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Home My WebLink AboutCOM 1056.009 2006-2008 TESTIMONY ON ORDINANCE TO INITIATE A CHARTER AMENDMENT TO ARTICLE XI OF THE HAWAI'l COUNTY CHARTER (2000), RELATING TO INITIATIVE AND REFERENDUM, BILL 257 March 25, 2008 T0: Hawai'i County Council From: Marian Wilkins, Member, I & R Study Committee REFERENCES AND REASONS FOR PROPOSED CHANGES TO CHARTER AMENDMENT XI, INITIATIVE AND REFERENDUM During this and past studies on initiative and referendum done by the League of Women Voters, we have found that there are many ways to write legislation for initiative and referendums. We found that there is no perfect solution to all problems in any of the legislation we have read so we have selected what we thought was workable for Hawai'i County. THE SEARCH FOR DISPUTE RESOLUTION Perhaps the most important problem to be solved is who or what body resolves disputes, especially when it comes to the wording of the ballot title, the ballot question and the ballot summary. The same problem was faced by every state or jurisdiction that allows initiative and/or referendums. That problem is how to designate an impartial entity to resolve disputes. It may be impossible to be sure that someone is unbiased when making decisions but the attempt must be made. We had a rather unique problem in trying to designate such a person or entity in Hawai'i County. Since our county has no court system, we could not rely on a county judge or court to resolve conflicts as they can in states such as Oregon. There, the county mandates who does what and how many days it can take, etc. Since judges are elected in most jurisdictions there is less possibility of conflict of interest. Some areas choose a committee to write the language. Others have the elected district attorney write it, and so on. We only have one other county elected official who could possibly fill this role and that is the Prosecuting Attorney. After talking to our P.A., Jay Kimura, we determined that the duties outlined for that office did not seem to fit with vetting ballot issues, although, it could be done. Gomm. No. Ref. Ta ~r Ref. Date 5 008 We then looked into what alternatives we might have. At first we thought that an arbitration panel would work but after many people told us that arbitration had. a specific legal meaning, we were forced to abandon that idea. Then, after talking to Dr. John Barkai, a professor of dispute resolution at the Richardson School of Law, it sounded as if mediation would be the solution. We also spoke to people at the Mediation Center here and were very enthused to hear that they thought it would work. But then, for reasons that still remain unclear, we were persuaded not to use professional mediators. We have had difficulty in learning exactly why all these methods were judged unworkable. We seemed to have exhausted all the other possibilities so our solution was to have a completely volunteer "dispute resolution panel". The original four would always be "volunteer" because two would represent the petitioners' committee and two would represent the Clerk and the fifth would be a neutral volunteer chosen by the first four. The reason that we feel so strongly that there should be some arbiter is because, as it now stands, there is no mechanism in the proposed charter revision or in the original charter to resolve any problems that may arise. This is a very important issue, especially when it comes to ballot language. IMPORTANCE OF DISPUTE RESOLUTION In my view, one of the most important changes now proposed is to write the ballot title, ballot question and ballot summary before the petition is circulated. This is done to avoid hurried, last minute disagreements and decisions just before the ballot deadline, as has happened in the past. This language must be objective because it will be used on the petition forms and for information as the petition drive continues. It will also be used in any publicly sponsored publication and it will be used on the ballot. It is the League's opinion that neither the county nor the petitioners should have what amounts to veto power over this language. Therefore we propose