LEAGUE OF WOMEN VOTERS OF HONOLULU and COMMON CAUSE v. STATE OF HAWAIʻI
SCAP-19-0000372
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
NOVEMBER 4, 2021
*** FOR PUBLICATION IN WEST‘S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-19-0000372; CASE NO. 1CC18-1-001376)
Electronically Filed 04-NOV-2021 07:53 AM Dkt. 55 OP
NAKAYAMA, MCKENNA, AND WILSON JJ., AND RECKTENWALD, C.J., DISSENTING, WITH WHOM CIRCUIT JUDGE KAWAMURA, IN PLACE OF POLLACK, J., RECUSED, JOINS
I. INTRODUCTION
Plaintiffs-Appellants League of Women Voters of Honolulu and Common Cause (collectively, “Plaintiffs“) appeal1 from the Circuit Court of the First Circuit‘s (circuit court) final judgment, which granted Defendant-Appellee
In the underlying proceeding, Plaintiffs filed a complaint in the circuit court seeking a declaratory order that a recently enacted bill was adopted through an unconstitutional process and therefore is void as unconstitutional. Plaintiffs challenged the adoption of a law requiring hurricane shelter space in new public schools on the grounds that it violated
The State filed a motion for summary judgment, arguing that the Legislature‘s own rules of procedure permit a bill to be read only by number and title and do not require the three readings to start again after a bill is amended, even if the bill‘s contents are entirely deleted and a substituted bill is introduced. Plaintiffs also filed a motion for summary judgment. The circuit court granted the State‘s motion for summary judgment and denied Plaintiffs’ cross-motion, 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.
On appeal, Plaintiffs again argue that the process for adopting the bill violated section 15 because, after the House made non-germane amendments to the recidivism reporting bill, the Senate did not hold the required three readings to consider the hurricane shelter bill. We agree. The plain language of section 15 states that “No bill shall become law unless it shall pass three readings in each house on separate days.”
We conclude that
For the reasons stated herein, we determine that Senate Bill 2858, Senate Draft 2, House Draft 1, Conference Draft 1, 2018 Haw. Sess. L. Act 84 at 432 (“Act 84” or “S.B. 2858“) violated this requirement. Accordingly, we vacate the circuit court‘s orders and judgment granting the State‘s motion for summary judgment and denying Plaintiffs’ motion for summary judgment and remand to the circuit court with instructions to grant Plaintiffs’ motion for summary judgment.
II. BACKGROUND
A. Act 84
Senate Bill No. 2858, “A Bill for an Act Relating to Public Safety,” was introduced in the Senate on January 24, 2018. As originally introduced, S.B. 2858 would have added new sections to Hawaiʻi Revised Statutes (HRS) Chapter 353, to require the State Department of Public Safety (DPS) to prepare and submit an annual report to the Legislature that tracked the rehabilitation and re-entry performance indicators for individuals released from prison (“recidivism reporting bill“). With minor amendments, the recidivism reporting bill passed three readings in the Senate.
On March 8, 2018, after crossover2 from the Senate, the recidivism reporting bill passed its first reading in the House.
Despite the fact that the interested parties largely supported the recidivism bill, the House Committee on Public Safety recommended amending S.B. 2858 “by deleting its contents and inserting the substantive provisions of House Bill No. 2452, H.D. 1,” (“H.B. 2452“) which would require that State buildings constructed after July 1, 2018 include hurricane shelter space (“hurricane shelter bill“).3 H.R. Stand. Comm. Rep. No. 1255-18,
at 2 (2018). On March 21, 2018, the House amended S.B. 2858 according to the committee‘s recommendation and S.B. 2858 - as the hurricane shelter bill - passed its second reading in the House.
On March 28, 2018, the House Committee on Finance held a hearing on the hurricane shelter bill and accepted public testimony. The Office of Hawaiian Affairs and Young Progressives Demanding Action offered testimony asking legislators to revert the bill to its original subject as the recidivism reporting bill.4 While the House Committee on Finance noted the objections of interested parties to the substituted bill, it nevertheless recommended passing the hurricane shelter bill unamended. On April 6, 2018, S.B. 2858 passed its third reading in the House.
On April 10, 2018, S.B. 2858 was transmitted to the Senate. The Senate disagreed with the House amendments and a conference committee of House and Senate members met to confer.
The conference committee recommended that S.B. 2858 be amended to delete the hurricane shelter space requirement and instead provide that the State must consider hurricane resistant criteria when designing and constructing new public schools. The Senate adopted the conference committee‘s recommendation and S.B. 2858 passed final reading in both chambers on May 1, 2018. S.B. 2858 was signed by the Governor as Act 84 and became law on June 29, 2018.
B. Proceedings in the Circuit Court
On September 5, 2018, Plaintiffs filed a complaint in the circuit court challenging the enactment of Act 84 as unconstitutional. The complaint alleged that: (1) the title of S.B. 2858 “Relating to Public Safety” does not satisfy the subject-in-title requirement of
unconstitutional process and therefore is void as unconstitutional.
On October 25, 2018, Plaintiffs filed a cross-motion for summary judgment. The Legislature subsequently moved for and was granted leave to appear as amicus curiae in support of the State‘s motion for summary judgment.
On January 24, 2019, the circuit court heard the cross-motions. The circuit court orally granted the State‘s motion for summary judgment and denied Plaintiffs’ cross-motion, holding that the process for adopting Act 84 complied with the circuit court‘s interpretation of the three readings and subject-in-title requirements of the Hawaiʻi Constitution. The circuit court stated that its interpretation of the three readings requirement hinged on the Legislature‘s own rule of procedure:
[W]hat sways the Court on [the issue of three readings] is the fact that the Legislature adopted rules of procedure and, in the course of doing that, adopted as part of its procedures the Mason‘s Manual. And it is that Mason‘s Manual provision, Section 722, and I also did rely on Section 617 that talks about the nature of the substituted bill to arrive at the conclusion that the procedure of the Legislature is such that if a replace and substituted bill is adopted, then under Section 722, the Legislature is not
required to conduct three more readings because they have already had in each house the three readings.
And that suffices to meet the constitutional mandate of three readings in each house one day apart so the Court is not able to find that there was any violation of the Constitution with respect to the three readings.
(Emphasis added.)
On April 3, 2019, the circuit court entered written orders granting summary judgment in favor of the State and denying Plaintiffs’ cross-motion. As pertinent here, the circuit court made the following conclusions of law:
- There was no violation of the Hawaiʻi Constitution with respect to the three readings. Based on sections 617 and 722 of Mason‘s Manual of Legislative Procedure (2010 rev. ed.), the procedure of the legislature is such that if a replaced and substituted bill is adopted, then the legislature is not required to conduct three more readings because they have already had the three readings in each House and that suffices to meet the requirements of the constitutional mandate.
- ...
- The court has no issue regarding Plaintiffs’ standing. They are organizations that are dedicated to ensure integrity in the legislative process, and that is what this case is about.
- Defendant State of Hawaii‘s separation of powers argument is rejected. The court has the power to adjudicate the constitutional validity of statutory enactments.
Thus, the circuit court concluded that Act 84 was constitutional and that the State was entitled to judgment as a matter of law and entered final judgment in favor of the State.
