The dismissal of a lawsuit challenging the Hawaii Legislature’s practice of gutting bills and replacing them with entirely new content often unrelated to a bill’s original intent is expected to be appealed.

In the meantime, more than a half-dozen lawmakers are expressing their opposition to the practice known as “gut-and-replace.”

It has already led to a rule change in the state Senate requiring that chamber to have majority support when a legal challenge such as the gut-and-replace lawsuit arises.

Last week, a Hawaii Circuit Court judge rejected a lawsuit from the League of Women Voters of Honolulu and Common Cause Hawaii. The two good-government groups argue that gut-and-replace does not give the public a proper chance to weigh in on legislation.

Judge Gary Chang ruled that the practice is constitutional because it follows the Legislature’s own written procedures.

Both organizations say they plan to appeal Chang’s decision.

But at least five members of the 25-member Senate have major concerns with gut-and-replace.

Senator Gil Riviere speaks before senate floor vote on HB2739 physicians assisted death bill.

Sen. Gil Riviere speaks on the Senate floor in 2018. He is among a group of senators who oppose the legislative practice of gut-and-replace.

Cory Lum/Civil Beat

“We object to last-minute gut-and-replace that defies or circumvents public input, and gut-and-replace that is used as a political tool between legislators,” said Sen. Gil Riviere. “Revised amendments are appropriate, but complete gut-and-replace as is commonly done violates the spirit of the legislative process.”

He added, “Even in cases of last-minute emergencies, there can and should be full transparency in the proposed changes and an extra vote or two by all the members should not be too difficult to schedule.”

Anther senator, Russell Ruderman said, “Gut-and-replace may be useful at times, but basic democratic principles including public involvement and fair process are more important by far.”

Riviere, Ruderman and three other Democratic senators — Donna Mercado Kim, Laura Thielen and Breene Harimoto — wrote a letter to Senate President Ron Kouchi on Dec. 17 stating their formal opposition to the Senate filing of an amicus brief in the gut-and-replace lawsuit.

“We believe that such legal actions, which purport to represent the position of the Senate as a whole, should be brought to caucus for discussion and require a memorandum of approval,” the letter explains.

The five senators noted that a similar objection arose in 2016 involving what is known as the Nelson case. Named for Richard Nelson III, one of the plaintiffs, the lawsuit contested whether the Legislature adequately funds administrative and operations expenses of the state Department of Hawaiian Home Lands.

In the Dec. 17 letter to Kouchi, the five senators wrote, referencing the Nelson case, that “there was significant concern regarding a leadership decision to commit $50,000 for legal services and an amicus brief. It was subsequently understood that similar matters, should they arise, would be presented to the caucus for discussion and approval before any action would be taken.”

One month later, on Jan. 17, the Senate voted unanimously on a voice vote to amend the Senate’s Rule 89 on legal action. The amended rule now reads:

“Except when the Senate of the State of Hawaii is named as a defendant to a lawsuit, a majority of the members to which the Senate is entitled shall petition the President of the Senate prior to any affirmative legal action taken on behalf of the Senate, such as the filing of a lawsuit or amicus brief or intervening as a party to the lawsuit.”

The lawsuit from the League of Women Voters of Honolulu and Common Cause of Hawaii name as defendant the state of Hawaii, and not specifically the Senate.

But in November the Legislature — both the Senate and the state House of Representatives — hired then-Congresswoman Colleen Hanabusa as its attorney in the case and sought to enter it as “a friend of the court.” Hanabusa, a fellow Democrat, is a former state Senate president.

The Legislature was already represented by the Attorney General’s office, since the lawsuit was filed against the state as a whole.

Bills That Went Nowhere

This is not the first time senators have objected to gut-and-replace.

In 2015, Riviere and Sens. Les Ihara and Donovan Dela Cruz introduced a bill requiring the Legislature to follow fundamental principles of the state’s Sunshine Law on open meetings. The bill, which was never heard, called for a 72-hour public notice for public hearings and that proposed amendments on a bill “be germane to the text to be amended.”

Ihara and Kim have introduced a similar bill this session.

Also in 2015, a constitutional amendment question was proposed to “ensure that no bill becomes law if the Legislature has so altered or amended the bill during its passage through either house that it no longer reflects its original purpose.”

The authors of the ConAm question — which was never heard — were Ihara, Kim, Harimoto, Riviere, Ruderman, Thielen and former Republican state Sen. Sam Slom.

‘Practice Born In Smoke-Filled Rooms’

It’s not just state senators trying to halt the controversial legislative practice of their colleagues.

On Friday, House Minority Leader Gene Ward issued a press release expressing disappointment in the court’s decision to uphold gut-and-replace. It said that the public can be assured that the five-member Minority Caucus “will stay in pursuit of a just outcome.”

“This decision will ultimately hurt the people of Hawaii,” Ward said in the press release. “It compromises transparency within the Legislature and gives a green light to this kind of shady dealing. Our citizens deserve to know exactly what a bill intends, and they have a right to be heard before our votes are cast.”

Rep Gene Ward and right Shirlene Ostrov at Charlie Kirk talk UH Manoa.

Rep. Gene Ward at a GOP talk at UH Manoa in 2018. He calls gut-and-replace a “kind of shady dealing.”

Cory Lum/Civil Beat

The press release called gut-and-replace a “fraudulent practice” that Ward said “legitimizes a practice born in smoke-filled rooms, out of the public’s eye and is an insult to the openness we brag about in the Hawaii State Legislature.”

Ward’s colleague, Lauren Matsumoto, said in the release, ”This reduces government accountability and leaves no room for the voices of the people of Hawaii. We need to build trust with the community, and gut-and-replace does the opposite.”

Speaker Scott Saiki said the only member of the 51-member House that objected to the filing of the amicus brief last fall was Ward.

“Our House rules require the speaker to give notice to members of the intent to retain counsel,” said Saiki, who added that House rules are “not that specific” in stating whether majority support is needed to intervene in legal matters.

More amicus briefs from the Legislature may be forthcoming.

Saiki and House Judiciary Chair Chris Lee are the authors of a bill this session that would allow the Legislature to have standing to “intervene in any court proceeding involving a claim based upon a constitutional or statutory provision.”

Saiki is also the author of another bill related to the Legislature and lawsuits. It says that the state attorney general “shall not represent the Legislature and individual legislators acting in their official capacity.”

The bill further requires “the respective house to provide legal representation for any member who is sued in the member’s official capacity unless the member declines such representation.”

Dec. 17, 2018, letter to Senate President Ron Kouchi:

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