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The Honolulu Advertiser
Posted on: Thursday, November 15, 2007

Special legislation? Judge didn't think so

 •  Judge lifts injunction on Hawaii Superferry

By Christie Wilson
Advertiser Staff Writer

Much of the legal debate in court focused on Article XI, Section 5, of the Hawai'i Constitution that states that "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."

Attorney Isaac Hall said Act 2 is clearly "special" not "general" legislation designed to solely benefit Hawaii Superferry and specifically grant the company use of 5.1 acres of state land at Kahului Harbor.

State Attorney General Mark Bennett said Article 11, Section 5, has not been subject to court interpretation yet, but that its legislative history shows it was meant to prevent lawmakers from conveying a particular property to a particular recipient. The law was passed likely in response to "sweetheart land exchanges" in territorial days between the state and the "Big Five" corporations, he said.

The attorney general argued that Act 2 is not special legislation because language in the law states that it applies to any "large capacity ferry vessel company." Although that category includes Hawaii Superferry, it would apply to any other ferry company wishing to do business in Hawai'i, so it does not violate equal protection standards, according to Bennett.

"The fact that it may apply only to one party is irrelevant as long as you have set up a class and it is rational ... then it is not special legislation," Bennett said.

He noted the law also does not legislate use of a particular property, since it states that ferry companies can use Kahului Harbor and improvements and facilities on any other islands.

Hall retorted that Bennett was taking the court and others for "village idiots" by arguing that Act 2 was not crafted specifically to salvage Hawaii Superferry.

"There is no one in this whole world who thinks this is anything but 'Superferry legislation,' " he said.

Bennett reminded Maui Circuit Judge Joseph Cardoza of his own words in granting the injunction on Oct. 9 and in a subsequent order, saying, "The obligation of this court is to apply the law as it is written. The court is not authorized to rewrite our laws."

The injunction was based on state law as it existed at the time, Bennett said, but Act 2 changed the law and legislated that the ferry can operate while the review is under way. The legal basis for the injunction has disappeared, he said.

Cardoza agreed with Bennett on every point, saying the governor is authorized to convene a special session, and that Act 2 requires the executive branch to comply with its public trust duties and that compliance with those duties will be closely monitored.

He said Article 11, Section 5, was not relevant to Act 2 since the new law does not involve legislative power over state lands.

Act 2 "is clearly focused on removing large capacity ferry vessel companies from the scope of Chapter 343 and the environmental review process. Whether that reflects good or bad legislative policy is certainly a question that can be discussed, but it does not render Act 2 unconstitutional," Cardoza said.

Although prior court rulings prohibited commencement of Hawaii Superferry before environmental review, the judge said Act 2 removed large capacity ferry vessels from the purview of Chapter 343. In determining that the new law is constitutional, he said he had no option but to dissolve the injunction.

Reach Christie Wilson at cwilson@honoluluadvertiser.com.