Monday, March 16, 2009

Musings: Supreme Court Slap Down

Well, today the Hawaii Supreme Court found that the Superferry by any other name is still the Superferry.

In a 113-page opinion, the Justices ruled that Act 2 was actually written to benefit just one company — Hawaii Superferry — despite language in the law that referred to a “large capacity ferry vessel.”

And because Act 2 exercises legislative power over lands owned by the state at Kahului Harbor with a special law, as opposed to a general law, the Justices found it is unconstitutional. You can read more details on that particular issue starting on page 30 of the opinion.

They also found that “Act 2’s limited viability of twenty-one months effectively limited its benefits to Superferry, as no other large capacity ferry could realistically enter the market and compete with Superferry during this limited time frame.” Check out page 49 for more on this.

As you may recall, Act 2 was adopted in a special session specifically so the ferry could offer service to Maui without an EIS. And why was that law sought? Because the Court had already found that the Lingle Administration erred in allowing the project to proceed without the proper environmental review in the first place.

So Lingle, who insisted that Attorney General Mark Bennett and Superferry officials be involved in drafting Act 2, has been slapped down twice by the state Supreme Court for her mishandling of the big boat. And now the Lege — save for that tiny handful of lawmakers who voted against Act 2, Kauai’s Rep. Mina Morita and Sen. Gary Hooser among them — has been slapped down, too.

The Supreme Court also upheld the Circuit Court’s award of legal fees of $86,270.28, which means the state and HSF will have to pay attorney Isaac Hall for the time he’s spent fighting their cozy deal-making. Fees, however, were reduced from $5,442.44 to $4,532.09.

Now the big question — indeed, the only question — is what’s going to happen to the Superferry? It seems it’s got to stop running until the EIS is pau, and that could be a number of months. Can it survive a shutdown, especially in this economic climate?

The timing is certainly good for the Kauai Chamber of Commerce, which has scheduled HSF President and CEO Adm. Thomas Fargo as the keynote speaker at its Thursday night dinner meeting. This most recent event ought to spark additional interest in his talk.

My inbox, meanwhile, has been popping with jubilant messages about the ruling, but folks aren’t happy just because they won. They also see it as a vindication of the rule of law and the belief that laws are supposed to apply equally to everyone. You don’t just go in and have a new one written when a court decision comes down that you don’t like.

Indeed, the Justices wrote in their conclusion:

That our Constitution prohibits laws which provide disparate treatment inended to favor a specific individual, class or entity or to discriinate against a specific individual, class, or entity is a fundamental principle of the democratic nature of our government: equal rights and treatment for all persons under the law.

I’m sure we’ll hear the usual cries and moans about how this sends out a message that Hawaii is a bad place to do business. But what it really sends out is the message that it’s a bad place to pull a fast one, conduct shady business and work the political process to get special favors for your business.

And it seems to me that’s a good message to send to the world. But will the guv and the Lege hear — and heed — it? Because we all know this isn’t the first time this kind of stunt has been pulled, and I’m quite sure it won’t be the last.

19 comments:

line of flight said...

It really ought to be noted that while there was a concurring/dissenting opinion by Justice Nakayama and CJ Moon, they were only differing in the reasoning of how the State was liability for attorney's fees. Otherwise, they supported all of the other legal conclusions in the case. It was really still a 5-0 on the unconstitutionality of Act 2 and 5-0 on award of attorney's fees (just 3-2 on how to get to the result on attorney's fees).

Anonymous said...

nice job on the big loss gov/leg, nice big win for the hippies

i wonder if the st gov will try and do a new law, or look to scramble over to the US sup ct (again?). maybe a yr from now the HI sup ct will hear the case of the SF suing the state

im going to the thurs dinner. if i hear / see anything real interesting ill look to note it

Dawson said...

> That our Constitution prohibits laws which provide disparate treatment intended to favor a specific individual, class or entity or to discriminate against a specific individual, class, or entity is a fundamental principle of the democratic nature of our government: equal rights and treatment for all persons under the law. <

Amen.


> nice job on the big loss gov/leg, nice big win for the hippies <

I've heard people who revere the rule of law called a lot of things. But never hippies.

Anonymous said...

