FOURTH AND FORTY: The Office of Information Practices (OIP) has been taking it on the chin lately over what has been described ad nausium as their decision to "punt" to the courts on this issue of whether Governor Neil Abercrombie had to reveal the full list of his judicial nominees after he made the appointment.
For those who haven't been following the story Abercrombie's predecessors routinely released the list but he claims that doing so would result in attorneys' reluctance to apply, should their law firms or clients find out.
The story has been reported and analyzed in the mainstream and alternative press as well as blogs- both mainstream and alternative- culminating with a Honolulu Star Advertiser editorial today and all have one thing in common- they routinely miss the point in criticizing the OIP for not opining on the matter since, they say, the law appears to require them to do so.
Typical of the criticisms is today's post by S-A columnist/blogger Dave Shapiro who, in telling the saga thus far, writes:
The saga of Gov. Neil Abercrombie’s secrecy on the names of judicial candidates has taken a troubling new turn with his hand-picked director of the Office of Information Practices, Cheryl Kakazu Park, refusing to issue an opinion on whether state law allows the governor to keep secret the nominees given him by the Judicial Selection Commission.
Park said it’s a waste of time for OIP to become further involved because Abercrombie has said he’ll ignore any OIP opinion against him unless a court tells him he must abide.
Park’s “punt,” as one news story described it, isn’t surprising; her predecessor, Cathy Takase, was fired after ruling against Abercrombie with a letter reiterating a 2003 OIP ruling that the names must be released.
The troubling part is that the governor now has not only shut the public out of the process of selecting judges who wield great power over our lives, but has politicized the OIP in an unprecedented way that diminishes its credibility and relevance.
And the law seems to be clear as is set out in this passage from blogger Ian Lind's post on the subject:
In Section 92F-42, which sets out the powers and responsibilities of OIP, this is right there at the top of the list. Responsibility #1.
The director of the office of information practices: (1) Shall, upon request, review and rule on an agency denial of access to information or records, or an agency’s granting of access;
I added the bold type on the word “shall.” OIP shall rule on an agency’s denial of access. It doesn’t use the word “may,” which would have given OIP discretion on whether to issue a ruling. It doesn’t say that OIP shall rule except when it looks futile because an agency stubbornly insists that it has the right to do whatever it wants. It says, simply, OIP shall do this job. It’s #1 responsibility. Top of the list, top line priority.
Someone needs to go back to OIP and ask what legal authority they have to “punt” in this case, given what appears to be clear statutory language (emphasis Ian's).
The problem is that each and every one who has written on the subject has either failed to read or comprehend the operative sentence in the letter from Park:
Toward the end of her memo she simply writes that:
since the Hawaii Supreme Court's (ruling) in County of Kaua`i vs Office of Information Practices OIP has been issuing advisory opinions rather than determinations.
For those for whom the case doesn't ring a bell it revolves around the infamous Kaua`i County
Council executive session- ES 177- the tentacles of which not only chimed over and over in Kaua`i Police Deportment politics for years but was one of the major highlights of the tale told in the book KPD Blue (see right rail).
At the secret conclave, then and now-again Councilmember Mel Rapozo, who was present at the infamous lap dance party at KPD headquarters and lost his cop job because of it- went off on KPD personnel blasting Chief KC Lum and others in the department according to an OIP memo observed but not copied by PNN at the time.
After an "on camera" examination the OIP ordered the minutes of the meeting to be released but the county, in the person of County Clerk Peter Nakamura, acting on the orders of then Council Chair Kaipo Asing, refused and decided to sue in circuit court.
The problem, as far as the OIP was concerned, was that the OIP was set up, in part, just to avoid these kinds of inter-agency lawsuits and then Director Les Kondo fought the case tooth and nail to avoid having the OIP become a "toothless tiger".
He argued that the provision allowing parties aggrieved by the OIP to sue in circuit court was to provide due process to individuals who were denied access to records, not for agencies told to "give 'em up" to sue the OIP. And he presented not just the specific wording of the law but the legislative committee reports- which clearly stated stated as much- as evidence.
