Hawaii Supreme Court hears arguments about lawmakers’ use of controversial gut-and-replace tactic

  • FILE — This May 2, 2019 file photo shows lawmakers meet on the floor of the state House of Representatives at the Hawaii State Capitol in Honolulu. Attorneys argued before the Hawaii Supreme Court over how much lawmakers should allow the public to weigh in on legislation as laws are being drafted and voted on. (AP Photo/Audrey McAvoy)

The state Supreme Court heard arguments Wednesday about the Legislature’s practice of stripping a bill of its original content and substituting entirely different content, a process known as gut-and-replace.

The League of Women Voters of Honolulu and Common Cause Hawaii sued the state in 2018 over the tactic, specifically for measure titled “A Bill for an Act Relating to Public Safety.”

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The legislation originally was about reporting of recidivism statistics but ended up with content requiring hurricane shelters in newly constructed public schools, with all references to recidivism reporting deleted.

A Honolulu circuit judge upheld the Legislature’s practice, and the plaintiffs appealed to the state’s high court.

Arguing for the plaintiffs, Brian Black of the Civil Beat Law Center for the Public Interest argued the procedure used to pass the bill was unconstitutional. He said the final subject matter didn’t receive the required three readings in both legislative houses, and that the public didn’t receive adequate notice of changes to the measure.

“The threshold question here is, ‘What is a bill?’” Black said. “For constitutional purposes, a bill is not just a bill number. If it were just a bill number, a bill numbered SB2858 could have started on Day 1 as about prison reporting, Day 2 medical marijuana, Day 3 contractor licensing, Day 4 rockfalls, Day 5 seawalls, and then settling on Day 6 about hurricane shelters.

“Appellants are not aware of any jurisdiction that constitutionally defines a bill without any thought to the bill’s content. And the state hasn’t cited any such authority. … To the contrary, such arguments have been consistently rejected by courts. Interpreting ‘bill’ … as solely a bill number defeats the … clear purpose of the three-readings mandate.”

Associate Justice Paula Nakayama asked Black, “How about the bill title as well as the bill number? Would that suffice?”

“I think the hypothetical doesn’t change under the circumstances as I laid out,” Black replied. “Because the same subjects that I identified have been used under a title such as ‘Public Safety’ in the past. … That said, there still haven’t been any courts that have adopted the idea that a bill is simply a bill number plus a title. There still must be some consideration of its content.”

Black used a well-known quote generally attributed to Otto von Bismarck, “If you like laws and sausages, you should never watch either one being made.” He noted that the German autocrat Bismarck was known as the “Iron Chancellor.”

“People will eat sausage because there are rules that govern how it’s made. Similarly, people will respect the law because there are rules governing the legislative process that protects the public,” Black said.

Black told the justices, “We want to see the sausage made. The legislative process is not supposed to be a shell game that can only be followed by those in the know.”

Attorney General Clare Connors argued the plaintiffs “have a political agenda” and want “more participation in lawmaking.”

She said the court doesn’t have the authority to decide whether the Legislature’s practice of broadly titling bills so content can be completely replaced “is a good practice.”

“What this plaintiff’s argument does is it creates a confrontation, unresolvable, between two co-equal branches of government,” Connors said. “What the plaintiffs ask the court to grant here is political in nature. Therefore, it is a political, not a judicial, undertaking.”

Connors said the Legislature needs flexibility to be able to substitute bill content to allow it to respond to unforeseen emergencies, like when it passed measures to respond to flooding on Kauai last year and this year when it passed legislation to address the coronavirus pandemic.

“Clearly, it was OK to replace a bill that was broadly titled with entirely different content, so long as the replaced content continued to bear some relation to that title,” she said.

Former Senate President Colleen Hanabusa, an attorney and candidate for Honolulu mayor, appeared before the court Wednesday on behalf of the Legislature. She said online technology gives the public more access to the legislative process than before by allowing people to sign up for automatic notices when bills are changed.

Those without computers can use the Capitol’s Public Access Room, which has computers and staff to assist the public, and libraries, Hanabusa said.

She told the justices “you are interjecting yourselves into the legislative process” if they were to rule on what form or substance would be allowed in a bill.

Such a decision would open the door to lawsuits challenging bills on the grounds the contents didn’t match a bill’s title, she said.

Chief Justice Mark Recktenwald said the court will take the arguments under advisement and issue its decision later.

State Sen. Russell Ruderman, who’s not running for re-election this year to his seat representing Puna, told the Tribune-Herald gut-and-replace “is an anti-democratic process.”

“I have seen it used for theoretical good, but I’ve never seen the benefit of using it justify its use. I think it always cuts the public out of the process,” Ruderman said.

Ruderman noted a bill this legislative session “Relating to Health,” which was originally intended to establish more dialysis facilities in rural areas, ended up being a measure granting the state health director sweeping emergency powers during a pandemic.

“It had a lot of people opposing it,” Ruderman said. “I was one of only four senators opposing it, but the House wasn’t going to hear it, so they didn’t pass it.”

Rosemarie Muller, president of the League of Women Voters of Hawaii County, told the Tribune-Herald gut-and-replace “can be confusing and disappointing to the public.”

“Democracy needs to be fair and transparent,” she said. “The (League of Women Voters) generally bestows a ‘Rusty Scalpel’ award on the most egregious examples.”

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The Associated Press contributed to this story.

Email John Burnett at jburnett@hawaiitribune-herald.com.

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