Updated 7 p.m., 9/5/18

Continuing their crusade for a more open and transparent government, two Hawaii nonprofits took the unprecedented step of suing the state Wednesday over the Legislature’s ongoing practice of gutting and replacing bills without giving the public its constitutionally required opportunity to participate in the lawmaking process.

Common Cause and the League of Women Voters, represented by The Civil Beat Law Center for the Public Interest, asked the 1st Circuit Court to void a recent law because legislators overhauled the bill late in session without giving the fundamentally changed version three readings in the Senate. But the groups are hoping a court decision will also set a precedent that ends gut-and-replace practices in the Legislature.

“Gut and replace and other deceptive practices have been used for years to cut the public out of the conversation. Enough is enough,” Common Cause Hawaii Executive Director Corie Tanida said in a release. “Everyone, especially our lawmakers, should respect and abide by our State Constitution. Nobody is above the law.”

Cory Lum/Civil Beat

Since 2014, Common Cause and the League of Women Voters have given out Rusty Scalpel Awards to highlight the bills that passed each session with the least amount of transparency. But the practice has continued unabated.

“It became woefully clear that the Rusty Scalpel Awards have not curbed the abuse, that shame does not seem to work on legislators and, that left to their own devices, they have no impetus to change,” Nancy Davlantes, president of the league’s Honolulu chapter, said in a release.

Senate Bill 2858 initially set out to beef up the Department of Public Safety’s annual reports to the Legislature by requiring performance indicators to track progress in areas such as recidivism, drug rehabilitation and demographics.

The measure moved through two committees in the Senate before clearing the chamber with a couple of amendments in early March.

But in the bill’s first House hearing, the Public Safety Committee deleted its entire contents and inserted new language dealing with disaster preparedness.

The measure’s title, “A bill for an act relating to public safety,” remained unchanged. But the bill now required all state buildings built after July 1 to include a hurricane shelter room.

Anthony Quintano/Civil Beat

Senate Bill 2858 sailed through the House Finance Committee, with public testimony criticizing the fact that it no longer pertained to DPS’ performance. But people also realized that having hurricane shelters was a good idea. The bill easily cleared a final vote by the whole chamber.

A joint House-Senate panel watered down the final version in April negotiations, where public testimony is not allowed, passing out a bill that required the state to consider hurricane resistant criteria when building new public schools to be able to provide shelter.

It cleared the full Senate and House on May 1 and Gov. David Ige signed the bill into law July 5.

At no point was there an opportunity for the public to testify when senators heard the measure.

The lawsuit against the state says the process of “hastily or stealthily enacting laws unconstitutionally deprives the public of adequate notice regarding legislation that will impact everyone in the State.”

The Hawaii Constitution requires bills to be heard three times on separate days in each chamber before passing, and that “each law shall embrace but one subject, which shall be expressed in its title.”

The lawsuit says the Senate only heard the bill twice and the bill’s title, “Relating to Public Safety,” is not specific enough to meet the constitution’s intent. The suit says it “obscures the actual content of the legislation it proposes and is misleading.”

During the past session, Common Cause, League of Women Voters and even some lawmakers noted what seemed to be an uptick in gut-and-replace legislation.

One Senate agenda featured at least a dozen bills that were either proposed pieces of gutted and replaced legislation or bills that were amended to add the contents of another bill that had stalled in the other chamber.

Tanida said the practice is problematic to the public as well as legislators because they are not given an opportunity to fully digest the bills before voting on them.

In April, Sen. Laura Thielen said the public’s faith in the process is damaged when there’s a perception that the Legislature can follow the rules when it wants and find ways to circumvent them when it doesn’t.

Senate Ways and Means Committee Clerk Dane Wicker said at the time that the tactic is a “double-edged sword.” He said it allows lawmakers to keep the concept or discussion of an issue alive until the end of the session if it fizzles out before a certain committee, whose chairs alone determine if it is heard.

Rep. Sylvia Luke, who chairs the House Finance Committee, gutted a Senate bill from last year that would have expanded the income tax credit for low-income renters and replaced it in March with legislation to give the neighbor island counties more hotel tax revenue.

Senate President Ron Kouchi and House Speaker Scott Saiki did not immediately return calls seeking comment Wednesday.

Update Kouchi said Wednesday evening that he had no comment on the pending litigation, as is standard.

The question the nonprofits are asking a judge to decide is about the requirements for a bill’s subject. How vague can it be and still follow the constitution?

In SB 2858, “public safety” would appear to cover the initial language requiring performance indicators from the Department of Public Safety and the final language about hurricane shelters in schools.

The nonprofits who filed the lawsuit don’t think that’s enough for the public or even lawmakers to effectively participate in the legislative process.

Read the complaint below.

The Civil Beat Law Center for the Public Interest is an independent organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat. Civil Beat Editor Patti Epler sits on its board of directors.

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