But, to perhaps over simplify, the Supreme Court (SC) didn't listen or didn't care what Kondo foresaw happening to the OIP.
They essentially ruled that the county was entitled to access to the courts if due process was to be served. They also ruled, somewhat bizarrely, that although the request was for the minutes of ES-177- a "record request" over which the law clearly gave OIP authority in HRS 92F- it was actually a suit regarding a meeting, which falls the Sunshine Law (HRS 92) where the OIP did not have the "final bite of the apple" authority.
That essentially meant ithat Kondo's argument was deemed irrelevant.
And now the chickens have come home to roost.
In dealing with the ruling the OIP has simply stopped handing down binding opinions as the law calls for and now simply issues "advisory opinions", all of which can be appealed to the circuit court by anyone, as the SC precedent said.
Kondo was almost apoplectic over what he saw as the end of the OIP and of course he was right. But the Hawai`i press still doesn’t get it.
The SC opinion is not entirely clear as to whether the case was decided on the minutes vs open meeting matter or the lack of due process, the latter seeming to be just to get around Kondo's argument and get to what they- and the C of K- saw as the meat of the issue at hand... the release of the ES-177 minutes.
The County may have won the case but people who value open government and records rue the day that the decision came down. And until our punditry class cuts through the clutter of the politics of the judicial appointment list case and recognize the roots of the OIP's action, we'll continue to be kept in the dark about the state of affairs in the OIP.
Showing posts with label Hawai`i Supreme Court. Show all posts
Showing posts with label Hawai`i Supreme Court. Show all posts
Tuesday, May 17, 2011
Monday, August 16, 2010
WILL IT GO ROUND IN CIRCLES
WILL IT GO ROUND IN CIRCLES: It wouldn’t be the first time the state took a cue from one of the more outrageous abuses of process originating on Kaua`i- and it certainly won’t be the last.
But let’s back up a bit.
An article in last Thursday’s Honolulu Star-Advertiser announced
Changes proposed to state land rules
The first revisions in 16 years involve shoreline boundaries and permits
It reports that:
The first update of conservation land use rules in 16 years would change the shoreline setback, eliminate required permits for activities like weeding and increase fees.
The proposed changes, outlined in a 71-page document by the state Department of Land and Natural Resources, are being reviewed through public meetings. Today's will be in Honolulu.
The revisions have some environmental organizations concerned.
Among the more significant changes would specify shoreline setback, a line past which no structures or coastal alterations are allowed. Numerous lawsuits have been filed over designations of public and private access along the shorelines.
Some of the changes will include those required by the Supreme Court of Hawai`i (SCOHI) decision in the case brought by Kaua`i North Shore resident Caren Diamond that redefined the shoreline determination process.
But a side bar to the article lists some of the changes the new rules will try to bring about including one that goes unmentioned in the piece:
Rules would specify that only people with property interest, residency on the land or anyone directly affected by a permit can appeal. Rules now state that "any person" can appeal to the department.
Now maybe they missed it but that rule would apparently fly in the face of a more recent SCOHI case, County of Hawaii v. Ala Loop Homeowners, which essentially held that any land use effects the environment and that triggers Article XI, Section 9 of the Hawai`i State Construction which reads:
Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law
That would seem to preempt any restriction on who can sue when it comes to “land use rules” of the DLNR.
So what does this have to do with Kaua`i?
The use of administrative rules to try to define-out-of-existence provisions of the county charter- the county’s equivalent of a constitution- was the central issue of the two year Kaua`i Board of Ethics (BOE) brouhaha when county attorneys used both a county ordinance and the BOE’s rules to narrow the plain reading of Section 20.02(D) of the charter which bans county employees and board and commission members from “appear(ing) on behalf of private interests” before other boards and commission.
Apparently the DLNR may be paying attention to our local shenanigans and are attempting to slip through a rule that could at least temporarily bog down what land use attorneys across the state have called a “newly created right”- that of private citizens to sue over land use decisions.