C. ICA Proceedings and Subsequent Transfer
On May 2, 2019, Plaintiffs timely appealed the circuit court‘s decision to the ICA. In their opening brief, Plaintiffs
raised two points of error:
- Whether the three readings requirement -
article III, section 15 of the Hawaiʻi Constitution requires that each chamber of the Legislature hold three new readings of proposed legislation after the Legislature removes a bill‘s content and replaces it with a proposal that is not germane to the intent of the original bill. - ...
- Whether legislation broadly titled as “relating to public safety” reasonably apprises the public of the interests that are or may be affected by the statute and otherwise complies with the subject-in-title requirement -
article III, section 14 of the Hawaiʻi Constitution .
After the State filed its answering brief, Plaintiffs filed an application for transfer,
The Legislature submitted an amicus brief echoing the State‘s arguments. The Tax Foundation of Hawaiʻi and the Grassroot Institute of Hawaiʻi filed amicus briefs in support of Plaintiffs.
II. STANDARDS OF REVIEW
A. Summary Judgment
“An order granting summary judgment is reviewed de novo, using the same standard as that applied by the circuit court: whether there were any genuine issues of material fact and whether the movant was entitled to judgment as a matter of law.” Blair v. Harris, 98 Hawaiʻi 176, 178, 45 P.3d 798, 800 (2002).
B. Constitutional Interpretation
“Issues of constitutional interpretation present questions of law that are reviewed de novo.” [Blair, 98 Hawaiʻi at 178, 45 P.3d at 800] (citation omitted). In construing the constitution, this court observes the following basic principles:
Because constitutions derive their power and authority from the people who draft and adopt them, we have long recognized that the Hawaiʻi Constitution must be construed with due regard to the intent of the framers and the people adopting it, and the fundamental principle in interpreting a constitutional provision is to give effect to that intent. This intent is to be found in the instrument itself.
[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.
Moreover, a constitutional provision must be construed in connection with other provisions of the instrument, and also in the light of the circumstances under which it was adopted and the history which preceded it.
Hanabusa v. Lingle, 105 Hawaiʻi 28, 31-32, 93 P.3d 670, 673-74 (2004) (brackets in original) (quoting [Blair, 98 Hawaiʻi at 178-79, 45 P.3d at 800-01]).
Sierra Club v. Dep‘t of Transp., 120 Hawaiʻi 181, 196, 202 P.3d 1226, 1241 (2009).
III. DISCUSSION
Plaintiffs ask this court to decide whether section 15 requires the three readings to begin anew after a non-germane amendment fundamentally changes the purpose of a bill. Plaintiffs argue that the three readings requirement must be
interpreted in light of its purpose, which is to provide opportunity for a full and informed debate, prevent hasty and ill-considered legislation, and provide notice of proposed legislation to allow for meaningful participation by the public in the legislative process.
The State and Legislature argue that the plain language of section 15 does not require the three readings to begin anew after an amendment and that this court should not read in an intent where there is none. The State maintains that the Legislature‘s adopted rules of procedure permit a bill to be read by its identifying title only, eliminating the need for readings to begin anew when a bill is amended.
We conclude that Act 84 is invalid because it was not enacted in conformance with the requirements set forth in the Hawaiʻi Constitution. Namely, Act 84 did not receive three readings in each house of the Legislature after its contents were entirely gutted and replaced with the hurricane shelter bill.7
A. Plaintiffs have standing to challenge Act 84
The State contends that Plaintiffs lack standing
because they do not have a
We begin with the foundational premise that our democratic system of self-governance requires courts to limit judicial intervention “to those questions capable of judicial resolution and presented in an adversary context.” Life of the Land v. Land Use Comm‘n, 63 Haw. 166, 172, 623 P.2d 431, 438 (1981) (quoting Reliable Collection Agency, Ltd. v. Cole, 59 Haw. 503, 510, 584 P.2d 107, 111 (1978)). “[J]udicial intervention in a dispute is normally contingent upon the presence of a ‘justiciable’ controversy.” Id. at 172, 623 P.2d at 438. A controversy is not justiciable unless “the party seeking a forum . . . has ‘alleged such 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.” Id. at 172, 623 P.2d at 438 (quoting Warth v. Seldin, 422 U.S. 490, 498-99 (1975)). “[T]he issue of standing is reviewed de novo on appeal.” Tax Found., 144 Hawaiʻi at 185, 439 P.3d at 137 (quoting Mottl v. Miyahira, 95 Hawaiʻi 381, 388, 23 P.3d 716, 723 (2001) (internal citation omitted)).
Plaintiffs filed suit seeking a declaration that the process for adopting Act 84 violated the Hawaiʻi Constitution. Accordingly, Plaintiffs’ suit for declaratory relief is governed by
by
[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.
Id. at 202, 439 P.3d at 154. Applying this test, we found that the plaintiff in Tax Found. had
Here, the circuit court held that Plaintiffs had standing to challenge Act 84 as “organizations that are dedicated to ensur[ing] integrity in the legislative process, and that is what this case is about.” Applying the standing
requirements delineated in Tax Found. to the facts of this case, we hold that Plaintiffs have
B. Whether the Legislature complied with constitutional limitations on the legislative process is justiciable
Both the State and the Legislature argue that this case raises nonjusticiable political questions. The State concedes that whether the process of enacting Act 84 complied with constitutional requirements for the legislative process is justiciable, but contends that this court may not comment on the legislative practice of “gut and replace” or provide any guideline for what constitutes a permissibly germane amendment without violating the separation of powers.
In its amicus brief, the Legislature argues that if this court invalidates Act 84, it will intrude upon the Legislature‘s constitutional mandate to “determine the rules of its own proceedings[.]”
because section 12 grants the Legislature the exclusive authority to judge the qualifications of its members). The Legislature insists that there is no judicially discoverable or manageable standard, aside from the Legislature‘s own rules of procedure, for this court to decide whether the three readings requirement was satisfied and therefore the question is nonjusticiable.
As this court has previously noted,
The separation of powers doctrine is embodied in the Guarantee Clause,
article IV, section 4 of the United States Constitution , which reads:The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect
each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. Questions arising under the Guarantee Clause are nonjusticiable because they are “political, not judicial, in character, and thus are for the consideration of the Congress and not the courts.” Ohio v. Akron Metro. Park Dist. for Summit County, 281 U.S. 74, 79-80 (1930) (citations omitted).
Taomae v. Lingle, 108 Hawaiʻi 245, 256-57, 118 P.3d 1188, 1199-1200 (2005). Like the federal government, ours is a tripartite government in which the sovereign power is equally divided among the branches. Trustees of Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 170-71, 737 P.2d 446, 456 (1987).
“The [political question] doctrine is the result of
the balance courts must strike in preserving separation of powers yet providing a check upon the other two branches of government.” Nelson v. Hawaiian Homes Comm‘n, 127 Hawaiʻi 185, 194, 277 P.3d 279, 288 (2012). Arguably, the political question doctrine is “the most amorphous aspect of justiciability.” Id. (internal quotation marks and citation omitted). As the Supreme Court of the United States observed,
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). Political questions are presented in specific formulations:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court‘s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question‘s presence.
Id. at 217 (emphasis added).
