League of Women Voters of Honolulu v. State.

499 P.3d 382, 150 Haw. 182

Opinion

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Electronically Filed Supreme Court SCAP-XX-XXXXXXX 04-NOV-2021 07:53 AM Dkt. 55 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

LEAGUE OF WOMEN VOTERS OF HONOLULU and COMMON CAUSE, Plaintiffs-Appellants,

vs.

STATE OF HAWAIʻI, Defendant-Appellee.

SCAP-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 1CC18-1-001376)

NOVEMBER 4, 2021

NAKAYAMA, McKENNA, AND WILSON JJ., AND RECKTENWALD, C.J., DISSENTING, WITH WHOM CIRCUIT JUDGE KAWAMURA, IN PLACE OF POLLACK, J.1, RECUSED, JOINS

OPINION OF THE COURT BY NAKAYAMA, J.

I. INTRODUCTION

Plaintiffs-Appellants League of Women Voters of

Honolulu and Common Cause (collectively, “Plaintiffs”) appeal

1 Associate Justice Richard W. Pollack retired on June 30, 2020. *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

from the Circuit Court of the First Circuit’s (circuit court)

final judgment, which granted Defendant-Appellee the State of

Hawaiʻi’s (the State) motion for summary judgment.

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

article III, section 15 of the Hawaiʻi Constitution because the

bill did not receive three readings in each house of the Hawaiʻi

State Legislature (the Legislature) before it was passed and

signed into law. The bill that was signed into law was first

introduced in the Senate as “A Bill for an Act Relating to

Public Safety” and required annual reporting of recidivism

statistics by the State. The House of Representatives (“the

House”) amended the bill to require hurricane shelter space in

new State buildings and deleted all reference to recidivism

reporting. The hurricane shelter version of the bill received

one reading in the Senate before it passed and eventually became

law.

The State filed a motion for summary judgment, arguing

that the Legislature’s own rules of procedure permit a bill to

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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.” Haw.

Const. art. III, § 15. Here, the bill received three readings

in each house by title and number, but the substance of the bill

changed when the House introduced the hurricane shelter

substitution, which was unrelated to the original recidivism

reporting bill.

We conclude that article III, section 15 of the Hawaiʻi

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Constitution requires that the three readings begin anew after a

non-germane amendment changes the purpose of a bill so that it

is no longer related to the original bill as introduced.

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.

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On March 8, 2018, after crossover2 from the Senate, the

recidivism reporting bill passed its first reading in the House.

On March 15, 2018, the House Committee on Public

Safety held a hearing on the recidivism reporting bill and

received testimony from interested parties, 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.

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,

2 “Crossover” occurs when a bill is voted on three times in the originating legislative chamber and crosses over to the other chamber for consideration. Legislative Reference Bureau, A Bill’s Journey, https://lrb.hawaii.gov/par/overview-of-the-legislative-process/a-bills- journey.

3 The House Committee on Public Safety offered no explanation as to why it recommended gutting the contents of the recidivism reporting bill and replacing it with the hurricane shelter bill and merely stated: “Your Committee has amended this measure by deleting its contents and inserting the substantive provisions of House Bill No. 2452, H.D. 1, which was heard by your Committee earlier this session.” H.R. Stand. Comm. Rep. No. 1255-18, at 2.

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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.

4 The Office of Hawaiian Affairs commented, inter alia, that hurricane preparedness is a “laudable goal,” but that the hurricane shelter draft of S.B. 2858 “would abandon the critically important purpose of previous drafts to require the Department of Public Safety [DPS] to collect, aggregate, and publicly report data relating to key enumerated performance indicators[,]” which was critical to reforming the criminal justice system.

Young Progressives Demanding Action offered similar comments, stating that the group does “not oppose the construction of hurricane shelters,” but was “nevertheless disappointed that the House Public Safety committee decided to gut an important bill that would have required the [DPS] to report on program outcomes.”

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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 article III, section 14 of the

Hawaiʻi Constitution (“section 14”)5; and (2) “the hurricane

shelter version of S.B. 2858” did not “have the required three

readings in the Senate[,]” in violation of article III, section

15 of the Hawaiʻi Constitution (“section 15”).6 Plaintiffs

sought a declaratory order that Act 84 was adopted through an

5 Section 14 provides in relevant part that “[e]ach law shall embrace but one subject, which shall be expressed in its title.” Haw. Const. art. III, § 14.

