Sunday, December 16, 2007

Musings: Down for the Count

The stars and Venus were out when Koko and I went walking this morning, but they quickly disappeared behind clouds. I could hear the rain coming before it arrived, a sound I love, of drops hammering dense foliage, and then it caught up with us, a few hundred yards from the house.

A couple of Maui folks also got wet yesterday, paddling surfboards in the Kahului Harbor after the Superferry had arrived “to make a point that the security zone is punitive and it's unnecessary and ludicrous," Hannah Bernard reportedly told the Advertiser.

Katy Rose sent me an email saying Hannah wasn’t arrested on the spot, and authorities are now trying to decide how to penalize her. Let’s hope they do nothing, because really, what did she do, except push the system?

Maui Tomorrow is also going to push the system, that same Advertiser story reports, by pursuing legal action that challenges the constitutionality of the Superferry bailout bill.

The article reports that Maui Tomorrow executive director Irene Bowie contends the law is unconstitutional because it was created solely for Hawaii Superferry. “The state had argued that Act 2 is not special legislation because language in the law states that it applies to any ‘large capacity ferry vessel company,’" the article concluded.

I know I’m not the only one who can’t wait to see if the courts actually buy the state’s shibai. I mean, come on! Hawaii Superferry played a key role in drafting the legislation and setting conditions that were favorable to its particular operation. In fact, Gov. Lingle said publicly the bill had to pass Superferry's muster.

How can state Attorney General Mark Bennett possibly argue the bill isn’t specifically for HSF without looking like an idiot or a liar, or both? Regardless of what the bill’s words say, its intent was clear: to get the Superferry running while the EIS is done.

After feeling rather disheartened by the House’s nominations to the Superferry task force, I perked up when I read that the Senate made better use of its picks, naming Dennis Chun, who was in the water helping to keep the boat out of Nawiiliwili Harbor; Waianae harbor master William Aila Jr., who is definitely not a political lap dog; and Randy Awo, the Maui branch manager of the state's Division of Conservation and Resources Enforcement who testified that enforcement officers were already maxed out when the Senate conducted hearings on the Superferry bailout bill.

The Senate’s other choice was Big Island attorney Michael Matsukawa — maybe readers from that island can offer more insight into who he is.

Perhaps I’m reading too much into it, but it seems like the Senate’s choices were designed to needle the Lingle Administration and Superferry folks, who make up the rest of the task force, just a little bit.

A friend called yesterday and we got to talking about Superferry passenger counts. On the first day, Thursday, Christie Wilson reported in the Advertiser figures provided by HSF: 190 passengers and 60 vehicles.

Andrea Brower, who was on board, reported on that she, Katy Rose and Hale Mawae “counted somewhere between 50-70. Of these passengers, about half were affiliated with the media.”

On Friday, the Advertiser again reported figures from HSF: 135 passengers and 35 vehicles.

Maui resident Brad Parsons, however, said on Friday he and a friend counted “115 people total in shuttle vans, cars, and motorcycles getting off. There were 62 vehicles including motorcycles.”

On Saturday, Parsons counted “215 passengers and only 62 vehicles and an additional 10 motorcycles got off on Maui from Oahu. Only 36 vehicles departed from Maui to Oahu, 3 of them were empty shuttles from one of the shuttle companies.”

The Advertiser reported, using figures attributed to HSF, that “250 passengers and 67 vehicles” traveled from Honolulu to Maui, and the ferry “made the return trip with 135 passengers and 35 vehicles.”

I don’t know which figures are right, but when you have the Star-Bulletin reporting today, “The number of protesters against the Hawaii Superferry grew during the weekend on Maui to more than 250 people yesterday, as groups called for a halt in operation and planned a court appeal challenging a new law that allowed the vessel to resume operations. But the number of passengers on the Superferry also increased,” it seems that the numbers game is important for public perception reasons, as well as Superferry’s financial viability.

And since this is turning into a Superferry Sunday, if you want to keep visually abreast of the Maui Superferry protest action, check out the latest photos from Brad Parsons, who also offered this link to photos from Maui News.

1 comment:

Charley Foster said...

How can a law that everyone admits is specially written to apply only the the SF be a general law?

The best way to answer is by looking at another Hawaii case that dealt with the same issue. Bulgo v. Maui County, 430 P.2d 321, 50 Hawai'i 51 (1967). Back in 1966, Eddie Tam,who had been re-elected to the Maui board of supervisors, died before the beginning of the term. The board asked the state legislature to provide legislation allowing a special election to replace Tam.

The legislature obliged with a law that said in part, "The governor shall issue a proclamation within ten days after the approval of this Act requiring special elections to be held if any person elected in the general election of 1966 to the office of chairman of the board of supervisors of a county died before January 2, 1967..."

At the time of approval of the Act, the county of Maui was the only county in which the person elected as county chairman in the 1966 general election had died before January 2, 1967 and it was patently obvious and freely admitted that the act was specially written to address this particular situation. Furthermore, because of the explicitly defined period of time covered by the law, its terms would never cover any other situations in the future.

In ruling that that law was general legislation and therefore constitutional, the Hawaii Supreme Court said, "The challenged provision does not give the county of Maui any power which is different from that which the Act gives to the counties of Hawaii and Kauai. It neither favors nor discriminates against Maui. The contingency contemplated in the Act now exists on Maui. The provision brings Maui within the scope of the Act in the present situation."

The court made clear that it is legally irrelevant whether a law's intent or practical effect is to address a specific situation. I can understand how the legal distinction between general and special laws might be counter-intuitive, or seem to depend too much on artfull drafting. But the point of guarding against special legislation is not to prevent the legislature from dealing with specific situations, or even helping specific companies (look, for instance, at special tax incentives to entice a company to, say, build a factory in a state). Rather it is to prevent discrimination between members of a class.

If the intent of Act 2 was to exclude another ferry company from competing with SF, Maui Tomorrow would have a case. As it stands, they don't.