ERIC A.

SEITZ
ATTORNEY AT LAW
A LAW CORPORATION

ERIC A. SEITZ 1412

GINA SZETO-WONG 10515
JONATHAN M.F. LOO 10874
KEVIN A. YOLKEN 10987
820 Mililani Street
Suite 502
Honolulu, Hawaii 96813
Telephone: (808) 533-7434
Facsimile: (808) 545-3608

Attorneys for Plaintiff

JEFFREY S. PORTNOY

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI'I

JEFFREY S. PORTNOY, ) CIVIL NO.

)
Plaintiff, )
vs. )
)
STATE OF HAWAI’I, )
)
Defendant. )
)
)

COMPLAINT

Plaintiff Jeffrey S. Portnoy (“Plaintiff”), for his complaint against

Defendant State of Hawai’i (“State”), alleges as follows:
 INTRODUCTION

(1) The Hawai’i State Constitution grants the University of Hawai’i

Board of Regents (the “Board”) broad autonomy and exclusive jurisdiction in
managing and controlling the affairs of the University of Hawai’i (the
“University”). This autonomy is essential for the proper functioning of a
university system and can be invaded by the Hawai’i State Legislature (the
“Legislature”) only for matters of statewide concern.
(2) The Legislature has undermined the autonomy of the Uni-
versity of Hawai’i by irrationally and arbitrarily – or worse, spitefully – changing
the composition of the Board without justification or explanation as to why a
reduction of members is a matter of statewide concern that warrants invasion of the
Board’s exclusive jurisdiction. Most recently, the Legislature brought about this
attack on autonomy in a manner that fundamentally deceives the public.
( 3) On July 3, 2019, Governor David Ige signed into law H.B. 398
which the Legislature passed in violation of Article III, Section 15 of the Hawai’i
State Constitution, requiring three readings in each House. Utilizing a legislative
device known as “gut and replace,” H.B. 398, which became Act 172, reduced the
seats on the Board of Regents from fifteen to eleven, potentially resulting in
Plaintiff’s loss of his position on the Board.
(4) “Gut and replace” legislation violates the basic principles of
democracy and is unconstitutional under Article III, Section 15 of the Hawai’i
State Constitution because the public must be able to identify reliably and follow
potential changes to laws being considered by the Legislature. Deceptive practices
that radically change bills before the final vote deny the public any meaningful
voice in the legislative process and reflect a fundamentally undemocratic disregard
for citizen voters.
 (5) In its most common iteration, “gut and replace” occurs when a
bill is stripped of all original content and replaced with entirely different content
that has no actual relationship to the original bill. The bill becomes unrecogniz-
able although it retains the same bill number and purports to be the same bill.
(6) Hastily and stealthily enacting laws unconstitutionally deprives
the public of adequate notice regarding legislation that will impact everyone in the
State. It also deprives legislators of adequate notice and time to review thoroughly
the consequences of proposed legislation prior to making a decision.
(7) This complaint seeks to uphold the autonomy of the University
of Hawai’i and enforce the constitutional provision that prohibits the State from
playing a legislative shell game that confounds the public.
PARTIES

(8) Plaintiff Jeffrey S. Portnoy is, and at all times pertinent herein,
was a resident of the City and County of Honolulu, State of Hawai’i.
(9) Defendant is the government of the State of Hawai’i as
recognized in the Hawai’i Constitution.
JURISDICTION

(10) This Court has jurisdiction in this case pursuant to 28 U.S.C.

§§1331 and 1343, inter alia.
(11) This action is brought pursuant to 42 U.S.C. §1983 to redress
the deprivation, under color of law, of rights secured by the United States
Constitution and the Hawai’i State Constitution, inter alia.
(12) This Court is authorized to order declaratory and injunctive
relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure and 28
U.S.C. §§2201 and 2202, inter alia.
 (13) Any and all state law claims contained herein form part of the
same case or controversy as give rise to Plaintiff’s federal claims such that this
Court may exercise supplemental jurisdiction over the state constitutional and state
law claims pursuant to 28 U.S.C. §1367(a).
VENUE

(14) Venue is properly in this district pursuant to 28 U.S.C. § 1391

(b) because the Defendant resides in this district, and the events giving rise to these
claims occurred in this district.
FACTUAL BACKGROUND

