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Tuesday, March 17, 2009
March 17, 2009 News Read
By Andrew Walden @ 5:36 AM :: 12646 Views

Superferry law unconstitutional: Supreme Court decision causes shutdown, orders enviro-lawyers to be paid

The current Legislature had already declined to extend Act 2 beyond July 31, when it expires. The law had allowed the ferry to operate between Honolulu and Kahului while an environmental assessment was prepared. The court remanded the case to 2nd Circuit Court.

The Hawaii Constitution requires that all legislation (except transfers of particular pieces of property) be of general impact. It found that although the law was written to apply to a "large-capacity ferry vessel," in reality only one such vessel and operator were in existence or likely to try to enter the business within the 21 months before the law was scheduled to expire.

This question is rarely appealed. Only once before has the state's highest court considered it. That was in 1967, in a Maui County case, and the court found that the law in question was general. Monday's decision is the first time a Hawaii state law has been found unconstitutional because it applied only to one person or corporation.

The court also affirmed that 2nd Circuit Judge Joseph Cardoza was within his discretion when he awarded attorney's fees to the appellants, Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition, under the private attorney general doctrine.

That also was a first in Hawaii. The doctrine says that if private litigants pursue a lawsuit that benefits the public generally, then they can be awarded fees even though usually they would not be. The state Department of Transportation and Hawaii Superferry will have to pay fees of about $86,000 to plaintiff attorney Isaac Hall, plus another $4,500 in costs.

The five-member court was not unanimous. Associate Justices Simeon Acoba and James Duffy and acting justice Michael Town (recently named in Malu Motta case) agreed. Associate Justice Paula Nakayama wrote a separate concurrence, though dissenting in part; and Chief Justice Ronald Moon joined her.

In 1967, in Bulgo v. County of Maui, the court had considered a law whose purpose was to provide for succession when a chairman of the Board of Supervisors died. Although it was written narrowly to address deaths that had occurred within a few weeks, and the court said only one supervisor had actually died during that period, nevertheless the law was general in that it applied to any county in the future that wished to pattern its succession as Maui had (even though no other counties at the time wanted to).

In the Superferry case, the court said that although the law provided an illusion of generality, the fact that it was to be in effect for, at most, 21 months made it impossible for any other entrant to take advantage. Citing a Colorado case, the court found that in reality Act 2 was meant for Superferry and only Superferry.

This is the second time the Supreme Court has acted to tie the ferry Alakai to its home pier at Honolulu.

TEXT OF RULING: http://www.state.hi.us/jud/opinions/sct/2009/29035.pdf

RELATED: Advertiser, Star-Bulletin, KHNL, KGMB, KITV   

Background: Unperplexing Opposition to the Hawaii Superferry, Hawaii Superferry Update: A Rat, A Coward and Thin-Skinned Pseudo Intellectuals  

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Loss of Superferry would be 'devastating,' Lingle says

Gov. Linda Lingle told reporters this afternoon that she wanted to talk with the state attorney general's office and state lawmakers about the state's options, including whether to ask the Supreme Court to reconsider its ruling on the law that allows Hawaii Superferry to operate without a complete environmental impact statement.

"But we know from the beginning we were correct and accurate, did the right thing, and we've been able to provide a great service for the people of Maui and Oahu, one that they've come to appreciate and in some cases to depend upon, especially in the case of small businesses.... I think it would be devastating for the Superferry to stop its operation," she said.

(Options: Legislature extends Act 2 and indefinitely gives up authority to conduct environmental review of ANY future "large capacity ferry vessels."  or  Supreme Court revisits decision and strikes down portion of Act 2 providing 21 month time limit on law.)

Maui News: Officials say trips will stop for now  (Maui legislators split on decision)

SB: Ferry shutdown to cause economic ripple effects, Turbulent times for Superferry

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Unions-Police-Meth-Gambling linked in case

A key player who brokered information between drug and gambling operators and corrupt police officers got 2 1/2 years in prison yesterday in exchange for his cooperation in three federal cases. 

