Chapter 6

HAWAII LEGISLATORS' HANDBOOK

ENACTMENT OF LAWS

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. (Hawaii Const. art. III, ß15)

The legislative process is necessarily a long and complex one because of the need for full consideration of proposed laws before their final enactment. The principal stages (see Senate Rules 44 to 59; House Rules 33 to 43a) in the enactment of laws in Hawaii are:

1. Bill drafting.

2. Introduction:

a. Marking for identification as a Senate or House Bill;

b. Numbering in numerical sequence by the Clerks of the respective houses. Bills are printed and readied for first reading.

3. First reading. First reading is generally for information and by title; usually bills simultaneously pass first reading and are referred for printing. (Senate Rule 45; House Rule 34) a. Vote (usually pro forma);

b. Referral by the presiding officers to the appropriate standing committees for consideration.

4. Second Reading. Second reading is usually by title only.

a. Consideration by committee;

b. Report from committee, with recommendations;

c. Debate;

d. Amendment (opportunity for any member to offer a floor amendment);

e. Vote.

5. Third Reading. Printed copies of bills to be passed on third reading must be available to the members of the house for at least forty-eight hours before voting. On third reading, bills are read throughout unless suspended by motion.

a. Debate;

b. Amendment (opportunity for any member to offer floor amendment);

c. Vote.

6. Certification of passage by the presiding officer and the Clerk, who notes the day of passage.

7. Transmittal to the second house, where the bills go through similar processes.

8. Certification of passage by the second house.

9. Consideration by conference committee, if necessary.

10. Passage on final reading. If a bill is returned to the house of origin in an amended form, it may be passed on final reading if the amendments are agreed to. A bill reported from a conference committee must be passed by both houses on final reading. Printed copies must be available to the members for at least forty-eight hours before voting.

11. Certification of passage by both houses.

12. Approval by the Governor.

13. Reconsideration by both houses if vetoed.

14. Publication as law.

The flow chart on page 32 depicts the entire bill enactment process from introduction to signing by the Governor.

Introduction of Proposed Legislation

No law shall be passed except by bill. Each law shall embrace but one subject, which shall be expressed in its title. The enacting clause of each law shall be, "Be it enacted by the legislature of the State of Hawaii. (Hawaii Const. art. III, ß14)

ENACTMENT OF LAWS

All proposals for law must be introduced in the Legislature as bills. Only Senators and Representatives may introduce bills. Senate Rules, however, also permit a bill to be introduced on the report of a committee. (Senate Rule 44) Legislators often introduce bills signed by themselves with a postscript, "by request". This indicates that the measure is introduced at the request of some other person or organization and that the introducer is not necessarily in concurrence with the intent of the measure. For example, bills proposed by the executive branch, commonly referred to as "administration" bills, are traditionally signed by the presiding officers of each house with a "by request" next to the signature.

Bills are prepared by a variety of agencies and individuals including: the Department of the Attorney General, county and state departments, legislative staff attorneys, the Legislative Reference Bureau, private attorneys, and private interest groups. (See chapter 11 for more information on the drafting of legislative measures.) Examples of bills, resolutions, and committee reports may be found in the Hawaii Legislative Drafting Manual, 9th edition, published by the Legislative Reference Bureau.

Although there is no constitutional or statutory requirement as to when bill introduction commences, up until the 1990 session, bill introduction usually commenced one or more days after opening day. In 1990, the two houses jointly agreed to allow "pre-filing" of bills one week prior to the opening day. (House Rule 43 specifically provides for the pre-filing of bills within seven calendar days before the commencement of a regular session in an even-numbered year.) No limit is placed on the total number of bills a legislator may introduce; however, during the 1990 session, the two houses jointly agreed to limit the number of bills a legislator could introduce per day during the last three days of bill introduction to five bills a day.

