State legislators representing the Big Island expressed mixed reactions to Hawaii Supreme Court’s ruling Thursday that “gut and replace” legislative tactics are a violation of the state Constitution.
“I think it’s a good thing,” Hilo Rep. Chris Todd said Friday. “We live in a time where there’s kind of unprecedented levels of distrust in a lot of our institutions, including the government. Anything we can do to be more transparent and to prove our trustworthiness is a good thing. And so I’m hopeful that this practice — which has been around for a very long time as a standard practice — just kind of goes away quietly and we can move forward.”
Gut and replace is a practice in which a legislator or legislators remove a bill’s original content, replace it with something entirely unrelated, and then fail to hold the required number of readings for the amended legislation.
One lawmaker expressing an opposing view was Hamakua Rep. Mark Nakashima, who chairs the House Judiciary and Hawaiian Affairs Committee. He called gut and replace “a valid tool.”
“Often, things come up during the session, and it’s too late to introduce a new bill. And so gut and replace gives us an opportunity to do that,” Nakashima said. “I think the folks that filed the complaint aren’t looking at the big picture because the ruling could invalidate things they want, not just the bill they filed the suit over.”
The lawsuit challenging gut and replace was filed by the League of Women Voters and Common Cause Hawaii over a 2018 bill requiring the state to file annual recidivism reports. That bill was passed by the state Senate. But when it was passed to the House, the subject matter was changed to hurricane shelters in public schools, which received only one Senate reading — instead of the required three readings — before becoming law.
The high court on Thursday ruled 3-2, with Justices Paula Nakayama, Sabrina McKenna and Michael Wilson in the majority. The dissenting opinion was written by Chief Justice Mark Recktenwald, who was joined by Circuit Judge Shirley Kawamura, filling in for retired Justice Richard Pollack.
The decision applies only to future legislation, not to gut and replace measures that already have become law.
Freshman Sen. Laura Acasio of Hilo said she was “grateful” for the ruling.
“The Supreme Court, in their ruling, clearly stated legislative procedures do not trump constitutional provisions,” Acasio said. “Hopefully, this is just the beginning. There’s so much more that needs to be done to protect our collective right to a transparent and fair legislative process.”
Acasio said the Legislature could use short-form bills in the case of emergencies needing funding. Those bills still require the same hearing procedures but aren’t restrained by legislative deadlines except those for hearing notices, she said.
Sen. Lorraine Inouye, the majority whip, noted gut and replace has been “done before in emergencies … such as landslides and things of that nature when (funding) has to be approved, at the governor’s request.”
Inouye said she’s “not surprised” by the high court’s ruling, and added, “You know the transparency we always talk about? We got our lesson (on Thursday).”
According to Inouye, transparency issues affect not only the public. Sometimes, she said, the other legislative chamber may be unaware when a bill is gutted and replaced.
“As far as I’m concerned, it’s sometimes troubling if we don’t know what the other house is doing, and all of a sudden, we’re in conference,” Inouye said.
She said the court’s decision is “long overdue.”
Rep. David Tarnas of Waimea said he’s “never liked to use” gut and replace.
“I really like the process of having hearings on the bills and getting people’s input,” he said. “That’s all a part of the process. I think the more we can be transparent about our legislative process, the better.
“We need to build people’s confidence in the legislative process.”
Sen. Joy San Buenaventura of Puna said the Supreme Court ruling is “just going to cost the state more money” because emergencies near or at the end of the legislative session will mean a special session might be needed.
“A good thing that occurred with gut and replace happened in 2018, with the Kauai flooding,” she said. “The flooding occurred at the end of April. The session ends the first week of May. If we didn’t gut and replace one of the bills to add in moneys, we would have had to extend the session … which would cost more money.
“And parenthetically, in May (2018), there was also the lava disaster. Because we put in the moneys for the Kauai disaster, the governor was able to use some of that money to help us during the lava disaster.”
Todd agreed that gut and replace legislation is “not always used with bad intentions,” such as when “an emergency situation come up and you need to deal with it.”
“But I think a more commonsense answer would be addressing why do we only have a four-month-long legislative session to deal with all of the state’s business in the first place?” he noted. “And I hope that’s how we proceed. Instead of trying to use these creative mechanisms to do our job, why don’t we give these issues the time they actually deserve, and extend the calendar when necessary?”
Nancy Cook Lauer, president of the Big Island Press Club, which advocates for openness in government and the public’s right to know, pointed to a gut and replace bill that repealed the counties’ share of the state’s Transient Accommodations Tax.
“That’s a classic example of what goes around when there’s no public input,” Cook Lauer said. “It cost the county $19 million in Transient Accommodations Tax, which was set up to begin with to help counties maintain infrastructure due to tourism impacts.
“The public has a right to see the entire process of what goes on. There’s distrust of government, anyway. When the government does things at the last minute without public oversight, it just increases the distrust.”
Email John Burnett at jburnett@hawaiitribune-herald.com.