Saguibo was one of 23 people indicted in 2006, including five officers and a secretary for the FBI, after an extensive FBI investigation.  Saguibo had entered into a plea deal in 2007 with the government for testifying against police officers in both a drug trafficking case and a gambling case involving a Waialua cockfighting operation.

Saguibo was indicted for passing on police information to the drug-trafficking organization and was a source of police information to drug felon Charles Gilman; his father, Douglas Gilman; and his two brothers who were running a cockfighting operation.  Saguibo pleaded guilty to conspiracy to distribute and to possess with intent to distribute 500 or more grams of methamphetamine in the drug case, and to conspiring with police officers Bryson Apo, Kevin Brunn and Glenn Miram to obstruct law enforcement with the intent to facilitate an illegal gambling business.

Saguibo had also provided information against his uncle Benjamin Saguibo, a union leader, in an unrelated (sic) case involving the Laborers' Union and theft of union money.

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Hawaii ranked on personal freedom

Hawaii ranked 46th worst for its fiscal policy freedom, 36th worst for its state regulatory freedom; 44th worst for economic freedom; 28th worst for personal freedom and 45th worst for the overall freedom ranking.  The data used to create the rankings are publicly available online at http://www.statepolicyindex.com

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State's DOT List To Use $246 Million Stimulus

Neighbor Makua Annon, whose family will have to temporarily move during the project, said state officials have been telling him about it for nearly one decade.  "My son was born in 2000, and he's 9 years old now, and they told us then, and about every year after that, you know, it was like, 'OK, we got to find a place to live again.' It was just, 'Not yet. Not yet,'" Annon said.

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Pork Dreams: Waipahu folks urged to speak up about rail

Transit-Oriented Development relates to the structures surrounding the terminals for the rail transit system. It would include housing, commercial space and even recreation space around the transit stations.

The two transit terminals in Waipahu are located at Farrington Highway-West Loch, in front of Don Quijote, and the Waipahu Transit Center.

"I think the bottom line is we really want to encourage the community to please come out and participate," Hannemann said yesterday at a news conference. "This is your plan. This is your vision. This is your future."

"We want to be real careful about not getting too much ahead of ourselves," Hannemann said. "We need to have a template, a vision, a plan the community can buy into. Then we can talk turkey in terms of what we need to do to entice a developer."

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Judge lets child enticement suspect return to Arizona

Rangie Alangcas didn't anticipate he'd be arrested and would have to stay in Hawaii for so long. The suspected Internet predator says he needs to go back to Arizona....

"You're going to keep in contact with your attorney?" Circuit Court Judge Derrick Chan asked.  "Yes," the defendant replied.

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SB: How to increase taxes

"I'd like to say no taxes, no labor cuts, no nothing," says Sen. Donna Kim, chairwoman of the Ways and Means Committee, "but the hospitals are in trouble, mental health, all the safety nets are coming crumbling down." Lingle responds that raising taxes or laying off employees "would further weaken our economy."

Lingle and legislative leaders can avoid a train wreck by reaching a compromise that could include tax changes — removal of the state's tax deduction for gambling losses should be at the top of the list — while directing most of the rainy day funds at state programs and nonprofit organizations aimed at helping the needy. Any tax increase should have an expiration date of a year from now.

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Kauai Mayor trims budget blubber stresses "sacrifice"

The proposed budget for the 2010 fiscal year of $153.9 million is a 2.5 percent decrease from the current year, the first time in more than a decade that the budget has grown smaller rather than larger, according to an administration official.
While Carvalho had asked department heads to reduce their budgets by 10  percent without implementing layoffs, the county saved about $2.5 million by opting to not fill 34 positions. Many of those will be “dollar-funded” — left vacant but funded with the minuscule amount of $1 apiece to keep them available for future use.
Other cuts to the county’s travel budget ($217,000 in savings), new equipment requests (63.9 percent reduction), and the number of take-home vehicles, excluding the police department (65 percent reduction) will help make up for an expected revenue decrease of $6.3 million in fiscal year 2009.
“Sacrifice can be painful and we know our employees in the coming months will certainly be tasked with doing more with less,” Carvalho said.

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