Webinar: How to prevent abuse of Hawaii’s emergency powers law
from Grassroot Institute of Hawaii
The following is a webinar presented Feb. 12, 2021, by the Grassroot Institute of Hawaii on the topic, “How we can prevent abuse of Hawaii’s emergency powers law.” The one-hour program featured:
>> Robert Thomas, Grassroot Scholar and constitutional attorney with the Pacific Legal Foundation, who has joined us previously to consider the legality of Hawaii’s emergency measures.
>> Malia Hill, Grassroot Institute policy director, who wrote the institute’s new policy brief, “Lockdowns Versus Liberty,” which outlines specific ways in which Hawaii’s emergency powers law can be reformed.
Institute President Keli‘i Akina moderated the event, and Joe Kent, Institute executive vice president, fielded questions from the audience.
The context of the webinar is that Hawaii Gov. David Ige has extended the state’s current state of emergency almost 20 times since he first proclaimed it in March 2020 in response to the COVID-19 crisis. The result is that Hawaii has been in a state of economic and social lockdown for almost a whole year, leading to record high unemployment, more than a thousand permanent business closures, decimation of the tourism industry, massive state debt and many other socio-economic problems.
The governor’s continued exercise of extended unilateral power also has called into question the legality of the state’s emergency powers law, which in plain English says Hawaii’s emergency proclamations are supposed to expire after 60 days. Clearly there is something wrong with the statue, and this webinar explored what can be done about it.
To participate in institute future webinars, please call 808-864-1776 or email email@example.com.
A complete transcript of the proceedings is below.
2-12-21 Webinar: “How to prevent abuse of Hawaii’s emergency law”
Keli’i Akina: Hello, everyone, and welcome to our webinar conference: “How to prevent the abuse of Hawaii’s emergency law.” I’m Keli’i Akina, president of the Grassroot Institute, and today is a very special day at the institute. It’s February 12th, 2021, and it marks the 20th anniversary of the Grassroot Institute of Hawaii, so give a great shout out for that.
For the last 20 years, we’ve worked hard to defend individual liberty, economic freedom and accountable government, and we’ll have many events throughout the year, starting today, celebrating our 20th anniversary. Stay tuned for our emails and our special website that will list those events.
Now, many of you watching today may know our founder, Dick Rowland, who unfortunately passed away in [November] of 2020. He was so committed to individual rights that his phone number included a tribute to the Declaration of Independence. His phone number, in area code 808, was 864-1776. That’s 864-1776.
Well, today we’re going to begin honoring him in another way and celebrating our 20th anniversary by kicking it off with the adoption of that phone number for the Grassroot Institute of Hawaii. So whenever you need to get a hold of your favorite independent institute on public policy research, call Grassroot at area code 808-864-1776.
You see, Dick Roland upheld the Declaration of Independence because it created and ensured individual freedoms for the rights of life, liberty and the pursuit of happiness. Today we’re going to delve into those liberties, which are being violated by abuse of Hawaii’s emergency power laws.
In 2020, Gov. Ige began to issue emergency proclamations … intended to protect public health, but there are consequences of these proclamations that were not considered at the beginning. How do we ensure liberty is not in any way hindered by these lockdowns?
We’ve got two people today who are scholars at the Grassroot Institute who help us to understand the legal implications of public policy, and I’d like to begin introducing them now.
First, Robert Thomas. Robert is a scholar of the Grassroot Institute, and he’s a senior attorney with the Pacific Legal Foundation. Hi Robert, thanks for joining us.
Robert Thomas: Hi. Hello, Keli’i, Dr. Akina, and thank you for having me on.
Akina: He just joined full time the Pacific Legal Foundation after having worked with him part-time and he specializes in property and land-use issues appearing as counsel on behalf of landowners and others for filings before state appellate courts, state Supreme courts and the United States Supreme court. Prior to joining Pacific Legal Foundation, Robert Thomas was in private legal practice for more than 30 years with Damon Key Leong Kupchak Hastert here in Honolulu. Right now he’s in California broadcasting from near San Francisco.
He’s also the inaugural Joseph T. Waldo visiting chair in property rights law at William & Mary Law School in Williamsburg, Virginia, where he teaches upper-division courses in eminent domain, property rights and property law. Again, I’m so glad you’re with us, Robert, thanks for joining us today.
Thomas: Thank you for that kind introduction, Keli’i. I look forward to a very enlightening and informative discussion with y’all.
Akina: I’d also like to welcome on board Malia Hill, so you can turn your camera on, Malia. Good to see it today. Malia is director of policy for the Grassroot Institute of Hawaii, and she’s got a background in law, politics and communications.
She completed her undergraduate studies in Mount St Mary’s University and obtained her JD from the Catholic University of America.
Now, after working in Hawaii politics at the state level, including a brief period with Rep. Mark Moses, she went on to work for several advocacy groups based in D.C., where she currently resides. As policy director for the Grassroot Institute of Hawaii, she works on both national and state issues affecting the future of Hawaii.
Now, Malia recently wrote the Institute’s new policy, brief “Lockdowns versus Liberty,” I really want to encourage you to look that up and download it from grassrootinstitute.org. It outlines specific ways in which Hawaii’s emergency powers law can be reformed.
Malia, thank you so much for joining us again today. Welcome back here to Hawaii.
Malia Hill: Thank you. It’s a pleasure to be there even if only virtually.
Akina: [chuckles] Well, you’re an island girl in any case, and we hope maybe you can move back here permanently. Same to you, Robert. Hawaii is your home as well.
Now, I’ve got a very simple format today. I want to encourage those of you in the audience to ask as many questions as you possibly care to ask and we’ll try to let our panelists answer them. That will take place in a few minutes after I’ve posed a couple of questions of my own for them.
We’ll start off with Robert. Malia and Robert, I just want to remind you, it would be helpful if you could confine your responses to three minutes to these questions. That’ll help us move to the questions from the audience. Sound good?
Here’s my question for Robert. You’ve been researching Hawaii’s emergency powers laws for quite a while. Could you explain exactly what that means, “emergency power law”? How does it work? How has it shaped the way that the COVID pandemic has been handled here in Hawaii? Give us your insight into that, please.
Thomas: Thank you, Keli’i. I’ll rely on you or Joe to cut me off if I get any part over the three minutes. But that’s a very good way to start this because when we talk about Hawaii’s emergency management law, we’re talking about a statute adopted by the state Legislature not that long ago. Prior to that, Hawaii’s emergency management response was dictated by statutes and rules that were really scattered all over the Hawaii Revised Statutes books. Then just a few years ago, the Hawaii Legislature got with the — maybe I’ll describe it as the more modern trend — and they adopted a statute that consolidates, essentially, all of these questions about who has what power, what is an emergency and what not.
So, in that, there’s kind of three points I think everybody should keep in mind as you … you know, I advise everybody, pick up the statute and read it.
First of all, the statute defines emergency. What is this thing that we call an emergency? Is it, “I know it when I see it? Well, not quite. It’s more like it’s extraordinarily broadly defined. Almost anything a governor or a mayor deems to be an emergency could be an emergency.
Second, both in the planning for and especially in their reaction to a declared emergency, a governor or in cases of counties has extraordinarily muscular powers. I think there’s no better example of that other than what Hawaii has lived through in the past year with essentially a series of executive edicts coming out of Beretania Street, or Washington Place, I should say, dictating what can be done and what can’t be done.
And third, the other function or the other key provision that I would highlight everybody, is like a lot of similar state statutes that define emergencies and delegate from the normal or law and rulemaking functions of the legislature to the governor, there’s a time limitation: 60 days under Hawaii law.
So each of those things are important: Definition of emergency and who defines it; the type of powers that are delegated from the Legislature to the governor; and then the time limitation. Thank you.
Akina: Well, that’s very helpful to understand. I think many of us are aware of the fact that last year we started with an emergency proclamation that should have expired after 60 days, but we’ve had multiple instantiations of that or re-instantiations of that. I’ll ask Malia and you about that a little later on.
Malia, let me ask you this now: In your report that you’ve published for the Grassroot Institute on civil liberties and the COVID-19 lockdown, you say that reforming the emergency powers law is actually a better way to defend civil liberties than by actually suing the state or the federal government. A lot of people are going after suits. Why do you say that it’s better to change the law than to go to court?
Hill: Well, there’s two reasons for that, and one of them is just the nature of lawsuits, in that it’s a lot better to prevent the problem than to go seek redress. A lawsuit is only going to happen after you’ve already been injured. That’s the definition of a lawsuit. So our idea with this report was not trying to remedy the problem, but how can it be handled better. And the way to handle it better is to not have the problem in the first place. So to reform the law in ways that would kind of solve some of these problems before they start, so that you’re not waiting months or even years in order to address a problem that comes up during this emergency period.
The other reason is because of the way that courts tend to look at exercises of executive power during an emergency. We can talk about how we think it should be, how we wish it should be, but we have to deal with it when it comes to a lawsuit and the probability of success. You also have to just say, “Well, this is how it is right now,” and how it is right now is that, for the most part, courts give a lot of leeway, a lot of deference, to the actions that a governor or a mayor, an executive takes under in an emergency. They consider it a situation where they’ve been given these powers. It’s a limited time. The few cases we’ve seen that make it up to the Supreme Court tend to — except when it has a really defined … the right-to-worship kind of thing, a very strongly clearly defined right — they tend to just give the governor and give the mayor the benefit of the doubt. That’s not really what we’re looking for when we’re looking for how can we manage this emergency better? How can we create better guarantees of civil liberties of our rights beforehand?
So that’s why I say it’s better to reform the law now, because it’s not about, “Can we get a court to agree with us three years from now?” It’s about, “Can we get these guarantees in place so that moving forward in the future, in case of future emergencies, there’s some protections already in place for our liberties, for our rights, that will prevent these violations from occurring to begin with?”
Akina: Well, thank you very much. It’s not really too much consolation to those who feel that we can sue our way to every solution, but I think that you’re right that changing the law is the most practical and feasible long-term solution to the problem.
Back to you, Robert. A lot has been made of the 60-day expiration or time limit that was put on the emergency power laws here in Hawaii, but we’re still under these emergency decrees. What’s going on here? Can the governor really extend the emergency indefinitely?
Thomas: Well, there’s three things that are in tension here.
First of all, the statute, when I say extraordinarily muscular powers and who gets to define an emergency, the statute itself is really bold in the sense that it says the governor, or in the case of a county emergency a mayor, has the sole discretion to determine this is an emergency and this is what I need to do about it. Here’s the key part, and it’s written right into the law, the governor is the “sole judge of the existence of the danger, threat or circumstance giving rise to a declaration of a state of emergency.”
Wow! The sole judge. So judges, when faced with that, will almost never say, … Well, a sole judge means sole judge. So they’re not going to overrule that and say, “I don’t think there’s a danger here.” It doesn’t become a question of evidence that we as lawyers kind of look at it, it becomes a question of, “Who’s got the power to exercise this?” And in this statute, the Legislature delegated it.
That being said, the second intention is the facts. We tend to think of emergencies, I think: A tsunami is on the way; a tsunami has hit; hurricane; you know, God forbid, North Korean missiles are inbound. Right? We tend not to think of emergencies as lasting a year, as they have in this case. So that is the intention, with that 60-day limitation that I mentioned, or you mentioned, Keli’i, that says it’s supposed to be a hard stop, 60 days, maximum time for an emergency.
But what happens when the situation continues? Some governmental response is necessary or otherwise called for? And I don’t think — I mean, as a lawyer, I am hesitant to state things in the extreme — but I think the way it has been implemented in this ongoing situation by the Governor’s Office, the 60-day limitation, the express 60-day limitation in Hawaii’s law as it currently stands is a virtual dead letter. It is completely ignored by the governor. The Legislature hasn’t done anything, in my view, to curb the governor’s exercise of those powers beyond 60 days, nor have any courts.
Does that mean that the Legislature, the government, the governor is incapable, without power, that if an emergency lasts 61 days, just sorry, after 60 days, there’s nothing you can do? Of course, not. There are certain things that were supposed to be built into the law that required the governor to go back to the Legislature and check whether “We the People” ought to be ultimate sovereigns in our system. They were supposed to come and ask us, “What next?” But we haven’t seen any kind of response like that. We’ve simply seen a series of what the governor calls “supplemental proclamations,” and I’ve looked up and down the law for is there such a thing as a supplemental proclamation that continues on? I think the first one was just two weeks or something like that, and here we are nearly a year out. I don’t think that it’s being too — or I’m overstating it — when I say that 60-day limitation that’s right there, plain as day in the statute, has been virtually ignored by the governor’s office in this, in my opinion.
Akina: Robert, you used the phrase, “We the People,” and by that I assume you’re saying there’s an issue here in terms of maintaining the balance of powers between the different branches of government, particularly, the Legislature, which represents, “We the People” and the executive. How serious is this threat to the balance of powers with respect to the ongoing emergency proclamations?
Thomas: Well, I think Malia also alluded to that, but it was so serious to me that on my own time, when I was wearing my Daymon Key hat prior to joining Pacific Legal Foundation — and by the way, if you don’t like what I’m saying here, my opinions are my opinions, they’re not the opinions of my law firm, Pacific Legal Foundation — but I actually undertook a study of this on my own, in my law professor capacity to see, because it concerned me. The brilliance … of our system, whether it’s the way that the Hawaiian government is structured, whether it’s the way the federal government is structured, is that internal tension, that to diffuse power, “We the People,” the ultimate sovereigns in our system, we delegate that power to our government.
Within that government, we’ve set it up so that each checks the ambitions and power of the other. And there’s really no better example of that system breaking down than what essentially we have. …
I’ll be very careful about my words here because I don’t want to be accused of calling the governor a dictator with a capital D; definitely not. I mean, we’re still living in a democracy, but if you go back and check online, the definition of a dictator and where that came from, originally it was not this pejorative word. It was simply a description of a Roman official who was appointed during times of crisis by the senate for limited times to consolidate all power and could rule by decree.
That’s essentially what we have. But the problem with that is, even in the most severe emergencies, our system never throws out, never lets go, of the idea that separation of powers, the diffusion of powers among, between the people, the legislature, the courts, and the executive is supposed to be intentioned. It’s not the most efficient system maybe. But it’s one that in the course of doing that, if the government adheres to those limitations, you will see coming out of that a protection of individual rights and liberties, all the things that people who are listening in to this are concerned with. So it’s not what you will see making headlines. No headline writer’s going to say, “Separation of powers at jeopardy by emergency law.” There’s other things that grab headlines, but from my perspective, and I’m assuming yours, too, Malia, as a lawyer, to me, that’s the No. 1 problem.
With these you have untrammeled almost power, being delegated by the statute to the governor and then the governor exercising that untrammeled power, perhaps in good faith, I don’t know, but I assume so, but that’s ultimately not the point. The point is that we tend to lose. The danger of us losing our liberties really jumps up when those limitations aren’t honored by the government itself, because as Malia pointed out, the courts aren’t going to really police the boundaries between the branches very much.
Akina: Thank you, Robert. I want to go to Malia now.
In light of Robert’s comments on separation of powers and maintaining the appropriate balance, what are the implications of one of the first things that Gov. Ige did in his first emergency proclamation, which was to suspend Sunshine law and open-meeting laws? I know you’ve talked a bit about that in the past and you’ve had concerns about that.
Hill: Yes. I think that, as we’ve experienced it, we tend to focus on the big things that we see: the closure of businesses, the stay-at-home orders, masks and such, and think that this is really about that when we talk about separation of powers. But from a more technical perspective, the real concern is the governor acting as the super legislator. If you go through, there are 18 separate emergency proclamations. If you are so inclined, you can go online on the governor’s website and look at them, and you can find the stuff about stay-at-home. That’s two paragraphs.
What takes pages and pages and pages are all the suspensions of laws. Suspensions of laws regarding telehealth; you know, some of them we’d like, some of them we don’t. But the point is that they’ve gone on for months and months and months, this ability to suspend laws.
One of the very first things that was suspended was open records and Sunshine law. To anyone who believes in a transparent, accountable government, it’s not a partisan thing. It’s the kind of thing that just should make alarms go off. We’ve said over and over in an emergency, we need more transparency, not less, but because of the really broad powers of the governor, he has the ability, using the emergency management statute, to suspend laws as he see fit.
You could ask, “Well, why would you need to suspend Sunshine and transparency?” The argument would be, “Well, we don’t want people showing up at meetings.”
Then you raise these questions, “Does that really outweigh the need for the public to see the actions of the government, especially in an emergency?”
Then there’s the whole responding to records, “Oh, well, you know, it was an emergency and we didn’t want people in the office.” Well, that time has passed; why can’t you respond to records requests?
We know, those of us who have worked with public records requests, that this is already a bit of a bone of contention by people who do open records requests from Hawaii agencies, many of which are not super responsive. So giving a reason to not be super responsive was deeply concerning.
We question, No. 1, the exercise of power without transparency, and No. 2, the ability to make these decisions to shut down transparency and Sunshine laws just with a stroke of a pen. It’s just a real example of the problem inherent in the broad powers that are there in the emergency management statute.
Akina: Let’s go back a little bit, Malia, to your comment earlier that the important thing to do is to change the emergency powers law. As you know, because you’re involved with us almost every day in the Grassroot office, we’re monitoring carefully what’s taking place at the state Legislature right now. We’re looking at the actions of legislators along these lines. Can you just briefly, before we go to questions from the audience, indicate what we are advocating as specific changes to the emergency powers laws, and whether there’s some traction growing within the Legislature?
Hill: Of course. In our report, the “Lockdowns Versus Liberties” report, we made some specific recommendations, principles that should be involved in reforming Hawaii’s emergency management statute.
First and foremost was the need for a legislative check on executive power. We followed the example of other states and said that after a certain period of time — I would prefer 30 days; you could argue it should stay with 60 — that in order to extend an emergency, the governor should have to get legislative approval.
Furthermore, we think that the Legislature should be able to end an emergency at any time by concurrent resolution.
There are other principles that we’d like to see in there, like a deference to due process, especially when we’re talking about removing a right or shutting down a business. We want a demonstrated respect for the balance of powers; we would like to see more transparency, and limitations on the ability to shut down transparency and open records.
So those are the basic principles.
Also, we’d like to see something that basically indicates that restrictions, regulations, especially in the case of a health emergency as opposed to a more general emergency, should have to be narrowly tailored, demonstrating a clear connection between the restriction and the public health aim.
Those are basic principles of what we’d like to see in reforming the emergency statute.
Now, I don’t often get a chance to say really happy, positive things about the legislature, but I get to today.
There is a bill that is generally a good step in the right direction, that’s making its way through the House side right now, that’s HB103. At this point, it’s got a couple of amendments along the way, it’s gone through two committees, and, basically, it does create the requirement for legislative approval to extend its emergency after 60 days. It also clarifies that powers granted for emergency purposes still have to respect the state Constitution. It puts in a necessity of showing a rational basis for suspension of laws.
So those are all great. My only — I guess, if I would criticize it — I’d like to see a little more rational basis, not just for suspension of laws, but for restriction. I would like to see the ability to end an emergency by concurrent resolution, which isn’t there. And it also has a provision where the governor has to seek legislative approval to extend an emergency, but if the legislature doesn’t act, the emergency is automatically extended. I think that tends to defeat the purpose of getting the legislative approval, even if it were the situation where the Legislature would just automatically approve it anyway. I think being on record, making that statement, has value and helps undermine the fact that this is a voice of “the people” situation.
Still, HB103 is the start of something good. It does follow several of the recommendations we’ve made.
Akina: Very good. Well, that’s good news, and like you said, it’s not always that we can praise what’s going on at the Legislature, but there’s some good direction, good momentum, in terms of establishing more accountability with regard to our emergency management statutes.
Well, I want to thank the audience for being patient now and open up the floor to anyone who’d like to ask questions. Simply submit your question online. We’d like to ask our panelists, Robert and Malia, if you’d answer very quickly because we’ve got at least 10 people standing by wanting to ask you questions and I’m sure many will also submit questions in the next few minutes.
For now, I’m going to hand over the podium here to our executive vice president at the Grassroot Institute. Joe, would you moderate this time and pose the questions that have been given to you by our audience?
Joe Kent: Sure. OK, we have one from Stanley Osserman who asks, “Why couldn’t the statute be changed so that after the initial time limit, it requires a simple majority of the Legislature to extend 60 more days and then a supermajority to extend a third time?”
Hill: I think we definitely want to see something like that. Generally, this process that we’ve been pushing for, and that a lot of states use concurrent resolution, but as a basic principle, yes, absolutely, yes. Why can’t the statue be that way? [chuckles]
Thomas: I don’t think there’s any kind of inherent limitation on that or whatnot. Could it? Sure. Should it? Yes. It’s just like a lot of things. If nothing else, the extent and time extent of this ongoing situation has shown that politics never leave any situation, and the longer it goes, the more politics plays a part in this. So you have to factor in those things, too. Could the Legislature do that? Of course, it could. Should it? Yes, probably so. Will it? Much different question.
Kent: There are a few questions like the one Jennifer Carman asks, she says, “How do we get the majority of people to stand up and defend their God-given rights and not depend on a judge or governor when those positions were originally put in place to serve We the People?” There’s a lot of questions about, how do we stand up and change things? Any comment there?
Hill: Well, I’ll say that HB103 is on its way to the House Finance Committee and presumably if it passes there, it’ll go over to the Senate. So you can track the legislation that touches directly on this and that’s one of the reasons we talk about- don’t wait for the courts. The one thing that you do have in your hands is political action. Go testify on the bills. Talk to your legislator. Let them understand that you really care about it.
Thomas: Petition your government. Peaceably assemble. Do not storm the Legislature. Do all the things that Hawaii and the U.S. Constitution recognize as the appropriate way to exercise your political rights. Don’t sit silently by.
Kent: Another question: Which constitutional or civil rights are involved when mask mandates are issued?
Thomas: Good question. I’ll start us off on that, Malia, and try to lay some foundation as we lawyers say, and you can come in and cross-examine on that one.
Ultimately, under both the Hawaii Constitution and the U.S. Constitution, we recognize our right to life, liberty and property. It’s some combination of all of those. Freedom, when you think of the word freedom itself, it’s not in either constitution in a prominent way. But the concept of liberty says I don’t have to do things that I don’t want to, at least at its very basic. Infringements on those is a place I would start looking, and that’s where most of the legal challenges have come from, either on liberty restrictions: My ability to go out, my right to not wear a mask, let’s say, my property rights, my ability to or my right to run a business, that’s not being harmful to somebody.
So all of them are potentially at play, and of course, in some situations in about the only situations that we have seen, where courts have taken a more active hand in policing these boundaries. And I won’t even say striking them down, these orders, but maybe it’s more of a court of question where the court said, “It’s a little too far,” where it infringes on what you might call maybe First Amendment rights as our shorthand for that: freedom of speech, freedom of behavior, freedom of association and especially on the religion exercises of religion where some states have said certain gatherings are OK, unless they’re religious gatherings, in which case, so many size, they can’t meet indoors, and those have been primarily the most successful legal challenges that have come up so far saying, “Well, there’s really kind of no rational reason for distinguishing between a gathering of shoppers at Walmart and the same size gathering of … congregants indoor worshiping.”
Kent: Malia, anything on mask-wearing?
Hill: Yeah. It’s interesting because when we started working on the “Lockdowns Versus Liberties,” we talked about the fact that people have a real sense of loss — this feeling that their rights are being violated, but they’re not rights that have a name because we don’t even think of them as things, you know, … Who would put a right to leave your house in the Constitution? That doesn’t make any sense. Who would leave the right to walk around with your face showing in the Constitution? That doesn’t make any sense?
It’s one of the things that people have sort of struggled with over the course of this because that’s not how courts work. Courts don’t work on … but there really should be; it’s just so obvious. And again, I come back to, that’s why we talk about working through legislation, because this is in the muddy area of the law where what you feel very strongly, like this is outside of the realm of what anyone should be working in, and yet it doesn’t feel good.
I can say that the few times, the very few times we’ve seen a judge talk about things like a stay-at-home mandate, it kind of worked around, like Robert said, First Amendment or a due process was the other one that came up, where it was really just a question of, “Did you demonstrate that this is narrowly tailored, that this makes sense?” That’s the playground for it. But political action is my answer. [laughs]
Kent: OK. Moving on, Sharon Wells asks, “There is a serious doubt that an emergency exists right now, and shouldn’t we challenge the premise in a lawsuit, such as Ohio and New Mexico are doing?”
I’m not aware of those lawsuits? Do you know about those?
Hill: I’m not. I know there’s a lot. I try to keep an eye on them. I could tell you that, at this moment, there are just tons and tons of lawsuits. They expect that finishing litigating COVID is going to take years. The ones that have been successful in the civil liberties realm, as of late, have been about freedom to worship, that kind of thing, that kind of First Amendment freedom. That’s where the successes have been. It will take years. That’s one of the problems with, “Why don’t we just challenge?” Well, the Hawaii courts aren’t friendly to these kinds of things., and it will be years before you have the remedy, assuming everything goes perfectly well.
Kent: Do you think that, as we move along through the year, more people get vaccinated, people start to feel safer, that there will be some kind of opportunity or movement for a lawsuit about whether or not emergencies really exist? By the end of the year, what do you view the legal challenges to be?
Thomas: I’ll, again, start on that one. You can’t say., right? The one thing you can say is these types of lawsuits are extraordinarily difficult to win. I go back to- — even in non-emergency times — courts tend to defer to the legislative branch when they do things, and to some degree, the executive branch, when it implements laws.
I don’t want to get too far down in the weeds, but if you’re challenging — I don’t know, let’s just pick something out of the hat — let’s say rent control, just not because of rent control because of any pandemic or emergency but just rent control because the Legislature thinks rent control is a good idea, and you’re a property owner, and you sue in court.
The court is going to probably give that type of legislation, and the way it’s implemented, an extraordinary amount of deference, and say, “Well, whether it’s good economics or bad economics, that’s really not for a court to decide when it’s trying to determine whether this infringes on life, liberty or property.”
Always keep that in mind, that these type of cases, even in the best of times, non-emergency times, are extraordinarily difficult, and then you put in, on top of that, the idea that I don’t think any judge — and this is just practicality, this is not wearing a lawyer hat — no judge is going to want to be splashed across the pages of Civil Beat or the Star-Advertiser: “Judge strikes down emergency law”; “One judge solely responsible for saying you all can go out tomorrow without masks”; or whatever it might be.
There’s just a lot of built-in institutional reluctance on the part of judges to what judges call second-guessing the other elected branches, because, at least in Hawaii, our judges are not elected; they’re not directly accountable to us, the voters, in any way, except indirectly through the nomination and approval process, and then when they come up for a reconfirmation, if they choose to do so.
So we look through it through those two lenses and two ways to look at it.
First of all, go back to that provision in the statute that I quoted earlier. The governor or mayor, in the case of a county emergency, shall be the “sole judge” of whether there’s an emergency. What does that tell you, if you were a judge, about whether you’re going to say, “Well, I know it says sole emergency, but I’m going to say otherwise”?
The only thing that you could look to at that point is saying that provision itself, violates some part of the Hawaii or U.S. Constitution, in that it delegates too much power, as Malia said. In other words, you cross those lines and blend those boundaries between the Legislature and executive, and we start getting what looks like a Roman dictator.
Kent: I want to get to some more questions here.
Thomas: I’ll wrap with that. It’s just very difficult, let’s put it that way, and the right situation has to present itself.
Kent: OK. Someone emailed us last night, founder and CEO of For Our Rights, Levana Loma. She says, “After reading ‘Lockdowns versus Liberty,’” — which is our report on our website everyone, that Malia did; she says, “Well done, Malia” — “there’s one critical component to the question of whether or not a lawsuit can be won in a constitutional challenge seeking injunctive relief, and that is the demand for strict scrutiny.” Can you, Malia, talk a bit more about what is “strict scrutiny” standard and how do you define that?”
