Hawaiʻi Supreme Court Ends Deceptive Legislative Practice

by Keli‘i Akina, KWO, March 1, 2022

The Hawaiʻi state legislature is back in full session. That means our lawmakers are busy at the task of reviewing bills for new laws. The Office of Hawaiian Affairs is also busy, supporting bills that serve and empower the Hawaiian people and opposing bills that could hurt Hawaiians. In some cases, OHA itself sponsors bills, such as the Public Land Trust bill, which asserts OHA’s constitutional right to 20% of revenues generated on public lands.

Unfortunately, a major difficulty encountered by the Hawaiian community, and citizens in general, has been ensuring that bills get full and open consideration before becoming law. In the past, a serious challenge had been the long-standing practice at the legislature known as “gut-and-replace.”

The practice of gut-and-replace allowed state lawmakers to pass laws without a full set of public hearings. Specifically, it was a deceptive tactic whereby a bill with a vague title that had already been heard by one of the legislature’s two chambers, had its original language removed, and then replaced with new and unrelated content. Thus, “gut” and “replace.”

For example, during the 2018 legislative session, OHA supported and testified on a bill to collect recidivism data on newly released prisoners. If it had passed, this measure could have potentially helped Hawaiians break out of the cycle of imprisonment and recidivism within which they are overrepresented, by making data critical to criminal justice reform publicly available. As OHA stated in its testimony, “this measure would promote important legislative and community oversight and provide information that may be critical to the enactment of much-needed reforms to our criminal justice system.”

The bill advanced through the Senate and crossed over to the House. Then its language was totally removed and replaced with language about hurricane shelters! OHA withdrew its support of the bill at this point, commenting instead that the House draft completely abandoned the original purpose of the Senate bill. The House went on to pass the hurricane shelter measure, and it was signed into law as Act 84.

But this year, there’s good news. Thanks to a recent Hawaiʻi Supreme Court ruling, Hawaiʻi legislators will no longer be allowed to practice gut-and-replace.

The League of Women Voters of Honolulu, Common Cause Hawaiʻi, and the Civil Beat Law Center sued the state over its enactment of Act 84. In their lawsuit, they claimed that gut-and-replace violated Article III, Section 15 of the Hawaiʻi Constitution, which requires that every bill “pass three readings in each house on separate days” before becoming law. They argued that because the bill that became Act 84 changed so dramatically after moving to the House, the Senate could not have had its required three readings.

The lower court ruled against the plaintiffs, allowing gut-and-replace to continue. But on appeal, the Hawaiʻi Supreme Court ruled that the practice of gut-and-replace is unconstitutional.

To be clear, laws already passed via gut-and-replace were not affected by this decision, except for Act 84 from 2018. But the decision will prevent the practice of gut-and-replace in the future. Overall, that is a victory for transparency and accountability in Hawaiʻi. It means that the Hawaiian community and all Hawaiʻi citizens can rest assured that bills will not become law unless and until the public has had the opportunity to weigh in and participate in the legislative process.