“Civil liberties in the age of the coronavirus” was the topic of a half-hour conversation between Honolulu attorney Jeffrey Portnoy and host Keli’i Akina on the “Hawaii Together” program of April 13, 2020.
Streamed live on the ThinkTech Hawaii network, the show paid special attention to Gov. David Ige’s suspension in March of the state’s open-meetings and open-records laws, in response the COVID-19 pandemic.
Portnoy is a partner of the Honolulu law firm Cades Schutte LLP, having practiced as a civil litigator at the firm since 1972. He is a past president of the Hawaii State Bar Association and Hawaii chapter president of the Federal Bar Association. He also has served as a Hawai‘i State per diem judge and as an adjunct professor at the University of Hawaii, teaching media law. Among his many state and national recognitions, he has been selected as one of the leading litigators in Hawaii by Chambers USA and several other publications. In 2016, he was recognized as the top Civil Litigation Lawyer by Hawaii Super Lawyers List.
Portnoy also is well known to the Hawaii community as a former University of Hawaii regent, former president of Manoa Valley Theatre, and a radio announcer on ESPN 1420 for University of Hawaii basketball.
Akina, president and CEO of the Grassroot Institute of Hawaii, described his time with Portnoy as “a fascinating conversation … about the loss of civil liberties that can take place either deliberately or inadvertently in the name of handling a safety emergency — the coronavirus pandemic in particular.”
The program can be seen in its entirety below, or you can read the transcription that follows.
Keli’i Akina: We live in such extraordinary times. Isn’t this an amazing period in which our civil liberties are being challenged?
Jeff Portnoy: I think if you follow the president [Donald Trump] and you agree that this is war, it would give the government tremendous power to limit our civil liberties in multiple ways.
I think there’s always the situation where you try to find the proper balance between restricting certain civil liberties during a time of crisis, like we are now, but not unduly turning our democracy into literally a dictatorship.
And there has been, and will continue to be, a number of efforts by various governments, including our state and county governments, to limit civil liberties in the name of protecting us from the virus.
In particular, for example, you (Keli’i Akina) mentioned the stay-at-home orders, the quarantine, the limitation on public access to meetings and to records, and my view, although some of this is clearly necessary, one has to always remember that this is not a war, this is not a foreign enemy, we’re not dealing with spies. We’re dealing with a very serious illness. But we cannot allow government to use that, like we’ve seen in places like Hungary and Moscow, not to invade our civil liberties but to invade our privacy rights. … I think obviously you really need to try to balance.
Q: I want to ask you about a certain type of civil liberty, and that is the right of individuals and the media to know what the government is doing. We’ve had a suspension at the state and county levels of our sunshine laws and our open-meetings laws. Could you let us know what these laws are and why they’re so important in the first place?
A: Sure. Well, we have on our books what’s called Chapter 92, and it provides the public, and the media as the public’s surrogate, to access to public meetings and public records.
And there’s always a conflict even where there is no pandemic and there is no war between individuals who are attempting to go to a meeting, get proper notice of the meeting, view the agenda, be able to participate in that meeting and have access to public records, to see where taxpayer dollars are going, what public employees are doing.
And there’s constant conflict anyway, frankly, because even though we have a statute which essentially is designed to provide as much access as is reasonably possible, lots of people in government over the years, whether it be state government or county government, are often times reluctant to go as far as they’re required to go in providing access.
That’s why we have an Office of Information Practice, which over the decades — one can have their own opinion as to how efficient they have been — but they have issued literally hundreds of opinions as to whether a particular request is a viable one under Chapter 92.
But it is essential, and the preamble to Chapter 92 essentially says that in a democracy, access to government is paramount. But what’s happened, and one of the first executive orders that this governor issued, was to severely restrict access to records and to meetings, and I think …
Q: Well, Jeff, I want to ask you, why did Gov. Ige suspend our [open-meetings and open-records] laws? Why did he take that action and what was he hoping to accomplish? Was it necessary?
A: That’s a great question.
I think some limitation was obviously necessary. Obviously there are no public meetings going on, and that is understandable.