It’s enough to make a local good old boy’s chest swell with pride to think little Kaua`i could come up with a process corrupt enough to be used by the masters at DLNR.
But let’s back up a bit.
An article in last Thursday’s Honolulu Star-Advertiser announced
Changes proposed to state land rules
The first revisions in 16 years involve shoreline boundaries and permits
It reports that:
The first update of conservation land use rules in 16 years would change the shoreline setback, eliminate required permits for activities like weeding and increase fees.
The proposed changes, outlined in a 71-page document by the state Department of Land and Natural Resources, are being reviewed through public meetings. Today's will be in Honolulu.
The revisions have some environmental organizations concerned.
Among the more significant changes would specify shoreline setback, a line past which no structures or coastal alterations are allowed. Numerous lawsuits have been filed over designations of public and private access along the shorelines.
Some of the changes will include those required by the Supreme Court of Hawai`i (SCOHI) decision in the case brought by Kaua`i North Shore resident Caren Diamond that redefined the shoreline determination process.
But a side bar to the article lists some of the changes the new rules will try to bring about including one that goes unmentioned in the piece:
Rules would specify that only people with property interest, residency on the land or anyone directly affected by a permit can appeal. Rules now state that "any person" can appeal to the department.
Now maybe they missed it but that rule would apparently fly in the face of a more recent SCOHI case, County of Hawaii v. Ala Loop Homeowners, which essentially held that any land use effects the environment and that triggers Article XI, Section 9 of the Hawai`i State Construction which reads:
Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law
That would seem to preempt any restriction on who can sue when it comes to “land use rules” of the DLNR.
So what does this have to do with Kaua`i?
The use of administrative rules to try to define-out-of-existence provisions of the county charter- the county’s equivalent of a constitution- was the central issue of the two year Kaua`i Board of Ethics (BOE) brouhaha when county attorneys used both a county ordinance and the BOE’s rules to narrow the plain reading of Section 20.02(D) of the charter which bans county employees and board and commission members from “appear(ing) on behalf of private interests” before other boards and commission.
Apparently the DLNR may be paying attention to our local shenanigans and are attempting to slip through a rule that could at least temporarily bog down what land use attorneys across the state have called a “newly created right”- that of private citizens to sue over land use decisions.
It’s enough to make a local good old boy’s chest swell with pride to think little Kaua`i could come up with a process corrupt enough to be used by the masters at DLNR.
Tuesday, August 3, 2010
SHHHH
SHHHH: There was a plethora of reported jaw dropping among Governor Linda Lingle and her cronies over the “Hawaii State Bar Association's board of directors' rating of appeals Judge Katherine Leonard as ‘unqualified’ to be Hawaii's next chief justice”.
Strangely enough the news of the rejection of Leonard by the bar wasn’t Starvetizer courts reporter Ken Kobayashi’s lede but instead he stressed the professed outrage of Lingle and her republican cronies in the legislature over the secrecy of the bar’s vote.
But we’ve got a lowered mandible ourselves over Lingle’s colossal nerve to criticize the closed vote, especially considering her own legacy of clandestine operations and the notorious way judges in Hawai`i wield their retaliatory sway over attorneys and others in the judiciary, according to many we’ve spoken to over the years.
Lingle and her administration’s abuse of Hawai`i open records laws has been notorious but for those who want to hear the ultimate story of fear and loathing they need turn no farther than legislative staffer Doug White’s recently revived Poinography blog.
Doug finally explained what he was up to in the year plus absence of his popular blog by telling one of those hilarious-if-it-wasn’t-so-serious tales of the runaround he got over a simple record request of the Lingle administration- not to mention the invoice for his temerity in requesting the records for Lingle’s requests for input on the bills she threatened to veto after the 2009 legislative session.
In My UIPA saga – a $1582.15, twelve month struggle White recounts the evasions, lies, delays and the incredible barriers he experienced at the hands of the Lingle administration making any charges of secrecy from her a joke.
