March 6, 1986 The Honorable Russell Blair Representative, Thirty

_.....
_ GI .. . A"'YOSHI
CORINNE K.A. WATANABE
""0l1li"'('1' GlfllllJlAl.
STATE OF HAWAII
J AWES H. DANNENBERG
.IItST DII'\,t., "TTO"'''''' CiI"rlU.L
DEPARTMENT OF THE ATTORNEY GENERAL
STATE CAPITOL
HONOLULU. HAWAII"",
March 6, 1986
The Honorable Russell Blair
Representative, Thirty-First District
The Thirteenth Legislature of the
State of Hawaii
State Capitol, Room 323
Honolulu, Hawaii 96813
Dear Representative Blair:
Re:
Validity of Budget proviso, Section 164, Act 300,
1985 Session Laws of Hawaii
This letter is in response to your request for a legal
opinion on the extent to which the Legislature may use budget
provisos to establish state policy, and in reference to section
164, Act 300, 1985 Hawaii Sess. Laws 723, the following
questions:
.
1. Does the inclusion of this proviso violate the
requirement that each bill cover a single subject and, if
not, what constraints are there to legislating by budget
proviso?
2. Does this proviso continue to have the force and
effect of law beyond the end of fiscal year 1986-87?
3. Does this proviso effectively inhibit the
authority of the director of social services and housing
to operate correctional facilities, as provided by Chapter
353-3, H.R.S.?
We answer questions one and three in the affirmative: we
believe that the proviso violates section 14 of article III of
the State Constitution and effectively inhibits the authority
of the Director of social Services to operate correctional
facilities, as provided by chapter 353, Hawaii Revised
Statutes. In view of our answers, we do not reach question
two.
op . No. 86-8
The Honorable Russell Blair
March 6, 1986
Page 2
Section 164 states:
Provided that the corrections division, department of
social services and housing, shall limit the prisoner
population at the Waiawa correctional facility (SOC 404)
to probation felons and misdemeanants: provided further
that these inmates shall have been classified by the
corrections division as minimum security inmates.
We believe that section 164 of Act 300 of 1985 is invalid
because it violates section 14 of article III of the State
Constitution which provide.s, in part: "[E]ach law shall
embrace but one subject , which shall be expressed in its
title." The purposes of section 14, article III are as
follows:
[F]irst, to prevent hodge-podge or logrolling legislation,
second, to prevent surprise or fraud upon the Legislature
by means of provisions in bills of which titles give no
intimation: and third, to apprise the people of proposed
matters of legislation.
Schwab v. Ariyoshi, 58 Hawaii 25, 30-31, 564 P.2d 135, 139
(1977).
In Schwab v. Ariyoshi, our Supreme Court held that the
constitutional requirement of section 14 (then numbered as
section 15) must be liberally construed under the following
test, which was set forth in a 1912 case involving a traffic
ordinance:
It is sufficient if the title of an ordinance fairly
indicates to the ordinary mind the general subject of the
act, is comprehensive enough to reasonably cover all its
provisions, and is not calculated to -mislead: but an act
which contains provisions neither suggested by the title,
nor germane to the subject expressed therein, is, to that
extent void.
58 Hawaii at 34, 564 P.2d at 141.
section 164 violates said constitutional provision because
it concerns a subject not expressed in the title of the act.
Act 300, 1985 Hawaii Sess. Laws 660 , is titled, "A Bill for
an Act Relating to the State BUdget." section 164 of AC~ 300
is not germane to the subject of the act, i.e. general
Op. No . 86-8
The Honorable Russell Blair
March 6, 1986
Page 3
appropriations. We believe that a fair reading of the title
of Act 300 would not apprise interested persons that it might
contain a provision such as section 164.11 See lA N. Singer,
Sutherland statutory Construction 55 17.01 =-r8.13 (C. Sands
4th ed. rev. 1985).
