No doubt about it, the biggest Hawaii-centric land use related story this year was the continuing saga of the Hawaii Superferry. The case resulted in above-the-fold headlines, blogs devoted to the issue, and at least two trips to the Hawaii Supreme Court. We even live blogged the oral arguments. A summary of the case is posted here.
It generated a huge amount of public interest and had all the elements to make a compelling case: environmentalists vs business, local vs mainlander, the governor and the legislature vs the judiciary, and Oahu vs at least two neighbor islands. A certain segment of Hawaii’s population had from the get-goconsidered the interisland vehicle ferry as nothing less than the DeathStar: a whale-killer, a transporter of invasive alien species, andharbinger of a militarized imperialist government. Others didn’t viewit so malignantly, just as a much needed and long overdue alternativeto interisland transportation, or as a refutation of Hawaii’sreputation as a horrid place to conduct business.
In the end it was Death By A Thousand Days, and after the second Hawaii Supreme Court opinion invalidated Act 2 as unconstitutional under article XI, § 5 of the Hawaii Constitution because it was not a general law, the Superferry closed up shop and sailed into the sunrise, never to return.
Someday, the whole episode will be a case study at B-school.
But lost in all of the heat was the fact that the Hawaii Supreme Court’sopinions were not simply interesting, but legally significant. The rulings formally adopted one legal doctrine, and further cemented two other trends:
- The court adopted the “private attorney general” doctrine of fee shifting. After having avoided the issue in several cases over the years the Superferry II court held that the doctrine allows a plaintiff to recover attorneys fees when it shows that a strong public policy has been vindicated by the litigation, that private enforcement was necessary and took some effort by the plaintiff, and that many people benefited from the decision.
- The court continued its trend of judicial review with teeth. The Superferry II court did not discuss rational basisreview, even though Act 2 surely could be classified as economiclegislation, a class of regulation which usually is subject to onlycursory judicial review in which the factsof the case are really not all that relevant. Superferry II‘s standard of review represents a fairlysignificant departure from traditional rational basis review, and isthe latest in a series of cases holding that courts are not simplyrubber stamps for legislative bodies and administrative agencies, including Silva v. City and County of Honolulu (legislature’s rational basis isdetermined by evidence in the record); Hawaii Insurers Council v. Lingle (fees imposed by a state agency were not “taxes” or “user fees,” butwere “regulatory fees” despite the legislature’s claim the exactionswere “taxes”); and County of Hawaii v. C&J Coupe Family Ltd. P’ship (courts must take claims ofpretext seriously, and cannot simply accept the government’s claim atface value that a taking is for a public use or purpose).
- The Superferry I opinion confirmed that standing — at least for favored plaintiffs — is nothing more than a pleading formality, and lacks any real substance to insulate the courts from the political fray. A plaintiff’s “interest” rules over her “injury.” The only remaining question is whether the open standing rules environmental plaintiffs enjoy are applicable to others. More here.
More than you ever want to know about the Superferry cases at our resource page here.
The case is Sierra Club v. State Dep’t of Transportation, No. 29035 (March 16, 2009).