Tuesday, December 9, 2008

Junk 'Law': Act 2 was Shoddily Written

Regarding the article today:

Hawaii Superferry's interisland service depends on court ruling
Service may be halted if high court rules against law that let ship operate
By Derrick DePledge Advertiser Government Writer Tuesday, December 9, 2008

Derrick continues to miss a few key points:

1) By the requirements throughout Act 2 rather than just the semantics of a "large capacity ferry vessel," there is only one company, HSF, that would have been able to meet all of the requirements and qualify for the benefits of Act 2, so Act 2 is defacto special law and not general law. Somebody should go through Act 2 and list all of the explicit and implied requirements and constraints and you will see only one company met those, mostly based on timing.

2) Also, Act 2, by it's wording, does not have an effective "No Action" alternative on the total project. It is clear from the scoping testimony handouts that Belt Collins is trying to incorporate "No Action" alternatives for dealing with individual mitigations such as harbor improvements, but there is No "No Action" alternative on the whole project by the very wording of Act 2. That is a substantive change from Chapter 343 to Act 2. That alone arbitrarily takes rights away from the public that existed under Chapter 343 and which the State Supreme Court previously affirmed.

If justice is to be done, Bennett's Act 2 will be thrown out for the shoddily written piece of junk that it is.

Aloha, Brad


charleyfoster said...

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.

(The case discussed is Bulgo v. Maui County, 430 P.2d 321, 50 Hawai'i 51 (1967)).

Anonymous said...

I'm curious if you similarly opposed
the Hawaii Legislation passing legislation bailing out Hawaiian Airlines and Aloha Airlines in the past. I'm my opinion, there is absolutely no difference between these situations and the Hawaii Superferry.

MauiBrad said...


I never really took a position on Aloha except to say that it was handled incompetently by the state and that no matter what we needed Aloha Air Cargo to keep going, as Inouye helped to arrange.

Without giving preference to one company, the state could have waved the excise tax paid on fuel in Hawaii which all of the local airlines here asked for in years past and the state did not do. There were a number of things like that that could have been done to help Aloha. Aloha's CEO kept telling people with Lingle and the state that they needed help, but he was just ignored until the very end when it was too late.

The difference is Banmiller was perceived to not have national political connections as others were perceived to have but ended up NOT being the case as the recent election clarified.

Oh, and Charley, you didn't answer the point about there being no effective "No Action" alternative FOR THE WHOLE PROJECT in Act 2 as it is worded and that being a diminished change from Chap. 343.

I'm so looking forward to Act 2 getting STRUCK DOWN. We're gonna party frickin' hard that night.

Aloha, Brad

John Powell said...

charley, brad don't have much use for that there fancy legal talk: he knows Act 2's just plain wrong, dagnabbit!

charleyfoster said...

John I love your picture. I recently read Larry McMurtry's book about Buffalo Bill and Annie Oakley, The Colonel and Little Missie. It was great.

I certainly would not be surprised if the court found a way to invalidate Act 2. But I don't think it will be based either on its being for the benefit of a single entity or that there is no "no action" alternative.

My prediction is that, if the court invalidates the law, it will be based on the "general law" language Brad refers to, but on a theory that the act exercises legislative power over state lands by other than a general law.

But I could be totally wrong.