An investigative panel of the Democratic Party of Hawaii has recommended that state Sen. Mike Gabbard be reprimanded and Rep. Sharon Har be censured for introducing a constitutional amendment last session on traditional marriage.
The panel determined that Gabbard and Har were acting contrary to the party’s platform on equal rights by introducing the bills, which would ask voters whether marriage should be reserved for heterosexual couples. The panel recommended that complaints filed against nine other lawmakers who had co-sponsored the bills be dismissed.
Oahu Democrats are expected to discuss the recommendations Aug. 10.
The complaints were filed in February by Michael Golojuch Jr., chairman of the party’s gay, lesbian, bisexual and transgender caucus. The lawmakers have asserted legislative immunity because they contend they were acting within their official legislative duties. The lawmakers also claim that Democrats do not have to follow every plank in the party’s platform.
The three-member investigative panel assigned to review the complaints agreed that lawmakers have legislative immunity for official actions and that Democrats do not have to show unequivocal support for the platform.
But the panel concluded that the party, as a voluntary membership organization, has a First Amendment right of free association to enforce its membership requirements. The panel said the party applies an "egregiousness test" to determine on a case-by-case basis what behavior contrary to the platform warrants sanction.
"The issue in this complaint is not about the right of a legislator to introduce bills, or the immunity they have from certain legal judgments," the panel found. "The complaint here is only that they have violated the membership requirements of the DPH to the extent that sanctions may be applied to them that affect their membership in the organization."
The panel recommended the more serious sanction of reprimand for Gabbard because it considers the proposed constitutional amendment the senator’s "second offense." Gabbard was censured by the party in 2009 for violating the platform on equal rights by actively working against a civil-unions bill.
"Most people would agree that in a free and open, vibrant democratic society, lawmakers should be able to act on their conscience and be true to the wishes of their constituents," Gabbard (D, Kapolei-Makakilo) said in an email. "It’s unfortunate that a few people are attempting to hijack our ‘big tent’ party and will stop at nothing to silence those who don’t agree with them."
Har (D, Kapolei-Makakilo) described the complaints as a "personal vendetta" by Golojuch, a constituent of Har’s and Gabbard’s whose family has been critical of the lawmakers in the past. She said the party’s constitution and bylaws should not trump the broad immunity legislators have under the state Constitution.
"Moving the complaint forward sets a dangerous precedent for the DPH in that it now allows any member of the DPH to file a complaint against a legislator in furtherance of a personal vendetta in the name of the party and the platform," Har said in an email. "This is not what the Democratic Party stands for, which is what makes the complaint so offensive. At the end of the day, the bills were not heard by either body so to continue pursuing the complaint and sanctions is obviously personal."
The investigative panel recommended the dismissal of complaints against Senate President Donna Mercado Kim, House Vice Speaker John Mizuno and Reps. Henry Aquino, Karen Awana, Ty Cullen, Ken Ito, Calvin Say, K. Mark Takai and Clift Tsuji. A separate complaint against Tsuji before Hawaii County Democrats is pending.
The lawmakers had co-sponsored the traditional-marriage bills, which failed to get hearings but are alive for next session. The panel said that co-sponsoring bills is a strong indication that the lawmakers support the legislation, but was not as egregious as being the prime introducers.
Several Democrats have been working behind the scenes to try to get the complaints withdrawn. Sources have said that the complaints have complicated the discussion about whether to hold a special session on gay marriage in response to the U.S. Supreme Court rulings in June that legally married gay couples are entitled to federal benefits. Same-sex and heterosexual couples in Hawaii are able to enter into civil unions and receive the same rights as marriage under state law but not federal law.
Some of the lawmakers named in the complaints have said they are now undecided on gay marriage. Ideally, some leading Democrats say privately, the complaints would be withdrawn prior to the Aug. 10 hearing before Oahu Democrats, sparing the lawmakers — and the party — from the public spectacle of an intraparty fight.
If Oahu Democrats do move forward with the complaints, Gabbard and Har have the option of appealing any sanction to the party’s state central committee.
