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Hawaiʻi Supreme Court rules against 'gut and replace' bills

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HONOLULU — The Hawaiʻi Supreme Court on Thursday ruled in favor of two government watchdog groups who sued to stop the Legislature’s use of “gut and replace” tactics on legislation.

The court ruled that lawmakers violated the state constitution when they stripped a bill of its original content and substituted it with something entirely different and afterward failed to hold a sufficient number of readings for the amended measure.

The lawsuit specifically challenged a 2018 law that started out as a bill requiring the state to make annual reports on recidivism. The state Senate passed the legislation. But when it got to the House, lawmakers changed it to be about hurricane shelter space at public schools.

The ruling invalidates this law. The court said it would apply to future lawmaking but not to other previously enacted legislation.

“This is a good decision, not just for the people, but also we think for the Legislature itself; for real, thoughtful decision making,” said Sandy Ma, the executive director of Common Cause Hawaii, one of the two groups that filed the lawsuit.

Bills became law without lawmakers and the public having sufficient opportunity to understand and debate their contents when the Legislature used “gut and replace,” Ma said.

The ruling will restore trust in the legislative process because sometimes people think lawmakers have engaged in horse trading when a bill has been gutted and replaced without public discussion, Ma said.

The League of Women Voters of Honolulu was the other plaintiff in the lawsuit.

State Senate spokesman Jacob Aki said the Senate had no immediate comment and would review the ruling. A representative for House Democratic majority leadership didn’t immediately respond to an email seeking comment.

House Minority Leader Val Okimoto, a Republican, called the ruling “a monumental win for government transparency and the people of Hawaiʻi.”

"I am thrilled that the public will have a more open and democratic process as the 2022 Legislative Session approaches,” Okimoto said in a statement.

Lawmakers in other states have used similar tactics. Elsewhere, the maneuver is known as “gut and stuff” or “gut and amend.”

The court said the Hawaiʻi Constitution requires that a measure have three readings in each chamber of the Legislature before it is passed and signed into law. The hurricane shelter bill only received one reading in the Senate before it became law.

The court found there was no common tie between the issues of recidivism and hurricane shelters, making the amended version about “a new and independent matter, disconnected from the question.”

Justices Paula Nakayama, Sabrina McKenna and Michael Wilson ruled for the majority. Chief Justice Mark Recktenwald wrote the dissenting opinion joined by Circuit Court Judge Shirley Kawamura who filled in for retired Justice Richard Pollack.

State Attorney General Clare Connors said in oral arguments before the court last year that the state constitution mandated only that a bill have a broad enough title to encompass the changed content and that the bill be in its final form when it goes up for its last vote.

She argued the Legislature needed flexibility to be able to substitute bill content to allow it to respond to unforeseen emergencies, like when it passed measures to respond to flooding on Kauaʻi in 2019 and when it passed legislation to address the coronavirus pandemic in 2020.

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