In addition, section 164 is in contravention of existing
law, i.e. section 353-3, Hawaii Revised statutes. Section
353-3 provides:
5353-3 Powers of director· rules. The director of
social services and housing shall have the entire
government, control, and supervision of state correctional
facilities except intake service centers and of the
administration thereof. The director may make and from
time to time alter or amend rules relating to the conduct
and management of such facilities and the care, control,
treatment, furlough and discipline of persons committed to
his care, which rules must be approved by the governor,
but shall not require publication in order to be valid and
binding upon all inmates, officers, and employees of such
institutions, and which rules shall be printed from time
to time.
The director, subject to the rules, shall enforce the
rules and prescribe the disposition of committed persons
for any breach of correctional facility rules or other
misconduct.
Section 353-3 vests full powers in the director of the
Department of Social Services and Housing to determine the
appropriate housing of the state inmate population. As such,
the section may be deemed as effectively inhibiting the
director's authority as currently provided by section 353-3,
and impliedly amending that law.
llIn addition, we observe that the legislative history of
Act 300 contains two references to a minimum security
"educational" facility at Waiawa: House Conf. Comm. Rep. No.
54 , Hawaii H.J. 922 (1985) and Senate Conf. Comm. Rep. No. 53,
Hawaii S.J. 885 (1985) . The other reports are silent: House
Stand. Comm. Rep. No. 629, Hawaii H.J. 1282 (1985): s~nate
Stand. Comm. Rep. No. 854, Hawaii S.J. 1266 (1985).
Op. No. 86-8
The Honorable Russell Blair
March 6, 1986
Page 4
Our answer to your third question reinforces our position
that section 164 is invalid. As stated in lA N. Singer,
Sutherland Statutory Construction S 23.16.50 (C. Sands 4th ed.
rev. 1985):
State constitutional provisions which prohibit an act from
embracing more than one subject may prevent changes in
substantive law from being made in appropriation acts.
The presumption against implied repeal is especially
strong when repeal is claimed to be the implied
consequence of a provision in an appropriation act.
[Footnotes omitted.]
Any discussion of questions one and three necessarily
begins with our supreme Court's comprehensive treatment of the
constitutional issue in Schwab v. Ariyoshi and a recognition
of the settled principle that every enactment of the
Legislature is presumptively constitutional.
[T]o nullify Ian act] on the grounds that it was enacted
in violation of the subject-title requirements of the
State Constitution, the infraction should be plain, clear,
manifest, and unmistakable. Schnack v. City and
County of Honolulu, 41 Haw . 219, 224 (1955): bole v.
Cooper, 15 Haw. 297, 299 (1903).
58 Hawaii at 31: 564 P.2d at 139. The Hawaii Supreme Court
further quoted, from the above-cited cases, the following
guidelines for determining constitutionality:
The language of the title is to
interpretation, and the largest
words employed that reason will
within the purview of the title
act.
be given a liberal
scope accorded to the
permit in order to bring
all the provisions of the
It is sufficient if the various parts of an act have a
natural connection, are fairly well embraced in one
subject, though somewhat general, and expressed in the
title.
58 Hawaii at 34, 564 P.2d at 141.
Neither is it necessary that the title inform the reader
of the specific contents of the bill. If no portion of
the bill is foreign to the subject of the legislation as
indicated by the title, however general the latter may be,
it is in harmony with the constitutional mandate.
58 Hawaii at 35, 564 P.2d at 141.
Op. No. 86-8
The Honorable Russell Blair
March 6, 1986
Page 5
Employing these guidelines, the court in Schwab v.
Ariyoshi upheld the constitutionality of an act dealing with
salaries for state officers and employees against a challenge
that the act unlawfully contained two different subjects,
collective bargaining appropriations, and, salary increases
for executive, judicial, and legislative officers. The act
was entitled "A Bill for an Act Making Appropriations for
Salaries and Other Adjustments, Including Cost Items of
Collective Bargaining Agreements Covering Public Employees and
Officers."