6 Section 15 provides in relevant part that “[n]o bill shall become law unless it shall pass three readings in each house on separate days.” Haw. Const. art. III, § 15.

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unconstitutional process and therefore is void as

unconstitutional.

On October 9, 2018, the State filed a motion for

summary judgment, arguing that Act 84 is constitutional and that

Plaintiffs’ claims presented a nonjusticiable political

question.

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

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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:

1. 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.

....

3. 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.

4. 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

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raised two points of error:

1. 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.

. . . .

2. 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, which this court granted on

December 18, 2019.

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).

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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

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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

7 Because it is clear that Act 84’s enactment did not comport with section 15’s three readings requirements and is invalid, we do not reach the issue of whether Act 84’s title “Relating to Public Safety” satisfies section 14’s subject-in-title requirement.

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because they do not have a concrete interest in challenging

the constitutionality of Act 84’s substance, but instead seek to

bring a general challenge to the Legislature’s practice of

“gut[ting] and replac[ing]”8 bills during the legislative

process.9

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

8 “Gut and replace” refers to the legislative practice of removing a bill’s original content and replacing it with a different topic that is unrelated to the original bill.

9 We note that the State did not file a cross-appeal to challenge the circuit court’s decision that Plaintiffs have standing in this case. Generally, an appellee who fails to file a cross-appeal cannot raise points of error. First Ins. Co. v. A&B Properties, 126 Hawaiʻi 406, 413 n.12, 271 P.3d 1165, 1172 n.12 (2012). However, because standing is a prudential consideration related to concerns of judicial self-governance, “Hawaiʻi state courts may consider standing even when not raised by the parties[.]” Tax Found. of Hawaiʻi v. State, 144 Hawaiʻi 175, 192, 439 P.3d 127, 144 (2019), reconsideration denied, No. SCAP-XX-XXXXXXX, 2019 WL 1858284 (Haw. Apr. 25, 2019).

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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 HRS § 632-1 (2016).10 See Ching v. Case, 145 Hawaiʻi 148, 173

n.41, 449 P.3d 1146, 1171 n.41 (2019)) (observing that “suits

seeking retrospective declaratory relief based on an alleged

constitutional violation that has already occurred are governed

10 HRS § 632-1 provides in relevant part:

(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.

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by HRS § 632-1”). In Tax Found., this court held that a party

seeking declaratory relief under HRS § 632-1 need not satisfy

the common law three-part injury-in-fact test to have standing.11

144 Hawaiʻi at 189, 439 P.3d at 141. Instead, we adopted the

following test for HRS § 632-1 standing:

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

Id. at 202, 439 P.3d at 154. Applying this test, we found that

the plaintiff in Tax Found. had HRS § 632-1 standing “based on

its historical purpose as a government financial accountability

watchdog.” Id. at 202-03, 439 P.3d at 154-55.

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

11 As stated in Tax Found.,

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.

144 Hawaiʻi at 188, 439 P.3d at 140.

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requirements delineated in Tax Found. to the facts of this case,

we hold that Plaintiffs have HRS § 632-1 standing because:

(1) antagonistic claims exist between Plaintiffs and the State

with respect to whether the process used to adopt Act 84

violated the Hawaiʻi Constitution and Plaintiffs have a concrete

interest in ensuring that the Legislature adheres to

constitutionally-mandated procedures when enacting new

legislation, which is an alleged right challenged or denied by

the State;12 and (2) “a declaratory judgment will serve to

terminate the . . . controversy giving rise to the proceeding.”

See id. at 202, 439 P.3d at 154. Accordingly, the circuit court

did not err in finding that Plaintiffs have standing to

challenge the constitutionality of Act 84.

12 The State cites no authority for its claim that Plaintiffs’ interest in ensuring that the Legislature comply with constitutionally-mandated procedures when enacting new laws is not sufficiently concrete to warrant HRS § 632-1 standing. Plaintiffs are community groups who are interested in increasing public participation in government, have a documented interest in legislative procedure and governance, and have consistently communicated their concerns about the Legislature’s compliance with constitutionally- mandated procedures for enacting legislation. The plain language of HRS § 632-1(b) provides that a court may grant a declaratory judgment where antagonistic claims exist between the parties, specifically where “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.” Consequently, Plaintiffs need not disagree with the subject of Act 84 in order to assert their right to be governed by laws which have complied with constitutionally-mandated procedures for enacting legislation — a right which the Legislature allegedly denied.