Despite the Legislature‘s protestations, the claim that this case presents a nonjusticiable political question is
groundless. This court has consistently rejected the argument that alleged violations of constitutional mandates concerning the legislative process are nonjusticiable political questions. See, e.g., Taomae, 108 Hawaiʻi at 256-57, 118 P.3d at 1199-1200 (addressing whether a constitutional amendment satisfied the constitutional three readings requirement); Schwab, 58 Haw. 25, 30-39, 564 P.2d 135, 139-44 (1977) (addressing whether a bill satisfied the constitutional three readings and subject-in-title requirements). At bottom, it is the responsibility of this court to interpret the Hawaiʻi Constitution. See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“[A]n 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.“); Sierra Club, 120 Hawaiʻi at 196, 202 P.3d at 1241 (noting that “judicial review of legislative enactments is appropriate” because “[o]ur ultimate authority is the Constitution; and the courts, not the legislature, are the ultimate interpreters of the Constitution.“) (internal quotation marks and citations omitted).
While the Legislature is empowered by section 12 to enact its own rules of procedure, that power is not without limits. The Legislature‘s “power shall extend to all rightful subjects of legislation not inconsistent with this
constitution[.]”
Put simply, the Legislature‘s rules of procedure do not
unchecked.15
While Section 12 empowers the Legislature to adopt its own rules of procedure, it contains no “textually demonstrable constitutional commitment” to the Legislature to interpret other constitutional mandates, such that determining whether Act 84 complied with those mandates is a nonjusticiable political question. See Baker, 369 U.S. at 217 (noting that where there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department[,]” the case raises a political question). The Legislature‘s reliance on Hussey, 139 Hawaiʻi at 188-89, 384 P.3d at 1289-90, is misplaced because that case concerned a challenge to a state legislator‘s qualifications for office and section 12 provides that “‘[e]ach house shall be the judge of the . . . qualifications of its own members.‘” However, sections 14 and 15 contain no similar language vesting the Legislature with the responsibility to judge its own compliance with the constitutional requirements for the legislative process.
Accordingly, we conclude that this court may determine whether the process used to enact Act 84 complied with the constitutional mandates concerning the legislative process without violating the separation of powers doctrine.16
C. The process used to enact Act 84 did not comply with section 15
Having determined that Plaintiffs have standing to bring suit and that this court can decide the issue without violating the separation of powers doctrine, we now consider the merits of Plaintiffs’ challenge.
We begin with the presumption that every enactment of the Legislature was adopted in accordance with the Constitution. See id. at 31, 564 P.2d at 139. Plaintiffs, as challengers of Act 84, bear the “burden of showing unconstitutionality beyond a reasonable doubt.” See id. Thus, Act 84 will not be invalidated unless the Plaintiffs demonstrate that it was enacted in violation of section 15‘s three-readings requirement and the violation is “plain, clear, manifest, and unmistakable.” See id.
When interpreting constitutional provisions,
the 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, 120 Hawaiʻi at 196, 202 P.3d at 1241 (cleaned up). Section 15 states that “[n]o bill shall become law unless it shall pass three readings in each house on separate days.”
The State argues that the process used to enact Act 84 complied with the plain language of section 15 because the bill number and title were read three times in each house on three separate days. Every bill consists of a number, title, and the substance of the bill which is contained in its body and divided into sections.17 However, because the Legislature‘s rules of procedure permit a bill to be “read” by title only,18 we must consider whether a bill is the same bill for purposes of the three readings requirement, once the bill is amended so that it addresses an entirely new subject.
We conclude that the words in section 15 are clear and unambiguous. For the reasons stated herein, we conclude that Act 84 is invalid because the hurricane shelter version of S.B. 2858 did not receive three readings in the Senate before the bill was signed into law.
1. The purpose of the three readings requirement
A fundamental principle of constitutional interpretation is that
the Hawaiʻi Constitution must be construed with due regard to the intent of the framers and the people adopting it, and the fundamental principle in interpreting a constitutional provision is to give effect to that intent.
Sierra Club, 120 Hawaiʻi at 196, 202 P.3d at 1241. Accordingly, we consider the purpose of the three readings requirement in order to effectuate the intent of the framers and the people.
At the Constitutional Convention of 1950, the Committee on Revision, Amendments, Initiative, Referendum and Recall (“the Committee”) issued a report which discussed, among other things, the merits of the legislative process in a representative form of government. Stand. Comm. Rep. No. 47 in 1 Proceedings of the Constitutional Convention of Hawaii 1950, at 182 (1960) (“Proceedings of 1950”). The Committee observed that laws should not be enacted in response to “storms of hasty, temporary and changeable public emotion.” Id. at 183. Rather, “[e]xcept in time of war and equally urgent disaster or crisis, laws should be drawn . . . with deliberation and careful consideration of long-range needs[.]” Id.
The Committee also made this observation about the role of the three readings requirement in the legislative process:
One of the necessary features of laws adopted by the legislature is the necessity for three readings and the opportunity for full debate in the open before committees and in each House, during the course of which the purposes of the measures, and their meaning, scope and probable effect, and the validity of the alleged facts and arguments given in their support can be fully examined and, if false or unsound, can be exposed, before any action of consequence is taken thereon.
Id. at 184 (emphasis added). Once a full and informed debate uncovers a bill‘s “weaknesses, or opposition forces compromise to meet objections raised to its form or substance[,]” the bill “may be amended any number of times[.]” Id. Thus, as we have previously observed, a historical purpose of the three readings requirement is to “provide[] the opportunity for full debate.”20 Taomae, 108 Hawaiʻi at 255, 118 P.3d at 1198.21
As we have previously observed, the three readings requirement “also ensures that each house of the legislature has given sufficient consideration to the effect of the bill.” Id.; see also Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 396 (1951) (Jackson, J. concurring) (concluding that the three-readings requirement in the United States Constitution is “intended . . . to make sure that each House knows what it is passing and passes what it wants”). Additionally, the constitutional requirement that the three readings must occur on three separate days is generally intended “to prevent hasty and ill-considered legislation, surprise or fraud, and to inform the legislators . . . of the contents of the bill.” Mason‘s Manual, supra, at § 720 ¶ 2. Accord 1 Thomas Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 288 n.1 (Walter Carrington ed., 8th ed. 1927) (noting that the purpose of the three readings requirement is “to prevent hasty and improvident legislation”).
Thus, the three readings requirement serves three important purposes: it (1) provides the opportunity for full debate on proposed legislation; (2) ensures that members of each legislative house are familiar with a bill’s contents and have time to give sufficient consideration to its effects; and (3) provides the public with notice and an opportunity to comment on proposed legislation.
Despite the fact that the history of the Constitutional Convention of 1950 characterizes the three readings requirement as a “necessity” which provides “the opportunity for full debate in the open . . . during the course of which the purposes of the measures, and their meaning, scope and probable effect, and the validity of the alleged facts and arguments given in their support can be fully examined” before a bill is voted on, 1 Proceedings of 1950, supra, at 184 (emphasis added), the State contends that the “history of the 1950 Constitution does not provide any particular insight[.]”
Instead, the State argues that the history of the Constitutional Convention of 1968 “is more informative.” In 1968, the framers inserted a “final printing requirement” directly after the three readings requirement: “No bill shall pass third or final reading in either house unless in the form to be passed it shall have been printed and made available to the members of that house for at least twenty-four hours.”22
On the contrary, the constitutional history of the final printing requirement demonstrates that it was intended to further the same purposes as the three readings requirement. According to the Committee on Legislative Powers and Functions, the purpose of the final printing requirement
is to assure members of the legislature an opportunity to take informed action on the final contents of proposed legislation. . . . “Form to be passed” means the form in which a bill is passed on third reading in each house, concurrence of one house to amendments made by the other, and the form in which a bill is passed by both houses after conference on a bill. The [final printing requirement] not only aids the legislator but also gives the public additional time and opportunity to inform itself of bills facing imminent passage.
