amendment,” a ballot

question must “at least put [voters] on notice of the changes

being made” to the constitution.          In re Initiative Petition No.

409, 376 P.3d 250, 252, 254 (Okla. 2016) (addressing

requirements for the “statement of the gist of the proposition”

included in the header of an initiative petition proposing a

constitutional amendment); see also HRS § 11-118.5 (“The

language and meaning of a constitutional amendment shall be

     17
            Based on the declaration by the Chief Election Officer, the full
text of the amendment at issue in this case would have been available to
voters upon request.




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clear . . . .” (emphasis added)).        “When the major effect of a

proposed measure would be a substantive change in existing law,

the ballot [] should inform the reader of the scope of the

change.”   Rasmussen v. Kroger, 351 Or. 195, 198 (2011).

           In some instances, this necessary information will not

be self-evident.     For example, a proposal to establish a new

governmental power or limitation suggests by negative

implication that no such power or limitation exists under

current law.     Cf. Sprague v. Cortes, 636 Pa. 542, 564 (2016)

(opinion of Todd, J.) (“By omitting any indication that there is

a current mandatory retirement age in the Constitution, the

plain import of the unadorned ballot question language is that a

brand new provision requiring all judges of the Commonwealth to

retire at age 75 is being added.”        (emphases added)).       When this

implication creates an inaccurate or incomplete impression of

the law, the failure of the ballot to correct the misconception

will render it unclear, misleading, and deceptive.           As stated by

Justice Todd of the Pennsylvania Supreme Court,

    In everyday human interaction, in the arts and literature,
    as well as in legal documents, statutes, and constitutional
    provisions which govern our day-to-day affairs, there is a
    categorical difference between the act of creating
    something entirely new and altering something which already
    exists. Language which suggests the former while, in
    actuality, doing the latter is, at the very least,
    misleading, and, at its worst, constitutes a ruse.

Id. at 556–57.




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          A number of courts from other jurisdictions have drawn

such a distinction when considering the validity of ballot

measures aimed at amending existing law.         In Askew v. Firestone,

for example, the Supreme Court of Florida considered a

legislatively proposed change to a provision of the state

constitution that prohibited elected officials from lobbying for

two years after leaving office.       421 So.2d 151, 152-53 (Fla.

1982).   The proposal would have amended the provision to instead

permit such lobbying when the former public official first filed

a full public disclosure statement.        Id. at 153.     The

legislative description of the amendment to be placed on the

ballot would have informed voters that the amendment prohibited

“former legislators and statewide elected officers from

representing other persons or entities for compensation before

any state government body for a period of 2 years following

vacation of office, unless they file full and public disclosure

of their financial interests.”       Id.

          In holding the ballot description invalid, the Florida

Supreme Court observed that the “ballot summary neglect[ed] to

advise the public that there [was] presently a complete two-year

ban on lobbying before one’s agency.”        Id. at 155.     The Askew

court explained that, although the ballot accurately stated that

the amendment would “require the filing of financial disclosure

before anyone may appear before any agency for the two years


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after leaving office,” the description did not disclose the

“amendment’s chief effect,” which was “to abolish the present

two-year total prohibition.”      Id. (emphasis omitted).        The court

thus stated, “The problem . . . lies not with what the summary

says, but, rather, with what it does not say.”          Askew, 421 So.2d

at 156.

          The Florida Supreme Court held that the description

failed “to give fair notice” that it would establish “an

exception to a present prohibition.”        Id.   The ballot was

therefore “misleading to the public concerning material changes

to an existing constitutional provision,” the court concluded.

Id.; see also Wadhams v. Bd. of Cty. Comm'rs of Sarasota Cty.,

567 So.2d 414, 416 (Fla. 1990) (holding that a ballot that

informed voters solely of how the amended constitutional

provision would read if the amendment was approved was invalid

for failing to disclose the language or effect of the provision

prior to amendment); Lane v. Lukens, 48 Idaho 517 (1929)

(holding that a ballot question that asked whether the state

constitution should be amended such that the terms of office of

various officials “shall be limited to four years” was invalid

for failing to disclose that terms were already limited to two

years under then-existing law).

          Such is the case with the S.B. 2922 ballot question.

By asking the voter only whether “the legislature [shall] be


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authorized to establish, as provided by law, a surcharge on

investment real property to be used to support public

education,” the ballot question suggests surcharges on

investment real property are not authorized under current law.18

But this implication provides an inaccurate picture of the law

as it stands and the manner in which it would be altered by the

proposed amendment.

