Wednesday, November 7, 2007

Judge Cardoza's hearing today from Lanny Sinkin's legal eye--a good read!

The Maui Hearing


The hearing before Judge Cardoza today is itself evidence that supports the constitutional challenge to the Superferry Bill.


The motion presented by the State and joined by the Hawai'i Superferry, Inc. asked the judge to shorten the time for the filing of the opposition to the motion to lift the injunction.   The only reason for the motion was to allow Superferry to operate.


The very motion confirms that the Superferry Bill is specifically written to affect the outcome of a finally decided case and is written to provide special privileges and immunities to one private company.   Both those characteristics make the bill unconstitutional.


The State also tried to get Judge Cardoza to withhold his findings of fact and conclusions of law prepared for the earlier decision entering the injunction.   The State's argument was that the law had changed.


Judge Cardoza properly responded that he could not make any decisions based on the new law because that is the matter on which he will hold a hearing next Wednesday.   So he will issue the findings and conclusions very soon.


During that argument, Isaac Hall argued that the findings and conclusions were relevant to the attorney's fees that the court awarded to the prevailing plaintiffs in the case and, therefore, should not be withheld.


The Attorney General responded by basically arguing that the changed law meant Isaac might not be entitled to attorney's fees for winning the case.


That exchange again demonstrates how bizarre the State's position is.  Regardless of any change in the law, the plaintiffs did prevail at the Supreme Court and in Judge Cardoza's enforcement action and are entitled to attorney's fees for those successes.   To argue that changing the law can change the factual situation that the plaintiffs prevailed is to claim changing the law changed history.  The argument is actually an argument that the new law changed the law to be used in the decided case, i.e. again confirms that the Superferry Bill is an unconstitutional attempt to change the law in a decided case.
Again, when a case is pending and the Legislature changes the law applicable in the case, the court is required to apply the new law to the pending case.  The Legislature can also pass a law that applies a different law to similar cases in the future.  What the Legislature cannot do is go into a final decision and change the law upon which that decision was made in order to change the outcome of that particular case.  Such power would place the Legislature as a super-court.  That's why the constitutional violation is a separation of powers violation.


Attorney General Mark Bennett had at his side Deputy Attorney General Wynhoff, the same person who called all the judges involved in the Superferry cases to encourage them to consider their jurisdiction to act in favor of Superferry as broader than they otherwise might.   We have argued that those contacts were legally inappropriate and created the appearance of impropriety calling into question the objectivity of the judges so contacted.


One interesting debate will be Isaac's announced intention to put on evidence that the conditions adopted by the Legislature and the Governor do not mitigate the possibility of irreparable harm found by Cardoza in his decision entering the injunction.


The legislation  is clear to me that the only body that can review the adequacy of the conditions and protocols adopted by the Governor is the Legislature, i.e. that judicial review of the adequacy of those measures is foreclosed.   The actual wording of the bill, page 17, is "The legislature reserves the sole right to: (1) Review the adequacy of the conditions or protocols imposed or amended by the governor under this Act."


What that means to me is that Judge Cardoza is foreclosed from making any determination as to whether the possibility of irreparable harm he found in his decision is in any way mitigated by the conditions and protocols adopted by the Governor.   That situation means that the Court is required to assume, in evaluating the constitutionality of the legislation, that there is the possibility of irreparable harm to the environment.  That assumption further makes sense because the Legislature is free to change or alter those conditions and protocols in the next session and could, under the law, remove all of them.


That presumption that the law permits the possibility of irreparable harm to the environment triggers two specific provisions of the Constitution as being violated – the one requiring the State to protect and conserve natural resources and the one guaranteeing to every individual the right to a clean and healthful environment.


So you have a law that confers special privileges and immunities upon a single private business, allows that business to inflict irreparable harm to the environment, and makes all that possible by altering the outcome of a final judicial decision.  How many ways are there to spell unconstitutional?
So the Democrats who passed the law must have hoped that the law would be found unconstitutional.  They hope to have the best of both worlds -- they got to pass a law responding to the "massive public support" manufactured by the Superferry, to pass the law as crafted by the Governor and Attorney General to give them what they wanted, and then to sit back and let the citizens get a court to declare the law unconstitutional.
Once that happens, the legislators can say "Well we gave the Governor what she and Superferry wanted and it failed to pass judicial muster. That's the Governor's fault, not ours."  Superferry rides off into the sunset with the Legislature unscathed by the encounter.
Such is politics.






Lanny Sinkin
P. O. Box 944
Hilo, Hawai'i 96721
(808) 936-4428

Attorney at Law (Federal Practice)

Ali'i Mana'o Nui (Chief Advocate and Spiritual Advisor) by appointment of
Ali'i Nui Mo'i (King) Edmund Keli'i Silva, Jr.