The Hawaii Supreme Court has broken a “Catch-22” dilemma that has prevented the state Elections Commission from holding monthly meetings since its last one in June.
In a unanimous decision Friday, the court ruled that a single commissioner can direct the state Office of Elections to set up a meeting
for the nine-member
commission, which relies on the office for meeting support.
The office contended that only the commission’s chair or at least five members could prompt the holding of a meeting. But divisions between commission members contributed to not being able to have a majority seek a meeting or replace their chair before the chair’s term expired June 30.
“When the Commission has no chairperson and no way to set a meeting, a single member may ask the Office for the staff support a meeting requires,” the court said in its opinion.
The decision came four days before Hawaii’s general election Tuesday, and was seen as an urgent matter because the commission’s duties include investigating alleged election violations and complaints as well as evaluating the performance of state Chief Elections Officer Scott Nago within two months of the general election.
The commission, which hasn’t met since the Aug. 8 primary election, also has
a backlog of election
complaints.
In their ruling, the justices noted that their decision might not completely un-snag the commission’s meeting problem. That’s because at least five of the eight sitting members must be willing to attend a meeting for it to be held.
“If the five will not meet, the trouble lies elsewhere,” read the court’s opinion
authored by Associate Justice Todd Eddins and joined by acting Chief Justice Sabrina McKenna, Associate Justice Lisa Ginoza and a pair of substitute justices from the Circuit Court bench, Peter Cahill and Dyan Medeiros.
Eight members of the commission are appointed by the Legislature — half by Democratic leadership and half by Republican leadership. The eight in turn pick the ninth member, who also serves as chair, by a super-majority minimum of at least six votes. A temporary chair can also be selected from among the eight by at least five votes.
Two commissioners appointed by Republican lawmakers, Tamara McKay and Ralph Cushnie, petitioned the court to intervene in the dispute with the office led by Nago.
McKay, a former chair of the Hawaii Republican Party, told the justices that she asked the Office of Elections nine times between July and September to schedule a meeting for the commission but was denied twice and ignored seven times.
Cushnie, the other petitioner, asked, “What happens if five members don’t ask for a meeting? Will we never meet again?”
Individual commissioners were unable to communicate among themselves and collectively ask the office for a meeting to be arranged because some are unwilling to share their contact information with others. Instead, the office relays information about meetings individually to members.
The court justices faulted the office for its stance.
“The members cannot notice a meeting on their own,” the ruling said. “The Office holds the (contact) list and assists only on a chairperson’s request or a Commission vote. A
chair-less commission that has not met is locked out of both — no chair to ask, no meeting for the vote. The meeting needs the Office, and the Office waits for the meeting. A catch-22.”
The ruling continued, “When the chair seat is empty and the schedule stalls, a single member’s request to convene is a request by the Commission. The Office must provide the support. Second-guessing the member oversteps its role.”
The court based its decision in part on the commission’s very first meeting more than 20 years ago, when only eight appointed members were in place.
“The Office staffed that first meeting before any majority had asked, and none could have, with the Commission yet to meet,” the justices said in their decision.
The court also clarified an issue of disagreement between some commissioners as to whether a vacant chair seat can be filled by the chief justice. The court said it can’t, and explained that this power is only to fill any of the eight appointed positions if not filled by a lawmaker within 15 days.
Another piece of guidance the court gave to the commission is that an initial meeting without a chair is organizational for electing a temporary chair.
“The (meeting) notice must say so,” the ruling said. “Once filed, the agenda may not be enlarged except by a two-thirds recorded vote and not at all to add an item of reasonably major importance affecting a significant number of people. Future agendas come from the chair or commission vote.”