We won’t even attempt to truncate the tale- you’ve got to read it for yourself as well as the indexing and posting of the results which White is busily compiling which are already painting a picture of consultation with everyone who is guaranteed to support her position and avoidance of anyone who might dissent.
Also notable is the lack of consultation with the Lt. Governor and current gubernatorial candidate Duke Aiona regarding which we’ll allow you to draw your own conclusions.
Lingle’s legacy of covert governance and feigned outrage over every perceived slight takes a backseat to no other past state administration’s- and that’s saying a lot.
Strangely enough the news of the rejection of Leonard by the bar wasn’t Starvetizer courts reporter Ken Kobayashi’s lede but instead he stressed the professed outrage of Lingle and her republican cronies in the legislature over the secrecy of the bar’s vote.
But we’ve got a lowered mandible ourselves over Lingle’s colossal nerve to criticize the closed vote, especially considering her own legacy of clandestine operations and the notorious way judges in Hawai`i wield their retaliatory sway over attorneys and others in the judiciary, according to many we’ve spoken to over the years.
Lingle and her administration’s abuse of Hawai`i open records laws has been notorious but for those who want to hear the ultimate story of fear and loathing they need turn no farther than legislative staffer Doug White’s recently revived Poinography blog.
Doug finally explained what he was up to in the year plus absence of his popular blog by telling one of those hilarious-if-it-wasn’t-so-serious tales of the runaround he got over a simple record request of the Lingle administration- not to mention the invoice for his temerity in requesting the records for Lingle’s requests for input on the bills she threatened to veto after the 2009 legislative session.
In My UIPA saga – a $1582.15, twelve month struggle White recounts the evasions, lies, delays and the incredible barriers he experienced at the hands of the Lingle administration making any charges of secrecy from her a joke.
We won’t even attempt to truncate the tale- you’ve got to read it for yourself as well as the indexing and posting of the results which White is busily compiling which are already painting a picture of consultation with everyone who is guaranteed to support her position and avoidance of anyone who might dissent.
Also notable is the lack of consultation with the Lt. Governor and current gubernatorial candidate Duke Aiona regarding which we’ll allow you to draw your own conclusions.
Lingle’s legacy of covert governance and feigned outrage over every perceived slight takes a backseat to no other past state administration’s- and that’s saying a lot.
Monday, August 2, 2010
PEA POD POLITICS FOR PEABRAINS
PEA POD POLITICS FOR PEABRAINS: As many read last week Goofy Mufi Hannemann had his usual blinders on in ignoring an Associated Press article the week before that confirmed what we all knew- that Hawaii Superferry (HSf) Inc.’s claim that they were victims of the courts and those crazy environmentalists was a bogus piece of PR from a company that was actually drowning in red ink created by their own lack of a realistic business plan- although the article missed a chance to dig deeper and find out the ferry was created to fail as part of a military demonstration project for the littoral design.
Mufi’s pledge to bring back the same vessels- even though their size was half the reason for the bankruptcy- demonstrates just how much more damage there is to be done if a Hannemann administration gets it’s hands on the already damaged machinery of the state under the equally mentally and morally challenged Linda Lingle.
And as if to underline some of that damage, in an article about the delays in obtaining an environmental impact statement (EIS) for a UH coral reef research project it was reported that:
Part of the delay is that the state body that could grant UH an exemption to the EIS requirement has not met since Aug. 17 of last year...
The council tried to hold a meeting in late June, but was unable to book adequate state videoconference facilities, Steiner said.
"It seemed like we were moving forward, then it just stalled," she said. "I think that it is not a priority to our state or to our administration to have an active Environmental Council."
Steiner said council members have expressed concern that the group is being penalized possibly for ruling in 2007 that the state Department of Transportation erred when it exempted Superferry harbor improvements from an environmental review. That decision was later supported by a Hawaii Supreme Court ruling that eventually led to the demise of the interisland ferry.
Though the administration pooh-poohed the connection it’s just another symptom of how the state apparatus- especially for environmental protection- is still addled by Lingle’s denial of what even proponents view as the boneheaded way she handed the Superferry EIS and how it continues to hamstring the state EIS process, having created a pissed off Environmental Council and an administration bent on revenge.