But the question is what kind of access should one have, like you and I are having right now via computer. Should the public still have access to a meeting that may be held by the County Council or by the Legislature, although as you know they’re also suspending a lot of what they’re doing.
But they’re also meeting, and many times they’re meeting behind close doors, and the excuse is public safety or the pandemic. Well, you know, all you have to do is give some people in government the slightest excuse to freeze out the public and they will latch onto it.
And I think what Gov. Ige and probably the attorney general initially were thinking of doing is trying to deal with pandemic and understanding that there has to be some restrictions. I mean, obviously in these times when so many people in government are involved in dealing the pandemic, some of the time tables in getting access to public records probably are reasonable. You have to give people additional time. They may have more important things to do.
But the initial order, the emergency order issued by the governor just went way too far, as well as some of the County Council.
The courts, for example, have worked very hard to try to continue to protect the rights of individuals to participate in public courtrooms without being able to enter the courthouse, by being able to listen in on phone or some type of video conferencing.
It’s a new world, but it’s too easy to go after people’s civil liberties. …
I think obviously you really need to try to balance. And yes, some liberties … you know, martial law, there are people in the U.S. Justice Department that want to do away with habeas corpus, which would allow them to infringe on people without notice and without going through the formalities. So, yes, we’re in a terrible situation as a pandemic, but it is a too-easy excuse to limit our rights and liberties.
Q: One of the things I hear you saying, Jeffrey, is that if we give the government an inch, they’ll take a mile when it comes to taking our civil liberties, particularly when it comes to practicing government with sunshine coming in so that the public can actually see what’s going on. What was the condition of transparency for Hawaii government even before the coronavirus episodes? …
A: Most national groups that have looked at our government as it relates to public access have given it very poor grades over decades. And I think all you have to do is look the number of lawsuits that have been filed, by the media, by groups like yours, the League of Women Voters, by Civil Beat, by individuals who have been frustrated in their efforts to get public records or get appropriate notice of public meetings. The Legislature, in particular, has been brutal in access issues. They have exempted themselves from Chapter 92 while they’ve included other governmental entities. We’ve had mixed results depending on who the governor and attorney general is. We’ve had mixed results depending upon who the mayors are. So I don’t want to indict any particular person …
Q: You’ve mentioned virtually every branch of government already, so you’re not indicting any single individual …
A: No, I’m not indicting any particular governor or mayor or Council, but I will tell you it has been, and continues to be, a struggle many times to get access. There are all kinds of devices that some government entities use to try to limit people’s participation, to decide things in ways that are not permitted under our law. Our law is great. Chapter 92 is one of the best in the country. But it’s only as good as the people who are willing to comply with it, and that’s been a mixed bag.
Q: Recently Common Cause, and you mentioned other groups as well, wrote a letter to the governor challenging his suspension of the open-meetings law. Grassroot Institute of Hawaii and other organizations, up to about 40 of them, signed on as well. And one of the things we were asking the governor to do was simply to allow agencies to meet as necessary, to conduct necessary business, and employ technology.
I know you mentioned a bit about technology being used across the world. How appropriate do you think that call is to allow agencies to meet and use technology to ensure the public to have sunshine in those meetings?
A: Well let me ask you a question first: Did he ever respond?
Q: He did respond, and we are taking that response into consideration. Questions were raised in his response as the efficacy and pragmatic ability to use technology at this time.
A: (Shakes his head and rolls his eyes) Well, I don’t know, that may tell you about the ability of this government to be where they should be. If you just look at the unemployment situation in Hawaii and all the right down to the computers that I hear (about) on the news and people’s inability to get their claims in, you have wonder about how far along the state and local governments are.
Look, nobody expected this pandemic, and clearly it is necessary for the government to engage much of what they are trying to do to protect us from getting sick. But it’s a balancing act, and, you know, I think it’s a little bit ironic that one of the first things the governor did in dealing with the pandemic was literally to suspend Chapter 92. I mean, why was that one of the first things that was done, when there are so many other things like testing (and) social distancing that needed to be addressed?
