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.