POSTED: 20 OCTOBER 2007 - 11:00am HST

Who Stole the Power?

image above: front of the United States Supreme Court Building, Washington DC.

by Lanny Sinkinson 20 October 2007

In the Plaut case, the United States Supreme Court discusses at length and quite forcefully the requirement that each branch of government act within the scope of its powers and not usurp the powers of another branch. You can read that analysis in the Opinion that accompanied the Cease and Desist Order.

Does the Plaut case apply to a state legislature?

Section 1.

The legislative power of the State shall be vested in a legislature, which shall consist of two houses, a senate and a house of representatives. Such power shall extend to all rightful subjects of legislation not inconsistent with this constitution or the Constitution of the United States.

The Plaut case illuminated the history and general principles underlying the Separation of Powers doctrine, examined the expression of those principles in the United States Constitution, and applied those principles and the constitutional scheme to the facts of the Plaut case.

That is the general judicial process when constitutional issues arise.
Plaut is applicable to the state analysis, particularly because the State Constitution says that the legislative "power shall extend to all rightful subjects of legislation not inconsistent with this constitution or the Constitution of the United States."  Article III, Section I.

The Supreme Court in Plaut is enunciating a general principle as well as applying that principle to the United States Constitution and its implementation within the United States Government. That general principle is that, when a document defining the structure of government separates the powers of government into different branches of government, each branch must respect the integrity of the other branches and the system as a whole by exercising only the power given to that branch.
The Hawai'i Constitution contains almost exactly the same words in delineating the separation of powers as does the U.S. Constitution.  See the Addendum to the Opinion accompanying the Order to Cease and Desist. The same analysis would apply in a state court as applied in Plaut.

In this case, the Governor showed a complete lack of respect for the Judicial Branch and the decision of the Hawai’i Supreme Court.

The Supreme Court made a very simple decision: Section 343-5 applied to the question of whether the State should have prepared an environmental assessment for the harbor improvements necessary to allow the Hawai’i Superferry to operate and to the operation of Superferry, which would not happen absent the State improvements.

Applying that law to the facts of the case, the State was required to prepare such an environmental assessment.

Once the Supreme Court announced that decision, the law was clear. Under 343-5, the requirement to prepare an environmental assessment triggered the section of the law that requires completion and acceptance of that assessment prior to the implementation of the project.

That should have been the end of the matter. The only lawful action possible after that decision was initiation of the environmental assessment and cessation of all operations by the Hawai’i Superferry.

Unfortunately, the Director of the Department of Transportation stepped in to render his opinion that the Hawai’i Superferry could continue to operate while the State prepared the environmental assessment.

While this position directly contradicted the law, the Governor embraced this opinion.
The Governor, the Department of Transportation, and the Hawai’i Superferry then engaged in a conspiracy to violate the law by putting the boat into operation.

At that point, the Executive Branch supplanted the decision of the Hawai'i Supreme Court with a contradictory decision. This act was the first major violation of the separation of powers doctrine. With the law and its implications clear beyond question, the Executive Branch took it upon itself to both create new law (the boat can operate without a complete environmental assessment) and to overturn a final judicial decision (the boat cannot operate without a complete final environmental assessment).

The usurpation of both the legislative power and the judicial power by the Executive Branch is simply dictatorship, violated the Constitution and laws of both the State and Nation, and violated the Governor’s oath of office to uphold the Constitution and laws.
The usurpation of the legislative and judicial power for purposes of engaging in a conspiracy to violate the law is an impeachable offense.

The Legislature sat silently watching the Governor steal their power.

The Supreme Court had no action before it, allowing it to protect its power.

Finally, the Circuit Court in Mau'i stopped the conspiracy by entering an injunction and voiding the harbor use agreement for that jurisdiction.

Now the Governor wants the Legislature to legitimize the Governor’s illegal and unconstitutional actions by granting a special exemption to the Hawai'i Superferry that will allow the Superferry to continue operating without the State having completed an environmental assessment.

