Amicus Brief: Legislature's "Gut-And-Replace" Procedure Violates Hawaii Constitution's Three Readings Requirement

by Robert Thomas, Inverse Condemnation, December 12, 2019

This one is not in the usual subject area of this blog, but we figured we're allowed to stray off course a bit every now and then.

Here's the motion we filed today, asking the Hawaii appellate courts to let us file an amicus brief in a case in which the League of Women Voters and Common Cause Hawaii is challenging the Legislature's process of "gut-and-replace" whereby a bill that has progressed through one or both houses is gutted at the last minute, and the substance of the bill is wholesale replaced. This, the lawsuit alleged, violates the requirement in the Hawaii Constitution (article III, § 15) that a bill be read three times in each house. 

Here, the State claims that because the title of the bill remained the same "A Bill for an Act Relating to Public Safety," it didn't matter that the actual subject of the bill changed (from being a bill about recidivism reporting in criminal cases, to being about hurricane readiness and State buildings. Both topics are related, the State argued, to the unchanged title ("public safety") and a court can't do more than ask if the bill in its various iterations can conceivably related to the title. 

Our brief argues that in two decisions, the Hawaii Supreme Court set out the standards for judicial review of these sort of questions:

The present dispute is based on two competing, but equally true, propositions. First, there is no question this bill—if form alone measures its constitutional validity—was adopted after three readings: a bill was introduced, subject to a public reading three times, and was then adopted. The title never changed. Equally plain, however, is that the actual subject of the bill—the substance of what the legislature put out to the public for consideration—radically changed between introduction and adoption (the practice isn’t so much gut-and-replace, but more like bait-and-switch). The issue presented is whether the legislature alone possesses the power to decide if the form and title of the bill are alone determinative, or whether the people—acting through our courts—have any say in whether the substance of the bill matters at all.

At first blush, this question might seem to be one of separation of powers, asking whether the judiciary must defer to the legislature’s internal procedures. That is certainly the position staked out by the State, and its amicus. However, in Schwab v. Ariyoshi, 58 Haw. 25, 564 P.2d 135 (1977) and Taomae v. Lingle, 108 Haw. 245, 118 P.3d 1188 (2005), the Supreme Court struck a more appropriate balance between the branches of government (and the people) by concluding that the legislature does not have unfettered control, even on matters involving its own procedures. We the People have the final word, as expressed in the Hawaii Constitution. And when a dispute arises about what the Constitution requires, the courts have an essential role.

While a court will not lightly intrude on the legislature’s prerogative to establish its own internal working rules (and consequently, challengers are subject to a high burden of proof), the plain words and meaning of the Constitution govern, and the courts have a central part in ensuring the Constitution’s substantive requirements are followed. Thus, if a bill is amended so that the original and the amendment are “dissimilar and discordant” with no “legitimate connection with or relation to each other,” the Constitution requires that the public readings process be restarted. If it is not, a reviewing court must invalidate the adopted act. The circuit court concluded otherwise, however, and applied a “rational basis” test that required deference to the legislature if recidivism and hurricane preparedness could be conceivably related to “public safety.” The court’s error was in comparing each version of the bill to the title, when it should have compared the substance of each version of the bill. In short, under Schwab and Taomae, appropriate deference to the legislature does not require the courts take a hands-off approach and examine only the title of the bill and ask if it is conceivably related to the substance of the bill in any of its iterations.  

Stay tuned if this sort of thing interests you. Now back to your regular programming. 

PDF: Motion of Grassroot Institute of Hawaii for Leave to File Brief Amicus Curiae, League of Women Voters v.

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Grassroot Institute supports lawsuit against 'gut and replace'

The nonprofit group files an amicus brief urging reconsideration of an earlier ruling

News Release from Grassroot Institute

HONOLULU, Dec. 13, 2019 >> The Grassroot Institute of Hawaii has filed an amicus brief in support of a lawsuit against the state Legislature's practice of "gut and replace."

Filed by the League of Women Voters of Honolulu and Common Cause, the lawsuit was rejected in Circuit Court earlier this year, but the two public interest groups now have applied to the Hawaii Supreme Court to hear the case.

"Gut and replace” occurs when the Legislature takes a bill already approved in one chamber and without public notice guts its content and replaces it with completely different language, leaving only its title as bearing any relationship to the originally introduced version. 

Keli'i Akina, Grassroot Institute of Hawaii president, which has always supported accountable government, said, "This makes a mockery of the democratic process and undermines the people’s faith in open, accountable government."

The Grassroot Institute's filing of the amicus brief comes on the heels of a lawsuit initiated by attorney and former University of Hawaii regent Jeff Portnoy. He alleges that the passage of a law that changed the composition of the UH Board of Regents was unconstitutional because its contents didn’t receive three readings in the House and Senate as required under the Hawaii Constitution. The law as introduced was about distance-learning programs, but the language was gutted and replaced.

The amicus brief in support of the League of Women Voters and Common Cause lawsuit was filed by Grassroot Scholar Robert Thomas, a director with the law firm Damon Key Leong Kupchak Hastert and managing attorney of the Pacific Legal Foundation’s Hawaii Center.

It makes three main points:

>> "First, we provide the context for the legal analysis — how 'We, the People of Hawaii,' appear to have lost faith in our government, in part because of things like gut-and-replace.

>> "Second, how two Hawaii Supreme Court decisions set out the burden of proof and provide the roadmap the circuit court should have followed here.

>> "Finally, how and why the plaintiffs should be allowed to prove their case on remand [and thus] urges this court to vacate the judgment and remand the case.

Akina noted that, "The Hawaii Legislature could end 'gut and replace' on its own, by passing rules that prevent substantial changes to a bill that has passed in one house. It could also require more specific titles for bills and ensure that the public gets the opportunity to weigh in on the substance of every bill considered. 

"However, if the Legislature won’t take action, then it is up to us, 'the people,' to ask the courts to uphold transparency and protect the democratic process by putting an end to “gut and replace.”

Click here to read the full amicus brief.

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