‘Gut and replace’ decision called ‘great civics lesson’

Hawaii residents were handed a major win for transparency earlier this month when the Hawaii Supreme Court ruled 3-2 that “gut and replace” was unconstitutional.

The Grassroot Institute of Hawaii was one of several watchdog groups that supported the plaintiffs in the case via an amicus curiae brief, which was authored by Robert Thomas, senior attorney at the Pacific Legal Foundation and one of the institute’s Grassroot Scholars.

Thomas met with Keli‘i Akina, institute president, on Akina’s Nov. 22 Think Tech show “Hawaii Together” to explain the major takeaways from the majority opinion. One involves the constitutional requirement that a bill be read at least three times in both chambers. Though the state argued that this only applied to the title of the bill, the court sided with the plaintiffs that the substance of the bill must also have three readings.

Supporters of the practice argued that it made the legislative process “convenient” and “expeditious.“ Roberts said as a counter argument, “That may be true, but at the same time, we have a process in place designed for public accountability and you need to follow that process.

“Democracy is supposed to be slow, it’s supposed to be ponderous, it’s supposed to be deliberative, and it’s supposed to have that knowledge that, without sounding too cliche about it, we the people are the ones who govern ourselves. How can we govern ourselves if we don’t have the understanding of what those folks to whom we delegate the day-to-day responsibility for adopting laws are doing?

Roberts said the opinion is “very readable” and urged “all our listeners to not rely on what you and I say this legal opinion says; it’s not that hard to read. In fact, it’s a very good read and a great civics lesson. Go pick it up and read it.”

See the interview below. A complete transcript is provided.

11-22-21 Robert Thomas with Keli’i Akina on “Hawaii Together”

Keli’i Akina: Aloha, everyone, and welcome to “Hawaii Together” on the ThinkTech Hawaii broadcast network. I’m your host, Keliʻi Akina, president and CEO of the Grassroot Institute.

Well, today we’re going to talk about the fact that the court has struck down something called “gut and replace,” and we’re going to be talking with an expert who has been a dear friend of the Grassroot Institute, Robert Thomas, one of our scholars.

For years, the government has been practicing something that has been to the consternation of watchdog groups, and it has to do with a tricky loophole used by the Hawaii Legislature to pass laws without subjecting them to the full democratic process. That’s what we mean when we say, “gut and replace.”

Here’s how that law worked. After what is called crossover in the Legislature — when the bills that have been heard and passed in one house, moved to another — any bill that didn’t pass its originating house was considered dead.

A legislature would take a bill that did cross over, remove all or most of the bill’s language and replace that language with something completely unrelated to it. Then the bill would finish its journey, pass and become law, often with few hearings and without many people being aware of the change. It took people by surprise.

The League of Women Voters, and kudos to them, of Honolulu and Common Cause Hawaii, with the help of the Civil Beat Law Center, brought a lawsuit against the state in 2018, arguing that “gut and replace” is unconstitutional.

The Grassroot Institute submitted an amicus brief in support of the plaintiffs, arguing that “gut and replace” erodes public trust in government and undermines the democratic process.

On November 4th, cheers, everybody, the Hawaii Supreme Court finally handed down its decision by a 3-2 vote. They held that “gut and replace” is unconstitutional, and that’s what we’re going to talk about today.

With me today is Robert Thomas of the Pacific Legal Foundation. While Robert was still in private practice in Honolulu, he authored the Grassroot Institute’s brief in the case. Today he’s here. Actually, he’s in Williamsburg, Virginia, ready to help explain the case, the decision and what we should be watchful for as the first post-“gut and replace” legislative session resumes in just a few days, actually, in January.

But, Robert, so glad you’re on the program. Thank you so much for the support you provided. Congratulations on your insights in the amicus brief, and welcome to today’s “Hawaii Together.”

Robert Thomas: It’s a pleasure to hear the words “aloha,” again. Being over here on the East Coast, you lose a little bit of touch of home.

It’s great to be here, and thank you for asking me to join you, Keliʻi.