The Attorney General, who joined in the Governor’s conspiracy, is now proposing to the Legislature a bill for that purpose.

The Governor and other proponents of the Hawai'i Superferry consistently ignore the fact that the Supreme Court found that even if the only question was whether the harbor improvements should have been subject to an environmental assessment, excluding the operations of the boat, the State Department of Transportation erred in not requiring an environmental assessment just for those improvements.

Apparently without consulting the Attorney General or warned by the Attorney General not to consult him.

As background on this case I found this at



No.93-1121. Argued November 30, 1994-Decided April 18, 1995
In a 1987 civil action, petitioners alleged that in 1983 and 1984 respondents committed fraud and deceit in the sale of stock in violation of § lO(b) of the Securities Exchange Act of 1934 and Rule lOb-5 of the Securities and Exchange Commission. The District Court dismissed the action with prejudice following this Court's decision in Lamp!, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350, 364, which required that suits such as petitioners' be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation. Mter the judgment became final, Congress enacted § 27 A(b) of the 1934 Act, which provides for reinstatement on motion of any action commenced pre-Lamp! but dismissed thereafter as time barred, if the action would have been timely filed under applicable pre-Lamp! state law. Although finding that the statute's terms required that petitioners' ensuing §27A(b) motion be granted, the District Court denied the motion on the ground that §27A(b) is unconstitutional. The Court of Appeals affirmed.

Held: Section 27A(b) contravenes the Constitution's separation of powers to the extent that it requires federal courts to reopen final judgments entered before its enactment. Pp. 215-240.

(a) Despite respondents' arguments to the contrary, there is no reasonable construction on which §27A(b) does not require federal courts to reopen final judgments in suits dismissed with prejudice by virtue of Lampf Pp. 215-217.

(b) Article III establishes a "judicial department" with the "province and duty ... to say what the law is" in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 177. The Framers crafted this charter with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them conclusively, [editor's emphasis] subject to review only by superior courts in the Article III hierarchy. Thus, the Constitution forbids the Legislature to interfere with courts' final judgments. Pp. 219-225




POSTED: 19 OCTOBER 2007 - 11:00am HST

A Good Times cabbie on Maui

Lanny Sinkin on 19 October 2007

I want to take a moment to express my appreciation for all the support and encouragement I have received in this very intense Superferry episode. The emails, the calls, the contributions -- all of it reinforced my sense of being part of something important to the future of our islands and beyond. In return, I have done everything I can think of to achieve the consciousness we hope to create in the public and in people holding offices within the government.

As a special thanks for recent help, Jeff Sacher used his silver tongue to gather the email address for our dear Quincey at the Coast Guard. I see she is getting some very thoughtful and persuasive letters.

And a huge mahalo from me goes out to David Mogilefsky. David is a mostly ex-lawyer who drives a cab called Good Times Taxi on the Island of Mau'i. Four days ago, I got the following mesage from him:

"Saw your column in Surfers Path -- its on Google News. As an inactive member of the California Bar I do not have legal research materials available without going to the law library, but I found Plaut et al v. Spendthrift Farm Inc. 514 U.S. 211 (1994) online. Looks like a good starting point for "the legislature cannot overturn the result of a final judgment of the highest court in the jurisdiction". Everyone seems to think an act of the legislature is the final word. Someone need to set them straight!"
- David Mogilefsky

As I read the case, the curtain came down and the lights went on as the Cosmic Productions show "Superferry" came to a close. You have the opinion which grew out of that connection made for me by David.

So if you need a taxi on Mau'i, you might want to check to see if Good Time Taxi (808) 870-9436 is available.

Lots more to do to clean up the mess, so back to work.

see also:
Island Breath: When the Superferry Returns
Island Breath: The SuperConspiracy
Island Breath: Close of Maui Case
Island Breath: Kauai charges not made
Island Breath: Council HSF Resolution 10/4/07
Island Breath: Recent Superferry News 9/29/07
Island Breath: Superferry Lawsuit Links 9/17/07