Gov. Neil Abercrombie has challenged state lawmakers not to use legal guidance from his Attorney General’s office as reason to vote against the governor’s proposals to impose a pension tax or end Medicare Part B reimbursements for public worker retirees.

In a note to lawmakers on Tuesday, the governor describes AG letters that warned of likely legal attacks over a pension tax and Medicare Part B as “common place observations that those bills like virtually any bill passed by the Legislature will be subject to legal challenge whether or not such a challenge is well-founded.”

Abercrombie also claims that the AG never said the bills would result in an attack on grounds that they violate the state or federal constitutions. The governor also claims the AG never raised legal doubts or concerns about the bills.

However, in the March 18 letter from Hugh Jones, supervising deputy attorney general, to state Sen. Clayton Hee, Jones wrote that the pension tax “could be the potential subject of a legal challenge on the grounds that they may violate article XVI, section 2, of the Hawaii Constitution, or may impair the Contracts Clause of the U.S. Constitution.”

In the Feb. 15 letter from Attorney General David Louie to Hee on Medicare Part B, Louie wrote: “We advise that if S.B. No. 1268 is enacted in its present form, it will likely be the subject of a court challenge, with an uncertain outcome.”

Jones and Louie both conclusively advised lawmakers that the state would prevail if it imposed the pension tax and ended Medicare Part B payments prospectively on public workers.

While neither Jones nor Louie advised lawmakers to use their legal guidance as a reason to vote against the bills, many lawmakers took the letters more seriously than the “common place observations” that Abercrombie suggests.

Abercrombie contends that the AG’s central premise can be found in Article VII, Section 1, of the state constitution, which holds that the power of taxation shall never be surrendered, suspended or contracted away. The governor told lawmakers that “none of us can escape the responsibility for voting `yea’ or `nay’ by pointing to the Attorney General or anyone else.”

From the governor’s note:

Referencing third parties may be useful to avoid direct responsibility for decisions, but it is not what we need today. In particular, when that party is the Attorney General, it is essential that his views on legal authority not be selectively appropriated to suit the purpose of the legislative moment.

The Attorney General does not have a political agenda on raising revenue nor does he proffer opinions, views or analysis in support of one. He has never said including pension income for tax purposes or ending reimbursement for Medicare Part B payments will result in an attack on these proposals on the grounds that they “violate” either state or federal constitutions. He has never “raised legal questions or doubts” about either of these bills.

He has made common place observations that those bills like virtually any bill “passed by the Legislature will be subject to legal challenge whether or not such a challenge is well-founded.” He has said that if either or both pass, they will be presumed to be constitutional, and if challenged, defended as such. To suggest that any legislator vote against these bills because the Attorney General said so is a false premise.

AG David Louie – HB1092-1