Since 1990 the Legislature has had variations on the limitations placed on the number of bills a legislator could introduce per day during the last three, four, or five days between the last day of unlimited bill introduction and the cut- off deadline for introduction of bills. For example, in 1995 the legislative session opened on January 18. Unlimited bill introduction was allowed until January 23, and for the next four session days, legislators were limited to introducing only five bills per day until the final cut off on January 27. In 1991, cut off for unlimited bill introduction was January 31 after the session was opened on January 16. February 1 was the final cut off, which allowed legislators to introduce a maximum of five bills each.

The Hawaii Constitution requires each house, by rule of its proceedings applicable to both houses, to set a date to be established as "cut-off" day after which no new bills may be introduced. (Hawaii Const. art III, ß12) Although the Senate Rules do not specify guidelines for the setting of the "cut-off" date, it authorizes the Senate President to coordinate such date with the Speaker of the House (Senate Rule 3(15)). House Rules, on the other hand, require that the cut-off date precede the mandatory recess and be set in concurrence with the Senate. (House Rule 33.4) The cut-off date during the 1990 session (when prefiling was permitted) was on January 26th, the eighth legislative day, while during the 1989 session it was on February 3rd, the thirteenth legislative day.

In 1982, the Senate amended its rules to limit the number of bills and types of resolutions an individual Senator could introduce. No congratulatory or memorial resolutions may be introduced; instead the Senate uses a certificate to express the sentiment typically contained in such resolutions. (Senate Rule 60) Short form bills may only be introduced by the majority party leader or the minority leader after appropriate consultation with committee chairpersons and Senate members. Bills appropriating money for the executive, legislative, and judicial branches of government, for claims against the State, for criminal injuries compensation, for funding of collective bargaining agreements, and for the Office of Hawaiian Affairs may be introduced by the Senate President. Short form bills may be introduced by the majority leader or the minority party leader after appropriate consultation with committee chairpersons and Senate members. Short form bills are "legislative vehicles" which state a general purpose to be accomplished and are used primarily for convenience when time does not permit drafting a full bill, or for use if an idea arises after the bill introduction cut-off date. Short form bills permit the committees to examine the general idea of the bill before drafting the details in long form. Generally, short form bills in both houses are reported out of committee in long form and recommitted to the reporting committee or referred to another committee for further consideration and public hearing on the long form. (Senate Rule 44) In the House, short form bills may be introduced. (House Rule 33) Each member may introduce one bill appropriating money for capital improvement projects in the member's district. (Senate Rule 44) Each house usually establishes a daily deadline for the introduction of bills. In the House, for example, the majority floor leader may offer a motion prior to adjournment for that day that all bills on the Clerk's desk by 4:30 p.m. pass first reading by title and be referred to printing.

Numbering of Bills

Bills prepared in the proper form and with the number of copies required by the house of origin are submitted to the Clerk for introduction. The Clerk receives all bills and assigns each a number in the order in which they are received. The copies of each bill are "conformed" by the assignment of the same number as the original bill with the introducer and co-signers noted.

Each bill bears its number from the time of its introduction until its final disposition. Successive drafts of a bill are as Senate Drafts or House Drafts, depending on the house in which the amendments are offered. A bill, Senate Bill No. 17 (S.B. No. 17), for example, has a Senate Draft if the Senate amends the original bill. It then becomes Senate Bill No. 17, Senate Draft 1 (S.B. No. 17, S.D. 1). If amended in the House, it would also have a House Draft, S.B. No. 17, S.D. 1, H.D. 1. If the Senate disagrees with the House amendment and the bill is sent to a conference committee which amends the House version, the bill would be designated as S.B. No. 17, S.D. 1, H.D. 1, C.D. 1.

Title of Bills

The Hawaii Constitution provides that each law shall embrace but one subject, which shall be expressed in its title. (Hawaii Const., art. III, ß14) A title must include a distinct reference to the subject matter to which it relates and also cover but one subject. Thus, the scope of the title cannot be narrower than the scope of the subject matter of the bill.

The title of a bill begins with the words A BILL FOR AN ACT usually followed by connective words such as RELATING TO and ends with the expression of the general subject such as INCOME TAX DEDUCTIONS.

