Who Stole the Power? by Lanny Sinkin
In the Plaut case, the United States Supreme Court discusses at length and quite forcefully the requirement that each branch of government act within the scope of its powers and not usurp the powers of another branch. You can read that analysis in the Opinion that accompanied the Cease and Desist Order.
Does the Plaut case apply to a state legislature?
Section 1. The legislative power of the State shall be vested in a legislature, which shall consist of two houses, a senate and a house of representatives. Such power shall extend to all rightful subjects of legislation not inconsistent with this constitution or the Constitution of the United States.
The Plaut case illuminated the history and general principles underlying the Separation of Powers doctrine, examined the expression of those principles in the United States Constitution, and applied those principles and the constitutional scheme to the facts of the Plaut case.
That is the general judicial process when constitutional issues arise.
Plaut is applicable to the state analysis, particularly because the State Constitution says that the legislative "power shall extend to all rightful subjects of legislation not inconsistent with this constitution or the Constitution of the United States." Article III, Section I.
The Supreme Court in Plaut is enunciating a general principle as well as applying that principle to the United States Constitution and its implementation within the United States Government. That general principle is that, when a document defining the structure of government separates the powers of government into different branches of government, each branch must respect the integrity of the other branches and the system as a whole by exercising only the power given to that branch.
The Hawai'i Constitution contains almost exactly the same words in delineating the separation of powers as does the U.S. Constitution. See the Addendum to the Opinion accompanying the Order to Cease and Desist. The same analysis would apply in a state court as applied in Plaut.
In this case, the Governor showed a complete lack of respect for the Judicial Branch and the decision of the Hawai’i Supreme Court.
The Supreme Court made a very simple decision: Section 343-5 applied to the question of whether the State should have prepared an environmental assessment for the harbor improvements necessary to allow the Hawai’i Superferry to operate and to the operation of Superferry, which would not happen absent the State improvements.
Applying that law to the facts of the case, the State was required to prepare such an environmental assessment.
Once the Supreme Court announced that decision, the law was clear. Under 343-5, the requirement to prepare an environmental assessment triggered the section of the law that requires completion and acceptance of that assessment prior to the implementation of the project.
That should have been the end of the matter. The only lawful action possible after that decision was initiation of the environmental assessment and cessation of all operations by the Hawai’i Superferry.
Unfortunately, the Director of the Department of Transportation stepped in to render his opinion that the Hawai’i Superferry could continue to operate while the State prepared the environmental assessment.
While this position directly contradicted the law, the Governor embraced this opinion.
The Governor, the Department of Transportation, and the Hawai’i Superferry then engaged in a conspiracy to violate the law by putting the boat into operation.
At that point, the Executive Branch supplanted the decision of the Hawai′i Supreme Court with a contradictory decision. This act was the first major violation of the separation of powers doctrine. With the law and its implications clear beyond question, the Executive Branch took it upon itself to both create new law (the boat can operate without a complete environmental assessment) and to overturn a final judicial decision (the boat cannot operate without a complete final environmental assessment).
The usurpation of both the legislative power and the judicial power by the Executive Branch is simply dictatorship, violated the Constitution and laws of both the State and Nation, and violated the Governor’s oath of office to uphold the Constitution and laws.
The usurpation of the legislative and judicial power for purposes of engaging in a conspiracy to violate the law is an impeachable offense.
The Legislature sat silently watching the Governor steal their power.
The Supreme Court had no action before it allowing it to protect its power.
Finally, the Circuit Court in Mau′i stopped the conspiracy by entering an injunction and voiding the harbor use agreement for that jurisdiction.
Now the Governor wants the Legislature to legitimize the Governor’s illegal and unconstitutional actions by granting a special exemption to the Hawai′i Superferry that will allow the Superferry to continue operating without the State having completed an environmental assessment.
The Attorney General, who joined in the Governor’s conspiracy, is now proposing to the Legislature a bill for that purpose.