The complexity of modern legislation, particularly with the development of omnibus bills in such broad fields as the budget, tax reform, administrative organization, workmen‘s compensation . . . frequently causes amendments to such bills to be highly technical in nature yet far-reaching in effect.
Id.
Nothing in the history from the Constitutional Convention of 1968 evidences an intent by the framers for the final printing requirement to alter the three readings requirement or diminish its importance. Rather, the framers considered the final printing requirement to be a “substantial contribution” which would “increase[e] awareness and understanding of proposed legislation[.]”23 Id. The framers envisioned that the final printing requirement would allow legislators to consult with others, both inside and outside of the Legislature, when the subject matter of a bill “proves too technical to be understood just by reading[.]” Id. “The importance of interest groups and their representatives to the legislative process as sources of information and barometers of public support for proposed legislation is unquestioned. . . . [T]he [final printing requirement] enhances the functions served by these groups.” Id. (emphasis added.)
The State relies heavily on floor remarks made by delegates at the Constitutional Convention of 1968 in support of its claim that the addition of the final printing requirement was intended to ensure that legislators had “sufficient time to review amended legislation without any need for an additional three readings.” First, the State cites to remarks made by Delegate Hung Wo Ching:
The original intent of a bill having passed one house can be substantially changed in legislative conferences. A bill in final form can then pass third reading in both houses without a reasonable opportunity for members of the legislature and the public for review in its final form. To correct this situation, our proposed bill will require that a bill be printed in its final form and be made available to the legislators and to the public for a least 24 hours before final passage.
Comm. of the Whole Debates in 2 Proceedings of the Constitutional Convention of Hawaii of 1968, at 145 (1972).
Second, the State cites Delegate Donald Ching‘s answer when asked if a conference substituted bill would have to pass three readings:
The proposed amendment will not change the manner in which a bill is handled . . . the only change that will be brought about is that after the conference committee has deliberated and come up with its conference draft, that draft will have to be printed and lay on the table for 24 hours or be made available to the members and the public for 24 hours before either house can act on it. . . . As to what is substituted or what will happen in there, there will be no change as from the present procedure.
Id. at 146.
Finally, the State cites remarks by Delegate Charles E. Kauhane (Delegate Kauhane):
When the bill comes out of the committee, we send an elephant into the committee in the first instance. . . . The committee recommends that the bill pass third reading in its amended form. You may have intended to request consideration of the matter of the caring of elephants. This bill comes out with the caring of the elephants, dogs, pigeons and what not and then we are voting on third reading for the passage of a completely new bill.
The State‘s reliance on these floor remarks is misplaced. First, nothing in the cited floor remarks indicates an intent to change the meaning of the three readings requirement as adopted by the Constitutional Convention of 1950. Second, the understanding of subsequent delegates does not change the meaning of an existing constitutional provision, absent a substantive amendment to the law. See Peer News LLC v. City & County of Honolulu, 138 Hawaiʻi 53, 73, 376 P.3d 1, 21 (2016) (noting that courts “should be wary of bootstrapping” the intent of a latter legislature onto a previous legislature) (internal quotation marks and brackets omitted); 2A Sutherland, supra, § 48:20 (“[C]ourts generally give little or no weight to the views of members of subsequent legislatures about the meaning of acts passed by previous legislatures.”) (footnote omitted). Finally, even if floor remarks by individual delegates at the 1968 Convention did express an intent to change the meaning of the three readings requirement by adopting the final printing requirement, “remarks by individual legislators are not attributable to the full legislature that voted for the bill, and as such are less reliable indicators of legislative intent.” Peer News, 138 Hawaiʻi at 71, 376 P.3d at 19.
Moreover, the State‘s claim that floor remarks by delegates at the Constitutional Convention of 1968 evidenced an intent to change the three readings requirement is directly contradicted by the committee report explaining the purpose of the final printing requirement. The final printing requirement was added to “assure members of the legislature an opportunity to take informed action on the final contents of proposed legislation[,]” which increasingly included highly technical and complicated amendments. 1 Proceedings of 1968, supra, at 216. “The [final printing requirement] not only aids the legislator but also gives the public additional time and opportunity to inform itself of bills facing imminent passage.” Id. Logically, in order to serve their twin functions of providing legislators with information about complicated amendments and acting as “barometers of public support,” both the public and interest groups must be able to track proposed legislation through all three required readings. See id. Indeed, the final printing requirement was aimed squarely at providing both legislators and the public with notice of amendments between the second and third reading.
The State‘s argument is further undercut by the reasons stated by framers at the Constitutional Convention of 1978 for increasing the time that a bill must be made available in printed form prior to voting to forty-eight hours. The final printing requirement waiting period was enlarged to address “the increasing numbers of bills being introduced in the legislature and the public concern expressed on the difficulty of following the many bills through the legislature in the closing days of the session[.]” Stand. Comm. Rep. No. 46 in 1 Proceedings of the Constitutional Convention of Hawaii of 1978, at 603 (1980) (“Proceedings of 1978”) (emphasis added). The framing delegates believed that allowing an additional twenty-four hours “during which a legislator or a constituent could review a bill before third or final reading, would help both legislator and constituent to avoid hasty decisions and surprises regarding the bill.” Id. (emphasis added). Thus, the final printing requirement presupposes a robust three readings rule and was intended to enhance the rule, rather than to diminish the importance of the first two readings.
As to the State‘s claim that section 15 merely requires that a bill be read by number and title in each house on three separate days, this “plain language” argument ignores the principle that constitutional provisions
This court has previously observed that “[t]he three-reading requirement not only provides the opportunity for full debate; it also ensures that each house of the legislature has given sufficient consideration to the effect of the bill.” Taomae, 108 Hawaiʻi at 255, 118 P.3d at 1198. The framers at the 1950 Convention envisioned that, during the course of debate, a bill‘s “purposes[,] . . . meaning, scope and probable effect” would be “fully examined[.]” 1 Proceedings of 1950, supra, at 184. The framers considered the ability to amend a bill “any number of times after debate discloses its weaknesses, or opposition forces compromise to meet objections raised to its form or substance[]” one of the key benefits of the legislative process. Id. Thus, the constitutional history of the three readings requirement demonstrates that the framers intended it to further the aim of a deliberative legislative process, wherein legislators would receive input from an informed public, debate a bill‘s merits and weaknesses, and amend bills to address those uncovered weaknesses.
In sum, the constitutional history of the three readings requirement indicates that the framers intended the rule to provide notice of a bill‘s contents, facilitate informed debate, prevent hasty legislation, and provide the public with notice and an opportunity to comment on proposed legislation. In order to effectuate this intent, a bill must retain some common attributes between readings. Thus, we are convinced that in order to satisfy the three readings requirement, a bill at each subsequent reading must bear some resemblance to the previous versions read beyond merely having the same title and number.
