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Thursday, November 4, 2021
"Gut and Replace" Held Unconstitutional  
By News Release @ 9:38 PM :: 2537 Views :: Ethics, Hawaii State Government

Hawaii watchdog groups rejoice as court strikes down ‘gut and replace’

The Hawaii Supreme Court ruling will help restore public faith in the legislative process, says the Grassroot Institute of Hawaii

News Release from Grassroot Institute of Hawaii, November 4, 2021

The Grassroot Institute of Hawaii today commended the Hawaii Supreme Court for putting an end to the state Legislature’s questionable “gut and replace” tactics.

In League of Women Voters v. Hawaii, the state’s highest court ruled that the Legislature’s practice of removing language of a bill that has already passed multiple readings and replacing it with new and unrelated content violates Article III, Section 15 of the Hawaii Constitution.

The state Constitution states that, “No bill shall become law unless it shall pass three readings in each house on separate days.”

In a 3-2 decision, the court determined that those readings must start again if “non-germane” amendments change the purpose of the bill to the extent that it bears no relation to the bill that was introduced.

At issue in the case was Act 84, a bill passed during the 2018 legislative session. When introduced in — and approved by — the Hawaii Senate, the bill was about reporting requirements for individuals released from prison.

The Hawaii House of Representatives removed that language and replaced it with requirements regarding hurricane shelter space. After passing the House, the bill was signed into law as a hurricane shelter bill, but it had never received any additional readings in the Senate.

The majority of the court agreed with the plaintiffs and amicus curiae Grassroot Institute of Hawaii in stating that “gut and replace” frustrates the intent of the Hawaii Constitution’s three readings requirement.

The court introduced a “germaneness” standard in determining when the constitutional requirement would be satisfied, but specified that the new rule applies only to this case and not retroactively.

Grassroot Institute President and CEO Keli’i Akina praised the court for putting an end to a practice that undermines government transparency and accountability.

“Today’s decision is a great step forward in restoring public trust in the Legislature,” he said. “Practices like ‘gut and replace’ smack of backroom deals and smoke-filled rooms. For years, ‘gut and replace’ has frustrated the will of the people and prevented the public from full participation in the democratic process. Now, we can finally bid ‘aloha’ to an underhanded tactic.”

Akina explained that the Grassroot Institute submitted an amicus curiae brief in support of the plaintiffs, and commended Common Cause, the League of Women Voters of Honolulu and the Civil Beat Law Center for the Public Interest for their efforts to stop “gut and replace.”

“Government watchdog groups like Common Cause, League of Women Voters, Civil Beat Law Center and the Grassroot Institute of Hawaii may have their differences,” he said. “But we are united in defending the principles of democracy and demanding transparent government.”

He continued: “In the institute’s amicus brief, we discussed the low levels of voter participation in Hawaii, a reflection of the low levels of trust in our elected officials. People lose faith in government when legislators can use procedural tricks to evade constitutional requirements. By ending ‘gut and replace,’ the Hawaii Supreme Court has helped ensure that the Legislature remains accountable to the people.”

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"Gut and Replace" Held Unconstitutional  

News Release from Tax Foundation of Hawaii, November 4, 2021

Nov. 4, 2021 — The Hawaii Supreme Court, in a 3-2 decision, dealt a serious blow to the Legislature’s “gut and replace” tactic.  It held that a bill that started off as a bill to require annual reporting of recidivism statistics by the State, but then morphed into a bill regarding hurricane shelter space in State buildings, was unconstitutional because it, in its hurricane shelter space incarnation, did not receive the required number of readings in the Senate.  The State and the Legislature thought that the bill was justifiable because both versions of the bill related to the bill’s title, “A Bill for an Act Relating to Public Safety.”

The court recognized it was stating a new rule and limited its decision to the case before it and future cases only.

The Tax Foundation of Hawaii had submitted an amicus curiae brief noting that most of the winners of appellants’ “Rusty Scalpel Award” in the past were tax bills.

Here are links to the opinion and the dissent.



HONOLULU—Today, House Minority Leader Val Okimoto (R-36 Mililani Mauka, Mililani, Waipiʻo Acres) issued the following statement regarding the Hawai’i State Supreme Court’s decision to end the controversial legislative practice of gut-and-replace:

“Today’s decision by the Hawai’i State Supreme Court is a monumental win for government transparency and the people of Hawai’i. I am thrilled that the public will have a more open and democratic process as the 2022 Legislative Session approaches.”


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