Friday, February 27, 2009


Clarification of clarification of how a bill may be recalled in Hawaii’s legislature

by Larry Geller

I asked Lance Collins, Maui attorney who emailed the information in yesterday’s article, for more details that I might post here. Lance discussed the “yanking” of bills back from committees, which may be the next step for HB444 (civil unions), now “stuck” if something like yanking it back to the floor is not done.

Now, I know he didn’t intend his messages to be legal opinion, but I asked and he did send a followup with citations and permission to post them. I’m happy to pass these on to interested readers. His comments also shed light on the legislative process, and I have learned several things I didn’t know (which leaves a lot I still don’t know…). Notice his comments on the power of the majority.

This isn’t the kind of material usually posted on blogs, but our state legislature is trying to deal with this issue (civil unions) while at the same time it has many bills before it related to the state’s current economic difficulties. Understanding the basis for “yanking” bills may be useful. It is up to legislators to interpret Lance’s comments.

So here they are. If legal citations make your eyes glaze over, please skip. If you’re interested in getting the “yanking” underway, please communicate with your legislators. My understanding is that they are free to yank anytime they want. Check it out, and thanks to Lance for being willing to share his comments:

First, unlike the executive branch, in a republican form of government, a state constitution is a limitation rather than a grant of legislative power. Every legislative body has the inherent power to regulate its own procedure subject to constitutional provisions. (Jory v. Martin, 56 P.2d 1093 [1936]) Every legislative body has the power to abolish, modify or waive its own rules of procedures subject to any constitutional limitations. (Chandler v. Lawrence, 128 Mass. 213 [1880])

While there are many minorities in a legislature, there can only be one majority. In our form of government, majority rules. This means that the majority acts as the legislative body and is only restrained by constitutional provisions. Some common limitations is that laws may not be passed by bill embracing but one subject (Art III, Sec 14). Another limitation on the power of the majority to make laws is that every bill must be read at least three times on three different days and the engrossed copy of the bill must be given to all members 48 hours before final reading. (Art III, Sec 15). More than a majority is needed to censure, suspend or expel a member (Art. III, Sec. 12, Subsec 1)

Rules are employed to determine the will of the majority in an orderly and efficient way. The great purpose of all rules and forms is to subserve the will of the assembly rather than restrain it. Their purpose is to facilitate and not obstruct the expression of a legislative body's deliberate sense. (Dye v. State of Mississippi ex rel. Hale 507 So.2d 332 [1987]).

A majority, however, cannot use its power to confer upon itself legal power to control a subsequent majority. A majority then has no power to make a rule which cannot be modified or repealed by a majority. If a majority of a legislative body has authority in the first instance to pass a rule, it has authority to annul or repeal the same rule.  (State of South Carolina ex rel. Coleman v. Lewis 186 S.E. 625 [1936],  Davis v. Thompson, 721 P.2d 789 [1986], State of North Dakota ex rel. Spaeth v. Meiers, 403 N.W.2d 392 [1987]).

A number of people have pointed to Art. III, Sec. 12, subsec. 2 for the proposition that a bill "stuck" in committee must remain their for 20 days before the body as a whole may take any action to remove it or re-refer it, etc.,. However, subsec. 2 is the conferral on a minority of a right against the will of the majority. After 20 days, a minority of 1/3rd of the members of either house can recall the jurisdiction to consider a bill and return it for deliberation before the entire body.

The text of that section:

"Twenty days after a bill has been referred to a committee in either house, the bill may be recalled from such committee by the affirmative vote of one-third of the members to which such house is entitled."

Some people have argued that this places a general limit on the majority itself to recall a bill from committee whenever the majority wants. This is erroneous in two significant ways.

First, the subsection is a limitation on the majority and a "right" of a 1/3rd minority to allow a bill to be heard on the floor. It is not a provision which grants or confers on committees power.

Second, the constitution does not require either house of the legislature to use the committee structure. The committee structure allocates the deliberative process among a number of representatives of the majority (committee chairs) and members. Committees, like officers of a chamber, exist at the will of the majority. If a leader no longer has majority support, he or she will not be the leader.

A legislative body cannot tie its own hands by establishing unchangeable rules. It may adopt, change or repeal any procedure (not required by the constitution) at any time. (French v. Senate of State of California, 80 P. 1031 [1905])

Committees are instruments or agencies of the body appointing them, and their function is to carry out the will of that body. (State of Louisiana ex rel Guste v. Legislative Budget Committee, 347 So. 2d 160 [1977]) Because there is no constitutional requirement to use the committee structure to conduct the deliberations of a house, a majority cannot extend its power by creating rules which would then crystallize or otherwise prohibit the majority from repealing its own rules. Remember, there can be many minorities, but only one majority.

If a committee of six members (of a 25 member body) are deadlocked, a reading of this subsection that stopped the majority from recalling the bill and rereferring it at any time it wanted to would then empower three members to overrule the majority. This violates the republican form of government and the requirement for majority rule.

A majority can dissolve a committee, remove committee chairs, remove committee members, remove the presiding officer or leaders, whenever it wants. It would be absurd if it dissolved a committee from existing and then needed to wait 20 days from initial referral to recall the bill's jurisdiction to the whole body before recalling it. Presiding officers, leaders, committee chairs and committees serve the majority.

The idea of majority rule may be confusing even to some veteran legislature followers because ultimately, a committee chair recalcitrant on a particular bill or issue must at all times retain the support of "the majority." Our legislature is very stable in its governance and typically committee chairs and leaders are not dismissed mid-session. This is a political compromise of the legislators in the belief that stability in this area is preferred to getting business done than constantly electing new leaders.

In fact, when a majority really wants a bill to be recalled, the presiding officer will simply re-refer a bill or the committee chair will waive the bill from committee. There are a number of customary and policy reasons why the majority does not directly vote on these matters and delegates/defers to the presiding officer and leadership (which represents the majority). This division and delegation of power is a necessary by-product of the committee structure since most decisions of the legislature are not done by majority vote but done by leaders who have been appointed by the majority.

In sum, restraints on majority rule in the legislature are very few in the constitution. They are typically related to the protection of other members related to notice (three readings + 48 hours notice after engrossment) and to membership (censure, suspension and expulsion). The constitution does not limit the power of the majority to recall a bill from a committee that it creates by rule and is created to do its work.

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Thanks for posting this Larry. If you think about it (Dems are the majority), this gives a lone Republican, Sam Slom, more power than the governor (whose vetoes can only be overruled by 2/3rds of the legislature). Hopefully this gets picked up so that no one is confused into believing the Senate is doing those in support of HB 444 any favors.

Thank you for your post. Very informative and full of useful information. I learned a lot!

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