The question at hand, however, is not susceptible of such
a simple analysis. While the authorities are in unanimous
agreement with the general rule of law pertaining to
appropriations statutes, the application of that rule to
specific situations has not always been consistent.ll
Our supreme Court has on numerous occasions considered
whether a particular provision of a law was properly embraced
by its title.l l In Schnack v. City and County, 41 Hawaii
219 (1955), the court examlned a law entltled "An Ordinance
providing for the cost of Improvements in Improvement District
Number Eighty - Central Business Area Off-Street parking, in
the congested Downtown section of the City of Honolulu." The
court found this title sufficiently broad to include a
provision relating to ' a speci~l assessment of land within the
improvement district.
In contrast, in In re Goddard, 35 Hawaii 203 (1939), the
court held that the tlt1e was not sufficient to authorize the
inclusion in the act of provisions relating to Waimano Home.
The act provided for a department of institutions to
administer three named territorial institutions and "other
Territorial prisons." The law was entitled "An Act amending
Title XXVI of the Revised Laws of Hawaii; 1935, by adding
thereto a new chapter numbered 254 A, providing for a
department of institutions to administer the territorial
hospital, the industrial schools, and Oahu prison and
other
llsee 63A Am. Jur. 2d Public Funds §5 40, 43 (1984):
73 Am.~r. 2d statutes 55 100-113, 116, 119-135 (1974):
8lA C.J.S. States 55 238, 240 (1977).
llIn addition to the Schwab v. Ariyoshi case, we note the
following decisions upholding the validity of the law from such
challenges: Territory v. Miguel, 18 Hawaii 402 (1907)1 Ahmi v.
Buckle, 17 HaWaii 200 (1905); In re Walker, 9 Hawaii III (1893)
op. No. 86-8
The Honorable Russell Blair
March 6, 1986
Page 6
territorial prisons, prescribing its powers, duties and
functions, and amending chapters 41, 132 and 217 of said
Revised Laws, relating respectively to the territorial
hospital, industrial schools, and territorial prisons, and
other laws inconsistent with this act, to conform thereto."
Unfortunately, the Hawaii cases invalidating provisions
not properly embraced by the title of the law have not
involved budget provisos.il However, the decisions of other
jurisdictions are instructive on the questions at hand.
In Brown v. Firestone, 382 So. 2d 654 (Fla. 1980), the
Supreme Court of Florida held that a proviso limiting inmate
population at a particular prison was invalid. The purpose of
the appropriation to the Department of Corrections was to fund
salaries, expenses, and capital outlay for the major state
penal institutions. The court found that the proviso was not
rationally related to the appropriation's purposes, but was
instead designed to further a legislative objective
(population control) unrelated to funding.
In Flanders v. Morris, 88 Wash. 2d 183, 558 P.2d 769
(1977), the Supreme Court of Washington invalidated a proviso
in a supplemental appropriations bill which modified eXisting
law. The proviso limited general non-continuing public
assistance to person_who, if single, were at least fifty
years old. The court held that the proviso was in violation
of article 2, section 19 of the state constitution which
read: "No bill shall embrace more than one subject, and that
shall be expressed in the title." The supplemental
appropriations bill was entitled: "AN ACT Relating to
expenditures by state agencies and offices of the state:
making appropriations for the fiscal biennium beginning July
1, 1975 and ending June 30, 1977 • • • • " Invalidating the
proviso the court, sitting en banc, sta~ed:
Clearly, greater latitude must be granted the
legislature in enacting multi-subject legislation under
the appropriations bill title than any other, since the
purpose of appropriations bills is to allocate monies for
the State's multitudinous and disparate needs . The fact
that many states exempt appropriations bills from the
ilThe cases include Territory v. Kua, 22 Hawaii 307
(1914): Territory v. Furuba~ashi, 20 Hawaii 559 (1911): Dole
v. Cooper, 15 Hawall 297 II 03!: The King v. Fernandez, 7--Hawaii 505 (1888): Hyman v. Kapena, 7 Hawaii 76 (1887).
op. No. 86-8
The Honorable Russell Blair
March 6, 1986
Page 7
subject-title restr i ction in their constitutions makes
clear the difficulty involved in conforming such
legislation to the requirement and still getting the job
done. see, generally, lA C. sands, Statutes and
StatutoryConstructlon 5 17.01 (4th ed. 1972). We have
frequently stated that a title need not be an index to the
contents of a bill . Where the title to any act expresses
a single general subject or purpose, all matters which are
naturally and reasonably connected with it, or any
measures which will further its purpose, will be held to
be germane.
