Update: our thoughts on the Hawaii-law claims in this article, "Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority," 43 U. Haw. L. Rev. ___ (forthcoming 2020).
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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 tremporary 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.").
Complaint, For Our Rights v. Ige, No. 1:20-cv-00268 (D. Haw. June 9, 2020)