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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[.]” Haw. Const. art. III, § 12

(“section 12”).13 The Legislature maintains that this court may

look no further than determining whether the Legislature

followed its own procedural rules to ascertain whether the three

readings requirement is satisfied without violating the

separation of powers doctrine. See Hussey v. Say, 139 Hawaiʻi

181, 188-89, 384 P.3d 1282, 1289-90 (2016) (holding that whether

a legislator is qualified to hold office is nonjusticiable

13 Section 12 provides in relevant part: “Each house shall choose its own officers, determine the rules of its proceedings and keep a journal.” Haw. Const. art. III, § 12.

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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

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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

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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

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constitution[.]” Haw. Const. art. III, § 1 (emphasis added).

Put simply, the Legislature’s rules of procedure do not trump

constitutional provisions. Instead, constitutional provisions

control over any provision of adopted rules. See Nat’l

Conference of State Legislatures, Mason’s Manual of Legislative

Procedure (2010 ed.) §§ 4, 6, 10, and 12) (“Mason’s Manual”).14

Accord Norman J. Singer & Shambie Singer, 1 Sutherland on

Statutes and Statutory Construction § 7:4 (7th ed. 2014)

(“Sutherland”) (“The constitution empowers each house to

determine its rules of proceedings. It may not by its rules

ignore constitutional restraints[.]” (quoting United States v.

Ballin, 144 U.S. 1, 5 (1892)). Accepting the Legislature’s

contrary proposition would violate the separation of powers

doctrine, effectively leaving the Legislature’s power

14 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.

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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

15 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 Hawaiʻi 385, 395, 453 P.3d 205, 215 (2019) (quoting Staebler v. Carter, 464 F.Supp. 585, 599-600 (D.D.C. 1979)).

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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 the violating 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.

“No bill shall become law unless it shall pass three

readings in each house on separate days.” Haw. Const. art. III,

§ 15. Constitutional provisions regarding the enactment of

legislation are “mandatory and a violation thereof would render

16 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).

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an enactment nugatory.” Schwab, 58 Haw. at 31, 564 P.2d at 139.

Plaintiffs argue that Act 84 did not satisfy the three readings

requirement because the hurricane shelter version of S.B. 2858

only received one reading in the Senate before it was signed

into law.

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.” Haw.

Const. art. III, § 15 (emphasis added). The ordinary meaning of

the word “read” is “to receive or take in the sense of [letters

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or symbols] . . . by sight” or “to utter aloud the printed or

written words of” something. Merriam Webster’s Collegiate

Dictionary 972 (10th ed. 1994). Thus, before a bill can become

a law, it must be read, meaning that its contents must be

“take[n] in” or “utter[ed] aloud” three times in each house on

separate days. See Haw. Const. art. III, § 15.

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

17 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.

18 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.”).

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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.

In Hawaiʻi, the three readings requirement dates back

to the 1894 Constitution of the Republic of Hawaiʻi. Haw. Const.

art. 64 (Rep. 1894). In 1950, the three readings requirement

was reworded to the current language: “No bill shall become law

unless it shall pass three readings in each house,19 on separate

days.” Haw. Const. art. III, § 16 (1950).

At the Constitutional Convention of 1950, the

Committee on Revision, Amendments, Initiative, Referendum and

Recall (“the Committee”) issued a report which discussed, among

19 The Constitutional Convention of 1968 deleted the comma preceding “on separate days” and renumbered this section to section 15. Haw. Const. art. III, § 15.

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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

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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,

20 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.

21 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.

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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”).

Another key purpose of the three readings requirement

is that it provides the public notice of proposed legislation

and an opportunity to comment. See Alaska Legislative Council

v. Knowles, 21 P.3d 367, 377 (Alaska 2001) (observing that the

three readings requirement provides “an opportunity for the

expression of public opinion and due deliberation.”); Mason’s

Manual, supra, § 720 ¶ 2 (noting that the three readings

requirement is also intended “to inform . . . the public of the

contents of the bill”); 1 Sutherland, supra, § 10:4 (“The

practice of having bills read on three different days also

serves to provide notice that a measure is progressing through

the enacting process, enabling interested parties to prepare

their positions.”). See also Cooley, supra, at 288 n.1 (noting

that the three readings requirement is “not a mere rule of

order, but one of protection to the public interests and to the

citizens at large”).

