A lawsuit seeking to stop the Hawaii Legislature’s practice of gutting and replacing the contents of proposed bills — often late in sessions and with little public notice — was dismissed at the state’s behest Thursday in Circuit Court.

Judge Gary Chang ruled that the gut-and-replace practice is constitutional because it follows the Legislature’s written procedures.

The suit was filed by Common Cause and the League of Women Voters, who were represented by Brian Black of The Civil Beat Law Center for the Public Interest.

The plaintiffs said they plan to appeal the ruling.

Judge Gary Chang makes his decision in the gut and replace.
In dismissing the suit, Judge Gary Chang said the gut-and-replace process follows the Legislature’s procedures and therefore is constitutional. Cory Lum/Civil Beat/2019

“We’re sorry the judge decided to rule the way he did,” said Elton Johnson, chair of Common Cause. “We look forward to the next step in the process.”

Black filed the original complaint in September asking that the court invalidate a piece of legislation that went through the gut and replace process last year, Senate Bill 2858, and rule that the practice is unconstitutional. In response, the state denied that it acted inappropriately.

In its motion for summary judgment, the state Attorney General’s office argued that the measure is presumed to be constitutional and that the courts cannot decide on legislative practices because that could breach a separation between the Judiciary and Legislature.

The state also argued that lawmakers need a practice for drastically amending bills in case of emergencies.

“The deletion and replacement of the contents of bills during a legislative session provides the needed flexibility without having to extend a session or call a special session that necessitates a vote and added expense,” the motion said.

Black’s reply to the motion said that the bill, which was signed into law by Gov. David Ige as Act 84, cannot be constitutional because it did not pass three hearings in both the House and Senate.

Attorney and former Congresswoman Colleen Hanabusa argued in court Thursday that some of the readings of bills aren’t physical readings. On first readings, many bills are just transferred to committees, for example. Lawmakers push bills forward through subsequent readings with reports from committees, but not necessarily by reading the actual language of each bill, she said.

Colleen Hanabusa makes her arguments in the Gut and Replace case in Judge Gary Chang Courtroom.
Attorney and former Congresswoman Colleen Hanabusa, left, and Robyn Chun of the Attorney General’s office, defended the Legislature’s gut-and-replace practice. Cory Lum/Civil Beat

Bills are expected to be amended, she said.

“It’s assumed those bills will be massaged and we’ll have different bills than what we started with,” Hanabusa told the court.

SB 2858 originally would have required the state Department of Public Safety to provide annual reports on performance measures, and passed the Senate with minor amendments. In the House, however, its language was removed and replaced with provisions on hurricane shelters.

The original language in the bill requiring annual reports by the public safety department eventually passed as another bill, Hanabusa said.

Black also argued that if titles of bills are too broad, they could be open to gut-and-replace practices. Chang took no issue with broad titles of bills.

The plaintiffs also argued the Senate did not have enough time to debate the changes and the public did not have time to view the new legislation.

“The public must be able to reliably identify and follow potential changes to the law being considered by the State Legislature,” Black wrote in the original complaint. “But deceptive practices that radically change bills shortly before the final vote deny the public any meaningful voice in the legislative process.”

Hanabusa filed an amicus brief on behalf of the Legislature in December to support the state’s argument that the court should not interfere with legislative processes.

While Chang ruled in favor of the state and Legislature, he disagreed that a separation of powers would bar the courts from ruling on constitutionality issues.

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