by Richard Rapoza, Communications Director Hawaii State Senate

HONOLULU – The Hawai‘i State Legislature has filed a Motion for Leave to File an Amicus Curiae Brief in the case Sierra Club v. Department of Transportation (Supreme Court No. 29035), commonly referred to as Sierra Club II, or the Superferry case. A motion by the state for the Hawai‘i Supreme Court to reconsider the Court’s earlier ruling in the case is currently pending. If the Legislature’s motion is granted, the Legislature would be permitted to file a brief stating its position regarding questions presented in the case, and seeking clarification of key issues.

The case arises out of a challenge to Act 2 of the Special Session of 2007, which permitted the Hawai‘i Superferry to operate pending the completion of an Environmental Impact Statement. On March 16, 2009, the Hawai‘i Supreme Court held that Act 2 violates the Hawai‘i Constitution because it is not a “general law” as the Constitution requires.

“We think that given the impact this decision could have on the Legislature as a co-equal branch of government, we should have an opportunity to present our arguments and concerns,” said Senate President Colleen Hanabusa. “Our interest is solely in the effect this decision could have on existing and future legislation.”

The Legislature’s motion argues that the Sierra Club II decision “will lead to significant uncertainty regarding several key issues, including:

The breadth of the “general law” provision contained in the Hawai‘i State Constitution, Article XI, section 5. An overbroad interpretation of the “general law” requirement could significantly limit the Legislature’s ability to enact laws or to address specific public policy challenges as they arise;

The constitutionality of repeal provisions or “sunset” clauses, and how they may affect the constitutionality of otherwise proper Legislative actions;

The proper application of the severability clause, such as that contained in the legislation under review, and the feasibility of using such clauses to ensure the constitutionality of the substantive provisions of Legislative acts.

In its motion, the Legislature also states that, “these arguments are uniquely focused on the Legislature’s role in State government. An expansive reading of Sierra Club II could unnecessarily chill the power of the Legislature to address the most pressing concerns of the people of Hawai‘i.”

Finally, the Legislature’s motion asks that it be given until April 17, 2009 to file its amicus curiae brief. “The Court granted the State special leave to file its motion for reconsideration no later than April 13, 2009,” the Legislature said. “This amicus brief would be due no more than four days later, and would therefore not delay the Court’s disposition of the motion for reconsideration.”

The Legislature is represented in the appeal by First Deputy Solicitor General Girard D. Lau and Deputy Solicitor General Deidre Marie-Iha.

Read motion: http://www.hawaiisenatemajority.com/wp-content/uploads/2009/03/sf-leg-mot-leave-amicus.pdf