New Case, Same Standards, Same Holding

By Benjamin Lowenthal -

Sierra Club v. DOT (HSC May 13, 2009)

Procedural Background.  After the HSC reversed the circuit court and held that the Act 2 of the special session was unconstitutional because it was a "special law" in violation of Hawai'i Constitution Art. XI § 5, the DOT filed a motion for reconsideration.  The Legislature also filed an amicus brief because it was concerned about the standards for determining "general laws" rather than unconstitutional special legislation.

Reconsideration Denied, Act 2 is still Unconstitutional.  The HSC denied the DOT's motion for reconsideration.  It offered no analysis.  Along with denying reconsideration, the HSC made a few modifications and published a new opinion.  The changes appear to be slight.  A more complete analysis can be found here.

Harmonizing Bulgo.  The first change was the two-step analysis in determining a "general law."  The HSC stated that "general laws" must apply "uniformly throughout all political subdivisions of the State." Bulgo v. County of Maui, 50 Haw. 51, 58, 430 P.2d 321, 326 (1967).  The HSC clarified that a uniformly applying law which applies only to a particular class can still be a constitutional "general law" so long as "(1) the class created is genuine and not logically limited to a class of one and thus illusory, and (2) the class created is reasonable." See People v. Canister, 110 P.3d 380, 383 (Colo. 2005).  The HSC explained that a class is not "illusory" if it can include other members in the future.  Id. at 384.  The actual probability of other members joining the class must also be considered in determining if a class is illusory.  Haman v. Marsh, 467 N.W.2d 836, 849 (Neb. 1991), Republic Inv. Fund I v. Town of Surprise, 800 P.2d 1251, 1259 (Ariz. 1990).  The change appeared to harmonize the two-step analysis with Bulgo.  Bulgo still controls and signifies that a law that applies uniformly is a "general law."  But the HSC clarified that a uniformly-applying law can still apply to particular classes without running afoul with the Hawai'i Constitution.  That's where the Colorado two-step comes in.

No more References to Equal Protection.  The HSC also deleted references to an equal protection analysis.  The final paragraphs in which the HSC compared the "general laws" limitation with the equal protection clause was deleted.  The HSC also added that its "holding is based solely on our 'general law' analysis and does not in any way involve an 'equal protection' analysis, which involves a different standard."  So much for the comparison and the corporate personhood implications from Santa Clara County v. Southern Pac. R. R. Co., 118 U.S. 394 (1886)--a point raised by this site.

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