Poinography!

March 22, 2009

What if the Justices actually meant it?

Filed under: Hawaii State Politics — Doug @ 11:09 am

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.

12 Comments »

  1. Doug,

    The State Constitutional prohibition on special laws is not related to the “doctrine of Equal Protection.” Under an Equal Protection analysis, Act 2 would be constitutional since the state has a rational basis for exempting the Hawai’i Superferry from HEPA/Ch. 343. The claims were not brought under the Equal Protection Clause of the Fourteenth Amendment. They were brought under specific constitutional provisions restraining the power of the legislature.

    The analysis of ‘special laws’ and ‘class of one’ took about 50 pages of the court’s opinion. The problem is that, in this instance, it’s an obscure area of law which most of the public (and legal profession) are unfamiliar with that cannot be analogized to other areas of law, like you have. OHA, differential GE taxes, and other laws that special interest groups call “special laws” are not “special laws” under the State Constitution provision limiting the legislature from enacting such laws. That does not mean they may not be “special laws” in other constitutional contexts. The constitution establishes OHA so it is itself a contradiction to analogize to the Act 2 instance since the “special law” limitation is a limitation of the legislature. The “special law” limitation restrains the legislative power dealing with state land. Differential GE taxes are not special laws singling out a particular parcel of state land and therefore the analysis does not extend.

    This is why we have a Supreme Court with experienced jurists making the decisions and not professional politicians or journalists like Lingle making the final decisions. Its very easy to miss the significance and limitations of a 110 page legal opinion by rendering it into 2 or 3 half-sentence slogans.

    DOUG: Hmmm. Thanks for your insight. The comments at a Planet Kauai post hinted at this, with the mention of dicta

    Comment by line of flight — March 22, 2009 @ 1:14 pm

  2. Yeah. The problem with this “half-sentence” dicta is that it is referring to Article XI, Section 5 which does exactly what Duffy said: “constitution prohibits laws which provide disparate treatment intended to favor a specific individual, class, or entity.” He made no reference to the Equal Protection clause at all

    The only other constitutional provision that this dicta could be extended and applied to is Article VIII, Sec 1 which requires the leg to deal with the county government power by “general law”. The differential GE tax however is a state function and the surcharge does not trigger this provision related to county government power.

    Comment by line of flight — March 22, 2009 @ 4:52 pm

  3. As you said, the court took about 50 pages to explain this “special law” stuff. I certainly have no idea how the justices might react to a request to reconsider, but if they could, mightn’t they say, “just read what we’ve tried to explain to you earlier and you’ll understand, perhaps.”

    Whatever they say or however they reply, if they turn the request down, it will simply rub the egg in the administration’s face a little bit more.

    If they do reconsider and reverse themselves, the egg will be on my face, but I’m not too worried that might happen.

    Comment by Larry — March 22, 2009 @ 5:04 pm

  4. I would go along with line of flight’s assertion that Justice Duffy never leaves the confines of Art. XI, s. 5 in striking down Act 2 if it were not for the paragraph in the decision’s conclusion that says:

    “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.”

    That’s a pretty unequivocal statement. Even so, with a less aggressively activist court, it might be easier to put it down to hyperbole. But here, one would hardly be surprised to see in some future case the court rely on this broad language to strike down legislation when there is no specific clause on which to rely. If I were the legislature, I’d be concerned.

    Comment by charley foster — March 22, 2009 @ 6:25 pm

  5. Charley you are only correct if you have never read any of the 100+ page opinions on the public trust developed over the last ten years and Article XI jurisprudence overall. This again comes down to context which weekend, arm chair legal scholars apparently haven’t got a firm grasp of. Duffy is hardly an activist in any sense of the word. In this instance, you’ve moved from one clause in a sentence to quoting the whole sentence in a 100+ page opinion! Let’s just put a couple of more sentences around the sentence you have plucked out of context:


    Article XI, section 5 of Hawai‘i’s Constitution limits the exercise of legislative power over State lands to the enactment of general laws: “The legislative power over the lands owned by or under the control of the State and its political subdivisions shall be exercised only by general laws[.]” Haw. Const. art. XI, § 5 (emphasis added).

    This constitutional limitation on legislative power was enacted by the framers of our Constitution, and approved by the people, to protect against the dangers inherent in special legislation intended to favor a specific individual, class, or entity. Indeed, this constitutional prohibition of special legislation intended to favor a specific individual, class, or entity is the corollary of the constitutional prohibition against the denial of equal protection rights when the government unreasonably discriminates against a person, class, or entity.

    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.

    Act 2 is a special law which violates this constitutional mandate.

    He is totally and unequivocally referring to the limitation on legislative power related to state laws found in Article XI, Sec 5 and nothing more.

    Comment by line of flight — March 22, 2009 @ 8:40 pm

  6. If, as Justice Duffy contends, there is a broader constitutional prohibition against laws which provide disparate treatment intended to favor or discriminate against a specific individual, class, or entity, and this prohibition is a fundamental principle of the democratic nature of our government: equal rights and treatment for all persons under the law, then there is no longer any need for the court to rely any specific constitutional clauses such as Art. XI s. 5 requiring laws exercising power over lands be general in nature.

    This language is Justice Duffy’s “penumbras, formed by emanations” or Kennedy’s more recent “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What can’t a court do with such a mandate?

    It is not a question of whether or not Justice Duffy is an activist jurist. Line of Flight’s promise that the court will not in some future case spring his dicta as justification for invalidating legislation when there is no specific clause, such as Art. XI, s. 5, on which to base the court’s preferred outcome, relies too much on the kindness of strangers.