 The Governor and other proponents of the Hawai′i Superferry consistently ignore the fact that the Supreme Court found that even if the only question was whether the harbor improvements should have been subject to an environmental assessment, excluding the operations of the boat, the State Department of Transportation erred in not requiring an environmental assessment just for those improvements.
 Apparently without consulting the Attorney General or warned by the Attorney General not to consult him.
Illusions as Law by Lanny Sinkin
Oh what a tangled web we weave,
When first we practise to deceive!
Sir Walter Scott, Marmion, Canto vi. Stanza 17.
Scottish author & novelist (1771 - 1832)
The Attorney General, who joined in the Governor’s conspiracy to continue Superferry operations in violation of the law, is now proposing to the Legislature a bill to legitimize the continued operation of the Hawai′i Superferry.
In essence, this bill would remove the harbor improvements made for the operation of “large capacity ferry vessels” from the projects falling within the existing environmental laws and place such improvements within a new law. The new law would allow the use of such improvements by such vessels while an environmental analysis is prepared, i.e. abolish the “condition precedent” requirement of the old law.
As a practical matter, such a law would invalidate all agreements made, certificates of operation issued, and other administrative procedures and actions taken under the old law.
The Attorney General tries to glide past this point by stating:
Agreements with respect to the operation of a large capacity ferry vessel company, including a large capacity ferry vessel company operating agreement, entered into between the State and a large capacity ferry vessel company, may be enforced as written or as executed or re-executed.
Proposed bill at page 5, lines 7-12.
The problem for the Attorney General and the Legislature is that there is no such thing as an existing agreement made between the State and a large capacity ferry vessel company. The concept of a “large capacity ferry vessel company” had no legal meaning until this new law was proposed and will not have any such meaning unless this new law is passed. So today there cannot be an agreement “between the State and a large capacity ferry vessel company.” There is, therefore, no such agreement that “may be enforced as written or as executed or re-executed.”
In an effort to hide what is being done, the Attorney General left out the only real possibility – an agreement that is made in the future, if this law is passed. If “large capacity ferry vessel company” is defined in a new law, such a company can seek to be considered as falling under the new law and not the existing environmental laws.
Under the new law, any such agreements would have to first determine that the Hawai′i Superferry met the criteria for application of the law, i.e. qualified as a large capacity ferry vessel. Such a determination was not part of the earlier processes, so a new process would have to be undertaken.
The Attorney General knew that passing a law specifically for Superferry would look too much like special legislation to overturn a court ruling and probably be a violation of the privileges and immunities section of the Constitution, so he made the law generally applicable to boats of the Superferry type.
In doing so, however, he made qualification for application of this law, rather than the normal environmental law, conditioned upon a determination that the boat in question fits the general category.
There are no administrative rules for implementing this new law. Those rules must be adopted before the law can be implemented. Those rules will define how a boat qualifies to be under the new law and the procedures by which such qualification is determined.
Otherwise, any boat could come into Hawaiian waters claiming to be a large capacity ferry vessel and not subject to environmental laws and the burden would be on the general public or the State government to disprove that claim and stop the boat’s operation.
Ask yourself: If Company B shows up and says “We operate large capacity ferry vessels and claim the exemption from the need to prepare environmental studies prior to operation”, how will it be determined that such a company falls within the new law, unless there are administrative procedures and rules for implementation of the new law first?
If such administrative procedures and rules are required, will the Legislature have to pass another law or amend the Attorney General’s law to exempt the Superferry from the application of the new procedures and rules in order for Superferry to operate before such procedures and rules are adopted? That is what the Attorney General tries to do by including agreements made under the old law, as if they automatically fall within the new law.
If the legislation automatically qualifies the Hawai′i Superferry, Inc. and its boats for the special treatment of this law and requires other similar boats and companies to go through a qualification process before receiving the benefits of the new law, then the new law violates the special privileges and immunities clause of the Hawai′i Constitution and the equal protection clause of the United States Constitution.
Alternatively, “large capacity ferry vessel” is synonymous with the Hawai′i Superferry. Then the law is a poorly disguised attempt to overturn a final ruling of the court and, thereby, violate the separation of powers requirement.
How tangled the web becomes.