Friday, December 26, 2008


A new analysis demonstrates why Act 2 may be found unconstitutional, sinking the Superferry

by Larry Geller

A comprehensive review of Hawaii’s Superferry law and the Supreme Court debate over its constitutionality by analyst Brad Parsons sheds badly needed light on the constitutionality of the law and hence the possible longevity of the Superferry itself in Hawaii.

The analysis supports the common criticism of the choice of a vessel likely designed for military transport to be used as an interisland ferry. Fixing the law to suit the size of this ferry has likely made it a special law to benefit one company, and it could be found to be unconstitutional.

Brad’s just-released article, Act 2: A Closed Class of One, is posted in two parts, here and here.

Size matters

The Hawaii State Supreme Court is now considering whether the Legislature acted unconstitutionally in passing Act 2, the law that overruled the Court’s ruling that prevented the ferry from sailing before an environmental impact statement is completed.

Central to the arguments on both sides is whether the law was a special law, intended to benefit only one firm, Hawaii Superferry. In the oral arguments, a debate ensued over whether the law’s sunset provision (it expires in June 2009) meant that any other ferry company could or could not have taken advantage of the law due to the short window of opportunity. If the law is a special law intended only to benefit one firm, the Court should find it to be unconstitutional.

While the arguments are done and the Court is now deliberating, analyst Brad Parsons has researched the number of ferries running that could meet the requirements of Act 2 and found that there are only four of them in addition to the two HSF ships (one of which has been held back from service here). He also researched the time it would take to build a ferry of the required capacity—longer than Act 2 allowed before it expires. In short, there are no existing ferries that could be repurposed for a Hawaii run, and it takes too long to build one of these monster ships to fit the deadline the law imposed.

Implied by Brad’s analysis and the arguments before the Court is also the issue of whether any other company would want to hang its fortunes on a law as flimsy as Act 2 and move a monster ferry to Hawaii to compete against an already running and underutilized service.

Brad’s analysis probably will not be seen by the Supreme Court justices, but as far as the blogosphere goes, I think he has settled the case. Size does matter, according to this law, and by choosing the current Superferry as the required template, the Legislature (and AG Mark Bennett, who wrote the law), have made Act 2 exclusive to one company.

If the Court could see the results of Brad’s research, the case would be closed today. Or as fast as they could cut-and-paste it into their final opinion.


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I've still got 3 or 4 more parts to this of points in the law that narrow this to a "closed class of one." I'm just getting started. If somebody like me can figure this out, you would think the Supreme Court Justices can too.

Aloha, Brad

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