           Under article VIII, section 3 of the Hawai‘i

Constitution, the counties currently have the exclusive

authority to tax real property within the State of Hawai‘i.             As

stated, 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?”      The question contains no information from

which a voter could ascertain that the counties already have the

constitutional authority to impose the property tax at issue

and, consequently, that the “chief effect” of the amendment

would be to allow two different government entities to tax the

same property.     Askew, 421 So.2d at 155.       Thus, as in Askew, the

amendment does not give notice that it would establish “an

     18
            Alternatively, as discussed below, a voter could read the phrase
“as provided by law” to imply that specifically the state legislature is
already empowered to establish the surcharge at issue and therefore infer
that a vote in favor of the provision would preserve the status quo. See
infra section II.B.2.c.




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exception to a present prohibition,”--namely, the current

prohibition on the State taxing real property.          421 So.2d at

156; see also Kahalekai, 60 Haw. at 338 n.7, 590 P.2d at 553 n.7

(“[T]he ballot should contain a description of the proposition

submitted in such language as to constitute a fair portrayal of

the chief features of the proposition, in words of plain

meaning, so that it can be understood by persons entitled to

vote.”   (emphasis added) (quoting Wright v. Bd. of Trustees of

Tatum Indep. Sch. Dist., 520 S.W.2d 787, 792 (Tex. Civ. App.

1975))).

            Indeed, to fully appreciate the scope of the proposed

change, a voter would need to know that the Hawai‘i Constitution

provides independent taxing power to the counties; that the

constitution currently allows only the counties to tax real

property to the exclusion of all other government entities; and

that the proposed amendment would make an exception to this

exclusive authority of the counties by granting the State

concurrent authority to tax what is presumably a subset of real

property.    None of this information is conveyed by the ballot

question, which is instead likely to leave the average lay voter

with the false impression that a vote in favor of the amendment

would allow investment real property to be taxed in the first




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instance.19   The ballot question is thus “misleading to the

public concerning material changes to an existing constitutional

provision.”20    421 So.2d at 156.

           If the legislature believes that an exception should

be made to the constitutional prohibition placed upon the State

as to the imposition of property taxes in order to fund public

education, it is appropriate for the legislature “to ask the

citizens to modify that prohibition.            But such a change must

stand on its own merits . . . .”          Id.    The dearth of information

contained in the S.B. 2922 ballot question does not reveal the

true effect of the proposed amendment, and the average lay voter

may be duly misled as a result.        This alone would be sufficient

to hold that the ballot question is clearly incompatible with

     19
            The necessary context could have been concisely conveyed by
asking, for example: “Should the exclusive authority of the counties to tax
real property provided in the constitution be amended to also provide
authority to the State legislature to establish a surcharge on investment
real property?”
      20
            The State alternatively contended in the circuit court and during
oral argument that, because the fee contemplated by the proposed amendment
would be a surcharge on the property taxes collected by the counties rather
than an independent tax imposed directly upon real property, the State is
already constitutionally authorized to enact such a fee pursuant to its
general taxation power. Assuming arguendo that the State’s interpretation is
accurate, it would appear to render the proposed amendment superfluous as it
would grant no powers to the State that it does not currently have. Further,
it would make the language of the amendment, which states the surtax is to be
imposed on “real property” rather than on real property taxes, inaccurate.
And, the discussed implication of the ballot question--that the State is not
authorized to impose the discussed surcharge under current law--would also be
incorrect. Given the difficulties and inconsistencies that arise under the
State’s argued interpretation, we again can hardly say that the ballot
question is sufficient to inform the average voter of the scope of the
proposed change.




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the requirements of HRS § 11-118.5 and article XVII of the

Hawai‘i Constitution.    The deficiency is even more pronounced

when viewed in light of the multiple other incidental ways in

which the language of the ballot question is unclear or

confusing.

2. The Language and Effect of the Ballot Question is Potentially
              Confusing in a Number of Other Ways.

          There are a number of additional ways in which the

amendment and its corresponding ballot question, “Shall the

legislature be authorized to establish, as provided by law, a

surcharge on investment real property to be used to support

public education?” are likely to confuse or mislead the average

lay voter.   When these ambiguities and concerns of potential

misapprehension are considered together and in conjunction with

the ballot question’s failure to disclose the overarching nature

of the change it would enact, the problematic nature of the

ballot question is only magnified.

                             a. “Surcharge”

          Relying on Boyd v. Jordan, 35 P.2d 533 (Cal. 1934),

the Counties argue that it is misleading to ask voters to

authorize a new tax without ever using the term “tax.”            In Boyd,

a constitutional amendment was proposed by citizens’ initiative

that would have overhauled California’s tax system by, inter

alia, allowing the State to impose a tax on all gross receipts.