A. The Legislature Used “Gut and Replace” to Pass H.B. 398

(15) The Hawai’i State Constitution provides minimum require-
ments for enacting legislation.
(16) Article III, Section 15 of the Hawai’i State Constitution
provides, in relevant part: “No bill shall become law unless it shall pass three
readings in each House on separate days[.]” (referred to herein as the
“constitutional three readings requirement).
(17) On January 18, 2019, during the 2019 Legislative session, the
Hawai’i House (“House”) introduced House Bill 398 (“H.B. 398”), entitled “A bill
for an act relating to the University of Hawai’i.”
(18) As originally introduced, H.B. 398 required the University of
Hawai’i to expand its distance learning educational program in an effort to increase
the number of local teachers in the state.
(19) On January 22, 2019, H.B. 398 passed its first reading in the
House.
(20) On February 1, 2019, the House Committee on Lower and
Higher Education (“LHE”) recommended that H.B. 398 be passed with germane
amendments, such as eliminating the reporting requirement by the University of
Hawai’i to the Legislature and changing the effective date.
(21) On February 7, 2019, LHE reported to the House its proposed
amendments, and H.B. 398 passed its second reading in the House as amended
(“H.D. 1”).
(22) On February 22, 2019, the House Committee on Finance
(“FIN”) recommended that H.B. 398 be passed unamended.
(23) On March 1, 2019, FIN reported to the House and H.B. 398
passed its third reading in the House unamended.
(24) H.B. 398 was read three times in the House with germane
amendments after two committee hearings and was passed by a vote of the full
House with its only substantive provisions related to expansion of the University’s
distance learning education program .
(25) On March 5, 2019, the House approved version of H.B. 398
passed its first reading in the Hawai’i Senate (“Senate”).
(26) On March 19, 2019, the Senate Committee on Higher
Education (“HRE”) recommended that H.B. 398 be passed unamended.
(27) On March 21, 2019, HRE reported to the Senate and H.B. 398
passed its second reading unamended.
(28) On April 3, 2019, the Senate Committee on Ways and Means
(“WAM”) recommended that H.B. 398 be passed with germane amendments to
include requiring distance learning classes for students pursuing graduate degrees
in education and changing the effective date.
(29) On April 5, 2019, WAM reported to the Senate with the
recommendation that H.B. 398 be passed on its third reading in the Senate as
amended (S.D. 1).
(30) On April 9, 2019, Floor Amendment No. 16 was offered and
adopted as amended (S.D. 2).
(31) Floor Amendment No. 16 created a Part II to H.B. 398 that
dealt with a completely new unrelated provision amending the composition of the
members of the Board of Regents of the University of Hawai’i.
(32) On April 11, 2019, H.B. 398 passed its third reading, as
amended.
(33) The version of H.B. 398 containing the amendment relating to
the Board of Regents had its first reading in the Senate on April 11, 2019.
(34) On April 26, 2019, the Conference Committee recommended
that all provisions related to the distance learning education programs be removed
from H.B. 398, leaving only the provisions relating to the Board of Regents.
(35) Instead of a bill concerning the University’s distance learning
education programs, the Conference Committee recommended a bill cutting the
number of Regents from fifteen to eleven and removed all subject matter contained
in the original bill passed by the House.
(36) On April 26, 2019, the Conference Committee reported to the
House and the Senate with recommendation that H.B. 398 be passed as amended
(C.D. 1).
(37) On April 30, 2019, H.B. 398 passed its “final” reading in the
Senate, though that reading was only its second reading with the Board of Regents
provisions (the “Distance Education/Board of Regents’ version) and only the first
reading of H.B. 398 containing solely provisions relating to the Board of Regents
(the “Board of Regents’ Version”).
(38) On April 30, 2019, H.B. 398 (the Board of Regents’ version)
passed its “final” reading in the House which actually was just the first and only
reading of the provisions relating to the Board of Regents.
(39) The April 30, 2019 reading was the only House reading of H.B.
398 after it had been fundamentally changed to pertain exclusively to the Board of
Regents rather than to expanding distance learning education programs.
(40) On July 3, 2019, H.B. 398 was signed by the governor and
became law (“Act 172”).
(41) Plaintiff Jeffrey Portnoy was a Regent (also known as a
member) of the Board of Regents for the past five years and was actively seeking
reappointment in 2019 when Act 172 became law.
(42) In early 2019, Plaintiff Jeffery Portnoy was one of five finalists
announced by the Board of Regents’ Candidate Advisory Council to fill three seats
for appointments beginning on July 1, 2019.
(43) Pursuant to Act 172, the number of Regents was reduced from
fifteen to eleven eliminating the three available seats and, as a direct result,
Plaintiff Jeffery Portnoy’s ability to seek reappointment was extinguished.
B. Legislative Rules of Procedure Must Yield to Constitutional
Authority
(44) The Legislature has implemented rules of procedure and, in the
course of doing that, adopted as part of its procedures the Mason’s Manual, which
states, in part: “if a replace and substituted bill is adopted, then under Section 722,
the Legislature is not required to conduct three more readings because they have
already had in each House three readings.”
(45) The power of each House of a state legislature to makes its own
rules is subordinate to the provisions contained in the Hawai’i Constitution and to
those in the U.S. Constitution.
(46) A constitutional provision regulating procedure controls over
all other rules of procedure.
(47) Pursuant to Article III, Section 15, of the Hawai’i Constitution,
a bill will only satisfy the constitutional three readings requirement if any
amendments were germane to the original bill.
(48) Any rule of legislative procedure that allows non-germane
amendments to a bill to satisfy the constitutional three readings requirement is
unconstitutional.
(49) A legislature may “gut and replace” proposed legislation so
long as the substitute bill is germane to the matters set forth in the original bill
and/or is the subject of sufficient notice and public hearings prior to final passage.
C. Autonomy of the University of Hawaii