Thus, the three readings requirement serves three

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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

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the members of that house for at least twenty-four hours.”22

Haw. Const. art. III, § 16 (1968) (emphasis added). The State

argues that by adding the final printing requirement in 1968,

the framers implicitly acknowledged that bills would be amended

during the legislative process and that even significant

amendments would not require the three readings to begin anew.

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,

22 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.

Haw. Const. art. III, § 15.

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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.

Stand. Comm. Rep. No. 46 in 1 Proceedings of the Constitutional

Convention of Hawaii 1968, at 216 (1973) (“Proceedings of 1968”)

(emphasis added). The final printing requirement was adopted to

provide additional notice to legislators and the public in the

face of increasingly complex legislation.

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

23 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.

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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

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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.

Id. at 169 (emphasis added). Delegate Kauhane described the

final printing requirement as an attempt to ensure that

legislators had the opportunity to offer amendments to the

amended bill before its third reading and “to prevent any

citizen from going into court to test the constitutionality of

the legality of the passage of this bill on third reading in

this disguised form.” Id. “[I]n order to plug that loophole

and to make sure that all of these actions undertaken by the

legislature are legal and beyond any question of doubt have met

the conditions under which those are to be considered, first,

second and third reading.” Id.

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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

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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

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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 must be construed

“with due regard to the intent of the framers and the people

adopting it.” See Sierra Club, 120 Hawaiʻi at 196, 202 P.3d at

1241 (cleaned up). The State’s assertion that the three

readings requirement is satisfied merely by a perfunctory

reading three times in each house, with the final reading after

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forty-eight hours’ notice, seems to ignore the framers’ intent

in adopting the provision.

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

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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

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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 Supreme Court applied a

germaneness standard to the single subject rule25 in Territory v.

Kua, 22 Haw. 307 (1914). The Kua court noted that germane

literally means “akin, closely allied[,]” and “united by the

common tie of blood or marriage.” Id. at 313 (internal citation

24 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.” Pa. Const. art. III, § 1. Pennsylvania’s “original purpose” requirement is in addition to its connotational three readings requirement contained in article III, § 4. We note that the Hawaiʻi Constitution contains no “original purpose” provision.

25 “That each law shall embrace but one subject, which shall be expressed in its title.” Organic Act § 45 (1900) (emphasis added).

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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

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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.” Haw. Const. art. III, § 15

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(emphasis added). A bill consists of the number, title, and

body. Because the plain language of section 15 states that a

bill must be read three times on separate days, it follows that

if the body of the bill is so changed as to constitute a

different bill, then it is no longer the same bill and the three

readings begin anew.

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

Third, the purpose behind the single subject and

26 We note that the State offers no viable explanation for why germaneness applies to section 14 of article III, but not to section 15, or why germaneness is a workable standard for courts to apply to the former but not the latter. We disagree with the State’s assertion that a reviewing court would be unable to recognize when an amendment to a challenged bill is not germane to the bill’s original subject, just as they recognize when a non-germane amendment violates the single subject or subject-in-title requirements.

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subject-in-title requirements is similar to the purpose of the

three readings requirement in that both are directed at

providing notice to legislators and the public. Compare Schwab,

58 Haw. at 30–31, 564 P.2d at 139 (observing that the purpose of

the single subject requirement is, inter alia, “to prevent

surprise or fraud upon the Legislature[,]” and to provide notice

to the public of proposed legislation) (quoting Jensen v.

Turner, 40 Haw. 604, 607-08 (1954)), with Taomae, 108 Hawaiʻi at

255, 118 P.3d at 1198 (noting that one purpose of the three

readings requirement is to “ensure[] that each house of the

legislature has given sufficient consideration to the effect of

the bill.”). See also Mason’s Manual, supra, § 720 ¶ 2 (noting

that the three readings requirement is intended “to prevent

hasty and ill-considered legislation, surprise or fraud, and to

inform the legislators and the public of the contents of the

bill.”). Thus, it is sensible to apply the same germaneness

standard to the three readings requirement as we do to the

single subject and subject-in-title requirements because the

germaneness standard is a safeguard against the same legislative

pitfalls.

Nor are we alone in applying a germaneness standard to

the constitutional three readings requirement. Numerous other

jurisdictions also measure compliance with their constitutional

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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

27 The only jurisdiction cited by the State which has a three readings requirement and does not yet apply a germaneness standard is Tennessee. In D.M.C. Corp. v. Shriver, 461 S.W.2d 389, 392 (Tenn. 1970), the Tennessee Supreme Court stated that “on third and final reading a bill can be amended to any extent, even to striking the body of the bill and substituting the amendment therefore so long as the amendment is germane to and within the scope of the title.” (Emphasis added.) However, the Tennessee Supreme Court held that the challenged bill was invalid because on the first two readings, it contained no substance and consisted of only a title and number. Id.