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Id. at 471-72.    In considering the validity of the initiative’s

short title, “Initiative Measure Providing for Adoption of Gross

Receipts Act,” the California Supreme Court noted that “[t]he

essential features . . . and the sole purpose of the proposed

measure, is to levy a tax to maintain the state and its

political subdivisions.”      Id. at 471-72.     Because “[t]he short

title used in this petition ma[de] no reference to a tax or to

the fact that the proposed amendment [was] a revenue measure,”

the court held that the title demonstrated neither the nature

nor subject of the petition, and it was therefore likely to

mislead the electors who were asked to sign the initiative.                Id.

at 472; see also Walton v. McDonald, 97 S.W.2d 81, 82 (Ark.

1936) (invalidating a ballot entitled “An Act to provide for the

assistance of aged and/or blind persons and funds therefor, the

administration and distribution of same, penalties for the

violation of Act, and for other purposes” for failing to

disclose that the measure would impose a series of taxes).

          In this case, the parties dispute whether the

amendment would in fact authorize the imposition of a tax on

real property.    The State argues that, because the additional

charge would be levied on the real property taxes imposed by the

counties, it was appropriate for the legislature to use the word

“surcharge”--a commonly used term meaning “[a]n additional tax,

charge, or cost.”    (Citing Surcharge, Black’s Law Dictionary


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(10th ed. 2014).)    But this is contrary to the plain text of the

amendment and ballot question, which ask voters to authorize the

legislature to establish “a surcharge on investment real

property”--not on real property taxes imposed by the counties.

If the amendment would indeed allow the State to impose an

independent tax on real property, it is apparent that the term

surcharge does not obviously convey this meaning.           See Boyd, 35

P.2d at 534.   If, instead, the amendment would authorize only a

dependent, supplemental charge added to an existing tax, the

ballot question fails to accurately state upon what basis the

surcharge will be calculated and levied.         In either event, the

language and effect of the amendment and ballot question cannot

be said to be clear in this regard as HRS § 11-118.5 requires.

                    b. “Investment Real Property”

          The Counties also challenge the legislature’s failure

to define the term “investment real property” in the ballot

question and amendment.     Pointing out that earlier versions of

S.B. 2922 specifically limited the provision to property “for

which the owner does not qualify for a homeowner’s [tax]

exemption,” the Counties contend that virtually any real

property can be considered a form of investment in the absence

of such a limitation.     (Citing S.B. 2922, 29th Leg., Reg. Sess.

(2018) and S.B. 2922, S.D.1, 29th Leg., Reg. Sess. (2018).)                The

amendment and ballot question is therefore misleading and


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deceptive, the Counties argue, in that it falsely conveys to

voters that the surcharge would be limited to a subset of real

property that does not include personal residences when in

reality the amendment would permit the legislature to tax all

real property.

            This court has specifically stated that “real estate

may be purchased with an intent to reside on the parcel of

property and, concurrently, with an intent to hold the property

in anticipation of an appreciation in the parcel’s resale

value.”    Cieri v. Leticia Query Realty, Inc., 80 Hawaii 54, 67,

905 P.2d 29, 42 (1995).       We accordingly held that “the plain and

obvious meaning of the term ‘personal investment’ includes real

estate or residences.”      Id.    It would thus appear that the plain

language of the amendment, considered in isolation, would allow

the legislature to tax virtually any real property.21            Indeed,

the State contended during oral argument that, if the amendment

were enacted, determining what real property qualified as an




      21
            In practice, this court interprets a constitutional provision in
harmony with other constitutional provisions and “in the light of the
circumstances under which it was adopted.” Hanabusa v. Lingle, 105 Hawai‘i
28, 32, 93 P.3d 670, 674 (2004) (quoting Blair v. Harris, 98 Hawai‘i 176, 179,
45 P.3d 798, 801 (2002)).




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investment subject to the surcharge would fall within the

discretion of the legislature.22

           Yet this is not the impression conveyed by the

amendment’s and ballot question’s use of the term “investment

real property.”     If the amendment was meant to grant the

legislature the unrestrained discretion to tax any real

property, it could have achieved this effect without employing

the word “investment.”      By qualifying the “real property” that

the surcharge would apply to with the term “investment,” the

amendment and ballot question suggest that the legislature would

be empowered to impose the surcharge on only some real property-

-namely, non-owner-occupied real estate acquired solely to

generate revenue for the property owner.          To the extent this

implication is inaccurate, the ballot question is unclear and

misleading.

