by Richard Rapoza

HONOLULU – The Hawai‘i State Legislature late yesterday filed its 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. The case is currently before the State Supreme Court on a Motion for Reconsideration filed by the State of Hawai‘i. The Legislature was earlier granted permission to file a “friend of the court” brief to present arguments related to impacts on the Legislature that may arise from the Sierra Club II decision.

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.

The Legislature’s brief argues that:

• The court’s ruling has “dangerously undermined” the Legislature’s constitutional authority to craft precise laws that reflect its policy choices;

• Under the court’s analysis of “special laws,” only Act 2’s “sunset” provision is unconstitutional, and so that section should be severed, allowing the remainder of the law to stand;

• Even if most of Act 2 is unconstitutional, the Act’s waiver and indemnity provision is fully operative on its own and should stand; and

• Only Section 15 of Act 2 implicates Article XI, Sec. 5 of the Hawai‘i Constitution (i.e., the “general law” provision related to legislative power over land), so that portion of Act 2 should be severed.

“These issues relate directly to the Legislature’s power to craft effective laws and implement public policy,” said Senate President Colleen Hanabusa. “Questions of severability and constitutionality really cut to the core of how we, as a co-equal branch of government, will be able to address complex concerns in our community. Constitutionally, this is a very sensitive area, and I think it calls for a degree of deference and care.”

"We need to be able to continue to effectuate public policy and do what is best for the public interest,” said Rep. Blake Oshiro, House Majority Leader. “We are concerned that the decision, as it currently stands, impedes on those crucial functions. Therefore, we hope that the court will reconsider these important points because their decision will have precedence on future actions of the Legislature."

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

Legislature's Brief: FULL TEXT

Richard Rapoza is a spokesperson for the State Senate