The title should be as short and concise as possible and should identify the subject matter of the bill without going into too much detail. A title so drawn permits amendment to the body of the bill while the bill is pending in the Legislature. Care should be exercised, however, so that a title is not so broad or general that it fails fairly to express the one subject of the bill.

The veto message to S.B. No. 1209-77 and Attorney General Letter Opinion dated April 11, 1978, indicate that titles should not be amended.

First Reading

First reading of a bill is usually perfunctory and for information only. Bills pass first reading, usually by title. With the large number of bills introduced in each session, bills are screened by the standing committees. If an objection is raised to any particular measure, however, the rules of the Senate provide for debate and voting on the measure in question. (Senate Rule 47)

Second Reading

Bills must pass second reading on a day separate from that of the first reading. (Hawaii Const. art. III, ß15) Bills, however, may go through several different procedures before passing on second reading.

After introduction and printing, a bill may be referred by the presiding officer to one or more standing committees. The first committee, in reporting the bill, usually recommends passage on second reading before referral to the second committee to move the bill forward in the legislative process. The committee, however, may choose to refer the bill to the next committee without passing the measure on second reading. Upon being reported out of the last committee, to which a bill is referred, it is placed on the legislative calendar for third reading.

Bills may also be referred to a special committee or a Committee of the Whole, after second reading. (Senate Rule 48; House Rule 35)

Committee Consideration

In the normal legislative process, bills are referred to one or more standing committees for consideration. The committees of the Legislature play a major role in the decision-making of the Legislature because of their power to decide which measures they will act upon.

Committees of the Legislature convene according to schedules established by the committees and consider the matters on agenda prepared by them. The consideration of bills frequently includes hearings and testimony of witnesses, and the exercise of the investigative powers of legislative committees. The House prohibits a committee from reporting out a bill unless it has received a public hearing in the House. (House Rule 11.5(4)) The Hawaii Constitution requires every meeting of a committee of either house or of a committee comprised of a member or members from both houses (conference committees) held for the purpose of making a decision on matters referred to the committee to be open to the public. (Hawaii Const. art. III, ß12; Senate Rule 20; House Rule 19) In the Senate, notice of meetings and decision-making sessions are publicly posted by the first referral committee at least 72 hours before the meeting. Notice of subsequent referral committees must be posted at least 48 hours beforehand. (Senate Rule 20) Decision-making by a committee requires a quorum to be present (a majority of the committee members). (Senate Rule 24(4); House Rule 11.6(1)). The recommendations of a committee after decision making are set forth in its report to the whole house and may be:

1. That the bill "pass" in the form referred to the committee; or

2. That the bill "pass" in the form as amended by the committee, which can be an entirely new bill bearing only the title of the original bill.

Although it is possible for a committee to report out a bill with a recommendation of "do not pass", those bills which a committee decides should not be passed generally are not reported out of committee.

Prior Concurrence

When a bill has more than one committee referral, substantive changes to the primary committee's version are prohibited without first notifying the primary committee and obtaining its concurrence. (Senate Rule 17; House Rule 13) The House also requires prior concurrence from the primary committee before the House can concur with substantive amendments made by the Senate on House bills. (House Rule 36.3)

Committee Reports

Committee reports accompany bills reported back to the floor of a house. A committee report summarizes the purpose of the bill being reported and reasons for the committee's actions, and explains amendments proposed by the committee, if any. A majority of the committee's members must sign a committee report favorably to report any measure out of committee. Dissenting members may issue a minority report. (Senate Rule 24(4)) Members may also sign "I concur with reservations" (WR), if they do not fully agree with the intent of the proposal. A signature with a WR counts towards determination of the majority required to report a measure out of committee. (Senate Rule 21(2); House Rule 11.6(2)) Committee reports are an important means of expressing legislative intent in enacting a law. In drafting a report, a statement of legislative intent is usually incorporated in the body of the report. Committee reports should also explain any amendments made by the committee and are accompanied by the latest draft of the bill, if amended. (Senate Rule 24; House Rule 11.6)

