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.
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.
P. O. Box 944
Hilo, Hawai'i 96721
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.