HONOLULU —State senators are pushing a bill that would fund and govern a Maui wildfire death and injury compensation fund, but the measure runs a risk of violating the Hawai‘i Constitution.
House Bill 679 would appropriate $65 million to the One ‘Ohana Fund and require an annual report to the Legislature documenting paid claims and administrative costs.
The 22-page bill also would appropriate money for Maui wildfire recovery costs, require an audit of such spending, alter statutory provisions relating to the state’s Major Disaster Fund and have the governor provide notice and a report to the Legislature regarding transfers to the Major Disaster Fund.
Yet, for most of the bill’s history since being introduced in January 2023, HB 679 dealt solely with delaying a state rental housing fund deposit that received two public hearings and three readings in the House during 2023. The rental housing fund language in the original three-page bill is no longer in HB 679.
The new version of the bill hasn’t had the constitutionally required three readings each in the Senate and House of Representatives on a similar subject matter.
This predicament puts HB 679, which the Senate voted 23-0 on April 4 to send to the House for possible final approval, in jeopardy of running afoul of a 2021 Hawai‘i Supreme Court decision against a longtime practice of the Legislature to “gut and replace” bill contents without proper consideration and public input.
The state Department of the Attorney General advised the Senate Ways and Means Committee on March 27 that the committee’s proposed completely different draft of HB 679 would “implicate” the 2021 court ruling.
“As the amendments made in parts II through VII in the Proposed Senate Draft 2 do not appear to be related to the original purpose of the bill, we believe that there is a significant probability that a court would conclude that these amendments are outside the scope of the purpose of the original bill and that it will violate article III, section 15, of the Hawai‘i Constitution if it does not receive three additional readings in each house.”
Sen. Donovan Dela Cruz, Ways and Means chair, in response acknowledged the comment and suggested that time was of the essence to satisfy the requirement for the additional readings.
To date, though, only one reading of the new version of the bill has occurred. This happened April 4 as part of the full Senate vote.
Dela Cruz (D, Mililani-Wahiawa-Whitmore Village) said HB 679 was used to respond to emergency appropriation requests submitted by Gov. Josh Green in early March and that the bill is a “back-up” to another measure, Senate Bill 582.
SB 582 originated as a blank budget bill introduced in January 2023. In February and March it was filled with much of the same contents found in HB 679, but not exactly. Unlike HB 679, SB 582 has received public hearings on new subject matter and is pending a final draft agreement by House and Senate representatives.
Given the status of SB 582, it’s unclear why senators are still acting to advance HB 679. Some appropriations proposed in both measures could be included in the state budget bill being negotiated by select House and Senate members.
In the event that SB 582 is enacted, it might not affect carrying out the purpose of the measure. Bills can become law without the constitutionally required proper readings and aren’t automatically invalidated.
This is so because of what the 2021 ruling did and didn’t do.
The ruling doesn’t prevent lawmakers from passing bills without the required proper readings, but any law resulting from such legislation could be invalidated if challenged in court.
This precedent stems from a 2018 lawsuit filed by the League of Women Voters of Honolulu and Common Cause Hawai‘i. The litigation challenged a 2018 bill that originally required the state Department of Public Safety to produce performance reports but became a law requiring the state to consider designing new public schools for emergency use as hurricane shelters.
After losing in state Circuit Court, the plaintiffs prevailed in a 3-2 Hawai‘i Supreme Court decision. The high court ruled that the bill-reading requirement begins anew after a nongermane amendment changes the purpose of a bill so that it is no longer related to the original bill as introduced.
“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,” the decision said. “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.”
Hawaii’s Legislature has a long history of skirting this provision, sometimes for unsavory reasons. For instance, lawmakers in 1975 treated themselves to a 150 percent pension benefit increase by amending a bill having to do with the state Employees’ Retirement System a day before the end of the legislative session. The bill was condemned by some legislators yet passed.
At other times prior to the 2021 ruling, lawmakers used the gut and replace tactic as an emergency tool for causes they saw as having strong merit and public support.
To publicize gut and replace legislation that became law, or appalling failed attempts, the League of Women Voters and Common Cause for a number of years issued annual “Rusty Scalpel” awards.
One winner, from 2016, started as a bill to issue renewable fuel production tax credits. But what became law without a single public hearing, according to the organizations, was a new tax credit for organic food production.
The 2021 court ruling appears to have resulted in fewer gut and replace maneuvers since then but hasn’t eliminated them.
In 2022, lawmakers took a bill to provide a vehicle registration fee tax credit for certain low-income taxpayers and converted it after House passage to make the state earned income tax credit permanent.
Another gut and replace move in 2022 converted a bill aimed at raising Hawai‘i’s transient accommodations tax rate into something that instead would create and fund a commission to help manage local natural resources. Neither of those 2022 bills, HB 510 and SB 775, passed.
Camron Hurt, Common Cause Hawai‘i program manager, said the organization doesn’t have a big gripe about the latest example because it aims to help Maui’s wildfire recovery.
On April 15, Senate leadership appointed three senators to negotiate with House counterparts in an effort to pass HB 679. House leadership as of Friday had not appointed negotiators.
