Tuesday, July 16, 2019
Hawai'i Free Press

Current Articles | Archives

Sunday, October 28, 2018
Take-Aways from the “Con-Am” Argument
By Tom Yamachika @ 5:00 AM :: 1253 Views :: Taxes

Take-Aways from the “Con-Am” Argument

by Tom Yamachika, President, Tax Foundation Hawaii

On October 18, 2018, the Supreme Court of Hawaii held oral argument on a petition by the four counties to invalidate the “Con-Am,” namely the constitutional amendment ballot measure that would allow the State to slap a “surcharge,” essentially an additional property tax, on “investment” real property. We now know that the Court invalidated the ballot measure with an opinion to follow, like what was recently done in Arizona. We present here some highlights from the oral argument.

On the Counties’ side, Honolulu Corporation Counsel Donna Leong seemed to run into stormy seas early when she argued that the new taxing power potentially applied to even residential property, because everyone who buys a home here hopes that its value will go up and can then be sold at a higher price somewhere further down the pike. Justice Wilson pointed out that if all property could be considered investment property, then why does the new taxation power apply to “investment” real property instead of “all” real property? But then Justice McKenna jumped in with a bombshell: a prior Hawaii Supreme Court case, Cieri v. Leticia Query Realty, 80 Haw. 54 (1995), said, “[R]eal estate is, particularly in Hawai`i, both scarce and expensive. As a result, the purchase of real estate or a residence likely is the largest ‘investment’ a person in Hawai`i may make in a lifetime.” That case held that a buyer of real estate could sue the seller and the seller’s realtor under Hawaii’s consumer fraud laws because the buyer had committed money in a “personal investment.”

When Attorney General Russell Suzuki came up to the podium, he started by saying that the Hawaii Supreme Court didn’t have jurisdiction and should essentially get out of the Legislature’s way…which is probably not something you should be telling the Court right out of the gate. After fierce questioning that followed, he was forced to concede that the Legislature might be able to surcharge primary residences if the Con-Am passed, leading to:

JUSTICE NAKAYAMA: Let me ask you this, suppose I had the money to buy a house for my daughter, for her to live in. That’s why I’m buying this house. Is that included as investment property?

ATTORNEY GENERAL SUZUKI: I think it’s to be defined by the Legislature.

JUSTICE NAKAYAMA: So how is a person supposed to vote on this? If I’m not buying this house in order, I think Ms. Leong mentioned, in order for property to increase as an investment, but I’m actually buying it for somebody to live in and not rent out. How do I know as a voter that that’s not going to be taxed?

ATTORNEY GENERAL SUZUKI: Then I think you should probably vote “no.”

Laughter broke out across the whole audience.

Justice McKenna then pushed Suzuki to concede that nothing in the measure would guarantee that the surcharge would result in a net increase in money for education. “Couldn’t these amounts actually be used to substitute for general fund funding, and the legislature is actually not required to increase public education funding, correct?” McKenna said.

“The appropriation powers are with the Legislature so that is correct, but the intent here is to fund public education,” Suzuki said.

We can’t expect the Hawaii Supreme Court to void any confusing or sneakily worded ballot measure like this one all the time. So we as voters need to make the effort to really understand what we are voting on when we are staring at a question on the ballot. We would do well to remember the opening sentence of our state constitution: “All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people.”



TEXT "follow HawaiiFreePress" to 40404

Register to Vote


808 Silent Majority

808 State Update AM940


ACA Signups Hawaii


Affordable Hawaii Coalition


Alliance Defending Freedom

Aloha Conservative Alliance

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii



Antonio Gramsci Reading List

A Place for Women in Waipio

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

Conservative Forum for Hawaii

CSIS Pacific Forum

DAR Hawaii


DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii


Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute


Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Families for Educational Choice

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling



Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube


Hump Day Report

I Vote Hawaii

If Hawaii News

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

Judgepedia Hawaii

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes


Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group


Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii



National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii


OHA Lies

Opt Out Today


Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii



Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Salvage The Rail

Save the Plastic Bag

School Choice in Hawaii


SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu


West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii