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Thursday, June 11, 2020
Hawaii COVID Lawsuit: Emergency Rules Unconstitutional Beyond 60 Days
By Robert Thomas @ 4:54 AM :: 5286 Views :: COVID-19

New Complaint (Hawaii) - Governor's Covid Emergency Orders Are Past Their Pull Date

by Robert Thomas, InverseCondemnation, June 11, 2020

Here's the latest complaint challenging coronavirus-related shut-down orders. This joins a growing list (see here, here, here, here, here, here, here, here, here, here and here, for example).

This one doesn't allege a taking, however. But we're posting it here for a couple of reasons.

    1.    It comes out of our home jurisdiction, the 808 area code. How could we not follow this case?

    2.    It raises at least two Hawaii-specific claims that we really haven't seen before in the other cases.

--First, an interstate right to travel issue. Other states (with maybe the exception of Alaska) have not cracked down on interstate travelers, we assume because it was just impossible to do so with long land borders. Hawaii, by contrast, has instituted strict "border" controls (requiring all entrants, for example, to self-quarantine for two weeks after arrival), a restriction that is feasible because Hawaii has no land borders and you can only fly (or maybe boat) to the 808. Most travelers enter via State-controlled airports.

--Second, the complaint argues the governor's statutory emergency powers are expressly limited in the statute (Haw. Rev. Stat. §  127A-14(d)), and "terminate automatically" after sixty days:

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

This statute has never been interpreted by the Hawaii Supreme Court (it was adopted after a legislative overhaul of the emergency management and response statutes in 2014, and again in 2019).

Will this one fare better than others filed elsewhere? Thee plaintiffs have filed a motion for a temporary restraining order, so we may soon know.

We'll be speaking about this question next week in a program for the King Kamehameha V Judiciary History Center (open to the public, register here). Our thoughts on the takings aspects of the shutdowns orders here ("Evaluating Emergency Takings: Flattening The Economic Curve.").

LINK: Complaint, For Our Rights v. Ige, No. 1:20-cv-00268 (D. Haw. June 9, 2020) by RHT on Scribd

  *   *   *   *   *

COVID-19 Lawsuit Filed Against the Governor of Hawaii

News Release from Attorneys for Freedom, June 10, 2020

I’m proud to say our law firm represents a group of Hawaii residents in a lawsuit against the governor of Hawaii regarding his Covid-19 related orders.  We filed the attached lawsuit in federal district court in Honolulu today.  The Motion for Restraining Order is also attached.

Our clients have given us permission to publicize this lawsuit.  They are a group of citizens who have banned together to fight back against Hawaii’s oppressive overreaction to COVID-19 by forming a group called, “For Our Rights” and retaining our law firm to fight for them.  We are honored to represent them.

PDF: Lawsuit

PDF: Restraining Order

COVERAGE:

TGI: Ige named in COVID suit

KITV: Group of residents filed lawsuit against Gov. Ige, citing his COVID-19 related orders are unconstitutional  

SA: Lawsuit challenges Gov. David Ige’s emergency powers

PBN: Law firm, local businesses file lawsuit against Ige over Covid emergency orders 

PBN June 10, 2020:  ...The lawsuit, along with a motion for a temporary restraining order, was filed in Federal Court on Tuesday on behalf of over a dozen local residents who formed For Our Rights, a nonprofit association.

The primary claim in the suit and the motion for a temporary restraining order is that extensions of Ige's emergency order violate both the United States and Hawaii state constitutions.

“The governor has the authority to declare an emergency and make rules regarding the emergency on the grounds that it can be difficult to quickly assemble the Legislature to respond to an emergency, but that authority expires after 60 days," said Marc J. Victor, with Attorneys For Freedom, during a press conference Wednesday. "From day 61 on, the governor is both making laws and enforcing them, in violation of the separation of powers provisions under Hawaii’s state constitution.”....

The lawsuit includes additional allegations, including that the self-quarantine rules place an unconstitutional, undue burden on interstate travel, and that citizens have been exposed to criminal liability under rules that are "unconstitutionally vague."

---30---

UPDATE: Another Hawaii Lawsuit: Coronavirus Orders Violate Right To Travel, Equal Protection, Due Process

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