Thursday, December 18, 2008


A GUIDE FOR THE NASALLY IMPAIRED: It was fascinating to follow the live blogging from attorney Robert Thomas today from the Hawai`i Supreme Court’s hearing on the Hawai`i Superferry (HSf), especially in light of the coincidental final report from State Auditor Marion Higa who apparently answered the central question for the court in the affirmative.

That question is whether the legislature’s Act 2 was designed to benefit a single business entity- something that all agree is illegal- or whether by referring to “large capacity ferry vessels” in general rather than the Hawai`i Superferry (HSf) as the original draft read, they made it legal.

And all the lawyers- not just in the court room but the handful who commented on the proceedings- very soberly, rationally and calmly debated the issue, especially regarding the only prior case in the state where a similar convolutedly written law called Bulgo was given the OK by the high court.

All that can be said to all these lawyers, as any true New Yorker would say, is “What am I, a freakin’ idiot?”.

Choose your expression here- “Are you gonna believe me or your lyin’ eyes” or “don’t piss on my foot and tell me it’s raining”.

Only a total fool- or perhaps an overeducated boob with a law degree-.would look at the facts and say the legislation was anything but specifically designed to enable one and only one company to operate..

Under questioning, the state’s lawyer’s only relevant response to the fact that there is and was only one company that has a ferry - and in light of the fact that there are no other large capacity ferries that are likely to operate before Act 2 expires next summer- was, essentially “well,,, it could happen.”.

Joan Conrow does an excellent job in summarizing the report from Higa, especially the part which describes the process by which the “special benefit” was bestowed on HSf, and links to all the reports on the audit and the lead-up to this morning’s court hearing.

But what remains mind-boggling is that it’s just possible that a panel of five judges- supposedly bright, rational people with a degree of common sense- could actually say no, it just a general law because that’s the way it was worded in the law itself.

Pay no attention to the facts behind the curtain- I am the great and powerful Unified Command of the Superferry.

Perhaps Conrow summed up best the attitude expressed by those who hope for some tunnel vision on the part of the court by saying:

So once again we have the Administration essentially claiming that all this circumventing and undermining was OK, because it was really in the public’s best interest, so Higa should just shut up and stop poking about in all the corners and closets.

But today it appeared the court just might open the pantry door and look in those nooks and crannies.

Chief Justice Moon actually asked if “Bulgo” was “wrongly decided” meaning that, although the plaintiff’s attorney Isaac Hall didn’t claim that in his briefs mostly because it’s not wise to rely on the overturning of prior decisions when filing a case.

But it’s hard to imagine how even the attorney’s for the state and HSf could make their arguments with a straight face that it is a generally applicable law.

The on line discussion was rather civil with only one lawyer joke but perhaps that’s why people deride lawyers and by extension the legal system. what they see is the officers of the court getting so hung up on the trees of the specific that the forest of the wider view becomes invisible in their carefully constructed house of cards.

The answer to the question “what are we freakin’ idiots?” is apparently yes in many cases.

Should the court rule that everything was hunky-dorey, reporters will go out and unquestioningly report the “facts” and the ferry will run and even the opponents in the legislature itself will all “accept the verdict”.

And we “idiots” will just sigh, sit back with a bag of Doritos and watch Oprah.

The decision, as someone said in a comment, could come either today or two years from now. Whether or not that decision leaves a wet acid odor on the feet of the Hawai`i Supreme Court it doesn’t speak well of anything or anybody whose lawyerly or political fingerprints are on this case that the matter has gotten this far.

Some people will try to convince you up is down and black is white. But don’t let ‘um fool ya. Does a tree make a sound if it falls in the forest and no one is there to hear it? Of course it freakin’ does. Which came the chicken or the egg? It’s the freakin’ egg.

Only a lawyer can convince you that Act 2 is sitting around to benefit some freakin’ slew of high capacity ferries.


Mauibrad said...

That's right Andy. With the events around the world in this day-and-age, you cannot boldface lie to non-lawyerly, but nevertheless educated people anymore.

Act 2 is special 'law' to benefit a closed class of one. Pono righteous lawyers and judges just need to have the fortitude to construct the sound argument that authenticates that reality that we all know.

Aloha, Brad

charley foster said...

I think the reason the answer seems so simple to you is because you have oversimplified the question. It's not actually a matter of whether the law benefits a single entity which, on its face is not illegal.

Rather, Sierra Club argued that Act 2 is illegal special legislation under Article I, Section 21 and Article XI, Section 5 of the state constitution. Section 21 prohibits the state from making an irrevocable grant of special privileges or immunities that would impair the general welfare. The state asserts that Act 2 does none of these prohibited things and, most convincingly in my opinion, that there is nothing irrevocable about Act 2.

Section 5 requires that the "legislative powers over the lands owned by or under the control of the state and its political subdivisions" be exercised only by "general laws." The state argues that Act 2 does not touch on legislative powers over state lands.

Andy Parx said...

Thanks for proving my point charley

charley foster said...

So what constitutional provision do you think Act 2 violates?

It doesn't strike me as irrevocable, which would eliminate Article I. I think it's a toss up whether Act 2 can be said to exercise legislative power over state lands.

charley foster said...


I posted a piece addressing your error that benefiting a single entity is, by itself, enough to render Act 2 illegal.