However; even construing the title and subject of
this appropriations bill most liberally, the provision
must be found to be in violation of article 2, section 19,
of our state constitution. The title is not sufficiently
broad to apprise the public of an uncodified change in the
substantive law. Neither can such an amendment to the
public assistance laws be said to be germane to the
subject.
88 Wash. 2d at 188, 558 P.2d at 773 (citations omitted).
The authorities further indicate that in order to work a
repeal of an existing law, the title of the later act must
point to the law or su'bject of law which it attempts to
repeal. 73 Am. Jur. 2d Statutes 55 134, 135 (1974). See
people v. O'Ryan, 71 Colo . 69, ' 204 P. 86 (1922 ) ; HaileY-V.
Huston, 25 Idaho 165, 136 P.2d 212 (1913); State v. Smith, 335
Mo. 1069, 75 S . W.2d 828 (1934); State v. E¥gerS, 36 Nev. 372,
136 P. 100 (1913). Similarly, when the ef ect of a proviso is
to enact far-reaching general legislation not germane to the
appropriation, or a substantive change, the proviso falls
within the constitutional prohibition. state v. Eggers, id.;
Caldwell v. Board of Resents, 54 Ariz. 404, 96 P.2d 401
(1939); State v. Sargent, 18 N.M. 131, Ia4 P. 218 (1913).
In light of the foregoing, it is our opinion that section
164 of Act 300, 1985 Hawaii Sess. Laws 723, is an
unconstitutional proviso to a general appropriations act. We
observe that our conclusion herein is consistent with our
prior oplnlons: op. No. 74-8, Op. No. 72-16, Op. No. 72-6, op.
No. 57-23a, Op. No. 1778 (August 18, 1941). For example, in
our Opinion No. 72-16, dated June 19, 1972, we concluded that
a proviso to an appropriations bill violated the
constitutional requirement that "Each law shall embrace but
one subject, which shall be expressed in its title." The
proviso in question stated:
Op. No. 86-8
The Honorable Russell Blair
March 6, 1986
Page 8
All Educational Assistants, Department Assistants,
General Aides, and Follow-up Aides employed in the
Department of Education prior to the effective date of
this Act and still so employed shall be accorded all the
rights, benefits, and privileges thereto retroactive to
the date of their appointment. Such rights and privileges
shall include seniority, prior service credit for
retirement purposes, vacation and sick leave credit, and
each such employee shall become civil service employees
without necessity of examination.
The appropriations bill was entitled:
A Bill for an Act Amending Appropriations for the Fiscal
Biennium July 1, 1971 to June 30, 1973, and Authorizing
the Issuance of Bonds.
We conclude that the proviso modifies the broad powers
vested in the director of the Department of Social Services
and Housing pursuant to section 353-3, Hawaii Revised
Statutes, and is not germane to a general appropriations act.
For the reasons above stated, we believe that section 164 is
an attempt to amend chapter 353, that the section attempts to
establish far-reaching general legislation on a matter not
covered by the title of Act 300, and that the section is not
germane to the title or subject matter of Act 300.
Accordingly, we are of the "opinion that section 164 of
Act 300 violates section 14 of article III of the Constitution
of the State of Hawaii, and is invalid.
very truly yours,
~/f.~~
Lila B. LEDuc
Deputy Attorney General
APPROV.ED:
~~aaJcda~
Corinne K. A. Watanabe
Attorney General
LBL:tw
936i
Op. No. 86-8