HAWSCT Removes Property Tax ... Oops, "Surcharge on Investment Real Property" - Measure From The Ballot

by Robert Thomas, InverseCondemnation, October 19, 2018

What, you may ask, does the challenge by Hawaii's counties to the proposed constitutional amendment which was on the ballot (until just a few minutes ago) have to do with the usual topics of this blog?

Not a whole lot (although we do cover property tax and election law issues occasionally), but as always, there's a takings hook. Read to the end. 

The ballot measure proposed to amend the Hawaii Constitution's property tax provision (article VIII) which currently delegates to the counties the exclusive power to levy property taxes. The measure, proposed by the legislature read:

Shall the legislature be authorized to establish, as provided by law, a surcharge on investment real property to be used to support public education? 

The counties, offended that the State would horn in on their property tax monopoly, challenged the ballot question as misleading. This would be a dilution of the counties' property taxation power, not merely authority for a "surcharge" whatever that might be. And what does "investment property" mean? 

Oral arguments held earlier this week, order removing the question from the ballot issued today. 

Two thoughts:

• First, when the Attorney General responds to a question from a justice that if the ballot was unclear, then the voter should vote "no" on the measure, it's game over, man, game over. As the Star-Advertiser wrote: "Associate Justice Paula Nakayama asked if she bought a home for her daughter to live in, whether that would be considered investment property. Suzuki said that it would be left up to the Legislature to define that term. 'So how is a person supposed to vote on this?' asked Nakayama. 'How do I know as a voter that that’s not going to be taxed?' 'Then I think you should probably vote ‘no,’' Suzuki responded, surprising some in the courtroom and prompting laughter." Listen here to that exchange. They say it's hard to win a case in oral argument, but easy to lose it. This proves the maxim. 

• Second, we're not completely on board with some members of the court who professed to not understand what "investment property" means. After all, this is the same court that just a few months ago unanimously concluded that a Maui property owner who was denied all use of his land by conflicting County regulations and could not build his home on a parcel zoned "residential," did not suffer a taking because he retained "investment use," which the court defined as a property having some present value because the owner may have hope that in the future, the County might change its regulations to allow development. The court seemed to have no problem at all in that case understanding what "investment real property" looked like. (There's your takings hook, folks.) What is "investment property," in the court's view? It's all investment property, man. 

This case was a fight between two wolves over what's for dinner. The lambs (the voters and taxpayers) didn't have much of a say as usual, and portions of the arguments revealed what these folks think about the intelligence of the average Hawaii voter: 

"The average voter would not even know what a surcharge is. Some voters don’t even know what real property is,” Honolulu Corporation Counsel Donna Leong told the court.

Seriously? How many people don't know what "real property" is? 

The court merely issued an order today, and we'll have more understanding of the rationale when it issues its full opinion.