Akina: You certainly understand the legal scene in Hawaii, as well as across the nation. Would you explain for our viewers what constitutional argument is being made against “gut and replace” in this lawsuit? What constitutional argument are we making against or did you make against “gut and replace”?

Thomas: It’s a very good starting point. The starting point in this case, as in a lot of cases, is the requirements of our state constitution.

That is the first thing that I think we and our audience need to make clear, that there is a requirement in the Hawaii Constitution that before a bill becomes law, that it has to be read publicly in each house three times, and that’s contained in Article 3, Section 15 if you want to go read it. It’s pretty plain. It says, “No bill shall become law unless it shall pass three readings in each house on the separate days.”

Boy, that seems pretty straightforward to you and me and to a lot of other people, but the process that you described earlier in the introduction that sometimes one house would introduce a bill, it would cross over and then — hence, the name, “gut and replace” — the contents of the bill would be completely removed and replaced with something unrelated to the earlier versions of that bill. Yet, the title remained the same.

The bill had been read by the time it gets to the approval stage three times in each house, and yet, the substance of the bill had changed dramatically over the course of its life, such that the bill, the statute, that gets adopted was not subject to three readings in each house.

The Common Cause, as you noted, filed the lawsuit challenging that procedure on a bill that was under the title of Related to Public Safety. Then it starts off as a bill about criminal recidivism reporting, in other words, adopting or requiring some reporting about repeat offenders. In the end, the contents of that bill get taken out and replaced at the very last minute so that the statute that’s passed and is adopted by the Legislature is about hurricane preparedness.

Well, both of those are related to the title of public safety. Hint, what isn’t related to public safety? Or it’s very hard to imagine that they’re both not related to public safety, but are they related to one another such that the bill itself has not changed in substance even though its title remains the same.

The Legislature for years, when challenged on this outside of court, has had two answers to that. The first answer is one of convenience. Well, things change, and we can’t go back, and sometimes reboot the entire process when, at the last minute, the public has told us that we need a bill about hurricanes, a statute about hurricane preparedness, and if we delay, we can’t afford to go through the procedures required by the constitution.

Two, the Legislature had the sense or responded in the way … let me call it maybe “Mind your own business, public,” that, “Hey, these are our internal procedures, and how we set it up is up to us. Technically speaking, we haven’t violated the constitution because they’re both recidivism reporting and hurricane preparedness are related to public safety in the degree in which we change the substance of the bill is a matter for us and not you.”

Akina: Well, Robert, the Hawaii Supreme Court obviously did not agree with the Legislature and declared the practice in effect unconstitutional. Now, that’s from the legal point of view.

How about the public policy frame of reference in terms of what is pono, as we call it in Hawaii, in terms of democracy, in terms of the engagement of the public, in terms of the accountability and transparency that the Legislature is supposed to practice: How did “gut and replace” violate this?

Thomas: Oh, boy, you take away the constitutional requirement; it seemed very plain in its face.

You ask yourself, “Why did we have this provision in our constitution? Why do we have to go through the formality of three readings in each house on separate days before a bill can become law? Is it simply that we just like to have these things read? Is it some mere check-off that we need to go through?”

No, it’s pretty obvious the reason we have it; we the people, we’re the sovereigns; we’ve delegated our power to adopt laws and adopt statutes; we’ve delegated that power to our elected representatives, and we want to know what they’re doing.

The whole point of the provision in the Hawaii Constitution that requires three separate readings in each house on three separate days was to have a minimum amount of transparency. We the people have to know what our legislators are doing. How else are we supposed to understand that?

It was in the brief that we did for Grassroot Institute where we pointed out that that phrase on the national archives in Washington, D.C., that eternal vigilance is the price of liberty.

Well, we’re the watchdogs; we the people are the watchdogs. How are we supposed to keep our eye out on what the Legislature’s doing when we don’t have those three readings?

What it boils down to is it’s a requirement that’s based in the idea of “We need to know what our government is doing.” Maybe a better way or simpler way to put it is government transparency. We need to understand and fulfill our roles as informed citizens. How can you do that in the absence of knowledge about what our elected representatives are doing?

Akina: Well, Robert, you used the phrase, “elected representatives.” One of the functions of legislators is to represent the people. They are supposed to be committed to the process of transparency and accountability.

