Open-government groups are challenging the Legislature’s practice of making drastic, sometimes last-minute changes to bills.

The Hawaii Supreme Court on Wednesday heard arguments from Common Cause and the League of Women Voters, who contend that the Legislature’s practice of gutting bills and then replacing the contents with other legislation is not open to the public.

The Ige administration and Legislature also made their case, arguing that the justices should stay out of how lawmakers conduct their business.

The court made no decision Wednesday. The justices plan to deliberate privately before making a decision.

Brian Black, the attorney for Common Cause and the League of Women Voters, argues that the Legislature’s use of gut-and-replace tactics to pass a 2018 law violated the state constitution. Screenshot/2020

Based on their lines of questioning, the court doesn’t seem keen on messing with the Legislature’s processes. But at multiple times during the approximately 90-minute hearing, the justices and attorneys went back to how much participation the public actually gets in the legislative process, a world that’s often unfamiliar to non-politicos.

“We want to see the sausage made,” said Brian Black, executive director of The Civil Beat Law Center for the Public Interest, which is representing the good-government groups. “It shouldn’t be a shell game that can only be followed by those in the know.”

Common Cause and League of Women Voters say the Legislature’s rules, which allow for gutting a bill’s contents and replacing them with another, fail to provide sufficient notice for when that might happen.

Black also raised the question of how much a bill can be changed before it should be considered a new bill, and therefore go back through the legislative process.

The case is brought at an interesting time for the state. The Legislature just came out of a shortened session in which it used gut-and-replace to move numerous measures that dealt with the state response to the coronavirus pandemic. 

And the Legislature’s attorney in the case is Colleen Hanabusa, a former Senate president and current Honolulu mayoral candidate.

Also at play in the case are the separation of powers between the Legislature and the courts, as well as their rocky relationship in the past decade.

The case was previously dismissed in circuit court, but Common Cause and the League of Women Voters appealed to the high court.

Attorney General Clare Connors COVID19 press conference.
Attorney General Clare Connors, seen here during a press conference in June, says the Legislature can make as many amendments to bills as it wants as long as it does so according to its own rules. Cory Lum/Civil Beat/2020

In this case, the groups challenge Act 84, which Gov. David Ige signed into law in 2018. It began as a bill that dealt with reporting on jail recidivism rates and was changed in the last days of session to one dealing with hurricane shelters.

Black argues that it violated parts of the state constitution that require bills to clear three separate readings and another clause that says that bills only deal with one subject.

At the start of a legislative session, bills are all given titles like “relating to state highways” or “relating to crime.”

Senate Bill 2858, which began the 2018 session as a bill dealing with prison reporting, had the title “relating to public safety.” Black argued that title alone isn’t specific enough to be useful to the public.

“It does not provide adequate notice of what interests may be affected under the scope and purpose of the act,” Black told the court.

“I don’t understand how that gives the public the opportunity to participate.” — Justice Mike Wilson

Attorney General Clare Connors and Hanabusa both argued Wednesday and in court documents that the Legislature can make as many amendments to bills as it wants as long as it does so according to its own rules.

Connors told the justices that the public safety title should be enough to let the public know what the bill could be about even if the bill’s contents are changed throughout the session.

The good government groups say that leaves people in the dark.

“According to the state, it does not make a difference if the bill had completely different content every time it was read,” Black wrote in an opening brief. “One day, it is about prison inmates; the next reading, fireworks; the next day, hurricane shelters.”

Associate Justice Mike Wilson pressed Connors on how the public can stay informed if bills move through the Legislature like that.

“I don’t understand how that gives the public the opportunity to participate,” Wilson said.

Allowing bills to have broad titles gives the Legislature the flexibility it needs to respond to certain situations, Connors said, using the Kauai floods in 2018 as well as the coronavirus as examples of disasters the Legislature needed to respond to.

Hanabusa and Connors repeatedly went back to their argument that the court shouldn’t decide how the Legislature conducts its business.

Wilson also had an exchange with Hanabusa over whether the court should make decisions regarding legislative procedures. Hanabusa told the justices that they shouldn’t even take up the questions Black was raising.

“If you get into the form or substance of a bill, you are interjecting into the legislative process,” Hanabusa said.

The attorneys in the case cited several Supreme Court decisions that dealt with bills in the Legislature.

In one of those, the court took a case in which the American Civil Liberties Union of Hawaii challenged a constitutional amendment dealing with sexual assault definitions. The court invalidated that amendment because it began the 2004 legislative session as a normal bill dealing with sexual assault, not a constitutional amendment.

The court ruled narrowly in that case, avoiding setting a broad precedent on how the Legislature amends bills.

The state Supreme Court and the Legislature already have a strained relationship

In 2017, lawmakers introduced measures to reduce benefits for judges. It was seen as retaliation for the high court’s ruling in a series of cases dealing with funding for Hawaiian Home Lands that is still being sorted out in the lower courts.

During the 2018 election season, the Supreme Court invalidated a constitutional amendment proposed by the Legislature for school funding.

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