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Thursday, November 11, 2021
Hawaii Supreme Court Guts-And-Replaces The Legislature's "Gut-And-Replace" Switcheroo
By Robert Thomas @ 8:01 PM :: 2284 Views :: Ethics, Hawaii State Government

Hawaii Supreme Court Guts-And-Replaces The Legislature's "Gut-And-Replace" Switcheroo

by Robert Thomas, InverseCondemnation, November 11, 2021

Here's one that has been on our radar for a while (we filed our amicus brief nearly two years ago). So long ago that it was the final case that remained on our docket from our time in private practice. It's not even about takings (but we're posting it anyway as one of those "barista's privilege" things). This one involves the constitutional requirements for the Hawaii Legislature to adopt a new statute.

The Hawaii Constitution requires that before becoming law, a bill must pass three readings in each house on separate days. Seems pretty straightforward, no? Draft up a bill, read it in the House and in the Senate three times each, and make sure those readings are not on the same day. The reasons for the requirement seem pretty obvious. As our brief put it, a well-functioning republic presumes that those tasked with vigilance -- the public -- have the opportunity to understand the substance of what those whom we elect to represent us are actually doing. We the People need to know.

But the Hawaii Legislature didn't quite see it this way. For the longest time, legislators routinely read one version of a bill, only at the last minute to wholesale replace the guts of the bill and then adopt it as law. A process that earned the label "gut and replace." A legislative sleight-of-hand that totally changes the substance of what was being proposed and adopted. Oh, the title of the bill remains the same from start to finish, but the actual substance of the proposed statute can go from being about apples to being about oranges.

When members of the public objected, pointing out that these last-minute changes deprived us of the chance to, you know, actually see and understand what was in these bills before they became law, the lege shrugged its shoulders and responded that this was purely a matter of internal legislative procedure and convenience (so mind you own darn business, public), and because the titles of bills were never switched, the bills technically did go through the constitutionally-required number of readings. Form matters, not substance.

This is Hawaii, where the standing requirements in our courts are ... how shall we say this? ... not as "stringent" as those, say, in a federal courtroom. None of that Article III stuff here! So two civic organizations sued to invalidate a statute that was about the ability of state-owned buildings to resist hurricanes. The bill, the plaintiffs claimed, had not been read three times in each house prior to adoption. No, the State countered, the bill (entitled "A Bill for an Act Relating to Public Safety") had been read the required number of times in each house: it got 3 readings in the House and 3 in the Senate. Yeah, the original version of the bill was about criminal recidivism reporting and not hurricane preparedness, but both of those are "Relating to Public Safety," right? It doesn't matter that at the last minute we switched out the entirety of the text of the bill. Constitution satisfied, so butt out of our internal procedures, plebes.

The case wound up being considered by the Hawaii Supreme Court (after the trial court ruled in favor of the State and the Supreme Court transferred the appeal from the court of appeals). We filed, on behalf of Grassroot Institute of Hawaii, an amicus brief in support of the challengers:

The present dispute is based on two competing, but equally true, propositions. First, there is no question this bill—if form alone measures its constitutional validity—was adopted after three readings: a bill was introduced, subject to a public reading three times, and was then adopted. The title never changed. Equally plain, however, is that the actual subject of the bill—the substance of what the legislature put out to the public for consideration—radically changed between introduction and adoption (the practice isn’t so much gut-and-replace, but more like bait-and-switch). The issue presented is whether the legislature alone possesses the power to decide if the form and title of the bill are alone determinative, or whether the people—acting through our courts—have any say in whether the substance of the bill matters at all.

At first blush, this question might seem to be one of separation of powers, asking whether the judiciary must defer to the legislature’s internal procedures. That is certainly the position staked out by the State, and its amicus. However, in Schwab v. Ariyoshi, 58 Haw. 25, 564 P.2d 135 (1977) and Taomae v. Lingle, 108 Haw. 245, 118 P.3d 1188 (2005), this Court struck a more appropriate balance between the branches of government (and the people) by concluding that the legislature does not have unfettered control, even on matters involving its own procedures. We the People have the final word, as expressed in the Hawaii Constitution. And when a dispute arises about what the Constitution requires, the courts have an essential role.

While a court will not lightly intrude on the legislature’s prerogative to establish its own internal working rules (and consequently, challengers are subject to a high burden of proof), the plain words and meaning of the Constitution govern, and the courts have a central part in ensuring the Constitution’s substantive requirements are followed. Thus, if a bill is amended so that the original and the amendment are “dissimilar and discordant” with no “legitimate connection with or relation to each other,” the Constitution requires that the public readings process be restarted. If it is not, a reviewing court must invalidate the adopted act. The circuit court concluded otherwise, however, and applied a “rational basis” test that required deference to the legislature if recidivism and hurricane preparedness could be conceivably related to “public safety.” The court’s error was in comparing each version of the bill to the title, when it should have compared the substance of each version of the bill. In short, under Schwab and Taomae, appropriate deference to the legislature does not require the courts take a hands-off approach and examine only the title of the bill and ask if it is conceivably related to the substance of the bill in any of its iterations.

Last week, over a 2-judge dissent, the Hawaii Supreme Court agreed with the plaintiffs and our amicus argument: a bill that is not read three times after the guts are wholesale replaced does not pass muster under the Hawaii Constitution. Score one for We the People, and the transparency of our government. Here are the opinions:

Once the majority got over any questions about standing, it was pretty straightforward analysis: three readings means three readings, and by a "bill" we're talking about the substance of a proposal, not merely the title. Bottom line - if the "germaneness" of the substance of the bill changes, then the lege needs to reboot the readings.

Gut and replace is gutted and replaced ... with the Constitution!

Check it out if open government is your thing.

One final note. Buried deep in the majority opinion (page 55) in footnote 35 is this, the court chastising the Attorney General (who herself presented the oral arguments in the Supreme Court) for misrepresenting the state of play in the record:


Not something you like seeing.

PDF: Brief Amicus Curiae of Grassroot Institute ...


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