Let’s revisit some of the things you mentioned earlier with regard to why the Legislature practiced or tolerated “gut and replace.” What do you think about those explanations or those excuses?

Thomas: On one hand, it’s convenient, it’s easy, it’s expeditious. Sometimes you need to move things along.

The response to that is that may be true, but at the same time, we have a process in place designed for public accountability, and you need to follow that process. If there are other reasons, other means to have emergency measures in place, maybe we can do it that way, but exigency alone, the idea that “It’s convenient to do this,” doesn’t really carry a lot of weight, and in fact, it did not carry a lot of weight with the majority of the court. The Supreme Court said that’s not really that big of a concern.

You can see, democracy can be inconvenient sometimes; it can be slow. It is not a fast process, as we are learning.

The last nearly two years have taught us living under emergency rule, where we really don’t have a transparent and democratically accountable process; we have all these edicts coming out.

Democracy is supposed to be slow, it’s supposed to be ponderous, it’s supposed to be deliberative and it’s supposed to have that knowledge that, without sounding too cliche about it, we, the people, are the ones who govern ourselves.

How can we govern ourselves if we don’t have the understanding of what those folks to whom we delegate the day-to-day responsibility for adopting laws are doing? I don’t think that the convenience argument really ever carried a lot of weight. It was perhaps convenient for the legislators, but it was not convenient, ultimately, for us, the people.

Akina: Robert, let’s look at the decision itself. What did the court decide, and why did they make that decision?

Thomas: First of all, it’s a very close decision. We have a five-justice Supreme Court, unlike the U.S. Supreme Court, which is made up of nine justices, we have five.

It was a 3-to-2 decision. Three justices, Justice Nakayama, joined by Justice McKenna and Justice Wilson, joined the majority opinion invalidating the law that had been adopted without the three separate readings.

Two justices in a dissenting opinion authored by Chief Justice Recktenwald, joined by a circuit judge who was up in place of … I think while there was a vacancy on the court, would have ruled in favor of the Legislature on this case.

Let’s break down what the opinion said. There were two major parts of the majority opinion, one of which I think is more of a technical legal aspect. Did the plaintiffs in this case, Common Cause Hawaii and the League of Women Voters, have enough standing or enough legal interest in the outcome to serve as the plaintiffs?

Anybody who has followed Hawaii law for a long time knows that we have fairly lax rules about who can serve as a plaintiff. The majority made pretty short work of the Attorney General’s argument that the plaintiffs lacked any concrete injury resulting from a bill being adopted about hurricane preparedness that had not been read three times in both houses.

There’s that technical aspect, but the largest aspect of it was the court got into the question of “What does this mean in Article 3, Section 15, of the Hawaii Constitution?” Does it really mean the title of the bill has to be read three times, or does it mean that the substance of the bill has to be available to the public at least three times in each house?

The court said, “Yes,” very emphatically in terms of what I would call a very pro-democracy, pro-transparency, pro-public participation opinion. I think it’s a very readable opinion, as a legal opinion goes.

I urge all our listeners to not rely on what you and I say this legal opinion says. It’s not that hard to read. In fact, it’s a very good read and a great civics lesson. Go pick it up and read it.

The majority said the legal test for how do we tell if a substance of a bill changes from one reading to the next, and the court adopted the test of germaneness. And it said if the substance of one is germane to the substance of the other, and in this case, it was a far cry between criminal recidivism reporting was not at all germane to the question of hurricane preparedness. The court had no problem saying that bill had not been read three times.

By contrast, if you read Chief Justice Recktenwald’s dissenting opinion, he had some trouble; I wouldn’t say, not so much with this case. He didn’t weigh in on that question, but what he said was, “I have some trouble with the idea of what about those tougher cases where it’s not so obvious that the substance is all that different? Where do we draw that line, and in that case, shouldn’t we defer to the judgment of the legislators when they’re saying that hurricane preparedness is related to public safety in much the same way that recidivism reporting is related to public safety?”

