 everyone and welcome to Hawaii Together on the Think Tech Hawaii Broadcast Network. I'm your host, Kaylee Akeena, president and CEO of the Grassroot Institute. Well today we're going to talk about the fact that the court has struck down something called gut and replace and we're going to be talking with an expert who has been a dear friend of the Grassroot Institute, Robert Thomas, one of our scholars. For years you know the government has been practicing something that has been to the consternation of watchdog groups and it has to do with a tricky loophole used by the Hawaii legislature to pass laws without subjecting them to the full democratic process. That's what we mean when we say gut and replace. Here's how that that law worked. After what is called crossover in the legislature, when the bills that have been heard and passed in one house moved to another, any bill that didn't pass its originating house was considered dead. So a legislature would take a bill that did crossover, remove all or most of the bill's language and replace that language with something completely unrelated to it. Then the bill would finish its journey, pass and become law. Often with few hearings and without many people being aware of the change, it took people by surprise. Well the League of Women Voters and kudos to them of Honolulu and Common Cause Hawaii with the help of the Civil Beat Law Center brought a lawsuit against the state in 2018 arguing that gut and replace is unconstitutional. The Grassroot Institute submitted an amicus brief in support of the plaintiffs arguing that gut and replace erodes public trust in government and undermines the democratic process. Well on November 4th, cheers everybody, the Hawaii Supreme Court finally handed down its decision by a 3-2 vote. They held that gut and replace is unconstitutional and that's what we're going to talk about today. With me today is Robert Thomas of the Pacific Legal Foundation. While Robert was still in private practice in Honolulu, he authored the Grassroot Institute's brief in the case and today he's here, actually he's in Williamsburg, Virginia ready to help explain the case, the decision and what we should be watchful for as the first post gut and replace legislative session resumes in just a few days, actually in January. But Robert, so glad you're on the program. Thank you so much for the support you provided. Congratulations on your insights in the amicus brief and welcome to today's Hawaii together. Well it's a pleasure to hear the words aloha again. Being over here on the east coast, you lose a little bit of touch of home. So it's great to be here and thank you for asking me to join you, Kalidi. Well you certainly understand the legal scene in Hawaii as well as across the nation. Would you explain for our viewers what exactly is what constitutional argument being made against gut and replace in this lawsuit? What constitutional argument are we making against or did you make against gut and replace? Yeah it's a very good very good starting point and the starting point in this case is in a lot of cases is the requirements of our state constitution. So that is the first thing that I think we in our audience need to make clear that there is a requirement in the Hawaii constitution that before a bill becomes law that it has to be read publicly in each house three times and that's contained in article three section 15 if you want to go read it and it's pretty plain it says no bill shall become law unless it shall pass three readings in each house on a separate days and boy that seems pretty straightforward to you and me and to a lot of other people but the process that you described earlier in the introduction that sometimes one house would introduce a bill it would cross over and then hence the name gut and replace the contents of the bill would be completely removed and replaced with something unrelated to the earlier versions of that bill yet the title remain the same and so the bill had been read by the time it gets to approval stage three times in each house and yet the substance of the bill had changed dramatically over the course of its life such that the bill the statute that gets adopted was not subject to three readings in each house and the common cause as you noted filed a lawsuit challenging that procedure on a bill that was under the title of related to public safety and then it starts off as a bill about criminal recidivism reporting in other words adopting or requiring some kind of reporting about repeat offenders and in the end the contents of that bill get get taken out and replaced at the very last minute so that the statute as passed and as adopted by the legislature is about hurricane preparedness. Both of those are related to the title of public safety you know hint what isn't related to public safety or it's very hard to imagine that they're both not related to public safety but are they related to one another such that the bill itself has not changed in substance even though it's title remain the same and the legislature for years when challenged on this outside of court has had two answers to that it first answer is one of convenience will things change and we can't go back and sometimes reboot the entire process when at the last minute the public has told us that we need a bill about hurricane a statute about hurricane preparedness and if we delay we can't afford to go through the procedures required by the Constitution and to the legislature sort of had a sense or responded in the way let me call it maybe mind your own business public but hey these are our internal procedures and how we set it up is up to us and technically speaking we haven't violated the Constitution because they're both recidivism reporting and hurricane preparedness are related to public safety and the degree to which we change the substance of the bill as a matter for us and