2. We adopt the same germaneness standard for section 15 that applies to section 14
Having decided that the three readings requirement necessitates that the substance of a bill must bear some resemblance to earlier versions in order to constitutionally pass the third and final reading, we next consider what level of similarity section 15 requires. Plaintiffs argue that, in order to effectuate the purpose of the three readings requirement and satisfy section 15, this court should adopt a germaneness standard for bill amendments. Plaintiffs propose that the “test [for germaneness] is whether the amendments are germane to the bill as previously read.” Under Plaintiffs’ proposed standard, a reviewing court should consider whether the amendments and the original bill constitute a unifying scheme to accomplish a single purpose.24 Plaintiffs contend that the three readings must begin anew when the Legislature makes non-germane amendments to a proposed bill.
There is a long tradition in Hawaiʻi law of applying a germaneness standard to constitutional requirements for legislating. The Territorial
and quotation marks omitted). In applying this personified definition of germaneness to legislative provisions, “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. (internal citation and quotation marks omitted). At issue in Kua was whether a law preconditioning the issuance of an occupational license on the payment of all of the applicant‘s taxes was germane to a law which was titled, in part, “Relating to the Issuance of Licenses” that regulated which government authority would issue those same licenses. Id. at 308-09. The Kua court concluded that there was “no close alliance” between the tax provision and the issuing authority provision and that requiring occupational license applicants to pay all taxes “is a new and independent matter, disconnected from the question as to who shall issue the license, and, therefore, is not germane to the subject of the act.” Id. at 313 (emphasis added). Thus, the Kua court held that the tax provision was void because it violated the single subject provision. Id. at 317.
The State maintains that nothing in the plain language of section 15 or its constitutional history requires bill amendments to be germane to a bill‘s original language. The State argues that the Legislature‘s own procedural rules, which are entitled to deference, explicitly state that the three readings need not restart after an amendment or substitution. The State maintains that germaneness is measured solely in relation to the single subject and subject-in-title requirements. The State insists that applying a germaneness standard to the three readings requirement is unworkable because “establishing a universal definition of ‘germane’ is a futile endeavor” and would consequently violate the separation of powers doctrine as courts set “arbitrary limits on ‘how much’ a bill can be amended.” Finally, the State argues that other important policy considerations counsel against applying a germaneness standard to the three readings requirement, claiming that it would hinder the Legislature‘s ability to make laws and respond swiftly to extraordinary and sudden events and open the floodgates to new litigation.
For the following reasons, we agree with Plaintiffs that applying a germaneness standard to the three readings requirement best effectuates the plain meaning and purpose of this constitutional mandate.
First, applying a germaneness standard will effectuate both the plain language of the three readings requirement and the purposes for which it was adopted. Section 15 states that “[n]o bill shall become law unless it shall pass three readings in each house on separate days.”
Second, the germaneness standard is an established and enforceable standard and one which courts in Hawaiʻi have ably applied to the single subject and subject-in-title requirement for over a century. See, e.g., Schwab, 58 Haw. at 33-34, 564 P.2d at 140-41 (applying the germaneness standard to the single subject requirement); Kua, 22 Haw. at 313 (applying the germaneness standard to the single subject requirement); Territory v. Dondero, 21 Haw. 19, 25 (1912) (considering whether the title of a city ordinance violated the city charter‘s subject-in-title provision and applying a germaneness standard). Accordingly, the State‘s claim that it will be impossible for courts to apply a germaneness standard is without merit.26
Nor are we alone in applying a germaneness standard to the constitutional three readings requirement. Numerous other jurisdictions also measure compliance with their constitutional three readings requirements according to germaneness.27 This includes states that, like us, do not include an “original purpose” provision in their constitution. See, e.g., Van Brunt v. State, 653 P.2d 343, 345-46 (Alaska App. 1982) (holding that the three readings requirement need not restart after a substantial amendment, so long as the amendment is germane to the bill); People ex rel. Cty. Collector of Cook Cty. v. Jeri, Ltd., 239 N.E.2d 777, 779 (Ill. 1968) (“It is the rule in this State, however, that amendments which are ‘germane’ to the general subject of the bill as originally introduced may be made without the proposed Act, as amended, having to be read on three different days in each house.“); Bevin, 563 S.W.3d at 90-91 (holding that a bill which was read by title only did not satisfy the three readings requirement after a non-germane amendment because the title did not convey any information about the bill‘s contents); Hoover v. Bd. of County Comm‘rs, 482 N.E.2d 575, 579-80 (Ohio 1985) (“[A]mendments which do not vitally alter the substance of a bill do not trigger a
requirement for three considerations anew . . . [b]ut, [w]hen the subject or proposition of the bill is thereby wholly changed, it would seem to be proper to read the amended bill three times, and on different days[.]“) (internal quotation marks and citation omitted); Hood v. City of Wheeling, 102 S.E. 259, 263 (W. Va. 1920) (“a substitute bill or amendment, if so germane to the original bill as to be a proper substitute or amendment, does not have to go back and be read three times, but may include as part of its required readings those had before the substitution or amendment was made.“).28 It also includes
U.S. Gypsum Co. v. State Dep‘t of Revenue, 110 N.W.2d 698, 702 (Mich. 1961) (holding that a substituted bill was sufficiently germane for purposes of the three readings requirement because the “major purposes” of the substitute “were all within the original objectives of the bill as first introduced“); Washington, 188 A.3d at 1153-54 (holding that a gutted and replaced bill violated the three readings requirement because “amendments to such enfeebled legislation are not germane as a matter of law.“).
Fourth, applying the germaneness standard to the three readings requirement is consistent with other constitutional limitations on the legislative process which are predicated on a meaningful interpretation of the three readings requirement. Notably, the mid-session recess,29 the bill introduction deadline,30 and the final printing requirement31 all depend on the
public‘s ability to monitor the progress of bills through the legislative process. These interdependent constitutional restrictions, which are meant to ensure public participation in the legislative process, would all be rendered meaningless under the State‘s interpretation of the three readings requirement.32
The requirement of a five-day mid-session recess was added to the Hawaiʻi Constitution in 1978 “to provide both legislators and the public an opportunity to review during the recess all bills that have been introduced in both houses, and an opportunity for both legislators and constituents to communicate on matters” pending. 1 Proceedings of 1978, supra, at 603 (emphasis added). The framers believed that the recess would allow the public to “become acquainted with and follow the bills through the legislature more intelligently.” Id.
The bill introduction deadline was also added in 1978 to “allow the public the use of the mandatory 5-day recess to review every bill that will ever be introduced in that legislative session.” Id. (emphasis added). In 1984, the bill introduction deadline was amended to allow the Legislature to set an earlier deadline and prefile bills before session started to
As previously discussed, the final printing requirement was first added to the Hawaiʻi Constitution in 1968 and required a bill to be printed and made available for final review at least twenty-four hours before a bill could pass third or final reading. 1 Proceedings of 1968, supra, at 216. The final printing requirement was added to assure legislators had “an opportunity to take informed action on the final contents of proposed legislation[]” and to give “the public additional time and opportunity to inform itself of bills facing imminent passage.” Id. In particular, the final printing requirement was added to address increasingly complex legislation and “highly technical” amendments. Id. The framing delegates believed that the final printing requirement and accompanying twenty-four-hour period would “enhance[] the functions served by” interest groups and the public in the legislative process. Id.