"i wonder if the st gov will try and do a new law, or look to scramble over to the US sup ct (again?). maybe a yr from now the HI sup ct will hear the case of the SF suing the state"

I think weʻve learned a lot with the issues. For instance, the stolen (ceded) lands case was sent to the U.S. S.C. only because the state contends the Hawaii S.C. based their moratorium decision on federal law.
That is not the case with HSF. And the federal court would not have jurisdiction to hear the case because they would be meddling in state affairs.

charley foster said...

That our Constitution prohibits laws which provide disparate treatment inended to favor a specific individual, class or entity or to discriinate against a specific individual, class, or entity is a fundamental principle of the democratic nature of our government: equal rights and treatment for all persons under the law.

Well, unless the individual, class or entity is Aloha Airlines that the state is disparately trying to rescue from insolvency. I think the court was engaging in a little hyperbole here that it won't honor under different circumstances. But this was mere dicta. The real decision was that Act 2 violated the specific requirements under the constitution that powers over state lands be exercised by general laws.

Kai Nishiki said...

Thank you, Joan!
Well said-you explained it perfectly.
I posted your blog about this on my facebook.

Aloha, Kai

Anonymous said...

"I've heard people who revere the rule of law called a lot of things. But never hippies."

-- im half jokin and half just going by the nawiliwili crowd turnout

"federal court would not have jurisdiction to hear the case because they would be meddling in state affairs"

-- i hear ya buddy, im inclined to think the same. if i were SF (aside from firing my in-house counsel), i dunno...for sure tho id look to see if i could get some fed relief based on st interference with maritime stuff (i mean hey, worked in hanalei haha)

and ps - OHA painted it own wagon some on that other case. nobody told em to rely so much on whereas clauses (another failure of in-house counsel)

Anonymous said...

SF should fire its PR firm and its lawyers.
What could these firms be advising their client? "We can get you a new law passed that saves you from and EIS and don't worry we'll disguise it as applying to all large capacity high speed ferry companies - they won't be able to catch that one." And the lawyers signing off on it with an "Oh yeah and for just a few hundred thousand dollars we can sell this to the court. Oh and BTW,if you pay us $1500 for every one dollar your opponents spend on lawyers, we will crush them." Maybe the CEO who hired these cons in suits should go too.

Anonymous said...

HSFʻs PR firm is also the stateʻs.

Anonymous said...

"HSFʻs PR firm is also the stateʻs."

ohhhh man thats funny!!

Anonymous said...

"ohhhh man thats funny!!"

What, you donʻt believe it?

Anonymous said...

HAWAII SATE CONSTITUTION

Article III

IMPEACHMENT

Section 19. The governor and lieutenant governor, and any appointive officer for whose removal the consent of the senate is required, may be removed from office upon conviction of impeachment for such causes as may be provided by law.

The house of representatives shall have the sole power of impeachment of the governor and lieutenant governor and the senate the sole power to try such impeachments, and no such officer shall be convicted without the concurrence of two-thirds of the members of the senate. When sitting for that purpose, the members of the senate shall be on oath or affirmation and the chief justice shall preside. Subject to the provisions of this paragraph, the legislature may provide for the manner and procedure of removal by impeachment of such officers.

The legislature shall by law provide for the manner and procedure of removal by impeachment of the appointive officers.

Judgments in cases of impeachment shall not extend beyond removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the State; but the person convicted may nevertheless be liable and subject to indictment, trial, judgment and punishment as provided by law. [Ren and am Const Con 1978 and election Nov 7, 1978]

Anonymous said...

At least Lanny got it started with his foresight.
And check out the stupid comments from Reps Herkes and Evans. Then they should be impeached for complicity, that is if theyʻre holding seats.

Big Island attorney calls for Lingle impeachment

by Jim Quirk
West Hawaii Today
jquirk@westhawaiitoday.com
Friday, October 12, 2007 8:17 AM HST

HILO -- The attorney representing 21 people from Kauai who jumped into the ocean in August to prevent the Hawaii Superferry from entering Nawiliwili Harbor wants the state Legislature to support the initiation of impeachment proceedings against Gov. Linda Lingle.

Big Island attorney Lanny Sinkin submitted a proposed resolution to state representatives and senators on Thursday that states Lingle abused her authority by calling upon federal, state and local law enforcement agencies "to further an illegal enterprise."

When people jumped in Nawiliwili Harbor on Aug. 26 and Aug. 27 to prevent the Superferry from entering it, Sinkin said Thursday, they were trying to uphold the law that required an environmental assessment be conducted before the ferry can begin operations.


That thought process was upheld recently in court when a Maui judge said an environmental assessment is indeed necessary, he said.