Third Reading

Before a bill can pass third reading in any house, printed copies of the bill in the form to be passed must have been available to the members of that house for at least forty-eight hours. (Hawaii Const. art. III, ß15; Senate Rule 46; House Rule 36) This is significant for bills being amended after passage on second reading. Unamended bills are not affected. In 1970, the Attorney General clarified that the forty-eight-hour period starts at the time the bill is first printed and made available to the members of the body in the form in which it is to be passed on third reading, irrespective of when the form of the bill was attained. (See Att. Gen. Op. Nos. 70-7, 70-10)

At third or final reading, the bill may be read throughout. The procedure is usually shortened by a member moving that "the bill having been read throughout, pass third reading". This preserves the legislative ritual inherited from the days when an oral reading was necessary to acquaint members with the content of a bill without tediously prolonging the legislative process.

Floor amendments are sometimes offered on third reading. If adopted, the amended bill must wait an additional forty-eight hours for passage to fulfill the constitutional provision that copies of the bill in the form to be passed must be available to the members for at least forty-eight hours.

Consideration by the Second House

After passing the house of origin, bills are certified with the signatures of the presiding officer and the Clerk. The certified bills are then transmitted to the second chamber where they go through essentially the same process as in the house of origin. This means that if a bill passes in the originating house in the first year of the two-year session, and in the second yea passes through the second house with amendments, that bill must go back to the originating house. This affords the originating house the opportunity to agree or disagree with the amendments made by the second house.

The deadline which must be met to allow this to occur is called the Second Decking, or the last day to deck bills which were amended by the receiving (non-originating) body, because the house that drafted the bill may have to convene a conference committee to consider the amendments. The last day for third reading of a bill which was amended by the receiving (non- originating body) is called the Second Crossover deadline.

One important feature of a carry-over bill, that is a bill not enacted during the first year of a session which carries over into the second year with the same status it held at the end of the first session, is that the carryover bill must pass at least one reading in the house in which it was introduced during the second carryover session. Thus, a Senate bill that passed three readings in the Senate and was transmitted to the House in the first year must pass an additional reading in the Senate during the second year even if it is returned by the House in unamended form.

Recall of Bills

Under Article III, Section 12, of the Hawaii Constitution, bills referred to a committee in either house may be recalled from such committee after twenty days by the affirmative vote of one-third of the members to which such house is entitled. (See Senate Rule 51; House Rule 37) In 1977, a number of bills were recalled in the Senate, one of which was later passed by the Senate. The first bill recalled was S.B. No. 184, Relating to Capital Crimes. Following the adoption of the motion to recall, the Senate met in Committee of the Whole to discuss the measure which was later reported out of the Committee of the Whole and passed third reading in the Senate. The other bills recalled (S.B. Nos. 167, 283, 285, 392, 393, 397, 398, 400, 402, 408, 554, 557, and 559) were tabled following the adoption of the motion to recall. (See Journal of the Senate of the Ninth Legislature, Regular Session of 1977, pp. 319-322, 329-332, 333-334, 819-820) Once the motion or resolution to recall a bill from committee has been made or introduced, that motion or resolution must be voted upon and may not be tabled or nullified by any other rule of procedure of the Legislature. (See Att. Gen. Op. No. 76-5)

To reconsider action on a measure sent to the second house a motion for reconsideration accompanied by a motion requesting the other house to return the measure is offered. (Senate Rule 66(3); House Rule 49.3) The Senate also provides for the reconsideration of a measure sent to the Governor but not yet enacted into law, where an error has been discovered, through the adoption of a concurrent resolution requesting return of the measure to the house last considering the bill for proper correction. (Senate Rule 58) If any inadequacies are discovered in a bill transmitted to the second house, the errors are usually informally pointed out to the members of that house so the necessary amendments can be made.

