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Thursday, April 20, 2017
Punish Judiciary? House Censors Legislator
By Rep Gene Ward @ 3:07 AM :: 872 Views :: First Amendment, Hawaii State Government, Judiciary

“WARD ASKS ATTORNEY GENERAL FOR RULING ON 1ST AMENDMENT CURTAILMENT IN HOUSE FLOOR DEBATE OVER JUDGE'S RETIREMENT BILL"

“Member asked to recant use of the word 'punish' in speech."

News Release from Rep Gene Ward, R-Hawaii Kai April 19, 2017

Representative Gene Ward (R-Hawaii Kai – Kalama Valley) today sent Hawaii's Attorney General Doug Chin a letter asking for a first Amendment ruling regarding the potential misuse of censorship on the House Floor on April 11, 2017.  (See attached letter to Attorney General Chin.)

The incident occurred when a member of the House was speaking against SB 249 SD 1 HD1 which would reduce the retirement benefits of judges by a substantial amount, and the person speaking on the House Floor said,“The Legislature should not use its legislative powers to try to punish the Judiciary” at which point the member was forced to strike the word "punish" from the speech.

"There is no question this bill purposely targets and discriminates against judges and reduces their pensions.  The bill is very unpopular in both houses in the legislature, and I think censorship was used by the Majority Leader to save face for a very bad piece of legislation," Ward said.

The word "punished" was forced to be struck from the official record of the Hawaii House of Representatives and is being challenged by Ward who is the Minority Floor Leader and oversees the floor debate of its members.

"The House Floor is the market place of ideas and censorship of speech has no place as its currency.  I fully appreciate your office providing clarity and guidance in resolving this potential overreach of the rules of the legislature." Ward concluded in his letter to AG Chin.

SB249: Text, Status

April 11, 2017: SB501: AG Slaps Senators for Censoring Testimony opposing Anti-Free-Speech Bill

  *   *   *   *   *  

April 19, 2017
Attorney General Doug Chin
Department of the Attorney General

RULING SOUGHT ON CURTAILMENT OF 1ST AMENDMENT SPEECH ON FLOOR OF HAWAII HOUSE OF REPRESENTATIVES

Dear Attorney General Chin,
I’m writing you today about a First Amendment/Freedom of Speech issue that occurred on the Floor of the Hawaii House or Representatives on Monday, April 11, 2017. Please let me explain.

A member of the House was speaking against SB 249 SD 1 HD1 which would reduce the retirement benefits of judges by a substantial amount, and the person speaking on the House Floor said, “The Legislature should not use its legislative powers to try to punish the Judiciary.”

After the member finished saying this and completed the floor speech, a recess was called by the Majority Leader who proceeded to say that the remark about "punishing the Judiciary" should be struck from the record, citing Rule 27.7 as the rationale for such an action.

According to the Rules of the House of Representatives, Part V. Order; Decorum, Rule 27.7 on page 27.7, "It is not the person but the measure that is the subject of debate, and it is not allowable to arraign the motives of a member, but the nature of consequences of a measure may be condemned in strong terms."

Unless there is first amendment right exception in the U.S.'s or State of Hawaii's constitution, (or Roberts or Masons Rules of Order) that overrides our House Rule 27.7, the member was clearly obeying the State of Hawaii House Rules by not suggesting the name or office of any person, or imputing any motive to anyone, and should have never been forced to recant the choice of words while condemning a poor public policy.

What is relevant in Rule 27.7 is the latter part that states, "but the nature of consequences of a measure may be condemned in strong terms." This is exactly what was being stated by the fact that the Judicial Branch of government was going to be seriously impacted by SB 249 SD 1 HD 1 if it passed.

I am therefore asking you as the Attorney General, and the ultimate arbiter of the law in Hawaii, to answer the following questions:

1. Was House Rule 27.7 appropriately utilized by the Majority Leader in causing a member's remark to be struck from the House Journal effectuating curtailment of freedom of speech regarding SB 249 SD 1 HD 1?

2. Does the U.S. Constitution or the Hawaii State Constitution, or Roberts or Masons Rules of Order forbid or allow for comments in a House Floor debate such as: “The Legislature should not use its legislative powers to try to punish the Judiciary.”

3. If censorship was practiced by the Majority Leader in this instance and backed by the Speaker of the House, what are some preventative measures, e.g. legal citations that will protect freedom of speech on the House Floor in the future, so incidences such as this do not happen again when supposed "offensive remarks" (aka remarks that are not politically popular) are brought to a standstill and forced to be recanted while hiding behind House Rule 27.7?

This query is premised on my standing and authority as the duly elected House Minority Floor Leader, whose responsibility it is to oversee and the manage floor debate of its members. Due to the serious nature of this incident, I am also copying the Majority's legal counsel, LRB Attorneys, as well as the Chief Justice of the Supreme Court.

The House Floor is the market place of ideas and censorship of speech has no place as its currency. I fully appreciate your office providing clarity and guidance in resolving this potential overreach of the rules of the legislature. 
Mahalo,
Representative Gene Ward
Minority Floor Leader
House District 17 – Hawai’i Kai, Ka Iwi Coast, Kalama Valley

Cc:

House Majority Attorney

House Minority Attorney

Legislative Reference Bureau Attorney

Administrative Director of the Judiciary

Hawaii Supreme Court Chief Justice

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