not you well Robert the the Hawaii Supreme Court obviously did not agree with the legislature and declared the practice in effect unconstitutional now that's from the legal point of view how about the public policy frame of reference in terms of what is Pono as we call it in Hawaii in terms of democracy in terms of the engagement of the public in terms of the accountability and transparency that the legislature is supposed to practice how did gut and replace violate this oh boy you know you take away the the constitutional requirement seemed very plain on its face and you ask yourself why did we have this provision in our constitution why do we have to go through the formality of three readings in each house on separate days before a bill can become law is it simply that we just like to have these things read is it some sort of mirror check off that we need to go through no it's pretty obvious the reason we have it right we the people were the sovereigns we've delegated our power to adopt laws and adopt statutes we've delegated that power to our elected representatives and we want to know what they're doing and so the whole point of the provision in the Hawaii constitution that requires three bit three separate readings in each house on three separate days was to have a minimum amount of transparency we the people have to know what our legislators are doing how else are we supposed to understand that and it was in the brief that we did for grassroot institute where we pointed out that that phrase on the National Archives in Washington DC that eternal vigilance is the price of liberty well we're the watch dogs we the people are the watch dogs and how are we supposed to keep our eye out what the legislature is doing when we don't have those three readings and so what it boils down to is it's a requirement that's based in the idea of we need to know what our government is doing the maybe the a better way a more simpler way to put it is government transparency we to understand and to fulfill our roles as informed citizens how can you do that in the absence of knowledge about what our elected representatives are doing well Robert you used the phrase elected representatives and one of the functions of legislators is to represent the people that they are supposed to be committed to the process of transparency and accountability let's revisit some of the things you mentioned earlier with regard to why the legislature practiced or tolerated gut and replace oh what do you think about those those explanations or those excuses well on one hand yeah you know it's convenient it's easy it's it's uh expeditious sometimes you need to move things along you know the response to that is that may be true but at the same time we have a process in place designed for public accountability and you need to follow that process if you know if there are other reasons other means to have emergency measures in place maybe we can do it that way but exigency alone the idea that it's convenient to do this doesn't really carry a lot of weight and in fact it did not carry a lot of weight with the majority of the court the supreme court said that's not really that big of a concern but you can see if if sometimes it's in you know democracy can be inconvenient sometimes it can be slow it is not a a fast process as we are learning you know if we want last nearly two years have taught us living under emergency rule where we really don't have a transparent and democratically accountable process we have all these edicts coming out but democracy is supposed to be slow it's supposed to be ponderous it's supposed to be deliberative and it's supposed to have that knowledge that you know without sounding uh too cliche about it we the people are are the ones who govern ourselves how can we govern ourselves if we don't have the understanding of what those folks who to whom we delegate the day-to-day responsibility for adopting laws are doing and so I don't think that the convenience argument really ever carried a lot of weight sure it was perhaps convenient for the legislators but it was not convenient ultimately for us the people well Robert let's look at the decision itself well what did the court decide and and why did they make that decision yeah first of all it's a very close decision right we have a five justice Supreme Court unlike the U.S. Supreme Court which is made up of nine justices we have five um and it was a three to two decision so three justices uh uh Justice Nakayama joined by Justice McKenna and Justice Wilson uh joined the majority opinion in validating the law that had been adopted without the three separate readings two justices in an opinion uh a dissenting opinion uh authored by uh uh Chief Justice uh um uh rank uh rekt and rekt and walled rekt and walled joined by a circuit judge who was up in place of um uh I think while there was a vacancy on the court um uh would have ruled in favor of the legislature on this case and let's break down what the opinion said there were two major parts of the majority opinion one of which would I think is is more of a technical legal aspect did the plaintiffs in this case common cause Hawaii and the League of Women Voters have enough standing or enough legal interest in the outcome to serve as the plaintiffs and anybody who has followed Hawaii law for a long time knows that we have fairly lax rules about who can serve as a plaintiff and so the the uh uh majority made pretty short work of the attorney general's argument that the plaintiffs lacked any kind of concrete injury resulting from a bill being adopted about hurricane preparedness that had not been read three times in both houses and but so there's that technical aspect but the largest aspect of it was the court got into the question of what does this mean in article three section 15 of the Hawaii Constitution does it really mean the title of the bill has to