Poinography!

Am I missing something, or is the Governor’s latest attempt at a budget yet another non-starter? First, I’ll note again that it’s foolish (and I’m speaking to both the Executive and Legislative branches here) to write budgets while there are collective bargaining agreements still unresolved, but that silliness happens regularly… Second, if the Lege drafts a budget that raises revenues or includes lay-offs of government workers, then the calculus at the collective bargaining talks changes. The House has already passed its draft of the budget that does those things, and the Senate draft probably will, too. The Governor submitted her (half-baked) budgets so late that she might as well have foregone submitting them at all. Now, whatever budget that passes will certainly not be anything resembling her “budget,” and she and her administration surely recognize(d) that fact. Thus, the Lingle administration has been freed to posture and to throw red meat to the masses (with talk of no new taxes, no lay-offs, pay and benefit cuts for public workers, etc.). That said, I don’t think the government employee unions are likely to agree to Lingle’s givebacks until they see what the alternative fiscal scenario from the Lege would be. Furthermore, since the counties and the unionized county workers are also part of the collective bargaining process, the Governor’s “take these pay and benefit cuts or face lay-offs” stance is not going to present a genuine risk to the rank and file unionized county workers. I have not heard of any Mayor(s) issuing a similar ultimatum. Have you?

On the “other” topic of the day, the Senate’s failure to recall the Civil Unions bill confirmed my cynical fears. How the Senate went from a (so-called) majority of support for the bill to only six votes in favor of the recall can’t be spun: too many duplicitous cowards. Oh well. Props to the six who voted in favor, and bigger props to Senator Hooser for his effort.

Lots of articles and online chatter last week about the Lingle administration and the Legislative leaders who intend to request that the Hawaii Supreme Court reconsider the ruling that invalidated Act 2. The crux of their request, so far as I can tell, is that in ruling that Act 2 was a “special law” and not a “general law,” the validity of numerous other previous (and pending) pieces of legislation are put in doubt. I am not a lawyer, but I am reminded of the old adage that a lawyer should be careful about asking a question if he or she does not know the answer.

The doctrine of Equal Protection is multi-faceted, so I expect that it is difficult, perhaps impossible, to generalize how it should be applied by the Court to any particular piece of legislation. I do think, however, that the arguments that the Superferry ruling endangers (or, at least, clouds) the legitimacy of OHA or the legality of the GET surcharge on Oahu for rail (to name the most commonly referenced two) are off the mark. The “rational bases” and “governmental interests” advanced by the Oahu GET surcharge and the existence of OHA were clearly defined and the necessity of restricting those beneficiaries (i.e. to Oahu and to Native Hawaiians, respectively) were logical (even if one does not agree with the existence of OHA or the GET surcharge).

However, many of the other examples brought forth are, in my view, clearly “special laws,” that have always been of dubious constitutional standing. Few were ever challenged, that’s all. If those laws are ultimately struck down, I would not be surprised or disappointed. I’ve seen too many special interest bills (although more have failed than have passed, I’m happy to say) that simply asserted that favoring $ORGANIZATION is “in the best interest of the state,” without any evidence. Hopefully, with this ruling (and a possible “reconsideration”), those days are on the wane. The fact that such favoritism carried on for so long basically unchallenged is unfortunate, but it is not surprising. Really, who would risk the expense to challenge such a law? The beneficiary’s rivals, perhaps, but it’s almost always easier (and less politically risky) to lobby for your own special treatment in the future than to raise the ire of the legislators by challenging the largess previously awarded to your competition.

Ed Case has sent another bulk spam message announcing that he is on Twitter and Utterli. I clicked through to his Twitter page and see that a few dozen people are already following him … currently, however, Ed Case is following ZERO people.

Not exactly how the medium was intended to be used. He is sending the message, “listen to me, while I ignore you.”

BTW, I am on Twitter as Poinographer. And, no, I don’t follow everyone who follows me. The difference is that I’m not running for office and selling myself as a great listener. Heh.

One part of my previous post has been quickly put to rest:

State Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha) said yesterday that, given the latest court decision that Act 2 is unconstitutional because it was designed to benefit a specific company, “I’m not sure there is anything the Legislature can do or is willing to do (to help the Superferry).”

Hanabusa said the Senate also is not interested in revamping the state’s environmental review law, known as Chapter 343, to ease the rules. Although the Legislature last year allocated money for a Legislative Reference Bureau study of the law, “we are not going to do anything to it piecemeal to help Hawaii Superferry. That’s not going to happen.”

According to an Advertiser article.

Governor Lingle’s Attorney General, Mark Bennett, has been reviewing the decision striking down Act 2 and, along with legislative leaders [according to a tweet from Derrick DePledge just a few minutes ago], will ask the Hawaii Supreme Court to “reconsider” the ruling. Um, whatever that means. I don’t know if the Hawaii Supreme Court is obligated to respond to such requests, but my hunch is they’re not. Perhaps in ignorance, I thought the Court was, well, “Supreme” and once it had ruled the matter was settled unless there is an appeal to the United States Supreme Court. I have not heard anything about such an appeal, nor have I even heard any speculation as to the grounds for such an appeal.

The “reconsideration” request sounds to me like a desperation move at this point. We’ll see.

Bu-bye. Heh.

I remember quite well when the (blatantly smarmy) Superferry folks came to twist legislative arms while I was working as a clerk for the House Transportation Committee. Garibaldi and his hui wanted (and proceeded, at length) to talk to everyone about everything except about conducting an environmental review. The Superferry got its way with a majority of pliable legislators, but has never had the same luck with the Hawaii Supreme Court. Live by slick PowerPoint presentations without substance, die by no-frills legal briefs. As a long-time foe of the cult of PowerPoint, I take particular glee in that sub-sub-aspect of todays news.

