The Hawaii Legislature has hired Congresswoman Colleen Hanabusa as its attorney in a case against the state filed by two open-government groups over lawmakers’ gut-and-replace tactics in passing bills.

Hanabusa, a longtime labor lawyer, in a motion filed Tuesday is seeking approval for the Legislature to enter the case as a “friend of the court” in opposition to the League of Women Voters and Common Cause, which want to end the practice of gut and replace in Hawaii.

Hanabusa failed in her effort to defeat Gov. David Ige in the Democratic primary for governor. Most of the top legislative leaders supported her campaign.

The Legislature is already represented by the Attorney General’s office, led by Russell Suzuki, since the lawsuit was filed against the state as a whole. But the Legislature doesn’t have its own voice in court.

Congresswoman Colleen Hanabusa answers questions from senators in rail meeting.
Congresswoman Colleen Hanabusa is the Legislature’s lawyer in a pending lawsuit against the state. Civil Beat

If the judge approves the motion Hanabusa filed, it would let the Legislature file its own memo explaining why it opposes the lawsuit. The main reasons appear to be the same though.

In the motion, the Legislature argues that “what is at stake is the separation of powers between the judicial and the legislative branches of government.”

“The separation of powers has long stood for the proposition that the judiciary will not interfere with the affairs of the Legislature absent a constitutional mandate or a deprivation of a constitutionally protected right,” the motion says.

Judge Gary Chang has set a hearing for 3 p.m. Dec. 19 in 1st Circuit Court.

“The Legislature is the entity that can best protect its constitutional rights as a co-equal branch of government,” Hanabusa said in a statement Wednesday.

Corie Tanida, executive director of Common Cause Hawaii, described the filing as a “very interesting development” in the case.

“The Attorney General represents the state and its interests. By requesting an amicus, is the Legislature implying that the Attorney General is not competent to defend their anti-democratic gut-and-replace practices?” Tanida said in a statement. “Many of the arguments made repeat what the state has already said, in defense of this ‘shell game.’ Either way, we are looking forward to the Dec. 19 hearing.”

Common Cause and the League of Women Voters, represented by The Civil Beat Law Center for the Public Interest, filed the case in September over the Legislature’s ongoing practice of gutting and replacing bills without giving the public its constitutionally required opportunity to participate in the lawmaking process.

They asked the 1st Circuit Court to void a recent law because legislators overhauled the bill late in session without giving the fundamentally changed version three readings in the Senate. But the groups are hoping a court decision will also set a precedent that ends gut-and-replace practices in the Legislature.

Senate Bill 2858 initially set out to beef up the Department of Public Safety’s annual reports to the Legislature by requiring performance indicators to track progress in areas such as recidivism, drug rehabilitation and demographics.

The measure moved through two committees in the Senate before clearing the chamber with a couple of amendments in early March.

But in the bill’s first House hearing, the Public Safety Committee deleted its entire contents and inserted new language dealing with disaster preparedness.

The measure’s title, “A bill for an act relating to public safety,” remained unchanged. But the bill now required all state buildings built after July 1 to include a hurricane shelter room.

The bill sailed through the House Finance Committee, with public testimony criticizing the fact that it no longer pertained to DPS’ performance. But people also realized that having hurricane shelters was a good idea.

The bill easily cleared a final vote by the whole chamber, and a watered-down version eventually passed the full Legislature without further public testimony.

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