be read three times um or does it mean that the substance of the bill has to be available to the public at least three times in each house and the court said yes very emphatically in terms of so very what I would call a very pro democracy pro transparency pro public participation opinion and I think it's very it's it's a very readable opinion um as a legal opinion goes so I urge all our listeners to not rely on what you and I say this legal opinion says it's not that hard to read and in fact it's a very good read in a great civics lesson go pick it up and read it um and the court the majority said it it the legal test for how do we tell if a substance of a bill changes from one reading to the next and the court adopted the test of germanness and it said if the substance of one is germane to the substance of the other and in this case it was a far cry between criminal recidivism reporting was not at all germane to the question of hurricane preparedness the court had no problem saying that that was not that bill had not been read three times by contrast if you read chief justice recton wald's dissenting opinion he had some trouble I wouldn't say not so much with this case uh he didn't weigh in on that question but what he said was I have some trouble with the idea of what about those tougher cases where it's not so obvious that the the substance is all that difference where do we draw that line and in that case shouldn't we defer to the judgment of the legislators when they're saying that hurricane preparedness is related to public safety in much the same way that recidivism reporting is um related to public safety and I think the the big contrast between the uh majority opinion the controlling opinion and the dissenting opinion is where they're focused the majority opinion focus is almost entirely on we the people the people need to know this things and if that case where we as the court we in the judiciary are going to hold the the legislatures feet to the fire in most cases you will find where there's a question of internal legislative procedures courts tend to defer saying well the legislature gets to decide its own internal procedures but in this case the interest and transparency were so strong that that court overcame the majority overcame that usual approach chief justice rector wall on the other hand saw this much in that latter light he said this is really a case about internal legislative procedures and we should respect the judgment of the legislators on what is related to what topics are related to each other such that they're adopted in the same bill in general the chief justice uh rector wall's decisions are respected uh he has been a strong member of the court he has ruled in ways that uh have apparently upheld justice in the eyes of people so some individuals were confused at his minority decision at his dissenting opinion and uh part of that may be because people are looking in general at the public policy aspects yes of of this case the things that we were talking about before transparency accountability and just common sense of for that matter and scratching their head saying how could anybody support that but as a legal case uh this apparently didn't hinge upon the public policy merits per se and so you can have keen legal minds disagreeing with each other depending upon the emphasis they they make do you want to comment a little bit more on that and and help us to understand the minority decision yeah i i would very much agree with you on the characterization of chief justice rector wall as a very careful jurist and in fact the breakout of justices on this case a little bit atypical right oftentimes when you see dissenting opinions or a split in our supreme court of hawaii you will see chief justice rector wall joining with justice nakayama in a position whether it's a majority or a dissenting opinion and yet here they authored the two separate opinions so they parted ways and you have to ask yourself why is that well i think it's this chief justice rector wall i think is especially as the chief justice recognize he's the head of the judiciary he recognizes the principles of separation of powers and and that we like to the courts tend to stay away from the internal procedures of how the legislature adopts laws and simply looks at the end product does the end product comport with the constitution does it violate due process does it violate the takings clause does it violate equal protection or some other thought does it does it violate the delegated powers or something like that and rarely will courts look into the process by which legislation is adopted based on the principle of separation of powers that at the same degree you don't like the legislature poking its nose into how the court tries cases and comes up with rulings you wouldn't want that the same is true in reverse so i think chief justice rector wall was really focusing it's not that you know make no mistake there's no question he's a believer i think in in transparent government and we the people the ultimate sovereigns but what he was concerned about if you read his opinion was the separation of powers is the court an unelected body really the right court part of government to make that call about how the elected legislators structure their deliberative process and the big difference is the majority said yes we've already made that decision in the hawaii constitution three readings three times three days chief justice rechtenwald said close cases like this may not have been a close case but in the future there will be close cases close cases on whether a bill has been read three times and is so related to each other those kind of calls should go to the legislature so i don't think this one is over just yet well you know that was helpful robert very often in the public we bring to court cases a broad range of issues yes it may not be that many