If history is any indication, we should brace ourselves for legislative pushback against the recent Hawaii Supreme Court ruling that found the “gut and replace” maneuver in violation of the state constitution’s mandate that a bill must pass three readings in each house in order to become law.

“Gut and replace” refers to a legislative maneuver in which the entire contents of a bill are removed, and replaced by new content that is unrelated in either subject or substance to the original bill.

This has been a long-standing but controversial practice often used to circumvent legislative deadlines by gutting a bill that had met required deadlines, and was thus still “alive,” with the content of another bill that missed a key deadline, giving it new life. Gut and replace has also been used by powerful committee chairs to muscle force their own preferred bills through conference committees in the waning days of a legislative session.

The bill was challenged by the League of Women Voters of Honolulu and Common Cause in 2019. The two good government groups were represented by attorney R. Brian Black and the Civil Beat Law Center for the Public Interest. Their lawsuit argued that Senate Bill 2858, which was passed during the 2018 legislative session and signed into law failed to comply with the state constitution. The circuit court ruled in favor of the Legislature, “holding that the process for enacting the law complied with the Legislature’s adopted rules of procedure, which do not require the three readings to start again in each legislative chamber after a bill is amended or replaced.”

The plaintiffs appealed the ruling, again arguing the process for adopting the bill violated Section 15 of the Hawaii State Constitution because the House made non-germane amendments in a classic gut and replace move, and the Senate did not hold the required three hearings to consider what was essentially a new bill, except for the assigned bill number and generalized title (“A Bill for an Act relating to Public Safety”).

By a slim 3-2 majority, the Supreme Court ruled in favor of the challengers and concluded a bill must receive three readings after being altered by non-germane amendments, effectively putting an end to gut and replace. Chief Justice Recktenwald, joined by Circuit Judge Kawamura, in place of Pollack, who recused himself, dissented.

The ruling was issued on November 4 while the Legislature was not in session, and there was little comment from legislative leaders.

However, a brief filed on behalf of the Legislature by former Congresswoman and Senate President Colleen Hanabusa made clear the Legislature’s position.

The primary issue presented in this appeal is whether the overruling of the
decision of the circuit court would result with judicial intrusion upon a co-equal branch of government. The Legislature believes this appeal is about the separation of powers.

Hanabusa repeatedly argued the state constitution provides that the Legislature is empowered to determine its own internal rules of procedure, is a branch of government co-equal to the judiciary, and that its enactments “are presumptively constitutional.”

This would not be the first time that Legislators have accused the judiciary and the courts of overstepping their constitutional bounds and intruding on legislative prerogatives, and then retaliated.

One example followed a series of decisions, beginning in 2012, in which the Supreme Court ruled legislators had failed to comply with a 1978 constitutional amendment requiring that the Department of Hawaiian Home Lands be provided sufficient funds for its operations. A 2015 Circuit Court ruling put a number on the constitutional deficiency, saying more than $28 million in additional funding would be necessary to comply with the constitutional requirement.

Legislative leaders reacted by pushing a series of bills during the 2016 session that would have reduced judicial independence and exerted more political control over judicial retention decisions.

At least two bills would have required judges to be elected, while another would take the power to approve judicial reappointments away from the state’s Judicial Selection Commission by requiring Senate consent or approval of judges seeking additional terms.

Here’s an excerpt from what I wrote at that time.

…[T]here will be little for the Senate to review in the case of reappointments except for a judge’s prior rulings. So the process of reappointment could easily become an an occasion for pressuring judges over past legal rulings, with the aim of altering their future rulings.

And by appearing to hold the threat of judicial elections over the judiciary while this case is playing out in court, the Legislature is showing exactly why making the process more political is a bad idea.

Perhaps the worst thing about the situation is that none of the legislative leadership have owned up to their role in pushing these bills. They haven’t defended the bills, or had to answer for bending the process to make a political point or gain an advantage in court.

It feels a lot like the bad old days when back room deals ruled and no explanations were due to the public.

The political retaliation continued the following year.

Legislative leaders called [the DHHL decision] a violation of the separation of powers, an argument which had been raised before the Supreme Court but proved unpersuasive. So in fit of legislative pique, they launched a thinly disguised campaign of intimidation aimed at judges and justices, putting forward bills threatening to require Senate approval for reappointment of any sitting judges, calling for judicial elections rather than merit selection, and in the latest case, singling out judges for a large cut to retirement benefits. All the measures were seen as undermining the independence of the courts.

You could almost hear House and Senate leaders taunting the high court. “If you want your independence, you’d better keep your hands off of ours,” they seemed to be loudly signaling.

Old-timers may recall an earlier example of legislative retaliation that followed in the wake of scandal-fueled reforms in the mid-1980s that toppled a judiciary lobbying effort led by the deputy administrative director of the courts, Tom “Fat Boy” Okuda.

Okuda was popular among the elected officials of both parties who he lobbied on behalf of the judiciary budget. He built strong personal relationships with key legislative leaders, routinely rewarding them with campaign assistance from groups of court employees, sheriff’s badges which could be used to obtain special benefits (including free parking at airports or other state facilities, as well as the “right” to carry firearms), and even administratively “fixing” traffic tickets for politicians or their friends on request.

A blue-ribbon panel appointed by the chief justice confirmed many of the inappropriate and sometimes illegal lobbying activities, and the judiciary instituted internal reforms, shutting down the whole lobbying program. Okuda himself was eventually convicted on 13 misdemeanor counts of ticket fixing, part of some 3,400 tickets administratively dismissed between 1982 and 1986.

But Okuda had friends in the State Capitol.

There was a backlash from legislators loyal to Okuda, who punished the judiciary with results that have lasted for decades, refusing to fund judicial raises and reversing the favor that prior court budgets had enjoyed.

As a result, the 2007 State Commission on Salaries reported that Hawaii judges were the lowest paid in the country, ranking No. 51 among the 50 states and District of Columbia. Worse, even after their recommended salary increases, Hawaii’s judges still remained at the very bottom of the salary heap.

That turns out to have been the lingering legacy of Fat Boy Okuda, who said everything that he did had been for the good of the judiciary.

I would like to think such back-room power plays were no longer part of the legislative repertoire, but I suspect that’s just wishful thinking on my part.