Posted on: Friday, August 23, 2002

Constitutional showdown hinges on punctuation

By Bruce Dunford
Associated Press

A constitutional showdown between Gov. Ben Cayetano and Senate Vice President Colleen Hanabusa over Cayetano's veto of 13 bills is headed to court next month.

A small punctuation mark should decide the case, according to the senator.

Hanabusa on Wednesday filed a motion for a summary judgment that all 13 bills became law on July 9 because Cayetano missed the deadline to notify the Legislature he was rejecting them.

Among them are a $75 million dollar tax credit for an aquarium at Ko Olina in West O'ahu, a 4 percent tax credit for commercial construction, rent relief for airport concessionaires and campaign finance reform.

A hearing on the matter has been scheduled for Sept. 16 before Circuit Judge Virginia Crandall.

Attorney General Earl Anzai filed a motion yesterday to dismiss Hanabusa's complaint, arguing that she lacks standing because she has no personal stake and suffers no personal injury in the outcome of the controversy.

Anzai also noted that since 1978, three Hawai'i governors have consistently waited until the 35th day after legislative adjournment to give notice of an intention to veto bills.

Hanabusa "would have the court declare that long-standing practice unconstitutional, contrary to accepted rules of construction that are followed by courts throughout the country, and contrary to the intention of the framers," he said.

Hanabusa's complaint said the governor failed to give the Legislature the 10 "days' notice," meaning 10 full 24-hour days, of his intention to veto the measures as required by the state Constitution.

Her main argument hinges on the use of an apostrophe at the end of the word "days" in the constitutional provision setting forth the procedure for a governor to reject (veto) legislative measures.

"A careful review of the Constitution shows that the drafters in referencing 'days',' as it applies to notice, used a possessive form," she said. "It is accepted grammar that the use of an apostrophe is a possessive form. As a possessive form, a phrase such as 10 days' notice can be read to be 'notice of ten days' or '10 days of notice."'

The state Supreme Court in a 1997 decision supported the same conclusion that when the drafters of the Constitution used a possessive form such as days', they did so intentionally, she said.

Hanabusa points to an August 2000 special legislative session when Anzai advised lawmakers they had failed to give the governor the required 10 days' notice before approving a proposed constitutional amendment. It prompted a two-day extension of the session.

The same 10 days' notice definition should apply to the governor's veto messages, she said.

Hanabusa also argues that Cayetano violated the Constitution by handing the 13 bills over to the Legislature on June 24 along with his notice of his intent to reject them.

The Constitution says the bills are to be handed over to the Legislature on the 45th day after the session ends, which was July 9, also the day the Legislature would have to have convened a special session to consider an override of the vetoed bills.