The problem facing the state, however, is that years and millions of taxpayer dollars have been invested in putting the Superferry into operation and that an environmental assessment could take at least eight months to complete.

According to the proposed resolution penned by Sinkin, the U.S. Coast Guard "responded to the governor's actions by declaring a security zone in the waters and on the land surrounding Nawiliwili Harbor."

The resolution states that "anyone entering the security zone to attempt to enforce the law against the (ferry's) entrance would be subject to 10 years in prison and numerous other federal and state charges," that Lingle's "pursuit of such law enforcement actions represented an abuse of her authority to further an illegal enterprise" and that "the governor's formation of the Unified Command undermined the legitimacy of every law enforcement agency involved."

Lingle's intention to return the Superferry to Nawiliwili Harbor "threatened to create legal liability for every law enforcement officer acting in concert with the governor's illegal plan," the resolution states.

The resolution states "the obvious commitment and courage" of the Kauai residents who jumped in the water trying to enforce the law "made a confrontation between the Unified Command and the citizen law enforcers likely," which "could easily have resulted in serious injuries or even death."

Sinkin states in the resolution that the Maui judge's recent ruling "only reinforces that the governor acted without legal authority."

The proposed resolution ends by stating the Legislature "goes on record as supporting the initiation of impeachment proceedings against Governor Linda Lingle."

Sinkin said Thursday that "it has been appalling to me to have (state officials) stand by the side while Lingle implemented this illegal plan."

A spokesman from Lingle's office said he was unaware of Sinkin's proposed resolution late Thursday afternoon. Lingle was unavailable for comment.

State legislators from the Big Island interviewed Thursday said they're not interested in trying to impeach Lingle.

"(Sinkin) is crazy," Rep. Bob Herkes said.

Herkes said he received about 2,000 e-mail messages Thursday from residents who support the Superferry.

"People who are in support of the ferry are really coming out strong," he said.

Herkes added that the Coast Guard will enforce the bay regardless of what ship tries to enter it.

Rep. Cindy Evans said while she doesn't agree with the resolution, "I understand where they're coming from."

Evans categorized the threats of having to spend 10 years in prison for trying to block the Superferry from traveling into the harbor as "pretty heavy-handed" and "unfortunate."

However, she said if Lingle didn't take measures, residents could have had something else to complain about.

"If she hadn't done something and somebody went in with a bomb and blew (the Superferry) up, would people say she didn't take any security measures?" Evans said.

"I'm not interested in impeaching the governor," Rep. Josh Green said. "The big picture, we're supposed to be solving the problems. I would like to solve the problems first and leave the politics out of it."

On a related front, some residents protested the Legislature's proposal to hold a special session to discuss the Superferry situation at the Governor's Liaison office at the Hilo State Building Thursday afternoon.

Protest organizer Cory Hardin of Hilo said in an e-mail message on Thursday the special session is "a disturbing precedent" because she believes the its purpose is to change "state law to bail out a business that gambled with our tax dollars and lost."

"A launch (of the Superferry) before environmental studies is putting the cart before the horse," Hardin wrote."

Green said a special session on the subject would be a good thing, particularly because it gives legislators an opportunity to discuss the environmental concerns.

Anonymous said...

""ohhhh man thats funny!!"

What, you donʻt believe it?"

-- ah no man, i take it at face value. i just thought it was pretty damn funny!! still do!! ha

Anonymous said...

"When people jumped in Nawiliwili Harbor on Aug. 26 and Aug. 27 to prevent the Superferry from entering it, Sinkin said Thursday, they were trying to uphold the law that required an environmental assessment be conducted before the ferry can begin operations."

-- "they were trying to uphold the law"...sweet. did not know their were so many here to motivated solely by the "rule of law" concept. ill look for their help in upholding constitutionally protected real property rights as to reasonable use...

Anonymous said...

March 18, 2009 12:40 PM

Get a life.

Anonymous said...

young, healthy, wealthy, well educated/traveled and (self) employed...and mobile. so my life is good, thank you for asking

Anonymous said...

Could have fooled me about the well educated part...your spelling and grammer needs work: try starting at the third grade.

As for the rest of your descriptions, Iʻd also guess thatʻs a far cry from the truth...otherwise it would not have to be said.

Anonymous said...

well in that case you are (or as i like to say "youre" or just "ur") one easily fooled fella. but thank you for your interest, and theory :)