I think the big contrast between the majority opinion, the controlling opinion and the dissenting opinion is where they’re focused. The majority opinion focuses almost entirely on we the people; the people need to know these things and, in that case, where we, as the court, we, in the judiciary, are going to hold the Legislature’s feet to the fire.

In most cases, you will find where there’s a question of internal legislative procedures, courts tend to defer, saying, “Well, the Legislature gets to decide its own internal procedures,” but in this case, the interests in transparency were so strong that the court overcame, the majority overcame, that usual approach.

Chief Justice Recktenwald, on the other hand, saw this much in that latter light. He said, “This is really a case about internal legislative procedures, and we should respect the judgment of the legislators on what topics are related to each other such that they’re adopted in the same bill.”

Akina: In general, Chief Justice Recktenwald’s decisions are respected. He has been a strong member of the court; he has ruled in ways that have apparently upheld justice in the eyes of people. Some individuals were confused at his minority decision, at his dissenting opinion; part of that may be because people are looking in general at the public policy aspects of this case.

The things that we were talking about before — transparency, accountability and just common sense for that matter — and scratching their heads, saying, “How could anybody support that?”

As a legal case, this apparently didn’t hinge upon the public policy merits per se. So you can have keen legal minds disagreeing with each other depending upon the emphases they make. Do you want to comment a little bit more on that and help us to understand the minority decision?

Thomas: I would very much agree with you on the characterization of Chief Justice Recktenwald as a very careful jurist. In fact, the breakout of justices on this case, a little bit atypical.

Oftentimes, when you see dissenting opinions or a split in our Supreme Court of Hawaii, you will see Chief Justice Recktenwald joining with Justice Nakayama in a position, whether it’s a majority or a dissenting opinion, and yet, here they authored the two separate opinions, so they parted ways.

You have to ask yourself, “Why is that?” I think it’s this: Chief Justice Recktenwald, especially as the chief justice, recognized he’s the head of the judiciary; he recognizes the principles of separation of powers. The courts tend to stay away from the internal procedures of how the Legislature adopts laws and simply looks at the end product.

Does the end product comport with the constitution? Does it violate due process? Does it violate the takings clause? Does it violate equal protection or some other thought? Does it violate the delegated powers or something like that?

Rarely will courts look into the process by which legislation is adopted based on the principle of separation of powers that, at the same degree, you don’t like the Legislature poking its nose into how the court tries cases and comes up with rulings; you wouldn’t want that. The same is true in reverse.

I think Chief Justice Recktenwald was really focusing — make no mistake. There’s no question, he’s a believer, I think, in transparent government, and we the people as the ultimate sovereigns, but what he was concerned about, if you read his opinion, was the separation of powers.

Is the court, an unelected body, really the right part of government to make that call about how the elected legislators structure their deliberative process? And the big difference is the majority said, “Yes, we’ve already made that decision in the Hawaii Constitution — three readings, three times, three days.”

Chief Justice Recktenwald said, “Close cases like this may not have been a close case, but in the future, there will be close cases. Close cases on whether a bill has been read three times and is so related to each other, those kinds of calls should go to the Legislature,” so I don’t think this one is over just yet.

Akina: Well, that was helpful, Robert. Very often in the public, we bring to court cases a broad range of issues. It may not be that many of those issues are actually being addressed. They are not the question that the court is focused on or that some of the justices believe should be focused on.

Now let me ask you this, as we back up and take a look at this particular decision, is this a significant decision? How important is it?

Thomas: Short answer, absolutely, yes.

I can say that unequivocally, that this one is going to be one, that if it’s not taught in civics classes in Hawaii classrooms, it should be. This is an important one for public transparency and public participation.

I think it’s a warning bell, an alarm bell for us. Hawaii participation, in our brief, we noted the dramatic drop in Hawaii voter participation rates and our willingness as the people to exercise our function as the ultimate sovereigns to participate in elected government.

We’ve become jaded. This is a clarion call to get off of our behinds, our okoles, excuse me, and watch what our government’s doing, pay attention because, ultimately, we’re the sovereigns in this case; we’ve delegated to our elected representatives, for convenience sake, the idea that they make the laws or they make laws, but ultimately, we’re the sovereigns, and this is a real clarion call, a really dramatic case highlighting the fact that we and we the people need to pay attention to this thing and not just say, “Well, that’s what goes on in the Legislature,” and leave it.