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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

minority states with an “original purpose” provision. See,

e.g., Magee v. Boyd, 175 So.3d 79, 114 (Ala. 2015) (holding that

“an amended bill or a substitute bill, if germane to and not

inconsistent with the general purpose of the original bill, does

not have to be read three times on three different days to

comply with [the three readings requirement]”) (emphasis added);

28 The Dissent attempts to minimize these states’ use of a germaneness standard to measure compliance with their three readings requirements by asserting that the standard is meant to “focus on whether the amendments are within the scope of the bill’s original title.” Dissent at 24. This is, of course, a logical first step to determining whether an amendment is germane to the original bill’s subject matter insofar as constitutional single subject requirements mandate that bills pertain to a single subject. See, e.g., Haw. Const. art. III, § 14. However, that is not the end of the inquiry, as our sister courts go on to analyze whether the amended bill would accomplish a similar purpose. See, e.g., Hood, 102 S.E. at 263 (explaining the three readings requirement is not violated when “[p]rovisions wholly discordant from the text [are] inserted by way of amendment, provided the main purpose and essential character of the original are not necessarily impaired or modified.”) (emphasis added).

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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

29 Article III, section 10 of the Hawaiʻi Constitution provides in relevant part: “Each regular session shall be recessed for not less than five days at some period between the twentieth and fortieth days of the regular session. The legislature shall determine the dates of the mandatory recess by concurrent resolution.”

30 Article III, section 12 of the Hawaiʻi Constitution provides in relevant part: “By rule of its proceedings, applicable to both houses, each house shall provide for the date by which all bills to be considered in a regular session shall be introduced.”

31 Article III, section 15 of the Hawaiʻi Constitution provides in relevant part: “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.” (Emphasis added.)

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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

32 In adopting the State’s “plain language” argument, the dissent places great reliance on the subject-in-title requirement and on a bill’s title to provide notice to the public. Dissent at 24-25. However, as Plaintiffs observed, the title “Related to Public Safety” has been used in past legislative sessions for a plethora of subjects, including:

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 Waikīkī 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).

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.

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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 afford the public more time to familiarize itself with

proposed legislation, conduct research, and “prepare more

thoughtful and detailed testimony.” Stand. Comm. Rep. No. 417-

84, in 1984 House Journal at 1031. Logically, it would be

futile for the public to use the mid-session recess to read

every bill that would be introduced in the session in both

houses and prepare to offer testimony if the Legislature may

then gut and replace the bill with an entirely new one. Such an

interpretation of the three readings requirement would not only

defeat its purpose, it would render the mid-session recess and

the bill introduction deadline meaningless and reduce them to

empty formalism.

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

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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

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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

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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.

33 See Rules of the House of Representatives (2017-18), Rule 59; Rules of the Senate (2017-2018), Rule 88. While both chambers adopted Mason’s Manual, they seem to overlook § 4 ¶ 4, which provides that “where the constitution requires three readings of bills, this provision controls over any provision of adopted rules, statutes, adopted manual or parliamentary law.” (Emphasis added.)

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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

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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, which shifts the

34 In this case, the non-germane hurricane shelter amendment was recommended by a committee. H.R. Stand. Comm. Rep. No. 1255-18, at 2. However, we note that the Senate’s own rules of procedure require that “the fundamental purpose of any amendment shall be germane to the fundamental purpose of the bill.” Rules of the Senate (2017-18), Rule 54(2) (emphasis added). Similarly, the House’s rules require than any committee’s substitute bill “shall be consistent with the subject of the bill or bills referred to the committee.” Rules of the House of Representatives (2017-18), Rule 11.7(4). Contrary to the dissent’s reading that Senate “Rule 54(2) appears to address only amendments proposed on the Senate floor,” Dissent at 8 n.4, Senate Rule 54(2)’s use of “any amendment” is notable in light of Senate Rule 54(4) and (5)’s specification that those provisions apply to “floor amendment[s].” (Emphasis added.) “Where [the legislature] includes particular language in one section . . . but omits it in another section . . . , it is presumed that [the legislature] acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983). Thus, in the absence of evidence to the contrary, we must presume that the Senate acted intentionally in articulating that Rule 54(2) applied to “any” amendment and in limiting Rule 54(4) and (5) to “floor” amendments. See also United States v. Gonzales, 520 U.S. 1, 5, 117 S. Ct. 1032, 1035 (1997) (“Read naturally, the word ‘any’ has an expansive meaning[.]”).