Conference Committee Consideration

If a bill, passing the second house in an amended form, is returned to the house of origin which disagrees to the amendments made, a conference committee may be appointed to arrive at a compromise on the bill. A conference committee is made up of conferees or managers appointed by the presiding officer of each house. In arriving at a compromise, the conferees usually consider only the various versions and differences in the bill as passed by each house. (Senate Rules 13(4), 20, 23(3); House Rule 16) Upon reaching an agreement, the conference committee members report to their respective chambers. A conference draft is usually accepted and approved by both houses on final reading. If either legislative body rejects the recommendations of the conference committee, however, the conference committee process may be repeated. Different managers may be appointed to the second conference committee.

Final Reading

Final reading on a bill may occur in one of the following ways:

1. It passes the second house without amendments;

2. It passes the second house with amendments and the house of origin agrees with those amendments; or

3. It passes the second house with amendments and the house of origin disagrees with the amendments, but the disagreements are settled in a conference draft which is adopted by both houses.

Order of Passage

Bills may pass the Legislature in any order, except appropriation bills. Under Article VII, Section 9, of the Hawaii Constitution, the General Appropriations Bill in odd-numbered years and the Supplemental Appropriations Bill in even-numbered years must be transmitted to the Governor (not just passed by both houses of the Legislature) prior to passage of any other appropriation bills, except those recommended by the Governor for immediate passage or to cover the expenses of the Legislature.

In 1995 the legislature passed more than thirty money- related bills before the general appropriations bill was transmitted to the Governor. The Governor vetoed the affected bills and the Legislature returned to a Special Session to pass these bills.

Engrossment and Enrollment

After a bill has passed both houses, it is returned to the house of origin for preparation in its final form and for the signatures of the presiding officer and Clerk. Preparation of the bill in its final form is referred to as "engrossment", literally to write or transcribe in a large, clear hand. Engrossment may be accomplished by retyping the measure or reproducing it by some other mechanical means. Generally, however, printed copies of bills from the printshop have been used rather than retyping the measure.

After a bill has been engrossed in the house of origin, it is sent to the other house for the signature of its presiding officer and Clerk certifying that the bill passed as engrossed. A bill that has been engrossed by both houses is referred to as an "enrolled" bill. "Enrollment" originally signified the writing of the bill on the official parchment roll containing the acts of the Legislature; modern mechanical reproducing methods have failed to dislodge the term. Enrollment is the final legislative action on a bill, unless the measure is considered subsequent to the issuance of a veto message by the Governor. (Senate Rule 55; House Rule 38)

Carried-Over Bills

Article III, Section 15, of the Hawaii Constitution, provides that any bill pending at the final adjournment of a regular session in an odd-numbered year will carry over with the same status to the next regular session. (See Senate Rules 44, 50, 56; House Rule 42) For example, S.B. No. 870, Regular Session of 1979, was sent to conference in 1979 but not reported out of the conference committee until the Regular Session of 1980. Before a carried-over bill can be enacted by the next regular session, however, it must pass at least one reading in the house of origin. (Hawaii Const. art. III, ß15) The one reading requirement may be fulfilled by any of the following conditions:

1. If the carried-over bill is not amended by the second house, it is returned to the house of origin for a final reading to satisfy the constitutional requirement.

2. If the carried-over bill is amended by the second house and is not sent to a conference committee, final reading by the house of origin to approve the draft made by the second house satisfies the constitutional requirement.

3. If the carried-over bill is amended by the second house and referred to a conference committee, final reading in the house of origin to approve the conference draft satisfies the constitutional requirement.

Constitutional Amendments

The Legislature may propose amendments to the constitution by adopting them, in the manner required for legislation, by a two-thirds vote of each house on final reading at any session, after either or both houses have given the governor at least ten days' written notice of the final form of the proposed amendment, or, with or without such notice, by a majority vote of each house on final reading at each of two successive session. (Hawaii Const. art. XVII, ß3) The ten-day notice period is ten calendar days which is computed by excluding the day on which notice is given and including the last day. Passage of the amendment on final reading must occur after the ten days' written notice or on the eleventh day after the notice. (See Att. Gen. Op. Nos. 64-41, 75-9, 80-7)

Consideration by the Governor

Under Article III, Section 16, of the Hawaii Constitution, bills certified as passing the Legislature are presented to the Governor. The Governor approves a bill by signing it into law. If the Governor does not approve a bill, it may be returned to the Legislature with a statement of objections. In bills appropriating money for specific purposes, except those appropriating moneys to be expended by the judicial or legislative branches, the Governor may veto any specific appropriation or appropriations, or may reduce the amounts appropriated. All other bills, including those appropriating moneys to be expended by the judicial or legislative branches, may only be vetoed as a whole.