Let’s stop being jaded. Let’s participate in our government. So it’s a wonderful decision from that point of view.

Akina: Well, that’s really a breath of fresh air, and I’m glad to hear it.

Thomas: We’re too jaded, right, about politics.

Akina: Yes. Absolutely. We need this.

Thomas: Here was the court telling us, “Here’s the opportunity you have to get involved and pay attention to what those guys down on Beretania Street are doing.”

Now, we got to … it’s up to us now to use that wonderful decision.

Akina: Robert, in your opinion, how will this decision affect lawmaking and the Legislature in the future?

Thomas: Well, that’s the big question, right? That is the big question.

The Legislature can react to this in one or two or maybe more ways, but I think there’s two major ways it can react. It can read the handwriting on the wall, get with the program, understand why the court did what it did, and not dig its heels in, start doing things in a transparent way.

I mean, “gut and replace,” frankly, in many cases, was very cynical. It was a very cynical approach to lawmaking. “Stand aside; we’re the experts; we’re going to do this. We’re going to do this at the last minute under not the cover of darkness, but under this procedural trick, this bait-and-switch, this ‘gut and replace.’”

The Legislature can understand, “OK, game over on this one. Time to get with the program, let’s get transparent. Follow not only the letter of the laws, as the Supreme Court requires and as the Hawaii Constitution requires, but get with the spirit of the law.” Right?

Bring people into the process. Don’t be afraid of the people. That’s one way. That would be a very positive development.

The other thing is if the Legislature says, “How do we figure out how to still do what we want to do in light of this opinion and stay legal?” That would be, to me, a terrible way to approach this, but when the standard is something like germaneness, is version A of the bill germane to version B? You can see where there’s a lot of gray area between them.

It was an easy case in this case. Hurricane preparedness is not at all — it’s hard to say that with a straight face — hurricane preparedness is not at all germane to the issue of recidivism reporting and criminal law.

What if it’s a lot closer, and can they still do that? Yes. I wish, I hope they don’t go that route and go what I see as maybe the more cynical route, and really get with the program, but they could do so, and the people need to pay attention.

Akina: Sure. In light of the fact that it is still possible for the Legislature to do an end-run around the hearing process and stretch the meaning of germane, what should the public be looking for?

Thomas: Look, apply your common sense. Now, common sense tells you that hurricane preparedness got nothing to do with recidivism reporting. That’s the easy case.

Start watching the content of your bills as they progress through. I know it’s a pain, but it certainly wasn’t a pain as much as it was when you and I were doing this, and we’d have to march down there and dig through a bunch of files. It’s all online; it’s all there.

Set up a feed for yourself, or go watch every couple of days and see what happens on bills that you’re interested in, and make sure they don’t press fast. Once and if they do, pick up the phone, call them, write letters, petition your government, do all that things that you’re supposed to do.

We have the ultimate weapon, let’s call it, where the ultimate control is, “You’re not going to get reelected if you keep doing this type of stuff, guys.”

Akina: Civic engagement.

Thomas: Exactly, total civic engagement.

Akina: Absolutely.

Thomas: Democracy is tough. It’s tough.

Akina: Robert, it’s so good to hear you say these words, and thank you for your expertise. Appreciate your work in the “gut and replace” case and appreciate all of your helping us stand guard.

Thomas: Let’s give credit where credit is due. As you mentioned earlier, they had the guts and the stand-up-ness to bring the case.

Akina: League of Women Voters, Common Cause and Civil Beat Law Center.

Thomas: Hats off to them, but also hats off to you and Grassroot Institute for standing up and adding your voices to this through the amicus brief that we did.

The system worked. Yay, team.

Akina: Thank you for serving.

Everybody, we’ll hear more from Robert Thomas in the future.

Until then, I’m Keliʻi Akina with the Grassroot Institute, signing off on ThinkTech Hawaii’s “Hawaii Together.” Until next time, aloha.

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