of those issues are actually being addressed they are not the question that the court is focused on or that some of the justice's beliefs should be focused on now now let me ask you this as we back up and take a look at at this particular decision is this a significant decision how important is it short answer absolutely yes i can say that unequivocally that this one is going to be one that that if it's not taught in civics classes in hawaii classrooms it should be this is an important one for public transparency and public participation and i think it's a it's a uh a warning bell an alarm bell for us hawaii participation in i mean in our brief we noted the dramatic drop in hawaii voter participation rates in our willingness as the people to exercise our function as the ultimate sovereigns to participate in elected government we've become jaded this is a clarion call to get off of our behinds our old colleagues excuse me and watch what our government's doing pay attention because ultimately we're we're the sovereigns in this case we we've delegated to our elected representatives for convenience sake the idea that they make the laws or they make laws but ultimately we're the sovereigns and this is a real clarion call a really dramatic case highlighting the fact that we we the people need to pay attention to this thing and not just say well that's what goes on in the legislature and leave it let's stop being jaded let's participate in our government so it's a wonderful decision from that point of view well that's really a breath of fresh air and i'm glad to hear it yes it's too jaded right about politics absolutely we need this and here was the court telling us here's the opportunity you have to get involved and pay attention to what those guys down on baritainia street are doing now we got it's up to us now to use that now so robert wonderful decision in your opinion how will this decision affect lawmaking and the legislature in the future well you know that's the big question right that is the big question um the legislature can react can react to this in in one or two or maybe more ways but i think there's two major ways it can react it can read the handwriting on the wall get with the program understand why the court did what it did and not dig its heels in start doing things in a transparent way i mean gotten replaced frankly in many cases was very cynical it was a very cynical approach to lawmaking you know stand aside we're the experts we're going to do this we're going to do this at the last minute under the not the cover of darkness but under this procedural trick this bait and switch this gotten replaced the legislature can understand okay game over on this one time to get with the program let's get transparent do follow not only the letter of the laws as the as the supreme court requires and as the hawaii constitution requires but get with the spirit of the law right bring people into the process don't be afraid of the people so that's one way that would be a very positive development i think the other thing is if the legislature says how do we figure out how to still do what we want to do in light of this opinion and stay legal that would be a i mean to me a terrible way to approach this but when the standard is something like germane it's is version a of the bill germane diversion b you can see where there's a lot of gray area between them it was an easy case in this case hurricane preparedness is not at all i say it's hard to say that with a straight face hurricane preparedness is not at all germane to the issue of recidivism reporting and criminal law but what if it's a lot closer and can they still do that yes i wish i hope they don't go that route and go kind of what i see is the maybe the more cynical route and really get with the program but they could do so and and the people need to pay attention sure you know in light of the fact that it is still possible for the legislature to do an end run around the hearing process and stretch the meaning of germane what should the public be looking for look to see you know apply your common sense now common sense tells you that hurricane preparedness got nothing to do with recidivism reporting that's the easy case start watching the content of your bills as they progress through i know it's a pain but it certainly wasn't a pain as much as it was when you and i were doing this and we'd have to march down there and dig through a bunch of files it's all online it's all there set up a feed for yourself or go watch every couple of days and see what happens on bills that you're interested in and make sure they don't press fast ones and if they do pick up the phone column write letters petition your government do all that things that you're supposed to do or even i mean we have the ultimate weapon let's call it or the ultimate control is you're not going to get reelected if you keep doing this kind of stuff guys civic engagement civic engagement exactly that's what it's about civic engagement i mean absolutely democracy is tough right it's tough robert so good to hear you say these words and thank you for your expertise appreciate your work in the gut and replace case and appreciate all of you you're helping us stand guard well let's you know let's let's give credit where credit is due to the as you mentioned earlier yes they had the guts and the stand-upness openness to bring the case and the league of women voters common cause and civil beat law so it will be our hats hats off to them but also hats off to you and grassroot institute for standing up and adding your voices to this through the amicus brief that we did so the system worked yay yay team yes thank you thank you for serving okay everybody we'll hear more from robert thompson the future until then i'm kelly akina with the grassroot institute signing off on think tecawaii to white together until next time aloha