by Charley Foster  www.PlanetKauai.blogspot.com

In response to this week's Hawaii Supreme Court decision invalidating Act 2 and putting the Hawaii Superferry out of service, Gov. Linda Lingle and the Hawaii State Legislature have expressed their intention to petition the court for reconsideration. This in order to clarify what appears to be an extraordinarily broad claim of power by the court to invalidate the acts of the other branches.

The concern is hardly surprising. While the court grounds its decision in the specific constitutional requirement that the "legislative powers over the lands owned by or under the control of the state and its political subdivisions" be exercised only by "general laws," by the decision's conclusion, the court paints in exceedingly broad strokes its authority over acts of the legislature.

By the decision's conclusion, the court's analysis veers away from the specific constitutional section regarding the legislature's power over state lands and invokes the more general doctrine of equal protection which, under the court's expansive description of its requirements, would seem not to depend on any particular constitutional provision at all. Rather, the court seems to assert, any law providing benefit for a particular individual, class, or entity, is in violation of this sweeping constitutional doctrine.

But that can't be right. What of last year's legislative attempts to smooth the way for Aloha Airlines as it lurched into insolvency? Under the court's equal protection analysis propounded in the Superferry decision, any such legislation could well be contrary to the court's new reading of constitutional restraints on the legislature's power to act.

And the court's new equal protection jurisprudence would seem on its face to preclude legislation that benefits Native Hawaiians (an obviously unintended ramification; and doubtless the court would decline to follow its own logic in such a case. And this points up another flaw in the court's equal protection doctrine: it lacks principle).

The other branches are right to be concerned. In the decision's conclusion the court can arguably be seen as unhinging from specific constitutional clauses the limits of the legislature to act, and instead making the legislature's power contingent on very broad and nebulous doctrinal constraints which are subject only to the court's own definition.

Maybe the court's concluding commentary is merely a soliloquy - a decorative finial capping off of 113 pages of analysis. Or maybe it's a judicial branch power play. It seems fair for the other branches to ask for some clarification on that point.

Charley Foster is an attorney practicing on Kauai. He regularly posts commentary on his blog, http://www.planetkauai.blogspot.com

"[O]ur constitution prohibits laws which provide disparate treatment intended to favor a specific individual, class, or entity..." -- Sierra Club v. State Dep't of Transportation, No. 29035 (March 16, 2009).