I put out a Twitter request last night asking if anyone had and was willing to share the state's memorandum in support of its motion for reconsideration of the Superferry II decision, and Derrick DePledge was nice enough to respond with a copy.
For those interested, I've posted it here (pdf). (It's a free hosting service and downloads can be slow).
It contains some interesting arguments and I hope to get time to write about it in more detail later, but for now, here are the brief's highlights:
There was no exercise of legislative power over the lands: The court held that one sentence of Section 15 of Act 2 effected an exercise of legislative power over state lands - that sentence being, "Any state lands previously authorized to be used to facilitate or support the operation of a large capacity ferry vessel, shall be authorized to be used to effectuate the provisions of this Act." The state asserts that the only authorization for the use of state lands is contained in the operating agreement between the state executive branch and the Superferry company. The fact that the legislature in Act 2 confirmed the ongoing viability of the executive branch operating agreement, argues the state, did not transform that operating agreement into an exercise of legislative power over state lands.
The severability section of Act 2 applies: Act 2 contains a clause stating that if any provision of the Act is held invalid, it will not affect the validity of other provisions or applications of the Act. Thus, argues the state, the court - finding that a single sentence converts Act 2 into a special law regarding lands - should have severed out that sentence and upheld the remainder of the Act.
Act 2 was not special legislation: The state argues that the court abandoned longstanding Hawaii precedent in favor of a minority view contained in a "maverick" Colorado case. According to the state the court was completely off the mark when it held that the Hawaii case, Bulgo, did not involve a statute that created a class with only one member or a statute of limited duration. (I'll insert some personal opinion here and say that I thought the court's effort to distinguish Bulgo from the facts of Superferry was flimsy and unconvincing. If the court desired but could not otherwise get past the rule of Bulgo, then it should have overturned it. It appears now that the court has given itself the best of both worlds for future cases and, if it approves of challenged legislation, may cite Bulgo, and if it disapproves, it can invoke Superferry II).
There was no basis for the award of attorney's fees against the state because the state did not waive its immunity from the fee award, and the court cannot waive the state's immunity: States enjoy sovereign immunity. As a general matter, they are immune from money damages except when they specifically and clearly waive their immunity. In other words, a state cannot be liable for money damages (including an award against it of attorneys fees) for its violation of a statute without specifically saying by way of statute that it has relinquished its immunity. Here, there is no legislation waiving sovereign immunity from an award of attorney's fees for a violation HEPA, HRS chapter 343. It was a violation of the separation of powers doctrine for the court to engage in judicial legislation and create a doctrine effectively waiving the state's immunity.
This is not an equal protection case: Again, some personal opinion - readers might recall that I was somewhat scandalized by the court's references to equal protection in the conclusion of its opinion.
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