The Governor has ten days to consider bills presented ten or more days prior to adjournment of the Legislature sine die. The ten days start on the day the bill is presented to the Governor. Any bill not signed or returned to the Legislature within the ten-day time limit, becomes law as if signed by the Governor.

For bills presented to the Governor less than ten days prior to or after adjournment of the Legislature sine die, the Governor has forty-five days after the adjournment to consider the measure. Any bill not signed becomes law on the forty-fifth day unless the Governor, by proclamation, gives the Legislature ten days' notice of the Governor's intention to return the bill with objections. In other words, unless the Governor vetoes the bill by the thirty-fifth day, the bill will become law either with or without the Governor's signature. In counting the days, Saturdays, Sundays, holidays, and any days the Legislature is in recess are excluded.

Consideration of a Veto

Veto messages or statements of objections are received by the Legislature and entered into the Journals of both houses. The Legislature may then proceed to reconsider the vetoed bill, or the appropriation item or items vetoed. After reconsideration, if the vetoed measure, item or items, is approved by a two-thirds vote of the membership of each house, it becomes law. (Hawaii Const. art. III, ß17)

After adjourning sine die, the Legislature may convene in special session without call, at or before noon on the forty- fifth day of the Governor's consideration period to act upon any vetoed bills. If the Legislature fails to convene in special session, the vetoed measures or items die. A vetoed measure or item may be amended in special session to meet the Governor's objections, passed by both houses, and presented to the Governor; or it may be passed by two-thirds of the members of each house, overriding the Governor's veto. Any bill amended to meet the Governor's objections, must pass one reading in each house. The amended bill, in this case, becomes law only if the Governor signs it within ten days after receiving it. Saturdays, Sundays, holidays, and any days the Legislature is in recess prior to adjournment are excluded in computing the number of days for the governor's consideration period. (Hawaii Const. art. III, ß16) In 1974, the Acting Governor vetoed H.B. No. 2428, H.D. 1, S.D. 2, C.D. 1. The Legislature convened in special session on June 18th (the forty-fifth day) and passed a C.D. 2 version of the bill which became Act 1, First Special Session of 1974.

Publication as Law

The Revisor of Statutes of the Legislative Reference Bureau administers the publication of the session laws and the Hawaii Revised Statutes, including supplements thereto, reviews annotations to the Hawaii Revised Statutes, and continuously revises the statutes of Hawaii. (HRS ß23G-11 and 23G-12)

After the adjournment sine die of each session of the Legislature, all laws enacted during the legislative session are prepared for collection and publication, first in a separate volume of session laws for that year and then as part of a cumulative supplement to the Hawaii Revised Statutes. The session laws are arranged in the order in which the bills are signed into law and published with a suitable index and tables showing the sections of the Hawaii Revised Statutes affected by the new laws. Bills passed by the Legislature proposing constitutional amendments which are subject to ratification by the electorate are also included in the session laws publication. (HRS ß23G-13)

Following the publication of the session laws, the laws of a general and permanent nature which amend, add, or repeal provisions in the Hawaii Revised Statutes are compiled, according to chapter and section numbers, and published as part of a cumulative supplement to the Hawaii Revised Statutes. The matters set forth in the supplements as published by the Revisor are prima facie evidence of the law. (HRS ßß23G-14, 23G-15)

Acts of a temporary nature, such as the general appropriation and capital improvement acts, and other laws enacted only for specified periods of time, are published only in the session laws and not in the cumulative supplement.


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