State Con Law Case of the Week: Hawaiian Gut and Replace

Anthony Sanders · November 12, 2021

Gen Xers like me remember Schoolhouse Rock’s “I’m Just a Bill” cartoon from our Saturday mornings growing up. Now, in the past I’ve savaged that little ditty as a fairy tale because it’s completely unrealistic about how legislation is made in real life and ignores factors like lobbyists, interest groups, and public choice theory. But at least it did teach us that there are rules lawmakers must follow in the journey from proposed legislation to law.

It turns out legislators in Hawai’i could have used some of that same basic education. Last week the state’s supreme court ruled that a recently passed law was unconstitutional because it did not receive “three readings” in both the state senate and state house. The Legislature had thought it had satisfied this requirement under the state constitution through formalistically complying with that command. But the court ruled that the provision demanded some substance as well as form, and that this attempt fell short. The ruling is quite a contrast with how similar issues have been decided under federal law when it comes to Congress.

A Tale of Two Bills

The underlying legislation in this case is pretty mundane and entirely beside the point of the constitutional issues. Hawai’i S.B. 2858, introduced in the state senate in January 2018, would have required the State Department of Public Safety to prepare an annual report on the rehabilitation of released prisoners. It passed the senate after three readings. Transmitted to the state house, it then had its first reading there. Then a house committee recommended completely replacing its contents with what was in an entirely separate house bill, H.B. 2452, which would require hurricane shelters in new state buildings. S.B. 2858 (now substantively a completely different bill) then passed its second reading in the house, and after some more committee proceedings it passed a third reading. The bill then went back to the senate, which did not simply approve what the house had sent back so the bill went to a conference committee. It was then changed to only apply to hurricane shelter recommendations in public schools, and subsequently passed both houses and the governor signed it into law. Thus, between the first and second readings in the house the bill completely changed other than its number, S.B. 2858, and its generic title “A Bill for an Act Relating to Public Safety.”

The League of Women Voters and Common Cause then challenged the law, arguing it violated two provisions of the Hawai’i Constitution: the “subject-in-title requirement” and the “three reading rule.” The court only found it necessary to address the “three reading” issue, as it found the law unconstitutional and invalid under that provision alone.

A Not-So Political Question

In defending the law, the State first argued that the question was nonjusticiable because it was a “political question.” Here, the court recognized that sometimes there are matters that the state constitution leaves to other branches to resolve, but in this case that wasn’t so. The State claimed another provision allowed the Legislature to “determine the rules of its proceedings” and this meant only it, and not the court, could interpret the separate three reading requirement. But the court countered by referring to other language in the constitution, in Article III, Section 1, that said the Legislature’s power only extends to subjects “not inconsistent with this constitution.” And the three reading requirement wasn’t a simple legislative rule, but a part of the constitution itself.

Further, although the plaintiffs in the case weren’t affected by the resulting law’s storm shelter requirements, the court said the public interest groups had standing under Hawai’i’s relaxed standing rules. Unlike in federal court, in Hawai’I (and in some other states) the “concrete interest in ensuring that the Legislature adheres to constitutionally-mandated procedures” is enough for an injury allowing them to sue.

Thus, the court proceeded to the merits.

“The Intent of the Framers”

Article III, Section 15 of the Hawai’i Constitution states in relevant part “No bill shall become law unless it shall pass three readings in each house on separate days.” According to the court its origins go back to the 1894 Constitution of the Republic of Hawai’i. (You can read a bit about that, and some other Hawai’i constitutional history, from our 50 Weeks, 50 Constitutions series here.) It was then reworded and placed in the prospective Hawai’i Constitution at the constitutional convention in 1950. The committee which redrafted it in 1950 stated the reason for the “three readings” requirement was the need for “open” and “full” debate of legislation so that it can be “fully examined.” The court added that another reason for the requirement is that it gives the public notice so citizens can weigh in with their opinions.

The State argued that all the court should look at is the text of the provision, which simply says there should be three “readings” not what those readings are for. The court rejected this because it said some regard had to be paid to the “intent of the framers and the people adopting” the constitution. Further, there is a discussion about remarks made at a subsequent constitutional convention, in 1968, where related procedural requirements were debated. The court rejected the State’s arguments about these as well, but also interestingly said that “the understanding of subsequent delegates does not change the meaning of an existing constitutional provision, absent a substantive amendment to the law.” (Originalism in the states, anyone?)

At bottom the court said there can be some changes to a bill between the first, second, and third readings (after all, that’s what amendments are all about) but that “a bill at each subsequent reading must bear some resemblance to the previous versions read beyond merely having the same title and number.”

As to the question of where that line is, the court adopted a “germaneness standard” it had already applied in cases applying the state constitution’s “subject-in-title” and “single subject” rules. Essentially, the content of the bill at its final reading must be “germane” to that at its first reading. There might be lots of other highly amended legislation where a germaneness argument would work, but this extreme example of “gut and replace” (as the court called it), where the storm shelter legislation had absolutely nothing in common with the earlier prisoner-rehabilitation-reporting legislation, easily fails.

There are a lot of parallels that could be drawn between this case and similar rules for other state legislatures and Congress and how challenges under those rules have been handled. Those are beyond the purpose (and bandwidth) of this blog post. But I’ll briefly mention that similar arguments have been made about the U.S. Constitution’s Origination Clause, which says “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” Yet, it’s a well-known practice of the Senate to “gut and replace” House bills with tax legislation and then send that to the House, instead of the substance first originating there. Courts have rejected “germaneness” arguments under that clause in the past, as then-Judge Kavanaugh stated here. Perhaps now he and others might take a look at the Aloha State when considering whether a law might actually still just be a bill on a hill?

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.