In 1978, the final printing requirement waiting period was increased to forty-eight hours in response to “the increasing numbers of bills being introduced in the legislature and the public concern expressed on the difficulty of following the many bills through the legislature in the closing days of the session[.]” 1 Proceedings of 1978, supra, at 603 (emphasis added). The waiting period was increased to “help both legislator and constituent to avoid hasty decisions and surprises regarding the bill.” Id. (emphasis added). In sum, the final printing requirement was added and the time period subsequently increased — to allow legislators, interest groups, and the public the opportunity to inform themselves of a bill‘s contents in its final form. The final printing requirement presumes that interested persons have been following a bill to see all of the amendments that have been made and raise concerns before the final vote. Consequently, we reject the State‘s argument that the Legislature may make non-germane amendments or introduce a substituted bill after first or second reading without violating the three readings requirement, so long as the bill passes third and final reading forty-eight hours later. This sequence of events excludes interested persons from the legislative process and deprives them of the opportunity to provide input to legislators. Moreover, a substituted bill passed in such a manner would be unlikely “to avoid hasty decisions” by legislators and “surprises” to constituents. See id.
The constitutional framers designed the legislative process with interdependent requirements of mid-session recess, bill introduction deadline, and final printing in order to allow the public to identify bills of interest, familiarize themselves with a bill‘s contents during the mid-session recess, provide meaningful input, and monitor their progress through enactment. These inter-dependent constitutional requirements all depend upon a meaningful interpretation of the three readings requirement in order to effectuate their stated purposes.
Next, we address the State‘s remaining arguments against applying a germaneness standard to the three readings requirement. The State argues that Mason‘s Manual, which was adopted as the parliamentary authority by both houses,33 does not require the three readings to restart after a non-germane amendment to a bill. The State selectively cites Mason‘s Manual, supra, § 722, which provides:
1. The constitutional requirement that bills be read three times is not generally interpreted to apply to amendments, so that bills are required to be read the specified number of times after amendment, . . . . 2. When a bill that has been passed by one house has been materially amended in the other, and there passed as amended, it has been held that the constitutional provision with reference to reading three times does not require the bill as amended to be read three times in the house of origin before concurring in the amendments of the other house.
The State also cites Mason‘s Manual, supra, § 617 ¶ 1, which seemingly does not require the three readings to restart for substituted bills:
A committee may recommend that every clause in a bill be changed and that entirely new matter be substituted as long as the new matter is relevant to the title and subject of the original bill. A substitute bill is considered as an amendment and not as a new bill.
However, the State ignores other relevant sections of Mason‘s Manual which explicitly require that amendments are germane to a bill‘s original purpose. See Mason‘s Manual, supra, § 616 ¶ 3 (“There is no limit to the number of amendments that may be proposed to a bill as long as the amendments are germane to the original purpose of the bill. Amendments may be so numerous as to amount to a substitute version of the bill.“) (emphasis added); § 617 (“A committee may recommend that every clause in a bill be changed and that entirely new matter be substituted as long as the new matter is relevant to the title and subject of the original bill.“) (emphasis added); § 722 ¶ 3 (“Where a substituted bill may be considered as an amendment, the rule with reference to reading a bill on three separate days does not require the bill to be read three times after substitution.“) (emphasis added); § 415 ¶ 2 (“Substitution is only a form of amendment and may be used, as long as germane, whenever amendments are in order.“) (emphasis added).
In other words, Mason‘s Manual does not require the three readings to restart after a germane amendment, even if the amendment actually amounts to a substituted bill. However, Mason‘s Manual §§ 616 and 617 limit proposed committee amendments to those that are germane to the original purpose and subject of the bill and § 415 similarly limits non-germane floor amendments.34 Additionally, Mason‘s Manual § 722 limits the exemption from restarting the three readings for a substituted bill to instances when the “substituted bill may be considered as an amendment[.]” Thus, while Mason‘s Manual contains merely procedural rules that do not define the scope of Hawaiʻi‘s constitutional three readings requirement, even the Legislature‘s adopted rules of procedure do not support the State and Legislature‘s interpretation of the three readings requirement.
The State‘s hypothetical flood of litigation — as well as legitimate separation of powers concerns — are protected by the standard of review for voiding legislation,
burden to a challenger to prove beyond a reasonable doubt that a law is unconstitutional. See Schwab, 58 Haw. at 31, 564 P.2d at 139 (“[E]very enactment of the legislature is presumptively constitutional, and a party challenging the statute has the burden of showing unconstitutionality beyond a reasonable doubt.“).
While the Legislature might view gut and replace legislation as an effective and expedient bill amendment tool,35 the constitutional history of the three readings requirement expresses a clear preference for deliberate and careful consideration of legislation and a process in which legislators have the opportunity for a full and open debate and interested persons have notice of proposed legislation and are able to provide input. See 1 Proceedings of 1950, supra, at 183-84; 1 Proceedings of 1968, supra, at 216.
Rather than encouraging public participation in the legislative process, gut and replace discourages public confidence and participation. The process used to enact
S.B. 2858 demonstrates how public participation diminishes when bills wind their way through the process and are drastically changed. Here, numerous interested parties offered testimony largely in support of the recidivism reporting bill when it was in committee at the House, including the DPS, the Office of Hawaiian Affairs, the Hoʻomanapono Political Action Committee, the Hawaiʻi Justice Coalition, the Community Alliance on Prisons, Young Progressives Demanding Action, the ACLU of Hawaiʻi, and private citizens. However, after the bill was gutted and replaced with the hurricane shelter bill, just two of those parties — the Office of Hawaiian Affairs and Young Progressives Demanding Action — offered testimony asking legislators to revert the bill to its original subject as the recidivism reporting bill, to no avail. The logical inference is that many of the other parties who had supported the recidivism reporting bill were not aware that it was gutted and replaced. Alternately, persons who might have been interested in H.B. 2452, the hurricane shelter bill originally introduced in the House, also were likely unaware that the bill was inserted into S.B. 2858 and consequently unable to provide input.36 Thus, gut and replace deprives the public of notice and an opportunity to submit testimony and is antithetical to the intent of the three readings requirement.
Understandably, the Legislature values its ability to be flexible and amend bills quickly to enact legislation. However, none of their proffered policy arguments change the fact that we must construe section 15 in the manner that the framers intended — so as to allow for meaningful public participation in the legislative process.
Accordingly, we conclude that a meaningful interpretation of the constitutional three readings provision requires that the three readings begin anew after a non-germane amendment changes the object or subject of a bill so that it is no longer related to the original bill as introduced.
3. Act 84 did not receive three readings in each house
Having concluded that a meaningful interpretation of section 15 requires the three readings to begin anew after a
non-germane amendment, we next consider whether the process used to enact Act 84 complied with section 15.
Applying the germaneness standard adopted by this court in Kua, we must consider whether the hurricane shelter amendment was germane to the original recidivism reporting bill. We conclude that there is no “common tie” or “close alliance” between the recidivism reporting bill and the hurricane shelter bill. See Kua, 22 Haw. at 313 (defining germaneness in the context of legislative provisions as a “common tie” or “close alliance“). By amending the recidivism reporting bill to introduce the subject of hurricane shelters, “a new and independent matter, disconnected from the question” of recidivism reporting, the House made a non-germane amendment to S.B. 2858. See id. at 313. As a result, section 15 requires that the three readings restart after the hurricane shelter amendment. Because the hurricane shelter version of the bill only received one reading in the Senate before it passed, the process used to enact Act 84 violated section 15 and the violation was “plain, clear, manifest, and unmistakable.” See Schwab, 58 Haw. at 31, 564 P.2d at 139. For that reason, Act 84 is void.37 See id. (noting that a violation of a constitutional provision regarding the enactment of legislation “would render an enactment nugatory.“).
