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Governor to ask court to reconsider ruling on Hawaii Superferry  Mar 19, 2009

Gov. Linda Lingle will ask the state Supreme Court to reconsider a decision that led to the shutdown of Hawaii Superferry, because the ruling could threaten other laws aimed at assisting particular groups.

The Supreme Court ruled Monday that a law allowing Superferry to operate before completion of a related environmental study was unconstitutional because the law was written specifically for Superferry. The court said the state Constitution prevents the Legislature from enacting special laws designed to favor specific interests.

"The decision, we feel, was too broad," Lingle said. "It basically concluded that the Legislature can never do anything that favors one group over another. But that's what they do every day."

The state is also concerned that the court's ruling wiped out the operating agreement with Superferry, which includes requiring the company to repay $40 million spent on state harbor improvements, and includes a clause that prevented Superferry from suing the state over the environmental review process or any judicial action.

The state House and Senate plan to join the state's request, but only to ask the court to clarify the impact on legislative power and the protection against lawsuits. The House and Senate also want the court to clarify the validity of a so-called severability clause in the law — which held that if one part of the law was determined invalid, it would not affect other provisions.

"Beyond the Superferry issue, there's much larger implications from the decision. And I know that there are many legislators who are concerned about it going forward because of the impact it could have on other laws that they passed, because of the sweeping nature of the Supreme Court's decision," Lingle said.

Superferry, which carried passengers and vehicles between O'ahu and Maui for more than a year, will cease operations after a round trip today and begin laying off its 236 workers tomorrow.

"I know that Superferry is disappointed. We're disappointed. I feel especially bad for all the employees who are going to lose their jobs over this. But we'll have to see what happens going forward," Lingle said.

Effects on other bills
Lingle did not say whether the state will ask the court to reverse its entire ruling.

The court found that the 2007 law gave Superferry the right to use state lands at Kahului Harbor on Maui. The state Constitution limits the Legislature to passing only general laws that involve state lands.

The court's determination that the law created an illusory "class of one" was based primarily on the fact that no other ferry company had an operating agreement with the state and that no other company could have realistically taken advantage of the law because it would have expired this summer.

State Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), said the ruling could influence how the Legislature approaches bills related to land use in specific geographic areas or counties.

This session, for example, there are bills that would place a two-year moratorium on evictions of Native Hawaiians staying in Kahana Valley and set a moratorium on development of agricultural land on the North Shore.

"The decision, we believe, infringes upon our rights to pass legislation," Hanabusa said. "Probably, more critically, we will also raise the issue of the severability clause in our statutes and what weight the severability clause actually has."

Ferry future unclear
Hanabusa said she does not believe the entire Superferry law is unconstitutional. The law, for example, included the creation of a task force to monitor Superferry, a state audit of the Lingle administration's handling of the project, and the indemnification clause protecting the state from a Superferry lawsuit.

"In this case, the Supreme Court just took everything out," she said.

The House and Senate are not parties in the Superferry case, so lawmakers do not have legal standing to ask the court for reconsideration. Lawmakers would file a friend-of-the-court brief and will likely ask for their own attorney separate from state Attorney General Mark Bennett, who will represent the state.

State House Majority Leader Blake Oshiro, D-33rd ('Aiea, Halawa Valley, 'Aiea Heights), said lawmakers would not ask the court to vacate the entire ruling. "That's not our intent. We're just seeking clarification, because we think the Hawai'i Supreme Court misunderstood the legislative process."

Lingle said it was too early to talk about Superferry's future or how $40 million spent on state harbor improvements would be repaid if Superferry leaves the Islands. She said Superferry is looking at its options and wanted the state to complete the environmental impact statement.

Superferry officials did not make any additional public comments yesterday. Thomas Fargo, the company's president and chief executive officer, is scheduled to speak to the news media this morning at Honolulu Harbor before the ferry Alakai makes its round trip to Maui to collect passengers and vehicles.

The company has not said how long it will continue its cease in operations after today. But the fact that the company is laying off workers and there is no imminent legal or legislative remedy suggests an indefinite suspension.

Governor to ask court to reconsider ruling on Hawaii Superferry
Governor Linda Lingle / Image via

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