that disputes be resolved by mandating the clerk and petitioners' committee to meet and work toward an agreement. We have chosen to call those who make up this body the Dispute Resolution Panel. This Panel would be required to work out problems within a certain time frame. While many problems are simple and may be resolved with a couple 2 of e-mails, having this alternative would ensure that both parties must put their heads together in an honest search for a resolution acceptable to both sides. TIME LINE In the League's version of the revised charter, we had included a suggested time line for the clerk to give to a petitioners' committee so that both parties are informed of the maximum number of days allotted to complete each step of the process in order to meet the ballot deadline for the next general election. This information will make sure that both parties know exactly what to do and when to complete each step. If a step is completed before the allotted time it will have no effect on how many days are left to complete remaining steps. (See Attachment) VOTER INFORMATION The Elections Office of the State of Hawai'i gives the clerks of the county the authority to issue voter information to the public. Since neither the state nor county publishes a voter information pamphlet, we have included a requirement for the clerk to have published information on the measure in two island newspapers for two consecutive Sundays. This will include an argument for the measure written by the petitioners' committee and an argument against the measure written by a committee of five residents. SIGNATURE REQUIREMENTS We have proposed lowering signature requirements to be more in line with other jurisdictions. For instance, Honolulu requires 10% compared to our 15%. Oregon counties require 6% for an initiative and 4% for a referendum. As our population grows more signatures will be required, so the difficulty in collecting signatures will increase. In order to keep county initiative and referendum usable by grass roots groups, we recommend the lower figure. REQUIREMENTS TO QUALIFY SIGNATURES Hawai'i County has a rather unique problem in meeting the present requirements for signature verification. As we have discussed, many people do not know their residence address. We have proposed allowing a mailing address to be used as well as a residence address. One reason a residence address is not really necessary is, if a measure qualifies for the ballot it will be voted on island- wide, unlike voting for a candidate which requires different ballots in different districts and precincts. Another reason for not having such strict rules is that, unlike voting or registering to vote, signing a petition is only expressing an opinion that a 3 measure should be voted on. If an unqualified person signs a petition in error, or even deliberately, that person cannot vote on it. Another problem that was encountered was that many people do not remember exactly how they signed their name when registering to vote. (I was one of them.) When people go to the polls their name is there to look at. When signing a petition, a person is usually not at a place where they can check their signature. This problem is so prevalent that Kauai now instructs that only last names used to find signatures because there are too many people using nicknames. The state of Oregon requires only a first initial and last name as a signature for signing petitions-not even an address or other information, although, for identification purposes people are encouraged to fill in the other information. With the new technology available to elections officials, it is much easier to verify signatures. If is not yet available to Hawai'i County, it surely will be soon. OTHER CHANGES One of the goals of our committee was to not only clarify initiative and referendum procedures for the participants but also to make sure there were safeguards for the public. Additional language will be required on the petition to inform potential signers whether or not any petition circulators are to be paid. Since the U.S. Supreme Court has ruled that petition circulators may be paid, the above notice has been included in many localities. Also the restriction that collectors be paid by the hour instead of by the signature has been added. This is required in Oregon and has not been ruled against by the courts. The clerk is also to inform the petitioners' committee of the rules of the Hawai'i Campaign Spending Law so records are kept for reporting if the measure qualifies for the ballot. 