In a scathing rebuke of the Hawaii Legislature’s “gut-and-replace” lawmaking practice, the state Supreme Court today ruled that it was unconstitutional for lawmakers to pass a bill initially about public safety with new unrelated language requiring hurricane shelter space in new state buildings without holding three separate hearings in both the state House and Senate.
Common Cause Hawaii and the League of Women Voters of Honolulu challenged the constitutionality of gut and replace, specifically when it was used in the evolution of the hurricane shelter bill, titled “A Bill for an Act Relating to Public Safety,” and also known as Act 84.
The Supreme Court today split, 3-to-2, in overturning a prior Circuit Court decision in favor of the Legislature, with Chief Justice Mark Recktenwald in the minority.
The ruling, which invalidates the 2018 law, applies to future bills but is not retroactive to previous laws using the gut-and-replace tactic.
Sandy Ma, executive director of Common Cause Hawaii, called today’s 66-page majority ruling “a good decision that follows the Hawaii statutes and upholds the Hawaii state Constitution. So we are happy with the decision. It is good for public participation. It allows people to better follow the process and the bills as they move through. When you amend a bill, it has to be germane to the original subject matter and that is fantastic.
“If you’re going to amend a bill, all the parts should be related to the original bill,” Ma said. “It can’t be that you’re talking about traffic safety and you put in something to have to do with voting and elections.”
Gut and replace is a common Hawaii legislative practice in which lawmakers delete a bill’s contents and replace them with other unrelated legislation.
“Rather than encouraging public participation in the legislative process, gut and replace discourages public confidence and participation,” the justices wrote in today’s ruling.
More recently, legislators at the end of their last session used a House bill mostly addressing aerospace to insert language that eliminated the Hawaii Tourism Authority’s annual allocation of transient accommodations taxes and is likely to force the agency to ask legislators for money each year.
The new language, inserted in April, also allowed for each county to assess its own transient accommodations taxes on visitors up to 3%.
The City Council is now debating Bill 40, which would levy a 3% city transient accommodations tax on visitor lodgings, in addition to the state’s current 10.25% visitor tax.
How lawmakers respond to today’s Supreme Court ruling is unclear.
House and Senate leaders did not immediately respond to requests for comment today.
“The Legislature really likes gut and replace because it gives them wiggle room,” said political analyst Neal Milner. “It makes their work more possible. What the court did is to say, ‘You clearly violated what’s in the Constitution.’
“It’s likely in the future that the Legislature’s not going to give up totally on the idea of gut and replace. They will modify the process. The court made a pretty important decision here, but this is just the beginning of it.”