Hannemann and Lingle apparently share one thing- a pig-headed battering ram style that scares the heck out of those who have been looking forward to a change of approach in November.
Mufi’s pledge to bring back the same vessels- even though their size was half the reason for the bankruptcy- demonstrates just how much more damage there is to be done if a Hannemann administration gets it’s hands on the already damaged machinery of the state under the equally mentally and morally challenged Linda Lingle.
And as if to underline some of that damage, in an article about the delays in obtaining an environmental impact statement (EIS) for a UH coral reef research project it was reported that:
Part of the delay is that the state body that could grant UH an exemption to the EIS requirement has not met since Aug. 17 of last year...
The council tried to hold a meeting in late June, but was unable to book adequate state videoconference facilities, Steiner said.
"It seemed like we were moving forward, then it just stalled," she said. "I think that it is not a priority to our state or to our administration to have an active Environmental Council."
Steiner said council members have expressed concern that the group is being penalized possibly for ruling in 2007 that the state Department of Transportation erred when it exempted Superferry harbor improvements from an environmental review. That decision was later supported by a Hawaii Supreme Court ruling that eventually led to the demise of the interisland ferry.
Though the administration pooh-poohed the connection it’s just another symptom of how the state apparatus- especially for environmental protection- is still addled by Lingle’s denial of what even proponents view as the boneheaded way she handed the Superferry EIS and how it continues to hamstring the state EIS process, having created a pissed off Environmental Council and an administration bent on revenge.
Hannemann and Lingle apparently share one thing- a pig-headed battering ram style that scares the heck out of those who have been looking forward to a change of approach in November.
Tuesday, May 4, 2010
TIME
TIME: The time elapsed since our piece last Friday hasn’t done anything to help us figure out how to sort out the reasons for- and thereby find a way to communicate- the conflation of civil unions and same gender marriage- or more actually “same ‘sex’ marriage” as opponents say, preferring to use the much more emotionally-packed term over the word that communicates a more neutral connotation.
Obviously there are the disingenuous who seek to confuse the issue given the knee-jerk reaction to the word marriage. But there are also the genuinely confused who are easily manipulated by the continual reference to marriage even after proponents gave up on full equality in addition to obtaining the enumerated rights conferred in civil unions.
The motives of some are transparently to deceive, such as those expressed in today’s local newspaper by the always conniving and smarmy Jimmy Tokioka who, when asked why he voted against civil unions responded that “state law indicates that marriage is valid only between a man and a woman” according to a paraphrase by the reporter who quoted Tokioka as saying:
“Again the concern from many is about ‘marriage’ — an issue that, if the Supreme Courts should ever opine, would make it clear what the separation of church and state actually means in regards to ‘marriage.’
“Until then Hawaii Revised Statutes clearly spells out the issue of marriage being between one man and one woman.
But then there are also those that allegedly responded to Tokioka’s manipulation after:
In addition to polling constituents via U.S. mail, Tokioka also sent out e-mails to constituents that read in part: “I hope you know that this issue was very difficult for me and I believe many others to make.”
They naturally repeat what they read and hear and probably, through no disingenuity on their part, actually believe that the bill is still a “same sex marriage” measure.
So why do we rehash this?
We assume a veto is in the cards having watched Unified Commander Lingle in action for almost eight years. And that means that we have to do one of two things.
The first option is to stop allowing those in the media to perpetuate the confusion and include in every reference to “same sex marriage” in an article about cavil unions a distinction between the two as a factual matter.
If every time they did it- which has been every day since passage and will most likely be every day until the veto- they got a handful of letter reminding them of the facts of the matter it would at least end the reinforcement through repetition- or “the big lie” as it’s called.
But we’ve got to wonder if it’s too late and the conflation has taken hold to the extent that it’s irreversible.
We’ve been speaking to some proponents over the last few days and it’s becoming apparent that with the failure during this two-year legislative cycle- as well as the one before- there’s a movement to play the final card... filing suit, the second possibility.
