HSC Trashes “Gut and Replace,” Enters Thicket

 League of Women Voters of Honolulu v. Hawai'i (HSC November 4, 2021)

Background. In 2018, the Hawai'i State Senate introduced a bill, S.B. 2858. The Bill proposed to amend sections of Hawai'i Revised Statutes (HRS) Chapter 353 by requiring the Department of Public Safety to prepare annual reports to the Legislature about the rehabilitation of people released from prison. The purpose of the report was to collect data on recidivism rates. Aside from minor amendments, the bill passed three readings in the Senate and crossed over to the House, where it passed its first reading.

 

At a hearing on the House Committee on Public Safety, the Department of Public Safety, Office of Hawaiian Affairs, various action committees like the Hawai'i Justice Coalition, the Community Alliance on Prisons, Young Progressive Demanding Action, and the ACLU along with individual people testified. Although most of the testifiers supported the bill, the House Committee recommended amending the bill by “deleting its contents and inserting the substantive provisions of House Bill No. 2452, H.D. 1,” a bill that would require State buildings to include hurricane shelter space. With that amendment, the bill passed its second reading. At a later hearing, OHA and the Young Progressives Demanding Action testified by asking legislators to bring back the old language of the bill. The House Committee on Finance declined and the bill passed its third reading in the House.

 

The bill went back to the Senate, which disagreed with the House amendments and a conference committee of some House Representatives and Senators met to discuss the bill. The conference committee amended the bill to delete the hurricane shelter space requirement and instead require the State to consider hurricane resistant criteria when designing and constructing new public schools. The Senate adopted the conference committee’s amendments and the bill passed its final reading in both chambers. The Governor signed it into law on June 29, 2018.

 

The League of Women Voters of Honolulu and Common Cause filed a complaint suing the State and seeking declaratory judgment that the bill was unconstitutional. The State filed a motion for summary judgment arguing that the bill was constitutional and that the plaintiffs presented a political question that cannot be addressed in court. The plaintiffs filed their own motion for summary judgment. The circuit court ruled for the State and concluded the legislative process did not violate the constitutional requirement that every bill must pass three readings in each chamber of the legislature. The plaintiffs appealed and after the briefing, the case was transferred to the HSC. The Legislature filed an amicus brief supporting the State. The Tax Foundation of Hawai'i and the Grassroot Institute of Hawai'i filed amicus briefs for the plaintiffs.

 

First off, the Plaintiffs have Standing. The HSC addressed standing. A party seeking relief needs “a personal stake in the outcome of the controversy as to warrant his invocation of . . . (the court’s) jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Life of the Land v. Land Use Comm’n, 63 Haw. 166, 172, 623 P.2d 431, 438 (1981). The plaintiffs here brought a declaratory judgment action pursuant to Hawai'i Revised Statutes (HRS) § 632-1. Declaratory relief does not need to establish an actual injury to have standing:

 

[A] party has standing to seek declaratory relief in a civil case brought pursuant to HRS § 632-1 (1) where antagonistic claims exist between the parties (a) that indicate imminent and inevitable litigation, or (b) where the party seeking declaratory relief has a concrete interest in a legal relation, status, right, or privilege that is challenged or denied by the other party, who has or asserts a concrete interest in the same legal relation, status, right, or privilege; and (2) a declaratory judgment will serve to terminate the uncertainty or controversy giving rise to the proceeding.

 

Tax Found. of Hawai'i v. State, 144 Hawai'i 175, 202, 439 P.3d 127, 154 (2019). The HSC agreed with the circuit court that the plaintiffs had standing under this test. There were “antagonistic claims” between the parties about the legislative process  and the plaintiffs have “a concrete interest in ensuring that the Legislature adheres to constitutionally-mandated procedures when enacting new legislation[.]” Moreover, declaratory judgment will end the controversy.

 

Second, it’s not a Political Question. The HSC rejected the State and Legislature’s claims that the legislative process in which bills become law were nonjusticiable political questions. Our State government is equally divided among three branches. Trustees of Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 170-171, 737 P.2d 446, 456 (1987). Political questions is an “amorphous aspect of justiciability” requiring courts to balance “preserving separation of powers [while] providing a check upon the other two branches of government.” Nelson v. Hawaiian Homes Comm’n, 127 Hawai'i 185, 194, 277 P.3d 279, 288 (2012). The HSC noted that questions of constitutional interpretation are for the judicial branch to determine:

 

Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of [the] Court as ultimate interpreter of the Constitution.

 

Baker v. Carr, 369 U.S. 186, 211 (1962); see also Marbury v. Madison, 5 U.S. 137, 177 (1803) (“an act of the legislature, repugnant to the constitution, is void. . . . It is emphatically the province and duty of the judicial department to say what the law is.”). The HSC noted that while the Legislature is free to adopt its own rules, it cannot thwart procedures mandated in the Hawai'i Constitution. Whether the legislative process violates the Hawai'i Constitution, according to the HSC, is not a political question but one aptly subject to judicial review.

 

The Hawai'i Constitution’s Rule of “Three Readings.” “No bill shall become law unless it shall pass three readings in each house on separate days.” Haw. Const. Art. III, Sec. 15. Constitutional provisions regulating the enactment of legislation are “mandatory and a violation thereof would render an enactment nugatory.” Schwab v. Ariyoshi, 58 Haw. 25, 31, 564 P.2d 135, 139 (1977). The plaintiffs argued that the bill here violated the three-readings clause because it was dramatically amended. The bill about hurricane shelters received only one reading in the Senate before it was signed into law.

