Coaxing a bill through the Hawaii Legislature can be a plodding, repetitive process of one committee hearing after another — until suddenly, it isn’t.
After months of uneventful hearings and discussions, a bill about prison inmate recidivism might abruptly be transformed late in the session into a measure mandating that hurricane shelters be incorporated into the design of any new state building.
In another classic, real-life example from last spring, days before the end of session, a bill dealing with the Pacific International Space Center for Exploration Systems suddenly contained new language authorizing each of the counties to levy a new 3% hotel room tax.
Those kinds of confusing, last-minute amendments have been part of lawmaking at the Legislature for decades, and drew complaints from the public for years. But they were such a long-standing tradition that many insiders believed nothing much was going to change.
Then last month the state Supreme Court issued a startling 3-2 decision that prohibits the old tactic of making dramatic surprise amendments very late in the session and then slamming the amended bills through the House and Senate with a quick, final floor vote for each.
With a new session of the Legislature set to open in a few weeks, that court decision has leading lawmakers consulting with the state Attorney General’s office and their own lawyers to determine what changes they must make in the flow of legislation to comply with the court decision.
“We’re just trying to figure it out, but because it wasn’t a more blanket (decision), there is some room for what the interpretation is,” said Senate President Ron Kouchi. “We’ve got to be sure that we’re pretty confident that we’ve got something that meets the test.”
The lawsuit filed by the League of Women Voters of Honolulu and Common Cause Hawaii was aimed at a practice known as “gut-and-replace,” in which the contents of a bill are stripped out by lawmakers and replaced with entirely new material.
However, the court ruling in the case apparently reaches beyond that narrow gut-and-replace tactic. It potentially affects any bill that lawmakers amend late in the session to include material that is “non-germane” to the content of the earlier drafts of the bill.
With the 2022 session of the Legislature set to begin in a few weeks, lawmakers are still sorting through the implications of the decision, said House Democratic Majority Leader Della Au Belatti.
“Is there going to be wholesale change? I don’t know because I think the process that we had previously for the normal course of bills accommodates and meets the constitutional requirements,” she said.
As bills move through the process, “the introduction of wholesale (new) ideas, those are the kind of practices that are probably going to be limited,” Belatti said. “Some of the direction that is going to be given toward chairs is, you really have to make sure that the ideas in the legislation are vetted.”
During each session lawmakers have traditionally combined multiple bills that deal with similar issues into one “omnibus” measure that addresses — for example — marijuana dispensaries, Belatti said.
“Now, is that legitimate?” she asked. “Those are the things we’re going to have to consider.”
The court’s decision hinges on a requirement that dates back to the 1894 constitution of the Republic of Hawaii that every bill must be approved in three “readings” or votes in both the House and the Senate to become law.
Former Attorney General Clare Connors argued last year the Legislature meets that three readings requirement so long as the House and Senate each vote three times on a measure, and the bill is in its final form 48 hours before the final vote.
That is true even when the contents of a bill are completely stripped out and replaced with new subject matter near the end of the process, provided the new content fits under the original title, according to the state’s argument.
But the majority of the court disagreed. It declared the three-readings requirement is intended “to further the aim of a deliberative legislative process, wherein legislators would receive input from an informed public, debate a bill’s merits and weaknesses, and amend bills to address those uncovered weaknesses.”
“In order to effectuate this intent, a bill must retain some common attributes between readings,” the court ruled in a 66-page opinion. And therein was the problem with the gut-and-replace tactic, which removes and replaces the entire contents of a measure before the three votes in each chamber are completed.
“Rather than encouraging public participation in the legislative process, gut and replace discourages public confidence and participation,” the court opined.
“Accordingly, we conclude that a meaningful interpretation of the constitutional three readings provision requires that the three readings begin anew after a non-germane amendment changes the object or subject of a bill so that it is no longer related to the original bill as introduced,” the court decided.
The court acknowledged its decision was introducing a “new rule,” and therefore declared its ruling will apply only to the specific bill that was challenged in the lawsuit, and to future bills that are passed by the Legislature.
The ruling was apparently not what the Legislature expected.
House Speaker Scott Saiki has argued the state constitution gives the Legislature flexibility when it drafts legislation, and the Legislature has adequate rules in place to limit the use of gut and replace.
“Our rules are strict, and we’ve made it clear that committee chairs should not be amending bills in a drastic manner,” he said in a 2019 interview about the lawsuit.
If the gut-and-replace tactic is used in non-emergency situations, “we watch for those situations and we will usually defer the legislation and not allow it to advance,” Saiki said.
But Common Cause was so disturbed by the repeated use of gut-and-replace over the years that it created a special “Rusty Scalpel Award” in 2014 to help draw attention to the practice.
This year the organization declared there was such a “plethora” of Rusty Scalpel contenders in the 2021 session that it added a first runner-up award “to draw attention to this abusive practice, in which legislators take a bill on one topic, gut the language, and replace it with something completely different to avoid the constitutionally required legislative review.”
Saiki and Kouchi have both raised concerns about emergency-type situations when lawmakers late in the session address an urgent issue.
Saiki and Kouchi cited the example of the Kauai flooding in April, 2018, when the Legislature responded by using the gut-and-replace maneuver to appropriate $100 million in emergency aid.
Lawmakers also used gut-and-replace to finance an initiative known as “Ohana Zones” to help cope with homelessness in Hawaii, Saiki said.
But Brian Black, executive director of the Civil Beat Law Center for the Public Interest and the lawyer who argued the gut-and-replace court challenge on behalf of Common Cause and the League of Women Voters, said lawmakers can deal with emergencies late in a session by simply extending the session by a few days or a week to make time for additional floor votes.
But that may raise some political difficulties. Kouchi said that in that situation, lawmakers may disagree over which bills are important enough to warrant extending a session beyond the regularly scheduled 60 working days.
“If it was as simple as one bill, then that might be a fix, and so I would certainly say that that is something that could be considered,” he said.
However, extending a session also costs money, and often triggers critical coverage by the local media that lawmakers were unable to complete their business during the regular session, he said.
“So, we’re quite sensitive to trying to be done efficiently and on time, and not add an additional financial burden to the taxpayer,” Kouchi said.
The state also raised the possibility the Supreme Court decision will generate new legal challenges to bills that are amended as they move through the Legislature.
Colleen Hanabusa, an attorney and former president of the state Senate, warned the court during oral arguments in 2020 that any ruling requiring that lawmakers’ amendments be “germane” to the original content of the bills would trigger lawsuits.
“Who is to determine what is germane, or how germane is germane?” asked Hanabusa, who was arguing on behalf of the Legislature. “That means for every piece of legislation or every law that is passed, if anybody doesn’t like it, they come to the court and say ‘This wasn’t germane.’”
The court acknowledged what it described as a “hypothetical flood of litigation” that could be triggered by its gut-and-replace decision, but observed that the burden of proof will be on anyone who challenges a new law to prove that the Legislature violated the constitutional requirements.
Still, Belatti said challenges over “germane-ness” are a possibility, calling it “a real concern.” She added: “Has this new opinion opened that door? Possibly so, we’ll have to wait and see.”
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