Error stymies
rail tax’s future

The bill's status leaves some
city leaders questioning a vote

A bill to allow the counties to raise taxes for transportation projects might already be law despite Gov. Linda Lingle's threat to veto the measure, some legislators say.

Lingle filed a formal notice of her plan to veto the measure on Monday, the last day she could signal her intent on the bill. But since Lingle's notice included the wrong bill number, some state legislators say they doubt that her veto message is valid.

City Hall leaders say the legal confusion over the bill could stymie their move to enact the increase in the general excise tax.

Senate Transportation Committee Chairwoman Lorraine Inouye said she thinks the tax bill is law.

"I really believe they did a terrible mistake and it is flawed. I have a feeling it is already law," Inouye (D, Hilo-Honokaa) said.

House Bill 1309 would allow the counties to raise the general excise tax to 4.5 percent from 4 percent to pay for transit projects. Many Honolulu leaders are anxious to raise the tax to pay for a mass transit system.

Lingle objected to the bill because the taxes would be collected by the state and sent to the counties, and she prefers that the counties collect the tax.

But the governor's proclamation that she intends to veto HB 1309, and four other bills, listed incorrect bill numbers. The veto message is required by the state Constitution.

Legislators are now trying to figure out if the veto proclamation is valid. If not, the deadline to notify the Legislature which bills she intends to veto has passed, and the tax bill would be law whether or not Lingle signs it.

The confusion is leading some at City Hall to question whether to move ahead with plans to raise the excise tax.

City Council Budget Chairwoman Ann Kobayashi said if the governor vetoes HB 1309, the Council should not continue to vote on its measure to levy the tax increase even if the legality of the governor's veto remains in limbo.

"Once there's a veto we shouldn't take action," Kobayashi said "It makes it really questionable whether we can take action if there is this cloud."

Kobayashi said that before the Council takes a second vote on its measure, Bill 40, on Wednesday, she would like city attorneys' advice on whether they should continue.

Council Transportation Chairman Nestor Garcia said he wants the Council to vote on Bill 40 next week as he keeps his eye on how the Legislature and the governor work to resolve the veto-message issue.

"I hope it will be decided on the merits. It's too important an issue to be decided on a technicality," Garcia said.

Mayor Mufi Hannemann also said there is nothing to stop the Council vote next week. He said the public needs to know where the city stands, and he does not want a "technical flaw" to derail that.

"I want to be really clear: If this thing fails, it's not because of the City and County of Honolulu, like what happened last time," Hannemann said, referring to the 1992 City Council vote against a tax increase that lost more than $600 million in federal funding. "It's very different this time. We are going forward."

At the state Capitol, Senate President Robert Bunda said Lingle's veto is "on shaky ground."

"It is something we are very concerned about," said Bunda (D, Kaena-Wahiawa-Pupukea).

House Speaker Calvin Say also said he was worried about the mistake.

"This is the first time I have seen a situation like this in my 30 years as a legislator. It raises serious concerns not only about the status of the affected bills, but on the precedents set and the integrity of the process," Say (D, St. Louis Heights-Wilhelmina Rise) said.

Other lawmakers, including Senate Vice President Donna Kim, criticized Lingle.

"A mistake on a veto message is nothing to sneeze at. It is their responsibility to assure that the messages are accurate.

"I think they messed up, and I don't understand how they could do that on something as important as a veto message," Kim (D, Kalihi Valley-Halawa) said.

On a morning radio broadcast yesterday, Lingle called the typo "your worst nightmare."

Lingle insisted that the vetoes would be valid and said that state Attorney General Mark Bennett assured her "there is no problem."

On advice from Bennett, Lingle issued a supplemental proclamation on Tuesday to correct the mistakes.

"It is very clear which bills we were intending to put on the potential veto list," Lingle said. "It was simply a typographical error."

But even her state Senate ally, GOP leader Sen. Fred Hemmings, said the mistake might not stand court scrutiny.

"I believe the typos are a mistake, and the Democrats are going to challenge them, saying the vetoes are defective," Hemmings (R, Lanikai-Waimanalo) said. "Looking at it legally, it would be a difficult case to win."

Rep. Lynn Finnegan, GOP House leader, said the mistake should not stop Lingle from carrying out a veto. "I definitely think it is correctable. I think a veto would be valid, and they won't hold a veto against the Governor's Office," Finnegan (R, Mapunapuna-Foster Village) said.