Hawaii Supreme Court strikes down ‘gut and replace’ legislative lawmaking practice

The state Supreme Court on Thursday dealt a blow to the legislative lawmaking practice known as “gut and replace,” ruling that the Legislature is required to hold three separate hearings in both the House and the Senate after a bill no longer resembles its original intent.

Gut and replace is a common Hawaii legislative practice in which lawmakers delete a bill’s contents and replace them with other, unrelated legislation, often near the end of a session.

In its 66-page opinion, a slim 3-2 majority of the court wrote, “Rather than encouraging public participation in the legislative process, gut and replace discourages public confidence and participation.”

The tactic was famously applied in April when House Bill 862, which originally addressed an aerospace matter, suddenly had new language inserted that eliminated the Hawaii Tourism Authority’s annual allocation of state transient accommodations tax revenues — thereby likely forcing the agency to ask legislators for money each year.

The new language also allowed for each county to assess its own transient accommodations tax on visitors up to 3%, and is now a controversial issue before the Honolulu City Council. The Honolulu Authority for Rapid Transportation hopes to get a slice of a new countywide TAT, proposed by Bill 40, to help the city’s struggling rail project, which faces a $3.5 billion shortfall.

On Thursday the court’s majority ruled that a 2018 gut-and- replace bill that became state law was unconstitutional. The bill, which originally required the state Department of Public Safety to provide annual prison inmate data, instead created new mandates for hurricane shelters in new public buildings — without three separate hearings in both the House and Senate once the focus of the bill had changed.

Common Cause Hawaii and the League of Women Voters of Honolulu challenged the constitutionality of gut and replace when it was used in the evolution of the hurricane shelter bill, also known as Act 84.

Both the majority and dissenting opinions, led by Chief Justice Mark Recktenwald, were silent on the overall practice of gut and replace and focused on what would trigger new rounds of hearings.

Recktenwald wrote in dissent, “The three readings provision does not define what constitutes a reading, nor does it contain any reference to the effect of amendments — whether ‘germane’ or not — in restarting the reading process.”

Further, “The Majority contends that germaneness is rooted in the plain language of section 15 because ‘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.’ Respectfully, the Majority’s chain of inferences has no root in the constitutional text. The Hawai‘i Constitution by its own terms certainly does not define the outer bounds of how much a bill may change before it is, by law, a new bill altogether.”

Sandy Ma, executive director of Common Cause Hawaii, called Thursday’s majority opinion a “good decision” that follows the Hawaii statutes and upholds the state Constitution. “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,” she said.

“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.”

House and Senate leaders did not immediately respond to requests for comment following the court’s ruling.

“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.’”

Moving forward, Milner said, “It’s likely … that the Legislature’s not going to give up totally on the idea of gut and replace.” He added, “They will modify the process. The court made a pretty important decision here, but this is just the beginning of it.”

In a news release, House Minority Leader Val Okimoto (R, Mililani-Mililani Mauka- Waipio Acres) called the court’s ruling a “monumental win for government transparency and the people of Hawai‘i. I am thrilled that the public will have a more open and democratic process as the 2022 Legislative Session approaches.”

A majority of the court wrote that the unconstitutional gut-and-replace bill began in the state Senate on Jan. 24, 2018, as Senate Bill 2858, titled “A Bill for an Act Relating to Public Safety.” It proposed requiring the state Department of Public Safety to submit annual reports to the Legislature about so-called “recidivism” rates of released prisoners.

“With minor amendments, the recidivism reporting bill passed three readings in the Senate,” the court wrote.

On March 8, 2018, after crossing over into the House, the bill passed first reading. About one week later the House Committee on Public Safety held a hearing on the bill and received testimony from DPS, the Office of Hawaiian Affairs, the Ho‘omanapono Political Action Committee, the Hawai‘i Justice Coalition, the Community Alliance on Prisons, Young Progressives Demanding Action, the ACLU of Hawaii and private citizens, according to the court.

“Despite the fact that the interested parties largely supported the recidivism bill, the House Committee on Public Safety recommended amending S.B. 2858” by scrapping its contents and inserting another bill’s provisions requiring that state buildings constructed after July 1, 2018, include hurricane shelter space.

“The House Committee on Public Safety offered no explanation as to why it recommended gutting the contents of the recidivism reporting bill and replacing it with the hurricane shelter bill and merely stated: ‘Your Committee has amended this measure by deleting its contents and inserting the substantive provisions of House Bill No. 2452, H.D. 1, which was heard by your Committee earlier this session.’

“The Office of Hawaiian Affairs and Young Progressives Demanding Action offered testimony asking legislators to revert the bill to its original subject as the recidivism reporting bill. While the House Committee on Finance noted the objections of interested parties to the substituted bill, it nevertheless recommended passing the hurricane shelter bill unamended. On April 6, 2018, S.B. 2858 passed its third reading in the House.”

The court majority wrote:

“We conclude that Act 84 is invalid because it was not enacted in conformance with the requirements set forth in the Hawai‘i Constitution. Namely, Act 84 did not receive three readings in each house of the Legislature after its contents were entirely gutted and replaced with the hurricane shelter bill.”

League of Women Voters of H… by Honolulu Star-Advertiser