When considering whether the process used to enact Act 84 complied with the three readings requirement, the circuit court based its decision on the Legislature‘s own rule of procedure. The circuit court concluded that, because S.B. 2858
had three readings according to sections 617 and 722 of Mason‘s Manual, it also satisfied the constitutional three readings requirement.
The Legislature is empowered by section 12 to enact its own rules of procedure, which are entitled to deference. However, the authority to adopt its own procedural rules does not authorize the Legislature to redefine the constitutional three readings requirement. See Peer News, 138 Hawaiʻi at 66-67, 376 P.3d at 14-15 (holding that the constitutional mandate directing the Legislature to “take affirmative steps to implement” the constitutional privacy right does not mean that it is the Legislature‘s “exclusive role to define” that right) (internal quotation marks omitted). The power to interpret the Hawaiʻi Constitution still lies with the judiciary. Sierra Club, 120 Hawaiʻi at 196, 202 P.3d at 1241 (“[T]he courts, not the legislature, are the ultimate interpreters of the Constitution.“) (internal quotation marks and citations omitted). Moreover, if the Legislature could alter the meaning of the Hawaiʻi Constitution through its own rules of procedure, theoretically, there would be no need to go through the formality of amending the Hawaiʻi Constitution. See Mason‘s Manual, supra, § 12 ¶ 1 (“A legislative body cannot make a rule which evades or avoids the effect of a rule prescribed by the constitution governing it, and it cannot do by indirection what it cannot directly do.“).
Thus, we conclude that the circuit court erred by relying on the Legislature‘s own rules of procedure38 to determine whether
4. The new rule we announce here applies only to this case and prospectively
“The question of prospective application arises when this court announces a new rule.” State v. Jess, 117 Hawaiʻi 381, 400, 184 P.3d 133, 152 (2008). “Although judicial decisions are assumed to apply retroactively, . . . ‘[t]he Constitution neither prohibits nor requires retrospective effect.‘” State v. Ikezawa, 75 Haw. 210, 220, 857 P.2d 593, 597 (1993) (quoting State v. Santiago, 53 Haw. 254, 268, 492 P.2d 657, 665 (1971)). When a judicial decision announces a new rule, this court may, in the exercise of its discretion, determine that the interests of fairness preclude retroactive application. Santiago, 53 Haw. at 268, 492 P.2d at 665. Today, this court for the first time holds that section 15 requires the
three readings to begin anew after a non-germane amendment, which constitutes a new rule. Accordingly, we must determine whether the germaneness standard should be given retroactive effect and to what degree.39
In deciding whether to give a new rule retroactive effect, this court must
, we restated four alternatives for what degree of retroactive effect to give a new rule:weigh the merits and demerits of retroactive application of the particular rule, in light of (a) the purpose of the newly announced rule, (b) the extent of reliance on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards[.]
(Cleaned up.) We have declined to apply selective retroactive effect in criminal cases because “selective application of new rules violates the principles of treating similarly situated defendants the same.” Jess, 117 Hawaiʻi at 401 n.19, 184 P.3d at 153 n.19 (internal quotation marks and citations omitted).First, this court may give a new rule “purely prospective effect, which means that the rule is applied neither to the parties in the law-making decision nor to those others against or by whom it might be applied to conduct or events occurring before that decision.” [Jess, 117 Hawaiʻi at 401, 184 P.3d at 153.] Second, this court may give a new rule “limited or ‘pipeline’ retroactive effect, under which the rule applies to the parties in the decision and all cases that are on direct review or not yet final as of the date of the decision.” Id. Third, this court may give a new rule “full retroactive effect, under which the rule applies both to the parties before the court and to all others by and against whom claims may be pressed.” Id. Lastly, this court has recognized a fourth alternative, in which a new rule is given “selective retroactive effect,” meaning the court applies the new rule “in the case in which it is pronounced, then return[s] to the old [rule] with respect to all [other cases] arising on facts predating the pronouncement.” 117 Hawaiʻi at 401 n.19, 184 P.3d at 153 n.19.
Jess, 117 Hawaiʻi at 401-02, 184 P.3d at 153-54 (cleaned up). The purpose of weighing these factors is to evaluate whether according retrospective application to a new rule would result in substantial prejudice. Id. at 403, 184 P.3d at 155. “Where substantial prejudice results from the retrospective application of new legal principles to a given set of facts, the inequity may be avoided by giving the guiding principles prospective application only.” Catron v. Tokio Marine Mgmt., Inc., 90 Hawaiʻi 407, 411, 978 P.2d 845, 849 (1999) (quoting State v. Ikezawa, 75 Haw. 210, 220-21, 857 P.2d 593, 598 (1993) (footnote omitted)).
Regarding the first factor to be weighed, the purpose of the newly announced rule, retrospective application is most appropriate when the new rule is aimed at protecting the integrity of the factfinding process, particularly in criminal proceedings. Jess, 117 Hawaiʻi at 402, 184 P.3d at 154. In this case, the germaneness standard we announce today is intended to effectuate the purpose of the three readings requirement — ensuring public participation in the legislative process, rather than protecting the integrity of factfinding in judicial proceedings. Consequently, the purpose of the new rule does not weigh in favor of according it retrospective effect.
Finally, we must consider the effect that retrospective application of the new rule would have. See id. at 402, 184 P.3d at 154. While the appropriate consideration in this case is not the effect on the administration of justice, see id., we instead must consider whether the State and the Legislature would suffer substantial prejudice if the germaneness standard was given retroactive effect. See Catron, 90 Hawaiʻi at 411, 978 P.2d at 849. In this case, the retrospective application of the germaneness standard to the three readings requirement could render invalid other laws enacted in the 2019 and 2020 legislative terms if they are challenged. As a result, the State and the Legislature would suffer substantial prejudice from the retrospective application of the germaneness standard that we announce today.
In sum, the extent of the Legislature‘s reliance on its previously accepted practice and the substantial prejudice which the State and the Legislature would suffer counsel against according the germaneness standard full or pipeline retroactive effect. Based on these two factors, we determine that the fourth alternative — selective retroactive effect — is most appropriate. Thus, the new rule is applied to Petitioners in this case and prospectively, but not to other cases challenging laws enacted prior to this pronouncement.
IV. CONCLUSION
For the foregoing reasons, we vacate the circuit court‘s orders and judgment granting the State‘s motion for summary judgment. Because we conclude that
(Lisa Emily Engebretsen with him on the briefs) for plaintiffs-appellants League of Women Voters of Honolulu and Common Cause
Clare E. Connors
(Kimberly Tsumoto Guidry on the briefs) for defendant-appellee State of Hawaiʻi
Colleen Hanabusa for amicus curiae Hawaiʻi State Legislature
Robert H. Thomas for amicus curiae Grassroot Institute of Hawaii
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
Notes
(b) Relief by declaratory judgment may be granted in civil cases . . . where the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or where in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which the party has a concrete interest and that there is a challenge or denial of the asserted relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment will serve to terminate the uncertainty or controversy giving rise to the proceeding.