 

Interpreting the Constitution is similar to interpreting statutes:

 

[T]he general rule is that, if the words used in a constitutional provision are clear and unambiguous, they are to be construed as they are written. In this regard, the settled rule is that in the construction of a constitutional provision the words are presumed to be used in their natural sense unless the context furnishes some ground to control, qualify, or enlarge them.

 

Sierra Club v. Dept. of Transp., 120 Hawai'i 181, 196, 20 P.3d 1226, 1241 (2009).

 

According to the HSC, the provisions in Article III, Section 15 are clear: a bill cannot become law unless it passes “three readings in each house on separate days.” To “read” means to “receive or take in the sense of [letters or symbols] . . . by sight” or “to utter aloud the printed or written words of” a thing. Merriam Webster’s Collegiate Dictionary, 972 (10th ed. 1994). In other words, for a bill to become law, it must be “read,” that is, its contents must be “taken in” or “uttered aloud” three times in each house on separate days.

 

The HSC rejected the State’s arguments that it complied with the three-readings clause. The HSC delved into the long history of the clause going back to the 1894 constitution of the Republic of Hawai'i and the Constitutional Convention of 1950. The HSC explained that the provision is a built-in deliberative process to avoid hastily-written laws. Bills ought to be fully examined before becoming law. The three-readings Clause is supposed to slow things down to allow that to happen. See Taomae v. Lingle, 108 Hawai'i 245, 255, 118 P.3d 1188, 1198 (2005); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 396 (1951) (Jackson, J. concurring) (three-readings clause in United States Constitution “intended . . . to make sure that each House knows what it is passing and passes what it wants”).

 

The HSC also noted that the Three-Readings Clause affords ample opportunity for the public to comment on a bill. In the end, the HSC distilled the Three-Readings Clause into three purposes: (1) provide an opportunity for full debate on proposed legislation; (2) ensure that legislators are familiar with the bill’s contents have time to give adequate consideration to its effects; and (3) allow the public notice and an opportunity to comment.

 

Dramatic amendments to a bill thwart these purposes. The HSC was “convinced” that the Three Readings Clause requires a bill to have “some resemblance to the previous versions” beyond the title and number.

 

The Test to Determine Constitutionality of an Amendment. But how far can a bill be amended before it violates the Three-Readings Clause? For that, the HSC adopted a test of germaneness. A thing is germane when it is “akin, closely allied” and “united by the common tie of blood or marriage.” Territory v. Kua, 22 Haw. 307, 313 (Terr. 1914). For these purposes, the HSC noted that legislative amendments are germane when “the common tie is found in the tendency of the provision to promote the object and purpose of the act to which it belongs.” Id. In other words, when an amendment has “no close alliance” to the original and contemplates “a new and independent matter,” it cannot be considered germane. Id. And so, the HSC held that when a “non-germane” amendment is added to a bill, the three-reading process begins anew.

 

Requiring hurricane relief shelters to State buildings is a “non-germane” amendment to a bill originally designed to report on recidivism. In applying the test for germaneness here, the HSC held that the amendments to the bill originally intended to report on released prisoners was not germane. The hurricane shelter provision had no “common tie” or “close alliance” to recidivism. Hurricane shelters were a “new and independent matter, disconnected from the question” of recidivism reporting. The amendment was not germane and three new readings were required. The law is therefore unconstitutional.

 

The new rule here has no Retroactive Effect. The HSC in announcing this new rule also decided it would not have retroactive effect to the many laws that may have violated the Three Reading Clause. The HSC held that the new rule “is applied to . . . this case and prospectively, but not to other cases challenging laws enacted prior to this pronouncement” on November 4, 2021.

 

Chief Justice Recktenwald’s Dissent. The Chief Justice dissented. He took issue with the plainness of the word “reading” in the Hawai'i Constitution. Because it is not defined in the Constitution and there is no guidance in the Constitution about the “outer bounds of permissible” amendments, the Legislature was free to exercise its rulemaking authority to set that standard—not the Court. The CJ noted that in this bill, the Legislature followed its own laws. He also believed that the test for germaneness is flawed. For him, it is a test adopted without a link to any text in Article III, Section 15. Nowhere does that provision require “germaneness.” The Kua case extrapolates from a clause in the Organic Act of 1900, not our current Constitution. For him, “we should not graft such an inquiry into Section 15 when the language of the section does not require it.” Judge Shirley Kawamura, who presided in place of Retired Justice Richard W. Pollack, joined the Chief Justice.

 

Into the Thicket We Go? Sixty years ago, as the Warren Court took on challenges to gerrymandering and eventually adopted the principle of one person, one vote, there was a vicious and hot debate in the SCOTUS. Justice Felix Frankfurter, appointed by Franklin Roosevelt and progressive New Dealer, lamented that courts should not be in the business of reviewing these things. This was partly due to his view that a robust and progressive legislature ought to have a free hand without judicial intervention. After all, he—like his idol Oliver Wendell Holmes—was a fierce opponent of the Lochner Era, a time before the New Deal when progressive legislation was struck down time and time again.

 

But by the middle of the twentieth century, when the types of legislation changed, so did the SCOTUS’s approach. As the SCOTUS started to hear challenges to discriminatory legislation, Frankfurter became more conservative. He famously led the Court to abstain from reviewing a challenge on reapportionment in Colegrove v. Green, 328 U.S. 549 (1946). Despite the “glaring inequalities” in a gerrymandered district, Frankfurter found no judicial remedy. “Courts ought not to enter this political thicket.” Id. at 556. Of course, the Warren Court reversed Colegrove and Frankfurter, who sat on the Court was apoplectic about it. By 1962, the SCOTUS had indeed entered the thicket with Baker v. Carr—a famous Warren Court case cited by the majority here.

 

So what’s next? Will our courts be flooded with declaratory judgment actions challenging the way laws are passed? Only time will tell.