(50) The Hawai’i State Constitution grants the Board of Regents

broad autonomy relating to the operation and governance of the University which
includes protection and advancement of concepts of academic freedom.
(51) Article X, Section 6 of the Hawai’i State Constitution provides,
in relevant part: “The [B]oard shall have exclusive jurisdiction over the internal
structure, management, and operation of the university.”
D. No Support for Findings of Statewide Concern

(52) Act 172 states that the Legislature found that the composition
and term limits of its members of the Board of Regents is a matter of statewide
concern, though there was no testimony and no legislative history of H.B. 398 to
support any such finding or conclusion.
(53) Act 172 does not provide an explanation, as is constitutionally
required, of the benefit or necessity of reducing the number of seats on the Board
of Regents or why the legislative action is a matter of statewide concern.
(54). There were no studies, findings, or testimony suggesting that
fifteen members was ineffective or difficult to manage.
(55) The Board’s prior composition of fifteen members was
beneficial to conducting business with its seven standing committees and nine
recognized affiliate groups, in addition to facilitating participation in activities at
the University’s campuses across the islands.
(56) Having fewer members on the Board means that there will be a
reduced number of viewpoints, and there will be less diversity in characteristics of
Regents (e.g. gender, age, ethnicity, employment status, special competencies).
E. No Support for Having Only Geographic Representation Regents

(57) Prior to the passage of Act 172, the composition of the Board of
Regents consisted of: five members from neighbor islands, seven members from
O’ahu, two at-large members (not assigned to any particular island), and a student
representative member.
(58) Under Act 172, the two at-large members are completely
eliminated, resulting in the Board being represented only by geographic members
(notwithstanding the student representative member).
(59) Under Act 172, two members from O’ahu are also eliminated,
making the representation of O’ahu and neighbor islands equally weighted, despite
the fact that six of the ten campuses and eighty percent of students in the
University of Hawai’i system are located on O’ahu.
FIRST CAUSE OF ACTION
ACT 172 VIOLATES THE EQUAL PROTECTION CLAUSE OF THE U.S.
CONSTITUTION