Hill: Okay. By the way, thank you for the compliment. When a court considers a governmental action and weighs whether it is OK. I’m going to just go simply — whether it’s an unconstitutional infringement, or whether it’s permissible — they have varying levels of scrutiny how hard they look at it. It’s basically a way of saying, “How good a reason do you have to give us for this law or this action?”
The highest form is strict scrutiny, and that’s applied when a fundamental right is at stake. Fundamental rights being either rights that are specifically named in the Constitution — freedom of speech, freedom of the press — or rights that a court, generally the Supreme Court, has said are a fundamental right. That’s a little muddier; let’s not get bogged down in that. Strict scrutiny is applied when a fundamental right is at stake. That means you have to see a compelling government interest. Basically, the government has to have a really good reason and you have to show, yeah, this restriction will accomplish that.
Way, way, way down in the scrutiny meter you have rational basis scrutiny. In theory, it’s supposed to be (that) the government has to show that it has a rational base. “This is a good interest, we have an interest here, this should get there.” The problem being that courts kind of are a little bit all over the place on how firmly they do that. Some courts really do like, “Yes, we want to see some good reason for what you’re doing and some demonstration that this will help.” Some courts are just like, “Hey, give us any reason at all and that’s fine. I’m not even really going to check into whether or not this actually will accomplish what you said it would.”
So the problem is, strict scrutiny is obviously what you want, if you feel like your right has been infringed upon, but more often than not, especially with things like the closure of businesses, you’re going to get a rational basis review.
Who decides that? Generally, the judge. You make the case that this is what right’s being infringed, the judge says, “I agree with you,” or he says no.
Kent: I hate to cut you off here but we do have some more questions. But basically, you’re saying there’s a certain standard for how long emergencies should be.
Hill: Yeah, and strict scrutiny would be good, but that doesn’t mean that’s what you’re going to get.
Kent: Michelle Melendez asks, “How do we keep mandatory vaccines?” I’m not sure if that’s a question. Maybe I’ll ask it this way: How do we protect against mandatory vaccines?” Or something like that.
Hill: Mandatory vaccines, is it going to happen? Is that the question, basically?
Kent: Right. Yes. “Do you think that there will be lawsuits on mandatory vaccines?” How about that?
Hill: Yes. That one I’ll say yes to.
Kent: Anything there, Robert?
Thomas: Just because government agents can’t come drag you out of your home, hold you on the ground and stick a needle in your arm against your will doesn’t mean that the courts won’t give them a lot of leeway to indirectly “encourage” you to obtain a “voluntary” vaccine. There has been a grand total of one U.S .Supreme Court case on this from 1905 that has recently come back in the public consciousness called Jacobson. You’ll hear it all over the place.
In that case, the government of Massachusetts slapped a $5 fine and said, “Get a vaccine, but if you don’t, it’s a $5 fine.” Now, $5 these days, that won’t get you a Big Gulp. In 1905, even it’s not a huge amount of money. Even then you could get your way out of it, and the Supreme Court, in that case, said because of among other things, it was adopted by the Legislature and there was a way out, that’s not going to infringe on your liberty interest and not having a needle stuck in your arm.
Kent: Another question. Linda Palaos says, “On what legal basis is the government able to forbid landlords from evicting tenants for non-payment of rent?”
Thomas: That’s kind of a takings question. Do you want me to start us off here, Malia?
Hill: Yes, you’re the takings expert.
Thomas: OK, I’m going to make a little plug here, or actually two plugs.
First of all, in addition to the study that I was doing of Hawaii’s emergency management law — by the way, that will be published any day now by the University of Hawaiʻi Law Review; go get your subscription and go read my article about how I think we can reform the statute — Plug No. 1.
Plug No. 2, in the William & Mary Bill of Rights Journal soon will be coming out an article analyzing that very question. Are these things what we would call takings or violations of due process, saying that normally, in normal circumstances, a property owner has a constitutional right to evict tenants for not paying rent? Right? Landlords generally are not in the public housing business. So the question becomes, is this what we call in the law “taking,” requiring people or allowing people to stay in even if they’re not paying rent. And the bottom line question is have these type of edicts essentially turned what is private housing into public housing? Who has to pay for that? And that’s a very, very — like all things, legal things — a difficult question.
So far, there has been a number of challenges to these type of suspensions of eviction laws and other things around the country. They are making their way through the courts. Those that have been resolved, none of them have been resolved in favor of the property owner, that I know of. It doesn’t mean that they won’t be successful. Depending on the circumstances, they could be successful, but so far as I can tell, none of them have.
Kent: I see, it’s going to take time. Michelle has a really good question: Can a county vote that there’s no emergency even if the governor still has an emergency?
Hill: The short answer not really. This is a state law, the governor’s opinion prevails.
Kent: I see. Jennifer asks, “Iowa and Maine and Ohio got rid of their emergency mandates, so why can’t we?”
