March 18, 2009

No legislative save for HSF is likely from the Senate

Filed under: Hawaii State Politics — Doug @ 6:37 pm

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.


  1. R.I.P.

    Comment by charles — March 18, 2009 @ 9:35 pm

  2. Under Hawaii Rules of Appellate Procedure, Rule 40, Motion for Reconsideration, a party can file a motion for reconsideration stating the points of law or fact that the moving party contends the court has overlooked or misapprehended, together with a brief argument on the points raised.

    The court has 10 days to either grant or deny the motion, and failure on the court’s part to respond one way or the other is deemed a denial of the motion.

    Comment by charley foster — March 19, 2009 @ 10:40 am

  3. Doug,

    I think there may be an effort to sever certain things which were in the bill and which are not germane to the core rationale for declaring the bill unconstitutional.

    In particular, the SF folks had agreed to not hold the State liable for any losses they might incur. Such language was included in the bill. You can imagine senators may have an interest in having THAT portion of the bill upheld.

    Comment by Kolea — March 19, 2009 @ 12:32 pm

  4. Just a point of clarification on Sen Hanabusa’s reference to the “LRB study of the law.” LRB has not conducted such a study. LRB was only made a conduit for funds appropriated in 2008 for a study of Chapter 343, HRS, (the EA/EIS law), by the UH Environmental Center. The money had first been appropriated in 2007, with the Dept. of Health being designated as the “expending agency” (which sort of makes sense since the Office of Environmental Quality Control — where EIS’s go to die — is attached to DOH). However, either because of the pending SuperFerry debacle, in particular, or because the EA/EIS process is seen by Auntie Linda, generally, as an impediment to collecting the hood ornaments she needs to equip her next political campaign vehicle, the money was never released by DOH. To get around that “pocket veto” in 2008, the Legislature funneled the kala through LRB to the Environmental Center so that the study would actually get done. Act 1, SLH 2008, requires the Center’s report to be submitted to the Legislature prior to the 2010 session.

    As for reconsideration of the court’s opinion, court rules permit reconsideration where “the court has overlooked or misapprehended” points of law or fact. Reconsideration is rarely granted and typically only for minor, narrow, or technical issues where the court made a clear factual or legal mistake regarding, just for example, the date on which a jurisdictional event occurred or some other objectively verifiable fact. Motions for reconsideration are not entertained for the purpose of reversing judgment calls. If Act 2 was, in the court’s judgment, a “special law” this past Monday, it’s still gonna be a “special law” in the court’s judgment next Monday or the Monday after that. That the decision could have ramifications for the exercise of the Legislature’s power, as the Governor, Attorney General, and legislative leaders are reported to be claiming, is not only obvious but irrelevant. The SuperFerry decision was rendered on the particular facts of that case and I think anyone would be hard-pressed to find any past exercise of legislative power, or any reasonably foreseeable future exercise of that power, that even remotely comes close to the “special purpose” nature of Act 2.

    Chicken Little, the sky is NOT falling.

    Comment by Ted — March 19, 2009 @ 1:19 pm

  5. We’ll have to wait to see the moving papers but, as Kolea suggested, there is a “severability clause” in Act 2 that allows anything in the Act NOT struck down by a court to remain in effect. Thus, for example, the State immunity provision in Section 16 (which was to remain in effect even after the rest of the Act was repealed by filing of the “EIS”) could, technically, be preserved despite other sections of the Act being struck down.

    However, the HSC’s opinion does not discriminate between sections of the Act (it declares the whole thing invalid as “special legislation”) and the language of the immunity provision in section 16 seems to suffer from the same “special legislation” defect as the rest of the Act (e.g., it also refers to the “large capacity ferry vessel company”). Moreover, the immunity provision not only protects the State from claims by the SuperFerry, it also requires the SuperFerry to defend the State against claims brought by third parties (e.g., Sierra Club) AND to indemnify the State for claims that have to be paid as a result.

    Offhand, it seems highly unlikely that the HSC would preserve Section 16 and thereby both prevent SuperFerry from suing the State for its losses AND require it to defend and pay claims by others against the State when it can no longer operate and generate the revenues necessary to do defend or pay such claims.

    Comment by Ted — March 19, 2009 @ 3:19 pm

  6. I don’t think anyone supposes the court will reverse itself. Rather, there is a desire for clarification on the severance issue and also on the court’s odd pronouncement that the state “constitution prohibits laws which provide disparate treatment intended to favor a specific individual, class, or entity.”

    Comment by charley foster — March 19, 2009 @ 3:47 pm

  7. That “disparate treatment” quote does seem rather broad, hence my posting it to an earlier thread on the status of HB 444. It suggests that the analysis of challenges to “special legislation” will be informed by (or at least rest on) principles of equal protection, which I don’t think anyone would have predicted. If so, it may be that some “special legislation” is OK if it is supported by the approropriate justification, just the way certain types of discrimination can be justified. There are many instances in which legislation is targeted (tax credits, certain regulations, etc.) so it will be interesting to see if someone takes up a challenge to these laws on the ground that they are special, unjustifiably discriminatory legislation.

    OK, everybody pile on: blame the lawyers.

    Comment by Ted — March 19, 2009 @ 4:44 pm

  8. The thing about Equal Protection it it comes with a lot of baggage. Of course, the state court is free to craft its own equal protection doctrine, but under federal constitutional law, courts are very deferential when applying equal protecion analysis to economic legislation – of which Act 2 decidedly is. That is if the legislation in question is economic legislation, courts will leave the legislation alone so long as it is conceivable that the law bears some rational relationship to some legitimate governmental end. Basically, under rational review, laws are almost never overturned on equal protection grounds. (It is laws that discriminate based on “suspect classifications” such as race that face a higher standard of review).

    Comment by charley foster — March 19, 2009 @ 5:34 pm

  9. They’re not even talking about reconsidering the actual decision. They’re talking about reconsidering the language of the argument. Statements in the dicta are just that until and unless cited by some future court. It’s more of a ploy to distract from the magnitude of the SF fiasco, than a legal argument.

    Comment by John — March 20, 2009 @ 8:22 am

  10. what happens to OHA?

    Comment by jaded — March 20, 2009 @ 1:18 pm

  11. It could also sound Mafia-esque, depending on the tone of voice, and the perceived (potential direct or indirect) power of the requestor. You DO know what I mean, DON’T you?

    DOUG: Actually, I don’t know what you mean. Even mafiosi provide more context than you have, haha.

    Comment by Kuastar — March 20, 2009 @ 7:02 pm

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