    Recall that this is a court which in the “Ohana Kauai” property tax Charter Amendment case first rearranged the parties so that friendly government officials would have standing to manufacture a lawsuit against each other to challenge a popular charter amendment, and then made up out of whole cloth that the term “counties” in article VIII of the Hawaii Constitution means “exclusively county councils,” and that the voters of the counties do not have the power to amend their county charters to establish property tax policy.

    Comment by charley foster — March 23, 2009 @ 8:32 am

  7. “This again comes down to context which weekend, arm chair legal scholars apparently haven’t got a firm grasp of.”

    No need to be so condescendingly snippy there, fella (yes, I am speculating that you are male by your tone). At least he didn’t end his sentence with a preposition.

    Though clearly also your inferior, the point I made in a post to an earlier thread is that the conclusion and — now that you mention it — the quote above, suggests that art. XI, § 5 jurisprudence may now rest on an equal protection foundation, or at least be informed by it. After all, the context you quote states that the prohibition aginst special legis;lation involving public lands is the “corollary” of the prohibition against denial of equal protection.

    Please guide us, master.

    Comment by Ted — March 23, 2009 @ 11:10 am

  8. I won’t get started on the Kauai charter amendment case. That was a train wreck of reasoning which is nothing like Duffy’s well thought out argument. I just don’t understand how you can go from 50 pages of thoughtful reasoning and then take a half-sentence to two sentences out of context and say he meant Equal Protection clause. It’s absurd, but perhaps that is the quality of legal reasoning in Honolulu? The extended quote doesn’t use Equal Protection jurisprudence unless you read law from press releases. We don’t let the blind drive. Equal protection is totally about denial of equal protection — the question is always, how far can the government go: whether it must have total pass with rational basis, whether it must have a substantial interest/narrowly tailored law, or whether it must have a compelling interest/most narrowly tailored law. The special law/class of one jurisprudence says the opposite, there is an outright absolute limitation on the legislative authority. They can never pass discriminatory laws per Art XI, Sec 5. This is not a corollary to or in any way connected with equal protection except the words seem to have an intuitive connection that does not correspond to jurisprudence and is not warranted by existing case law.

    With respect to Charley, let us thank God that Duffy’s 100+ page opinion is well reasoned and does not resemble a train wreck of reasoning like Moon’s opinion in Kauai v. Kauai, I mean Nakazawa v. Baptiste. That being said, I don’t believe this is an instance of squirreling unless Honolulu attorneys have become so lazy that they don’t read or skim the cases cited by opposing counsel.

    Comment by line of flight — March 23, 2009 @ 8:21 pm

  9. LOF, I was quoting YOUR quote from the opinion itself! “Indeed, this constitutional prohibition of special legislation intended to favor a specific individual, class, or entity is the corollary of the constitutional prohibition against the denial of equal protection rights when the government unreasonably discriminates against a person, class, or entity.”

    I didn’t write that, Justice Duffy did. And he repeated it in the conclusion of the opinion. And there was no concurrence or dissent disavowing the equal protection analogy. I may just be some local yokel from Honolulu but even I know that appellate courts do not write just to resolve the case in front of them. They are writing to give guidance for the resolution of future cases. Otherwise, the opinion would have been unpublished. No doubt you have read some of Justice Scalia’s dissents (I rarely agree with his results — indeed, I often find him infuriating — but his reasoning is rigorous, impeccable) and seen him rail against reasoning that might achieve the desired result in one particular case but that will, taken to its logical extreme, have unintended consequences in others. And, if the reasoning that justifies a result in one particular case can not be applied in the logical extreme subsequently, it shouldn’t be applied in the case in which it was used! Since same-sex marriage/civil unions is occupying so much of the legislative session and this blog, Scalia’s dissent in Lawrence v. Texas is particularly illustrative in this regard.

    I think you would have to agree (well, maybe not; you don’t seem very agreeable with anyone except yourself) that if this language was not intended to have at least some precedential effect, it is throw away language that should never have been put in the opinion in the first place. I, for one, don’t think Justice Duffy is so sloppy a writer that he would carelessly dress up his opinion with such flowery surplusage. Indeed, you refer to it as “well thought out” and “well reasoned.” At the very least, some other yahoo is gonna raise it, only to have someone like you condescendingly dismiss them. If you’re right, then it will just be the court making more trouble for itself, creating another “train wreck,” a description you seem to like, and repeat accordingly.

    Comment by Ted — March 24, 2009 @ 10:30 am

  10. Maybe what Justice Duffy meant was, as you say “That our Constitution prohibits laws [regarding state lands] 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.” But the addition of those three words spoils the poetry and the subliminal feeling that a choir is humming “The Battle Hymn of the Republic” softly under the words.

    Comment by John — March 25, 2009 @ 6:44 am

  11. John, no one doubts that the decision is limited to public lands. The question is how it will be applied in future cases involving similar challenges, i.e. will those challenges be viewed through an equal protection lens, given the quoted language. LOF says no, that I am an idiot for even raising the possibility; I say he may be right but only time will tell. We shall see.

    DOUG: I would not say that “no one” doubts it. Charley Foster is plenty coy about it, but I think Foster doubts it, or at least wants others to doubt it.

    Comment by Ted — March 25, 2009 @ 5:37 pm

  12. I think the overbroad equal protection language is dicta (in other words, the present holding does not rely on it).

    My point all along has been pretty well in line with what Ted is saying: That the overbroad equal protection language could quite possibly find its way into future opinions as justification for invalidating legislation where there is no specific constitutional language justifying the court’s nullification of a legislative act.

    I also think it is an interesting – and rational – strategy for those concerned to try to force the court to disavow the dicta’s potential future import by challenging a law that runs contrary to it.

    Comment by charley foster — March 26, 2009 @ 8:14 am

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