4 LEAGUE OF WOMEN VOTERS OF HAWAII COUNTY TIME LINE FOR INITIATIVE AND REFERENDUM PROCESS REVISION OF ARTICLE XI, HAWAII COUNTY CHARTER FEBRUARY 8, 2008 START PETITIONERS FORM COMMITTEE AND INFORM CLERK. THE CLERK THEN ADVISES COMMITTEE OF THE DATE BY WHICH ALL STEPS MUST BE COMPLETED BY COMMITTEE IN ORDER TO QUALIFY THE PROPOSED INITIATIVE OR REFERENDUM MEASURE FOR THE NEXT GENERAL ELECTION. THEN 10 DAYS:* COMMITTEE AND CLERK FORM DISPUTE RESOLUTION PANEL. 10 DAYS: CLERK INFORMS COMMITTEE OF ACCEPTANCE OF OR. ALTERNATIVE LANGUAGE TO CONSIDER 10 DAYS: COMMITTEE ACCEPTS OR CONFERS WITH CLERK TO REACH AGREEMENT ON REQUIRED INFORMATION. (15 DAYS: IF NO AGREEMENT IS REACHED, COMMITTEE MAY NOTIFY CLERK THAT IT WANTS TO APPEAL TO THE DISPUTE RESOLUTION PANEL.)* 5 DAYS: WHEN ALL ABOVE IS COMPLETED, CLERK GIVES TO THE COUNCIL AND COMMITTEE THE INFORMATION REQUIRED BY THE CHARTER. NEXT COMNIITTEE O RCULATES PETITION-NO TIME IBM 30 DAYS: SIGNED PETITIONS ARE SUBMITTED TO CLERK FOR SIGNATURE VERIFICATION AND FOR CERTIFICATION OF SUFFICIENCY OR INSUFFICIENCY. DURING THIS TIME COMMITTEE MAY CONTINUE TO GATHER SIGNATURES. 20 DAYS: IF FOUND INSUFFICENT, COMMITTEE MAY SUBMIT ADDITIONAL 5 SIGNATURES UP TO 20 DAYS AFTER THE NOTICE OF INSUFFICIENCY WAS RECEIVED. 15 DAYS: CLERK TO COMPLETE VERIFICATION OF ADDITIONAL SIGNATURES; ISSUES SECOND CERTIFICATE OF SUFFICIENCY OR INSUFFICIENCY. CLERK SENDS INFORMATION TO COUNCIL FOR ACTION. 60 DAYS: COUNCIL TAKES ACTION ON A QUALIFYING INITIATIVE. OR 30 DAYS: COUNCIL TAKES ACTION ON A QUALIFYING REFERENDUM. 5 DAYS: IF NO ACTION IS TAKEN BY COUNCIL, OR IT ADOPTS AN. AMENDED VERSION THAT IS NOT APPROVED BY THE COM- MITTEE, THE CLERK SHALL SUBMIT THE ORIGINAL VERSION TO THE VOTERS. 21+DAYS: CLERK PUBLISHES BALLOT QUESTION, TITLE, SUMMARY, PROS AND CONS IN NEWSPAPERS FOR THREE SUNDAYS BEFORE THE ELECTION IN WHICH THE MEASURE IS TO BE VOTED ON. ADDITIONAL STEPS EARLY SEPTEMBER: FOR A QUALIFYING MEASURE, THE CLERK SUBMITS BALLOT TITLE, BALLOT SUMMARY AND BALLOT QUESTION TO THE STATE ELECTIONS OFFICE TO BE INCLUDED ON THE BALLOT FOR THE NEXT GENERAL ELECTION. ELECTION: GENERAL ELECTION-FIRST TUESDAY IN NOVEMBER AFTER THE MEASURE PASSES AND THE ELECTION IS CERTIFIED, THE MEASURE SHALL BECOME LAW. • Days refer to working days. Add 15 days any time Dispute Panel Resolution is used. 6 PROPOSED CHARTER REVISION REFERENCES Black's Law Dictionary-Black's Law Dictionary by Henry Campbell Black, M.A., Fourth Edition, West Publishing Co., St. Paul, MI, 1951 California Secretary of State, Election and Voter Information, Initiative Guide 2006 Charter Commission Transcripts and Minutes: www.hawaii- caun~ cam/council/chartercommisioi~Icharter.hhn Citizen Lawmaking In-depth; Initiative and Referendum Institute; Edited by Dane Waters, Citizen Lawmaker Press, Washington, D.C. Constitution of the State of Hawai'i, Article VIlI, Local Government County Charters of Hawaii, Kauai, Maui and Honolulu County Initiative and Referendum Manual, 2006; Elections Division, 141 State Capitol, Salem OR, 97310-0722 Fact Sheet, Initiative & Referendum Petition, County of Kauai, Elections Division, Office of the County Clerk Initiative and Referendum Revisited, 2003, League of Women Voter of Hawai'i, 47 South Hotel St., Honolulu, HI 96813 State of Hawaii Elections Office, Campaign Spending Requirements, HRS 11-191, 194 (e), and 196.5 (a) (7) 2005-2006, Oregon Election Laws, Secretary of State, Bill Bradbury, Elections Division, 141 State Capitol, Salem OR 97310-0722 Mahalo to: Chad Kadota, Office of Elections; Honolulu, Roy Hiraga, Clerk, and Jeffrey Kuwada, Office of Elections, Maui County; Lyndon Yoshioka, Clerk, Kauai County; Casey Jarman, Clerk and Pat Nakamoto Director of Elections, Hawaii County; Professor John Barkai and the Hawaii County Council. 7