                         c. “As Provided By Law”

           The Counties further argue that the ballot question’s

and amendment’s use of the phrase “as provided by law” is

deceptive and misleading in that the average lay voter is likely

to believe the legislature is already authorized under current

law to impose the contemplated surcharge.          The State responds

     22
            Oral Argument at 00:34:27-00:34:34, City & Cty. of Honolulu v.
State of Hawai‘i (No. SCPW-18-733),
http://oaoa.hawaii.gov/jud/oa/18/SCOA_101818_SCPW_18_733.mp3.




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that the phrase merely indicates that the provision is not self-

executing and would require implementing legislation once

enacted.

            The expression “as provided by law” appears throughout

the Hawai‘i Constitution, and this court has in the past

recognized that the construction is inherently ambiguous.              In

some instances, “a reference to a right being exercised ‘as

provided by law’ may reflect an intent that implementing

legislation is anticipated.”      Cty. of Hawai‘i v. Ala Loop

Homeowners, 123 Hawai‘i 391, 412, 235 P.3d 1103, 1124 (2010).               In

State v. Rodrigues, for example, this court considered article

I, section 11, which provides that “[w]henever a grand jury is

impaneled, there shall be an independent counsel appointed as

provided by law” whose term and compensation are “as provided by

law.”   63 Haw. 412, 414, 629 P.2d 1111, 1113 (1981).           Upon

review, we held that the framers had used the phrase “as

provided by law” to indicate “further legislation was required

to implement the amendment.”      Id. at 416, 629 P.2d at 1114.

            In other contexts, however, the use of “as provided by

law” in a constitutional provision may be “simply referring to

an existing body of statutory and other law on a particular

subject.”   Ala Loop Homeowners, 123 Hawai‘i at 412, 235 P.3d at

1124.   In United Public Workers, AFSCME, Local 646, AFL-CIO v.

Yogi, for instance, this court held that, in guaranteeing the


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right of public employees “to organize for the purpose of

collective bargaining as provided by law,” the provision now

codified as article XIII, section 2 was intended to incorporate

the body of “pre-existing federal and state statutes,

constitutional provisions, and court cases which give meaning to

the term ‘collective bargaining.’” 101 Hawai‘i 46, 51, 62 P.3d

189, 194 (2002).

          To determine in which sense the phrase was intended,

this court considers the history of the provision in addition to

its plain language.     Ala Loop Homeowners, 123 Hawai‘i at 412–13,

235 P.3d at 1124–25.     The average lay voter, however, does not

have the benefit of reviewing the legislature’s or framers’

committee reports while in the voting booth and must rely on the

language of the amendment and ballot question to determine the

words’ intended meaning.

          In general, the phrase “as provided by law” follows

the portion of the constitutional provision that is defined by

some other sources of law.      When article I, section 11 specifies

that “[w]henever a grand jury is impaneled, there shall be an

independent counsel appointed as provided by law,” for instance,

it is the appointment process of the independent counsel that is

implemented through legislation.         Similarly, in article XIII,

section 2’s guarantee of the right to “collective bargaining as




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provided by law,” it is the collective bargaining that is

defined through the body of relevant statutes and case law.23

           Thus, based on the natural reading of the question

“Shall the legislature be authorized to establish, as provided

by law, a surcharge on investment real property to be used to

support public education?” it is not the surcharge on investment

real property that is defined by some other source of law, but

rather the legislature’s authorization to establish such a

surcharge.    In other words, the placement of the phrase within

the ballot question may lead the average lay voter to believe

that the legislature is already authorized by some other source

of law to impose the surcharge at issue and that a vote in favor

of the amendment maintains the status quo.24          Given this likely

confusion, the Counties are correct that the language of the

amendment and ballot question is unclear and misleading in this

respect.
     23
            See also, e.g., Haw. Const. art. IX, § 3 (empowering the State to
provide social services to “persons who are found to be in need of and are
eligible for such assistance and services as provided by law”); Haw. Const.
art. XVI, § 3.5 (calling for “a commission on salaries as provided by law”).
     24
             This misconception is further reinforced because the concept of
implementing legislation is already embodied in the ballot question’s
reference to “the legislature” “establish[ing]” the contemplated surcharge.
In other words, had the ballot question simply read, “Shall the legislature
be authorized to establish a surcharge on investment real property to be used
to support public education?” it would have wholly conveyed that the
amendment would allow the legislature to enact subsequent legislation
imposing the surcharge in question. The phrase “as provided by law” is
redundant in achieving this result, and the average lay voter may assign
other significance to its inclusion in order to make the clause non-
superfluous.




