New (Hawaii) Complaint: Coronavirus Orders Violate Right To Travel, Equal Protection, Due Process (And More)
by Robert Thomas, InverseCondemnation, June 16, 2020
Here's the second complaint filed in the U.S. District Court for the District of Hawaii challenging the governor's coronavirus shut down orders. Back in March, the governor issued a proclamation declaring an emergency, and since then has issued nine "supplemental" declarations, re-upping the end date which is now the end of July). Here's the first complaint (in that case, the plaintiffs dropped their request for a TRO, and the court has scheduled a hearing on a motion for preliminary injunction for June 26, 2020).
There's a Fifth Amendment claim (sorry, not a takings claim, but a right to travel), as well as a host of federal constitutional claims (due process, equal protection, section 1983). While there's no direct claim that the extensions violate the "automatic termination" provision in Hawaii's emergency response statute, that argument is a key element of the due process claim. Hawaii law automatically terminates a declaration of emergency when the governor issues a "separate" declaration, or on the sixtieth day, whichever comes first:
A state of emergency and a local state of emergency shall terminate automatically sixty days after the issuance of a proclamation of a state of emergency or local state of emergency, respectively, or by a separate proclamation of the governor or mayor, whichever occurs first.
Haw. Rev. Stat. 127A-14(d) (2019). The complaint alleges that continuing past the sixtieth day violates due process:
136. Governor Ige violated these Hawaii statutes by continuing the emergency orders beyond the 59th day (May 3, 2020), as well as beyond the Safe Date; as well as by denying Plaintiffs all the Constitutional protections, including but not limited to, due process and equal protection (in addition to the other claims made in this Complaint).
137. After the expiration on May 3, 2020 of the emergency orders, and after the required termination of the emergency orders on the Safe Date, the Hawaii Governor’s emergency orders denied due process by usurping the power of legislative and administrative processes with respect to further law-making exercises without providing any process at all.
Complaint at 25-26.
Want to find out more about these claims, their chances for success under Hawaii law, and how Hawaii's courts historically have responded to claims arising out of public health emergencies? Then join us Wednesday, June 16, 2020 at 5:30pm Hawaii Time, when we'll be speaking about this question in a program for the King Kamehameha V Judiciary History Center (open to the public, more details here). Our thoughts on the takings aspects of the shutdowns orders: Evaluating Emergency Takings: Flattening The Economic Curve.
PDF: Complaint for Declaratory and Injunctive Relief, Carmichael v. Ige, No. 1:20-cv-00273 (D. Haw. June 15, 2020)