Sunday, December 16, 2007

Act V in the Ongoing Greek Tragedy that is the Hawaii Superferry; Maui Tomorrow to Appeal, Again

For those not following the Supperferry story, here it is in five Acts with a prelude to Act VI:

Act I: The Hawaii Superferry brokers deal with State Department of Transportation and State Legislature to avoid preparing an environmental impact statement (“EIS”) and obtain millions of dollars in government funds for harbor improvements.

Act II: Superferry is ready to launch but is sued by Maui Tomorrow, et al., in Maui’s trial court to stop operations until an EIS is prepared. The Maui trial court rules in favor of Superferry and the Superferry prepares to set sail.

Act III: Maui Tomorrow, et al., appeals to the Hawaii Supreme Court; the Court disagrees with the Maui trial Court. Based on the Supreme Court’s opinion, the trial court reverses its prior injunction and Superferry operations cease until such time as it prepares an EIS.

Act IV: The Legislature steps in and passes legislation that is signed into law as Act 2. The Act allows ferries, like the Superferry, to operate while it prepares an EIS-like document under the new legislation. Based on the Act, the Maui court reverses its decision. The Superferry sets sail.

Act V: The Maui Tomorrow, et al., set to appeal again, arguing that Act 2 is void as “special legislation.”

In this Act V, the Supreme Court will need to decide whether Act 2 is impermissible special legislation or permissible “general legislation.” The term “general legislation," also referred to as “general laws," has been interpreted as laws which apply broadly or to a class of persons or entities. Special laws, on the other hand, are those laws that apply to a specific person or entity.

Some states have legislation which bans special laws, Hawaii does not. However, Art. XI, Sec. 5 of Hawaii’s Constitution appears to prohibit special laws that touch on state lands as follows:
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, except in respect to transfers to or for the use of the State, or a political subdivision, or any department or agency thereof.
At issue here is the use of state harbors which are “lands owned by or under the control of the State.” So at first glance Act 2 would be an improper special law that specifically applies to the Superferry’s use of state lands.

However upon closer inspection, Act 2 does not mention the Superferry by name, instead it generally applies to “large capacity ferry vessels” which are defined as a inter-island ferry vessels that “transports, is designed to transport, or is intended to transport per voyage at least five hundred passengers, two hundred motor vehicles, and cargo between the islands of the state.” (See Superferry Split Between Houses.) So it could be argued that Act 2 applies to a class, not a specific entity, and therefore is a permissible “general law.”

This later argument was heard in the Maui trial court in November 2007, and formed the basis of the trial court’s reversal of its injunction preventing operation of the Hawaii Superferry.

Will the Supreme Court agree with the trial court this time around? Will Hawaii sink its only alternative means of transportation in its island state, and enter the economic recession with the title: Worst State to Do Business? Or will reasoned minds prevail? Stay tuned for Act VI.


Charley Foster said...

Isaac Hall made the special law argument before Judge Cardoza. For its part, the state sited Bulgo v. Maui County, 430 P.2d 321, 50 Hawai'i 51 (1967). 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. Of course, the court can always change its mind or, if it would rather not appear to be doing that, it can distinguish.

Hawaii Land Use Law and Policy said...

Yes, but you leave out an important distinction: The Hawaii Constitution was revised so that it prohibited the State from making special laws regarding the counties; i.e., the state can only pass general laws with respect to the functions and operations of Hawaii's various counties. Act 2 is not a law that regulates counties, so the case you cite is inapposite to the relevance of Act 2.

Unknown said...

Why is it these appeals are continued to be allowed without the appealing party being required to post bonds for damages?

Hawaii Land Use Law and Policy said...

A bond may be required by the circuit court where it considers it proper for the security of the rights of the adverse party. However, the court does not usually grant relief sua sponte, the affected party must move the court.