Thursday, December 18, 2008

Justices: Please tell us how it is a "closed class of one"

Just reviewed the live blog transcript by Atty. Robert Thomas. Mahalos to Robert Thomas for the following:

"Audio Recording of Hawaii Superferry Supreme Court Oral Arguments (mp3)"
"The Court has released the audio recording of this morning's oral arguments in the Hawaii Superferry (part II) case. Download the mp3 here (caution, it is a 40mb file). The archive of this morning's live blog of the arguments is posted here. The briefs in the case are posted here."

Was surprised that there was very little discussion/questions on the fact that Act 2 has no "No Action" alternative on the whole project, a reduction in public rights from Chapter 343 to Act 2.

Instead there were a slew of questions from the Justices on whether Act 2 is special legislation for a "closed class of one." From the actual audio file, rather than the live blog reporting, it is clear that Hall did specify points in Act 2 that create the "closed class of one." By the below transcript, it appears that the State was not well prepared for that line of questioning from the Justices.

If I have time, I'm going to go through Act 2, word for word, and list all of the conditions, explicit and implied, that narrow this to a "closed class of one."

On an implied point, others noted in the live blog that the state had already built the barges and ramps that were made specifically for HSF's exact measurements.

Another implied point is that to operate here in Hawaii, the large capacity ferry vessel would have to be built in the United States. There are no other companies with large capacity fast ferry vessels that would have met that requirement before the sunset of Act 2. I'll have to see if there are any other slow large capacity ferry vessels that could have met the domestically constructed requirement, but I think not. These are some of the key implied constraints that create a "closed class of one." I'll go over Act 2 soon for the explicit constraints toward the same.

Karen Chun has taken the time to cite the events of the past 12 hours. It is all interesting stuff. Hope she won't mind me reposting it here, so I can spend time on the "closed class of one."


Thursday, December 18, 2008

"State Supreme Court Hears Constitutionality of Act 2"

"You can view the briefs here. And a summary here. You can read along with live blogging from the Court starting 8:45am Thursday Dec 18 here.

The State Auditor released the second part of her report and it says:

'Because Hawai'i Superferry Inc. is the only ferry vessel company able to take advantage of the small window of time created by Act 2, it appears that the legislation was designed to benefit a single operator.'

The State Auditor's report is available here.

Derrick DePledge of the Honolulu Advertiser adds his reporting here. The Star Bulletin's Tom Finnegan here. Even the rabidly Republican, Lingle-fauning Maui News had to report this damning audit.

Sample of State Attorney Dodging the Justice's questions blogged by Robert H. Thomas at

9:34: Nakayama: how many businesses does Act 2 aplly two many businesses fit the description?

9:34 DOT: nothing in record to show that

9:35 Acoba: Act 2 says 'large cap ferry vessel company, etc...'

9:35 Is there any entity that fits that descript other than HSF?

9:35 DOT: on this record, no. Acoba: I am asking YOU.

9:35 DOT: not a factual distinction.

9:36 acoba: my question was whether any other entity that fits description.

9:36 acoba: any other ferry that uses Kahului harbor now?

9:35 DOT: not a factual distinction.

9:36 acoba: my question was whether any other entity that fits description.

9:36 acoba: any other ferry that uses Kahului harbor now?

9:36 Acoba: state only has agreement with HSF for use of K Harbor, right? No other entites or contracts?

9:37 DOT: Act 2 contemplates use of K harbor by others. Acoba: before it sunsets?

9:37 Acoba: you mean that other ferry companies may use K Harbor and sign agreements with State before Act 2 sunsets?

Check the Court Website to watch for the opinion."

Aloha, Brad

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