(60) The equal protection clause of the Fourteenth Amendment of

the U.S. constitution (the “Equal Protection Clause”) guarantees that no person or
group will be denied the protection under the laws that is enjoyed by similar
persons or groups.
(61) Allegations of irrational and arbitrational legislative action or
subjective ill-will are sufficient to state a claim for relief under traditional equal
protection analysis.
(62) The unconstitutional passage of Act 172 by the Hawai’i State
Legislative constituted irrational and arbitrary legislative action – if not subjective
ill-will towards the Plaintiff and others – because the Legislature provided no
reason for passing the Act, and the Act extinguished the Plaintiff’s potential for re-
appointment to the Board.
(63) Plaintiff seeks an order declaring Act 172 void and enjoining its
implementation.
SECOND CAUSE OF ACTION
ACT 172 VIOLATES ARTICLE X, SECTION 6’S CONSTITUTIONALLY
MANDATED AUTONOMY OF THE UNIVERSITY OF HAWAI’I
BOARD OF REGENTS
(64) Plaintiff realleges and incorporates the allegations set forth in
the above paragraphs by reference as though fully contained herein.
(65) Article X, Section 6 of the Hawai’i State Constitution provides,
in relevant part: “The Board shall have exclusive jurisdiction over the internal
structure, management, and operation of the university. This section shall not limit
the power of the legislature to enact laws of statewide concern. The legislature
shall have the exclusive jurisdiction to identify laws of statewide concern.”
(66) The Board of Regents’ autonomy may only be invaded by the
Legislature for matters of statewide concern.
(67) The mere recitation of “a matter of statewide concern” by the
Legislature is not sufficient to meet the constitutional requirements of Article X,
section 6, without evidence thereof adduced through public hearings cited and
adopted by the Legislature as legislative history.
(68) Plaintiff seeks an Order declaring Act 172 void because it
changes the composition of the Board of Regents in violation of the Board’s
autonomy under Article X, Section 6, without the Legislature having provided the
constitutionally required evidence as to why it was a matter of statewide concern.
THIRD CAUSE OF ACTION
ACT 172 VIOLATES ARTICLE III, SECTION 15 OF THE
HAWAI’I STATE CONSTITUTION BECAUSE IT DID NOT
HAVE THREE READINGS IN THE SENATE OR HOUSE

(69) Plaintiff reallages and incorporates the allegations set forth in

the above Paragraphs by reference as though fully contained herein.
(70) Article III, Section 15 of the Hawai’i State Constitution
provides in relevant part: “No bill shall become law unless it shall pass three
readings in each house on separate days.”
(71) The constitutional three readings requirement provides the
public and lawmakers with adequate opportunity to assess the consequences of and
comment on proposed legislation.
(72) The purpose of this provision is to provide time for informed
and meaningful deliberation on legislative proposals so that the text of proposed
legislation may be refined and modified and to protect the public interest..
(73) The Distance Education/Board of Regents version of H.B. 398
had only two readings in the Senate while the Board of Regents language which
ultimately became Act 172, had only one reading in the House.
(74) Enacting laws that bear no resemblance to the bill as passed by
the originating chamber completely eviscerates the constitutional three reading
requirement.
(75) Any interpretation of the Legislature’s rules of procedure that
suggests amendments to a bill can be non-germane and still pass the constitutional
three reading requirement is unconstitutional.
(76) Plaintiff seeks an Order declaring Act 172 void because after
the non-germane Board of Regents amendments in the Senate, H.B. 398 did not
have the required three readings in the House and the Senate under Article III,
Section 15 of the Hawai’i State Constitution.
FOURTH CAUSE OF ACTION
THE APPORTIONMENT OF REGENTS IN ACT 172
VIOLATES ARTICLE X, SECTION 6 OF THE
HAWAI’I STATE CONSTITUTION

(77) Plaintiff realleges and incorporates the allegations set forth in

the above Paragraphs by reference as though fully contained herein.
(78) Article X, Section 6 of the Hawai’i State Constitution provides,
in relevant part: “At least part of the membership of the [B]oard shall represent
geographic subdivisions of the State.”
(79) The language of Section 6 regarding geographic subdivisions is
clearly meant to balance actual student enrollment vs. regional perspectives and to
establish geographical criteria as only one of the means of selection. Indeed, the
plain meaning of “at least part of the membership” precludes the passing of a
statute making geography the only criterion for Board selection.
(80) Act 172 eliminates all at-large Regent positions and requires
that five of the ten Regents (the eleventh member is a student representative) come
from neighbor islands even though eighty present of actual student enrollment is
located on O’ahu.
(81) Plaintiff seeks an Order declaring Act 172 void because
eliminating all at-large Regent positions violates Article X, Section 6 by
establishing geographical criteria as the only means for selection and effectively
disenfranchises Oah’u residents from reasonable representation on the Board.
 DEMAND FOR RELIEF

Based on the foregoing, Plaintiff respectfully requests that this Court:

(A) Enter an Order declaring that (1) the process for adopting Act
172 was unconstitutional and that Act 172 is void and unenforceable;
(B) Issue a preliminary and permanent injunction enjoining the
implementation and enforcement of Act 172;
(C) Award Plaintiff his attorneys’ fee and costs; and
(D) Grant such other and further relief as the Court deems
reasonable and just.
DATED: Honolulu, Hawai’i, December _____, 2019.

______________________________
ERIC A. SEITZ
GINA SZETO-WONG
JONATHAN M.F. LOO
KEVIN A. YOLKEN

Attorneys for Plaintiff

JEFFREY S. PORTNOY