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                   d. “To Support Public Education”

           Lastly, the Counties contend that the ballot

question’s reference to “support[ing] public education” is

likely to mislead the average lay voter into believing state

spending on public education will necessarily increase if the

amendment is enacted, when in actuality the amendment does not

require a net increase in education spending.           The State

responds that the funds raised through the surcharge would be

required to be used to fund public education, as the ballot

question indicates.      But, as the Counties aptly argue,

“[m]oney,” including the legislature’s budgetary expenditures,

“is fungible.”     Holder v. Humanitarian Law Project, 561 U.S. 1,

31 (2010).    An increase in funding from one source, including

the proposed surcharge, can be offset by a decrease from other

sources.     Indeed, the State acknowledged during oral argument

that, should the amendment be enacted, nothing would prevent the

legislature from funding public education entirely through

revenues raised through the surcharge while repurposing all

other funds.25

           An entreaty “to support public education” is “an

appeal to all humane instincts,” and a voter would not be

     25
            Oral Argument at 00:45:54, City & Cty. of Honolulu v. State of
Hawai‘i (No. SCPW-18-733),
http://oaoa.hawaii.gov/jud/oa/18/SCOA_101818_SCPW_18_733.mp3.




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unreasonable in assuming that such a measure would in fact

result in an increase in funding for public education.             Walton,

97 S.W.2d at 82.     Yet by its plain text, the ballot question and

amendment make no such guarantee, and no explanatory materials

were provided that would dispel this misconception.

            The legislature in its wisdom enacted HRS § 11-118.5

to ensure that the language of a proposed amendment and ballot

question clearly conveys the amendment’s meaning when feasible.

When it becomes apparent, however, that practical textual

constraints in stating the ballot question may prevent it from

being set forth with the specificity or clarity necessary to

prevent the average voter from forming an incorrect impression,

the legislature should consider whether complementary materials

may aid in clarifying the decision voters are to be tasked with

making.26




     26
            This court has in the past noted that supplemental materials
similar to those that the Chief Election Officer was formerly tasked with
preparing are an effective method of informing the electorate of the details
of proposed amendments. See supra note 15; Kahalekai, 60 Haw. at 340 n.9,
590 P.2d at 554 n.9 (“We think the ‘Con-Con Summary’ was an excellent method
of informing the voter of the proposed amendments. The Convention, however,
could have devoted more space than it did to a comparative analysis of the
substantive effect of the proposed amendments.”). However, when the ballot
question fails to appropriately disclose the scope and effect of the proposed
change, even providing supplemental voter materials will not serve to cure
the deficiency as may be possible in instances where optimum specificity or
clarity is not present. See supra section II.B.1.




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                            III. CONCLUSION

          The Hawai‘i Constitution vests “broad authority” in the

legislature to propose amendments to its provisions to be

ratified by the electorate.      Kahalekai v. Doi, 60 Haw. 324, 338,

590 P.2d 543, 552-53 (1979).      “But such a change must stand on

its own merits” and “cannot fly under false colors.”            Askew v.

Firestone, 421 So.2d 151, 156 (Fla. 1982).         As the legislature

recognized in enacting HRS § 11-118.5, the provisions of our

constitution are of such foundational importance that the utmost

care must be taken to apprise citizens of the effect of their

vote on a proposed constitutional amendment.          When the language

or effect of a proposed amendment or its corresponding ballot

question is unclear, misleading, or deceptive, the ballot is not

capable of generating the “knowing and deliberate expression of

voter choice” necessary for ratification.         Kahalekai, 60 Haw. at

333, 590 P.2d at 550.     The ballot question in the present case

is flawed in not presenting the information necessary to produce

such a choice, and this court thus invalidated the ballot

question in accordance to our law.

Donna Y.L. Leong                         /s/ Mark E. Recktenwald
Robert M. Kohn
Nicolette Winter                         /s/ Paula A. Nakayama
for petitioner
City and County of Honolulu              /s/ Sabrina S. McKenna

Brian A. Bilberry                        /s/ Richard W. Pollack
for petitioner
County of Maui                           /s/ Michael D. Wilson


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Laureen L. Martin
for petitioner
County of Hawai‘i

Matthew M. Bracken
For petitioner
County of Kaua‘i

Russell A. Suzuki
Valri Lei Kunimoto
Patricia Ohara
for respondent

Thomas Yamachika
for amicus curiae
Tax Foundation of Hawai‘i




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