The Legislature has retained attorney Colleen Hanabusa to represent it in a lawsuit brought by the League of Women Voters of Honolulu and Common Cause challenging its use of the so-called “gut & replace” maneuver.

The lawsuit, filed on September 5, names the State of Hawaii as the defendant. The complaint, filed on behalf of the two groups by the Civil Beat Law Center for the Public Interest, alleges that SB 2858 (2018), which became Act 84, violated provisions of the state constitution because the bill did not actually get three readings in the Senate after its contents were totally changed in a “gut and replace” move by the House.

Further, the lawsuit alleges the bill’s title, “Relating to Public Safety,” was “too broad and amorphous” to reasonably let the public, or lawmakers, know what interests would be impacted by its passage. See “Nonprofits Sue Hawaii Over ‘Deceptive’ Gut-And-Replace Legislative Practice,” Civil Beat, September 5, 2018.

Although the Legislature was not named as a defendant, Hanabusa has filed a motion seeking approval to submit legal memorandum as an Amicus Curiae, or friend of the court.

“The interest of the Hawaii State Legislature is in protecting its Constitutional role as one of the co-equal branches of government,” Hanabusa argued in her court filing.

Hanabusa argues that the separation of powers should shield the Legislature’s internal rules from judiciary review.

“The Hawaii Supreme Court has set a very high standard to successfully challenge any law enacted by the Legislature,” Hanabusa’s proposed Amicus argues. “The Court has consistently held that ‘every enactment of the legislature is presumptively constitutional and a party challenging the statute has the burden of showing unconstitutionality beyond a reasonable doubt.'”

Further, Hanabusa argues, the proceedings of the 1968 and 1978 constitutional conventions, including committee reports and transcripts of debates, “clarify that amendments to a bill, including a substitution,” do not trigger a need to begin the three-reading process anew.

This view was bolstered by three legal opinions recently released by Senator Les Ihara. An 8-page opinion approved in April 2011 by then-Attorney General David Louie addressed “the risks of a successful lawsuit challenging the adoption of a bill…that passes three readings in each house, but which had unrelated contents in[to its] DC1” in conference.

The opinion concluded “…a court would have to conclude that there is no basis for the challenge described in your email. The plain language and, more importantly, the underlying constitutional history make clear that the drafters were aware of and opted not to proscribe the situation your email describes, when they adopted and amended the bill passage provisions of article III, section 15 of the State Constitution.”

The opinion goes on to trace the intention of constitutional convention delegates through a series of con cons, quoting several long passages from debates that appear to condone the substantial revision or substitution of language in a bill without triggering a new requirement for three additional hearings.

A subsequent opinion by the Legislative Reference Bureau, also released by Ihara, reached a similar conclusion. This opinion addressed the Hawaii Supreme Court’s 2005 decision in the case of Taomae v. Lingle, which dealt with the constitutionality of a constitutional amendment proposed by the Legislature. The language calling for a constitutional amendment was added to a bill originally proposing a statutory change, and the high court said its title, “A Bill for an Act Relating to Sexual Assault,” failed the constitutional test because it did not identify the measure as proposing a constitutional amendment.

However, the LRB opinion concluded: “Absent a bright line rule such as the one applied by the Court in Taomae to distinguish between bills proposing constitutional amendments and those proposing general laws, it is not clear what other criteria could be used to objectively determine when amendments to a bill cross the line from making the bill quantitatively different to making it qualitatively different, especially if the bill still meets the requirement that it relate to a single subject embraced within the scope of its title.”

A hearing will be held on several pending motions, including the Legislature’s request to submit its Amicus Curiae brief, at 3 p.m. before Judge Gary W.B. Chang in Honolulu’s 1st Circuit Court.

See: AG Opinion dated 4-29-2011, and LRB Opinion dated 3-9-2010.