Hill: Well, to some degree, it depends a lot on who you elect. Actually to an incredibly high degree, it depends a lot on who you elect. Some places where we’ve seen challenges to the emergency status, emergency period, usually, there is a tension between the governor and the legislature, or their legislature has to approve the continuation. There is some kind of tension going on between the governor and the legislature that basically gives the people the ability to say, “Loosen up the emergency situation.” And that makes a difference.
Kent: There’s a few people here who say that there is a petition with signatures asking for the governor for a town hall meeting to review the COVID-19 emergency and there’s a petition there, tinyurl.com/hawaiipetition; I don’t know what that petition is, but anyway, a few comments about that.
Marianne says, “Mask mandates violate the Fourth Amendment to the U.S. Constitution because it prevents you from being secure in your person when you cannot get sufficient oxygen and prevent yourself from inhaling too much CO2.”
I’m not sure what you folks think about that.
Well, there’s one more question about whether there is template testimony in support of HB103, which is that bill, Malia, that you mentioned is pretty good.
We don’t have any template testimonies, so if you’d like to testify on anything, you’ll have to come up with your own thoughts. Oh, Malia, do you have anything to share there?
Hill: I can say this. We tend to build up testimony and feel like it needs to be really formal and this real official thing. You don’t need to do that. Don’t worry about having templates and so on and so forth. It’s very easy. The Legislature lets you do it online, and you can just write, support a post, or just comment: “I like this.” “I hate this.” “Here’s what I think.” Legislators actually value that more than template testimony; they value testimony that looks like it comes from a real constituent with a real opinion on it.
Kent: Well, there are a lot more questions I have: Do new emergency orders reset the clock on the 60-day limit?
Thomas: Not the way the governor has handled them by calling them supplemental. There’s no definition of supplemental or even an allowance within the statute for doing so, but the governor has, with the approval of the attorney general, done so.
I don’t know. When I think of supplemental, I tend to think of this plus; we’re keeping ongoing as opposed to rebooting.
There have been some other state courts that have looked at that type of action as, with, let’s say, a cocked eye, and say, “Hmm. Don’t think you can really do that.” If the statute says 60 days or 30 days and it’s dropped dead, what can you do? You can go back and reboot, maybe that’s the way to do it, but of course, in doing that, the governor would have to justify why are we still in this thing? What now is different than it was 60 days ago that requires us to keep going forward?
This is maybe more my consumer judgment than really anything to do with legal judgment. I think that there’s been this extraordinary failure to be transparent that starts with cutting off UIPA (Uniform Information Practices Act) and Public Chapter 92 and the Sunshine law.
My own thing is more transparency would result in people accepting this and understanding it better and not thinking, “Wait a minute, they’re using this as a pretext to do other things,” and whatnot. That the more transparency we have, the more people will — I won’t say compliant — the more people will accept these restrictions from a political standpoint. As Malia correctly points out, ultimately, that’s where these things get resolved. It’s We the People petitioning and government being responsive to those petitions.
Kent: Let me wrap it up here then. There are a lot of questions here I’m sorry that we didn’t have time for. but if you’d like to email us those questions perhaps we can answer them for you. I’ll ask Keli’i to come back online here. One other question that we have is: Do you think the emergency will end soon or do we have a long battle ahead anyway?
Thomas: That’s a $64,000 question. [Group laughter] If I knew that, I’d be president or governor maybe. Think smaller, but yes, if I knew that …
Akina: Well, that question certainly shows the anxiety we all have and the eagerness we have to return to the full restoration of our rights as given to us in the Constitution.
I want to thank Robert Thomas so much for joining us today and wish you the very best as your work continues with the Pacific Legal Foundation. Thanks for joining us from Northern California, Robert.
Thomas: All right, I may be here, but you know where my heart is; it’s in the 808.
Akina: Absolutely, and thank you for serving as a Grassroots Scholar. Malia, thank you so much. Good to have you on board today and with us all the time advising us on our legal issues. Continue to be our watchdog up there in Washington D.C. You did a good job today in conveying the essence of your research report Lockdowns versus Liberty. Thank you.
Hill: Oh, thank you. Always a pleasure.
Akina: Thank you, Joe, for moderating those questions.
To our audience, we would be very glad to connect you with Robert or with Malia. If you’d care to follow through on your questions, just email us or contact us at our brand new anniversary phone number in honor of Dick Rowland, the 20th anniversary of Hawaii, 808, or the 20th anniversary of Hawaii’s Grassroot Institute, 808 … Joe, help me out here.
Kent: (laughter) The 1776 part is the easy part to remember, but it’s 808-864-1776, that’s right.
Akina: It’s 808-864-1776. Wishing you the best from the 20th-anniversary kickoff of the Grassroot Institute of Hawaii. Aloha.
Feb 5, 2021: HB103: Rein in Power of Governor During State of Emergency