Sunday, June 05, 2011


Why would a state legislature pass likely illegal laws?

by Larry Geller

Looking through some of the bills that made it out of Hawaii’s state legislature made me wonder, “whose side are they on, anyway??”

Hawaii’s legislature has passed many progressive, positive bills over the years, but there are also the usual bad eggs. The governor has a chance to veto those, but still, some get through.

How come?

Well, there are no consequences for passing illegal laws. When they get challenged and defeated in court, the lege simply passes a new bill to pay the legal fees, which can be considerable. They end up responsible for paying not only the state’s own costs, which can include private big gun attorneys, but the state has to pay the plaintiffs’ attorneys fees as well.

Do those expenses come out of legislator’s salaries? Of course not. They stick us taxpayers with all the legal fees.  That’s right, we are made to pay for it, and it may be that there is little we can do about it. The Superferry comes to mind as a great example. Bypassing the law with new legislation ended up costing us taxpayers not only legal fees but everything the Lingle administration pumped into supporting that private business.

In these hard times, surely we have better use for this money.

Below are three bills. Two are very likely to cost the state legal fees as well as setting back the education of special ed kids until settled. The third I’ve mentioned before. It appears to be based on a misunderstanding of federal law, but will cost public workers and those with private insurance plans big bucks when they find that health insurers in Hawaii can deny their treatment and they can no longer appeal to the Insurance Commissioner.

The state’s ongoing war against special education

The first two bills, SB1284 and SB1503, represent the DOE’s latest move against special ed students. If signed into law by the governor, it appears from testimony given to the legislature by competent attorneys that the laws will run up against not only the IDEA (Individuals with Disabilities Education Act) but recent decisions by the 9th Circuit Court of Appeals, which includes Hawaii.

Special ed law is hard to understand, but in the video below, if you fast-forward to the 43 second point, attorney Keith Peck quickly summarizes what’s wrong with the new laws and asserts “It violates the supremacy clause of the Constitution. But we don’t have to worry about the  new law. That law will be stopped.”

When the DOE loses an impartial hearing or court case, sometimes a student must be placed in a private school willing and able to provide the education the DOE did not. The DOE must pay for that education. They are paying for their own failure. Of course, it is really we taxpayers who pay for the DOE failure, but it’s the same situation—the legislature simply passes appropriations to pay for the obligations of the state.

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Skip ahead if you’ve read enough, but I include this for completeness:

From testimony in opposition to these bills:

Recently, the 9th Circuit issued a decision on March 28 that held that a school district cannot withhold tuition for a unilateral private placement following a denial of FAPE because the school doesn’t meet state standards. By accepting IDEA funds, the DOE agreed to provide FAPE and must follow a hearings officer decision.

FAPE is “Free Appropriate Public Education” and means that the state must provide the services that special needs students need to minimally benefit from their education.

From testimony by the Hawaii Disability Rights Center:

Limiting private placements to schools approved by the DOE or to schools approved by private accreditation agencies sanctioned by the DOE would conflict with federal law and, thus, be preempted.

Since parents whose children are already placed in private schools by hearing orders or court orders already have attorneys, it is likely that if the DOE attempts to terminate any student’s private education, the state would swiftly be hauled before a federal judge.

Special interests push through bill that promise big bucks for health insurers

The third bill is SB1274. This one will cost legislators (and other state workers) individually should their health insurance deny a medication or treatment that they or their family may need. They’ll have to pay for it themselves. If they can’t, it may cost someone their life. No kidding. I’ve written about this bill in a couple of articles.

Many of us fought long and hard to put laws in place in Hawaii that provide health insurance, limit insurance rates, and protect patients. It would be sad to see these protections weakened by a supposedly progressive governor.

It was reported by some in the room when this bill passed its final hearing that there were cheers from the health insurance lobbyists, a charge that they denied. Dunno, I wasn’t there. I could understand it, though, if there were celebrations. Their investment in campaign contributions to committee chairs paid off this session.

No doubt there were other likely illegal laws passed. It’s not unusual here or in other states. Nor can the Legislature count on an attorney general opinion when an administration bill is involved. Lingle’s AG, if I remember correctly, authored the Superferry bill, and a deputy AG argued for it and lost in court.

We can do better. Hawaii is not Alabama. Although there may be similarities… our state’s continuing war against those in need of special education, those who are homeless, and those with mental health needs can be considered to be a kind of bigotry. We should end it.

This work is licensed under a Creative Commons license.


There are a number of ways bad or unconstitutional laws make their way through the legislature. The legislature many times must rely on the administration for guidance as to the constitutionality of a law, and as we know politics sometimes trumps the State Attorney Generals office. Sometimes the legislators just don't know any better and at other times they are forced by obligation to vote with their caucus. Of course the favorite way bad laws are passed is when political contributions are involved.

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