The Hawaii Supreme Court ruled Thursday that the Legislature should not be allowed to gut the contents of a bill and replace it with new provisions, sometimes unrelated to the original bill, because the practice “discourages public confidence and participation.”

It’s a significant ruling, putting an end to a long-held legislative maneuver just months before lawmakers are set to reconvene in January.

The tactic has long aroused the ire of good government groups calling for more transparency in the legislative process and comes more than three years after those groups first challenged the practice in court.

The ruling was split 3-2, with Associate Justices Paula Nakayama, Sabrina McKenna and Michael Wilson in the majority. Chief Justice Mark Recktenwald disagreed with the majority opinion, and in a dissenting opinion said that the three justices did not properly interpret the state constitution. Circuit Judge Shirley Kawamura, who filled in on the court due to a vacancy at the time, joined Recktenwald.

Hawaii State Capitol.
The Hawaii Supreme Court on Thursday told the Legislature it must end its practice of gutting and replacing bills. Cory Lum/Civil Beat/2021

News of the ruling was welcome to Sandy Ma, executive director of Common Cause Hawaii, and one of the plaintiffs in the lawsuit.

The ruling “gives guidelines and guide rails for the Legislature going forward,” Ma said. “Amendments have to be germane, and a bill has to have three readings, which is really just what the constitution says. Just follow the constitution.”

Senate President Ron Kouchi and House Speaker Scott Saiki did not return calls seeking comment on the ruling Thursday. Colleen Hanabusa, who represented the Legislature in the case, also did not respond to a phone message.

Brian Black, an attorney for the plaintiffs, referred calls to Common Cause and the League of Women Voters of Honolulu.

Hawaii’s constitution requires bills to be passed by three votes in both the House and Senate on separate days.

Common Cause and the League of Women Voters challenged a 2018 law that started the legislative session as a bill requiring beefed up reports on correctional facilities but passed as an act on hurricane-resistant school buildings.

The provisions on jail reports cleared the Senate, while the version including hurricane shelters went through the House before moving back to the Senate. The good government groups argued that the Senate only heard the version with hurricane provisions twice.

That violated the constitution, the Supreme Court ruled.

The court not only struck down the 2018 law but ruled broadly, saying that going forward, any bills with substantial changes that are “non-germane” need to go back through the three readings process.

“If the body of the bill is so changed as to constitute a different bill, then it is no longer the same bill and the three readings begin anew,” the court wrote.

That process, the justices wrote, is necessary for lawmakers to “receive input from an informed public, debate a bill’s merits and weaknesses, and amend bills to address those uncovered weaknesses.”

During oral arguments before the state Supreme Court last year, Hanabusa argued that the Legislature should be left to make its own rules and that the court shouldn’t weigh in on the process.

The state also argued that lawmakers need flexibility to address disaster situations, like flash floods.

The court rejected both those arguments. The justices said that while gut-and-replace might be a tool to expedite bills, that shouldn’t replace full and open debate.

“Rather than encouraging public participation in the legislative process, gut and replace discourages public confidence and participation,” the court wrote.

Nancy Davlantes, treasurer for the League of Women Voters, said that while she does not object to the Legislature advancing emergency pieces of legislation, she doesn’t think those tactics should be used to advance other bills.

For the past seven years, the League of Women Voters has awarded Rusty Scalpel Awards to infamous pieces of gut-and-replace legislation. Recent awardees were a bill that delayed lawmakers’ pay raises and another that kickstarted redevelopment of Aloha Stadium.

Davlantes said the Legislature has other tools at its disposal to deal with emergencies, like rewriting its rules or extending bill deadlines. Ma, of Common Cause, said there are other options like short form bills, which are blank bills available to lawmakers to insert contents.

Chief Justice Recktenwald disagreed with the majority’s opinion, and in a 27-page dissent argued that it misinterpreted the constitution.

Recktenwald wrote that the constitution does not define what a “reading” of a bill is nor does it set limits on how much a bill can be changed before it should be considered a completely different bill.

The chief justice cited a dozen other state constitutions that specifically say that bills can’t be amended beyond their original purpose. Hawaii has no provision like that, and Recktenwald argued that the three justices were wrong to apply such a standard to Hawaii’s constitution.

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