Although the makeup of the Hawai`i Supreme Court has changed since the early 90’s decision saying that denying same gender marriage was unconstitutional- which led to the 1998 constructional amendment allowing the legislature to restrict marriage to a man and an woman- the basic premise is the same.
The decision was based on the fact that the actual rights conferred to two people in a marriage were- and now are still- unavailable to some and the only difference is gender- a protected class under the Hawai`i state constitution.
Some say that after eight years of Republican Lingle’s appointments we should follow a “don’t ask, don’t tell” attitude toward the supreme court.
The question is whether we can we count on supposedly sober jurists to make the distinction. Whether or not may not matter as much as the answer to the question of how much longer we’re supposed to wait for civil rights.
For the past 12 years we’ve reluctantly given up on the fight for the word “marriage” and taken a “give the babies their bottle” approach. But that doesn’t mean we have to give up the milk even if we have to use a sippy cup to enjoy it.
Obviously there are the disingenuous who seek to confuse the issue given the knee-jerk reaction to the word marriage. But there are also the genuinely confused who are easily manipulated by the continual reference to marriage even after proponents gave up on full equality in addition to obtaining the enumerated rights conferred in civil unions.
The motives of some are transparently to deceive, such as those expressed in today’s local newspaper by the always conniving and smarmy Jimmy Tokioka who, when asked why he voted against civil unions responded that “state law indicates that marriage is valid only between a man and a woman” according to a paraphrase by the reporter who quoted Tokioka as saying:
“Again the concern from many is about ‘marriage’ — an issue that, if the Supreme Courts should ever opine, would make it clear what the separation of church and state actually means in regards to ‘marriage.’
“Until then Hawaii Revised Statutes clearly spells out the issue of marriage being between one man and one woman.
But then there are also those that allegedly responded to Tokioka’s manipulation after:
In addition to polling constituents via U.S. mail, Tokioka also sent out e-mails to constituents that read in part: “I hope you know that this issue was very difficult for me and I believe many others to make.”
They naturally repeat what they read and hear and probably, through no disingenuity on their part, actually believe that the bill is still a “same sex marriage” measure.
So why do we rehash this?
We assume a veto is in the cards having watched Unified Commander Lingle in action for almost eight years. And that means that we have to do one of two things.
The first option is to stop allowing those in the media to perpetuate the confusion and include in every reference to “same sex marriage” in an article about cavil unions a distinction between the two as a factual matter.
If every time they did it- which has been every day since passage and will most likely be every day until the veto- they got a handful of letter reminding them of the facts of the matter it would at least end the reinforcement through repetition- or “the big lie” as it’s called.
But we’ve got to wonder if it’s too late and the conflation has taken hold to the extent that it’s irreversible.
We’ve been speaking to some proponents over the last few days and it’s becoming apparent that with the failure during this two-year legislative cycle- as well as the one before- there’s a movement to play the final card... filing suit, the second possibility.
Although the makeup of the Hawai`i Supreme Court has changed since the early 90’s decision saying that denying same gender marriage was unconstitutional- which led to the 1998 constructional amendment allowing the legislature to restrict marriage to a man and an woman- the basic premise is the same.
The decision was based on the fact that the actual rights conferred to two people in a marriage were- and now are still- unavailable to some and the only difference is gender- a protected class under the Hawai`i state constitution.
Some say that after eight years of Republican Lingle’s appointments we should follow a “don’t ask, don’t tell” attitude toward the supreme court.
The question is whether we can we count on supposedly sober jurists to make the distinction. Whether or not may not matter as much as the answer to the question of how much longer we’re supposed to wait for civil rights.
For the past 12 years we’ve reluctantly given up on the fight for the word “marriage” and taken a “give the babies their bottle” approach. But that doesn’t mean we have to give up the milk even if we have to use a sippy cup to enjoy it.
Thursday, December 18, 2008
A GUIDE FOR THE NASALLY IMPAIRED
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.
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.
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