So look, I’m not saying there shouldn’t be some restrictions or some modifications. I’m just saying we need to be very, very careful in this time of crisis that civil liberties doesn’t become a victim.
Q: I’m having a fascinating conversation with attorney Jeffrey Portnoy about the loss of civil liberties that can take place either deliberately or inadvertently in the name of handling a safety emergency, the coronavirus pandemic, in particular. … Jeff, during this time, what could the governor do if he wanted to backtrack bit from his proclamation that curtailed out [open-meetings and open-records] laws. What are steps that could be taken to ensure that the public’s right to know is honored?
A: Well let me back up for just a second because, you know, a lot of the governments are looking at a United States Supreme Court case [from] 1905, called Jacobson v. Massachusetts, in which the United State Supreme Court upheld the right of the state of Massachusetts to order people to take the smallpox vaccine. And that case, which has probably been dormant for 115 years, is now being cited by governments to give them cover for limiting civil liberties, for ordering curfews, for all of the things that we’re seeing.
Now, functionally in this country, though that case is around and is 115 years old, it still shows you to the extent, at least for our Supreme Court 115 years ago, believe that a government could intercede and impose upon individuals their right or their refusal not to take the smallpox vaccine.
So we’re a long way away from that now, but imagine if Gov. Ige were to order that every single citizen here to take an anti-body test. I mean, could that happen in the United States in the next three months? I don’t know. It’s not beyond the realm of conjecture that that could theoretically happen, either on a state level or on a national level. Now, it will never happen, because there isn’t enough testing materials or whatever.
But just think about it hypothetically if three weeks from now the governor were to order every single person in Hawaii to undergo a COVID-19 test or an anti-body test. Could you fight that and prevail based on that 1905 decision?
So, you know, look, I think people understand, most everyone understands, there has to be some limitations.
For example, the governor’s press conference: I got a call from a radio station on the Big Island claiming that they were being frozen out because the governor was only allowing a certain small number of people into the press conferences and the rest had to participate by phone or by video and they weren’t being allowed to ask questions. I think they had some legitimate concerns, but not that everyone had a right to show up in the governor’s office when we’re limiting people’s interaction to groups of 10 or less.
But, as you point out, there’s plenty of technology, and I don’t understand why, for example, everyone can’t participate by video conferencing in the governor’s press conference. And why people can’t participate in a legislative hearing by video conferencing. Now what are the reasons? Well, let’s go through them.
One, they don’t want anybody to participate and this is a great excuse.
Two, they don’t have the technology.
Three, even if they had the technology, they don’t want people participating and this is a great excuse (chuckles).
So, you know … or there can be certain discussions which understandably need to be kept secret, at least initially.
The problem is finding the balance, and finding people in government who not only are looking out for themselves so they don’t get embarrassed, or that their deliberations are not unduly looked at and judged by social media, but they have not only what they think is best to be done to protect the public, but always remember we still have a Constitution, at least until we get into a war and habeas corpus is suspended.
Q: Over the past weekend here in Honolulu, we instituted a curfew. Basically the roads were to be cleared of cars or vehicles between the hours of 11 p.m. and 5 a.m. for the evenings of Friday, Saturday and Sunday, and the government is looking at that as well. Maui instituted a curfew. Kauai has a more draconian curfew for about a month already. And now we’re starting to see, at least in Honolulu County drones flying around over beaches and other areas giving warnings from the city government. What are your thoughts about these measures? Are we going a bit too far? Are we looking at measures that may be taken and not reversed after the coronavirus? Do you have concerns?
A: I do. And I mentioned this earlier when I was talking about civil liberties. But let’s talk about privacy loss. I mean, drones on the beach are one thing. Beaches are open, they stretch for miles, everyone can see what everybody else is allegedly doing on an open beach like in Waikiki.
But what if they flew a drone over my house, and watched me, to make sure that I was in my backyard, or I was in my kitchen? How far are we willing to go?
I talked about that 1905 case enforcing people to take the smallpox vaccination. … I talked about what’s going on in Moscow, where they’re thinking about imposing an app, or in China where the government would know where you are every second. You think we’re too far away from that? I don’t know.