Anyway, now the company has announced it will suspend ferry operations in reaction to the Court’s latest ruling. I won’t presume to know the legal process well enough to speculate about a basis for an appeal to the US Supreme Court. After reviewing the decision, however, I don’t see how a legislative remedy could both allow the Superferry to resume operations before the environmental review is complete and also comport with the Court’s decision. (Unless the Lege wants the Superferry to operate so badly that a majority is willing to gut amend HRS 343 itself, i.e. the “general law,” rather than to carve out another dubious exemption). Looking through the bills that are still alive, there are at least two bills with suitable titles, should legislators insist on lacing up their gloves again on behalf of HSF.

Others (such as Lance Collins via Disappeared News and kolea via his comments at The Notebook) have already done a fine job describing the ins and outs of how it is that the Civil Unions bill remains in the Senate Judiciary Committee after the chair’s recommendation to pass the bill was met with a tie vote and, thus, failed to carry. I concur that the ersatz “mandatory waiting period” said to expire on March 10 really never had to be honored by the Senate, but that is water under the bridge.

At this point the questions become simple: a) will a Senator move tomorrow to recall the bill from the committee for consideration by the full Senate? b) will that motion get a second? and, if so, c) will the motion carry?

Friday saw articles (Advertiser and Star-Bulletin) that indicated that Senate Democrats, depending upon which unnamed source you believe, have (or don’t have) the courage to recall the bill and to pass it.

While senators may have reservations in private, a vote on the Senate floor would put them on the spot publicly, and a majority have told gay activists they support civil unions.

[DOUG: Did you catch that? The implication being that some Senators with private reservations (i.e. in caucus) have told supporters of the bill a different story. Shocking, I know.]

State Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), said she would like Senate Democrats to come to a consensus. She said earlier reports that the Senate had the votes to pull the bill from committee and to pass it on the floor were accurate at the time. But she said some senators are now looking at other factors, including the importance of maintaining the committee process.

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[Senator] Espero, offered an amendment, which was not supported by the caucus [Thursday], but he still hopes to have it discussed Tuesday.

“The amendment would acknowledge civil unions. However, it would not equate them to marriage, and that could provide a win-win situation,” Espero (D, Ewa-Honouliuli-Ewa Beach) said.

An amendment could complicate the issue because it would force the bill back to the House and possibly a conference committee. Another senator who asked not to be identified said bluntly that “an amendment will kill it.”

Also, Senate Democrats say support for the bill among Democrats has weakened. Unofficial tallies two weeks ago had 18 supporters, but now supporters say they have a bare majority of 13.

An amendment will kill it. Especially an amendment “crafted” by Espero, a Senator who is not even half as politically shrewd as he may think himself to be…

As for Senate President Hanabusa’s hope for a “consensus” on the issue: balderdash. Senator Gabbard will never support the bill, so there will never be a consensus. A minority of the caucus is allowed to stop the whole legislative process? Strange leadership decision, that.

If Senators who support this bill were to come this far and not even attempt to recall the bill, then that would speak volumes about the depth of their support for civil rights. Besides, it is not as if the committee process is being hijacked. There would be no “majority vote” in the Judiciary committee overridden, that vote was 3-3. If Senator Hanabusa had assigned an odd number of committee members, then a recall would not have been necessary. I can’t see any non-nefarious reason for a key committee to have an even number of members assigned, so Hanabusa deserves to have that decision blow up her in face, and often.

So, are the Senators who support civil unions going to remain silent and attempt to hide behind that “respect for Senate process” fig leaf, or will two Senators move to recall the bill, even if it means forcing their colleagues to go on record.

Heck, it’s even possible that an opponent of the bill (or an opponent of Senate leadership, or of both) who wants to force the issue could move (or second) the recall motion. Wouldn’t that make the civil unions supporters look even more timid! Whatever, so long as it comes to a vote, I’m down.

From a Star-Bulletin article about the memorial service for a member of the Hawaii National Guard who died in a “non-combat traffic accident” last month in Kuwait:

Maj. Gen. Robert Lee, state adjutant general, presented the State Medal of Valor to [the soldier's parents] at the service attended by more than 400 people.

At first, I thought this may have been a misprint, since (if you remember my posts on the topic pre-blog crash) Hawaii has its own “Medal of Honor” that is awarded posthumously to the family of Hawaii-connected (by birth, residency, or duty station) service members. I still believe that the state award is grossly “over-named” insofar as it clearly infringes on the name and reputation of the Medal of Honor bestowed by Congress; the Hawaii MoH is more akin to a posthumous Purple Heart. Anyway, I googled the Hawaii Medal of Valor and learned that Hawaii established the award in 1994.

Hawaii citizens (military and civilian) are eligible for the Medal of Valor for performing an uncommon act of personal heroism involving the voluntary risk of his/her own life, or for a self-sacrifice so conspicuous as to be distinctly above and beyond the call of duty.

Given the continuing (and increasingly curious) paucity of details regarding the traffic accident that resulted in this soldier’s death, it seems premature (at best) to bestow an award recognizing “personal heroism,” in my opinion. Plus, I’m still very bitter that Sergeant Rafael Peralta was awarded the Navy Cross and denied the Medal of Honor, for his act of valor in Fallujah that was unquestionably heroic. I don’t take these situations lightly.