144 Hawaiʻi at 188, 439 P.3d at 140.the common law three-part “injury in fact” test for standing . . . requires a showing that (1) the plaintiff has suffered an actual or threatened injury as a result of the defendant‘s conduct, (2) the injury is fairly traceable to the defendant‘s actions, and (3) a favorable decision would likely provide relief for the plaintiff‘s injury.
The plain language of
Mason‘s Manual, which the Legislature adopted, provides in relevant part:
§ 4 ¶ 4. [W]here the constitution requires three readings of bills, this provision controls over any provision of adopted rules, statutes, adopted manual or parliamentary law.
§ 6 ¶ 2. A constitutional provision regulating procedure controls over all other rules of procedure.
§ 10 ¶ 3. The power of each house of a state legislature to make its own rules is subordinate to the rules contained in the constitution.
§ 12 ¶ 1. A legislative body cannot make a rule that evades or avoids the effect of a rule prescribed by the constitution governing it, and it cannot do by indirection what it cannot directly do.
As we observed in Morita v. Gorak:
Under longstanding canons of statutory construction, “if one construction would make it possible for a branch of government substantially to enhance its power in relation to another, while the opposite construction would not have such an effect, the principle of checks and balances would be better served by a choice of the latter interpretation.”
145 Hawai‘i 385, 395, 453 P.3d 205, 215 (2019) (quoting Staebler v. Carter, 464 F.Supp. 585, 599-600 (D.D.C. 1979)).
Other jurisdictions have similarly rejected the claim that a court cannot review the constitutionality of a law‘s enactment without violating the separation of powers. See, e.g., Magee v. Boyd, 175 So.3d 79, 106 (Ala. 2015) (holding that whether the legislature satisfied constitutionally mandated procedural requirements for enacting new laws is justiciable); Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 86 (Ky. 2018) (“We are satisfied that judicial review of the meaning of any provision of the Kentucky Constitution is well within the separate powers assigned the judicial branch and that the question before us is not a non-justiciable political question.”); Pennsylvania Sch. Boards Ass‘n, Inc. v. Commonwealth Ass‘n of Sch. Adm‘rs, Teamsters Local 502, 805 A.2d 476, 485 (Pa. 2002) (holding that whether a bill complied with the state constitution‘s three readings requirement was justiciable); Brewer v. Burns, 213 P.3d 671, 675 (Ariz. 2009) (rejecting the argument that a constitutional provision requiring the legislature to determine its own rules of procedure limited the court‘s ability to determine whether the legislature complied with other constitutional mandates concerning the legislative process).
Legislative Reference Bureau, Anatomy of a Bill, https://lrb.hawaii.gov/par/overview-of-the-legislative-process/types-of-measures-bills-resolutions-messages/anatomy-of-a-bill.
Pursuant to the Rules of the House of Representatives (2017-18), Rules 34-36, all three readings of a bill may be by “title only.” Pursuant to the Rules of the Senate (2017-18), Rules 48-50, the first Senate reading of a bill is “for information,” with the second and third readings permissibly being by “title only.” See also Mason‘s Manual, supra, at § 720 ¶ 4 (“A reading of a bill by title is considered a reading of the bill, unless it is specifically required by the constitution that the bill be read at length or in full.”).
The Constitutional Convention of 1968 deleted the comma preceding “on separate days” and renumbered this section to section 15.
This is also in accordance with the common law understanding of reading requirements. “Reading requirements are supposed to facilitate informed and meaningful deliberation on legislative proposals, and refinement and modification of the text of a proposal is the natural and desirable product of deliberation.” Sutherland, supra, § 10:4.
This court previously addressed the three readings requirement as it relates to constitutional amendments in Taomae, 108 Hawaiʻi at 254, 118 P.3d at 1197. At issue in Taomae was a bill that was originally introduced as “A Bill for an Act Relating to Sexual Assault” and was later amended to add a “constitutional amendment to allow the Legislature to define what behavior constitutes a continuing course of conduct in sexual assault crimes[.]” Id. at 248-49, 118 P.3d at 1191-92. This court held that the proposed constitutional amendment violated section 15 because the bill did not receive the required three readings in each house after the constitutional amendment provision was added. Id. at 255, 118 P.3d at 1198. Therefore, Taomae is distinguishable from this case because constitutional amendments must comply not only with article III, but also with article XVII. See id. at 251, 118 P.3d at 1194.
In 1978, the section which contains the three readings requirement was amended to its current form. The twenty-four-hour period was increased to forty-eight hours, the printing requirement was slightly reworded, and the sections were renumbered. Thus, section 15 now states:
No bill shall become law unless it shall pass three readings in each house on separate days. No bill shall pass third or final reading in either house unless printed copies of the bill in the form to be passed shall have been made available to the members of that house for at least forty-eight hours.
Every bill when passed by the house in which it originated, or in which amendments thereto shall have originated, shall immediately be certified by the presiding officer and clerk and sent to the other house for consideration.
Any bill pending at the final adjournment of a regular session in an odd-numbered year shall carry over with the same status to the next regular session. Before the carried-over bill is enacted, it shall pass at least one reading in the house in which the bill originated.
In considering whether to adopt the final printing requirement, the 1968 Committee on Revision, Amendment and Other Provisions noted that it “was guided by the belief that any change in procedure must be evaluated in terms of its contribution to the two principal legislative functions of representing people, groups and communities and of rendering decisions which can be accepted as carefully weighed and fairly made.” Id.
Plaintiffs cite the germaneness test applied to the constitutional three readings requirement by the Pennsylvania Supreme Court in Washington v. Dep‘t of Public Welfare, 188 A.3d 1135 (Pa. 2018). As the Pennsylvania Supreme Court explained,
Amendments are germane to the original general subject matter of a bill if both the subject of the amendments and the subject of the original contents of the bill have a nexus to a common purpose. In other words, the subject of the amendments and the subject of the original bill language must constitute a unifying scheme to accomplish a single purpose. In making this determination, a reviewing court may hypothesize a reasonably broad unifying subject; however, such a hypothetical subject cannot be unduly expansive, lest the purpose of the constitutional provision be defeated.
Id. at 1151-52 (internal citations and quotation marks omitted). Notably, Pennsylvania is one of a minority of states whose constitutions contain an explicit provision that “no bill shall be so altered or amended, on its passage through either House, as to change its original purpose.”
“That each law shall embrace but one subject, which shall be expressed in its title.” Organic Act § 45 (1900) (emphasis added).
Thus, we disagree that the subject-in-title requirement alone is sufficient to ensure that new legislation is not introduced after the bill introduction deadline in order to allow the public and legislators to use the mid-session recess to read all of the bills that will be introduced in the legislative session.shipping container inspections for fireworks (H.B. 7, 2017); establishing a medical marijuana commission to make recommendations about dispensaries (H.B. 2534, 2016); installation of residential fire protection sprinkler systems (S.B. 2170, 2016); prohibiting general contractors from performing the work of a specialty contractor without a license (H.B. 130, 2015); appropriating funds for the repair of a Waikiki seawall (H.B. 84, 2011); imposing a tort duty on private landowners to inspect and mitigate where there is a potential danger of falling rocks (H.B. 1261, 2003).