What if the governor would decide that everybody who has a cellphone in Hawaii, assuming this could be done technologically, or by Google or by Facebook, would let the government know where you are every second of every day to know whether you are violating social distancing? Would the public tolerate that? I don’t know.
I mean, it is a tough decision to lose our right to privacy. So, drones, I think it depends on where they go and what they do, and also, you know, the police are being very careful that all the drones are not taking video. You heard that, or at least I did, on the news, that they’re just announcing things. But what if they were taking video, and not just of a public place, but my backyard, or your backyard, or my office building, just to tell the government where I am. I think it’s a slippery slope, but I think that’s something the public has got to deal with.
Again, I don’t think we’re in a time of war. We’re not dealing with a foreign enemy. We’re not dealing with spies. We’re not dealing with nuclear secrets. We’re dealing with a pandemic, a disease, and I think we have to balance what’s appropriate.
Now, you mentioned the curfews, and this is just a personal opinion: I think you can impose a curfew. I think it’s been imposed on Oahu in a very willy-nilly way … I know that’s not very “legal”; 11 to 5? Who’s out 11 to 5 anyway in Hawaii? I don’t want to go into the people, but they would probably be at the bars, and the bars are closed. Kauai, 9 to 5 may be a little bit, as you say, draconian, but it may make sense.
My daughter lives in Bermuda. You know, they have a full-time, 24-hour curfew. You’re not allowed out of your house unless it’s for very, very limited situations, like going to the doctor or picking up groceries, and then only one person is allowed. So, you know, there are things that are done for political reasons, there are things that are done for reasons that are questionable, and, you know, I don’t think the 11 to 5 curfew … If you’re going to have a curfew, make it realistic. But anyway, I do think you have to be concerned about you privacy rights in a time of stress like this.
Q: Jeff, do you think some of these measures such as drones that only make announcements or limited-hour curfews are being instituted to condition the public for a further loss of rights?
A: No I don’t, but I think you make an interesting point, that are we going to get conditioned? Is the next thing that happens which may not be this serious cause the government to impose the same kind of restrictions and we kind of shrug because we’ve just been through it. I don’t think that’s going to happen. I mean, World War II we had lots of restrictions. During the Civil War we had lots of restrictions. For our generation we haven’t experienced it. Our parents’ generation did.
I don’t know. I don’t think that’s going to be an issue, but I do think the more people get accustomed, if that’s the word, to things like drones going over the beaches, I think there’s a reason to be concerned. But I don’t have any reason to think that those kinds of measures are going to become de rigueur. I think they are being used for the proper purpose. I just think there are some things that we need to be very careful that don’t get imposed on us in the name of safety.
Q: Yes. Is there any precedent that you’re aware of that could be used against government overreach in this time of coronavirus response.
A: I think you could try but I don’t think you’ll find a very sympathetic court. And I don’t think the public is going to be all that concerned. It’s one of those things where the government probably is going to get a more sympathetic view of this than they might otherwise.
Yeah, I think you could try to challenge an emergency proclamation that there isn’t sufficient reason for it. I don’t think you’d get very far. I always advise my clients, yeah, you may have a technical argument that there’s been a violation, but how does the public feel? … You have to pick and choose.
I think right now it would not be wise, I think, to challenge where we are. If it goes beyond it, if they start flying drones over my house or they tell me I gotta put on my app where I am every second, I think they’ll see some lawsuits.
Q: Well, Jeff, you’ve alluded to the public a couple of times in terms of the reaction to the loss of civil liberties. Do you think that we in Hawaii are too tolerant, and do you think that would perhaps leave us open to the further loss of our civil liberties?
A: No, I don’t think so. Look, I think the governor’s proclamation on [public] access went too far. But the social distancing and the testing, that’s all voluntary. Some of it isn’t, right? I mean, if you’re out on the beach and you’re not in the water, you’re going to get cited now. And I would imagine, by the way, some people are going to challenge those citations. It’s going to be interesting. We haven’t heard the last of this. People are being arrested now and I think some of them are going to defend on the basis that it’s a violation of their constitutional rights. It’s going to be fascinating to see how it plays out. …