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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

35 We note that the State argues on appeal that the Legislature used gut and replace in this instance to the “secure the timely passage of critically important public safety legislation.” However, the State represented to the circuit court that no exigency necessitated gutting the recidivism reporting bill and replacing it with the hurricane shelter bill. In any event, even if an exigency did exist, the plain language of section 15 contains no emergency exception. If there is an urgent need to pass legislation, “the legislature maintains the option of holding a special session[.]” See Morita, 145 Hawaiʻi at 396, 453 P.3d at 216.

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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

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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

36 Interested person can request to follow certain bills by subscribing to the Legislature’s Really Simple Syndication (RSS) feed. Hawaiʻi State Legislature, RSS, https://www.capitol.hawaii.gov/rss.aspx. The RSS feed will send the subscriber a notification when new content is available on a particular bill of interest. Id. However, the RSS feed will only notify subscribers if there is new content available for the bill of interest. Id. If the bill does not progress and another bill is later gutted to include the subject that the subscriber was interested in, the subscriber is not notified and thus loses the opportunity to provide input.

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non-germane amendment, we next consider whether the process used

to enact Act 84 complied with section 15.

The original subject of S.B. 2858 was recidivism

reporting and the recidivism reporting bill passed three

readings in the Senate. Next, the recidivism reporting bill

passed its first reading in the House. Prior to the second

reading, the House amended the bill by deleting its contents and

inserting provisions which would require that newly constructed

State buildings include hurricane shelter space. Thus, as a

hurricane shelter bill, S.B. 2858 passed its second reading in

the House. Based on the recommendation of a conference

committee, S.B. 2858 was amended to instead require the State to

consider hurricane resistant criteria when designing and

constructing new schools. In this final form, S.B. 2858 passed

final reading in both chambers and was signed into law as Act

84.

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

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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

37 However, applying the germaneness standard to the conference committee amendment, we conclude that there is a “common tie” and “close alliance” between hurricane shelters in newly constructed State buildings and hurricane resistant material for new schools. See Kua, 22 Haw. at 313. By amending the hurricane shelter bill to introduce the subject of hurricane resistant material for new schools, the conference committee did not introduce “a new and independent matter[.]” See id. at 313. Thus, the hurricane resistant material amendment was germane to the previous version of the hurricane shelter bill.

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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

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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 the Legislature complied with section 15’s

three readings requirement.

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

38 As previously noted, sections 415, 617, and 722 of Mason’s Manual, see supra pp. 51-53, do not permit non-germane amendments for purposes of the three readings requirement. Thus, even if the Legislature’s own rules of procedure could define compliance with the three readings requirement, the Legislature did not comply with sections 415, 617, and 722 in this case because the hurricane shelter amendment was not germane to the original subject of S.B. 2858, which was recidivism reporting.

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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

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[.]

39 In Lewi v. State, 145 Hawaiʻi at 349, 452 P.3d at 346 (2019), we restated four alternatives for what degree of retroactive effect to give a new rule:

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.

(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).

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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.

The second factor to be weighed is the extent of the

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Legislature’s reliance on its previously accepted practice. See

id. at 401-02, 184 P.3d at 153-54. The Legislature has long

relied on its own rules of procedure, which do not require the

three readings to begin anew after a non-germane amendment.

Obviously, the Legislature has relied on these same procedural

rules to pass other bills which similarly would not have had

three readings in each house after a non-germane amendment.

Accordingly, the extent of the Legislature’s reliance on its

previously accepted practice of permitting non-germane

amendments without requiring the three readings to begin anew

weighs in favor of limiting our decision to purely prospective

application.

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

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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 article III,

section 15 of the Hawaiʻi Constitution requires that a bill

receive three readings after the Legislature introduces a non-

germane amendment and because the hurricane shelter provisions

of Act 84 violated section 15, we vacate the summary judgment

granted to the State and remand this case to the circuit court

with instructions to grant Plaintiffs’ motion for summary

judgment.

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Robert Brian Black /s/ Paula A. Nakayama (Lisa Emily Engebretsen with him on the briefs) /s/ Sabrina S. McKenna for plaintiffs-appellants League of Women Voters /s/ Michael D. Wilson 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