Yes, lockdowns have limits, and we still have rights

Hundreds of people from throughout Hawaii and elsewhere participated in a webinar April 14, 2020, that featured Honolulu attorney and eminent legal scholar Robert Thomas on the subject of, “Safety vs. liberty: Are there limits to lockdowns?” (See video and full transcript below.)

Sponsored by the Grassroot Institute of Hawaii, the event was prompted by the fact that since March severe restrictions have been imposed on Hawaii residents in the name of protecting public health, which though well intended have resulted in massive economic and social dislocations. More than 200,000 people have been thrown out of work, government accountability has been suspended and the fate of our civil liberties is unknown.

We can debate whether these actions are justified, but considering these are transgressions against what would normally be considered constitutionally protected rights, there was, and there remains, reason to question their legal basis.

Thus the institute organized this free webinar featuring Thomas, who also is a Grassroot Scholar and a director with the Honolulu law firm Damon Key Leong Kupchak Hastert.

Thomas specializes in property and land-use issues, including eminent domain, inverse condemnation, regulatory takings, property rights and water rights. He has tried cases in Hawaii, California and the federal courts, and appeared as counsel on behalf of landowners in “friends of the court” filings before state appellate courts, state supreme courts and the U.S. Supreme Court.

He also is the inaugural Joseph T. Waldo Visiting Chair in Property Rights Law at William & Mary Law School in Williamsburg, Virginia, and recently completed a year as chairman of the American Bar Association’s Section on State and Local Government Law. He continues as editor-in-chief of the Section’s scholarly legal journal on municipal law issues, The Urban Lawyer. He also publishes a blog, at www.inversecondemnation.com

In answer to the question in the title of the event, Thomas said:

“The short answer is yes, there are limits. And of course like everything else in the law, the questions are really around the edge. And where are those limits? Where are those limits located?”

Thomas said U.S. courts are very reluctant to stop shutdowns while they are in progress, “unless there’s clear proof … that the government is doing this for some other reason than such as to impact the media, impact the right of speech, freedom of press, freedom of religion.”

But remember, he said, “This is an emergency, not a war. We still have rights. It’s up to you to remember those and assert them. We still have to guard against inroads on those rights.”

He continued, “The big danger — and I think this is the one we’ll have to guard against when this is all over — is that the worst measures, the most intrusive measures on personal liberties, are adopted under the guise of an emergency, 

“We have to make sure that when we get back to normal — and I’m very much assured that we will — that we hold our government to account, either through the process of the legislative or petitioning-government process, or if necessary through the courts, to make sure that what were adopted as temporary restrictions on liberty don’t mature into permanent restrictions that, like the frog in the boiling water or the boiling pot, we just got used to.”

Watch the webinar in its entirety below. A slightly edited transcript also is provided below.


Safety vs. Freedom: Are there limits to lockdowns?

Keli’i Akina: Aloha and welcome everyone to our ongoing series of Grassroot Institute seminars. I’m Keli‘i Akina, as Joe said, president and CEO of the Grassroot Institute. Today’s topic is “Safety versus Liberty: What is the legal basis for suspending civil rights during a time of crisis?” …

We are living in extraordinary times. While our state and, indeed, the whole world are focused on the public health crisis of the coronavirus, far less attention has been paid to the encroachment upon our civil liberties. Curfews, stay-at-home rules, suspension of the state open-meeting laws … these are just some of the measures that have been taken by our state and local officials to deal with the pandemic. I’d like to raise this question, and I’m sure you’ve thought about it: How far should the government go in restricting our civil liberties in the name of health or safety?

With the recent loss of over 200,000 local jobs, how much economic damage is justified by government response to the virus? At the Grassroot Institute, we stand for the cherished values of individual liberty, economic freedom, and limited, accountable government. Most of us have to agree that never in our lifetime have we seen the curtailment of these constitutionally protected values as we do now.

Our featured speaker today is a good friend. He’s a Grassroot Institute scholar, Robert Thomas. A nationally recognized takings expert and a director with the Honolulu law firm of Damon Key Leong Kupchak Hastert. Thomas specializes in property and land-use issues including eminent domain, inverse condemnation, regulatory takings, property rights, and water rights.

He’s tried cases in Hawaii, California and the federal courts, and he’s appeared as counsel on behalf of landowners here in friend-of-the-court filings before state appellate courts, state supreme courts, and the U.S. Supreme Court. He has a nationwide practice. He’s also the inaugural Joseph T. Waldo visiting chair in property rights law at William & Mary Law School in Williamsburg, Virginia. He recently completed a year as chairman of the American Bar Association’s section on State and Local Government Law.

He continues as editor in chief of the section’s scholarly legal journal on municipal laws issues called The Urban Lawyer. Many of you may know him from his regular blog, inversecondemnation.com. Now, after Robert’s presentation, which will take place very soon and last about 20 minutes, you’ll have an ample opportunity to have your questions fielded. Just submit them in writing to us and Joe will announce them. 

First, let me turn to Robert and welcome you to the show today. Robert, you are away from your home Hawaii right now; you’re near Sonoma Valley. Thanks for joining us today. Aloha.

Robert Thomas: All right. Thank you Keli‘i. It’s a real pleasure to be here.

Akina: Well, if you have to be holed up in a house somewhere, being in wine country in the vineyards has some compensation to it, I hope.

Thomas: Yes, it’s a gilded cage and I do have my University of Hawaii hat to keep me reminding of my 808 roots. There’s that.

Akina: Before you begin, many of us are wondering about whether the government has the right to infringe upon constitutional liberties during a time of crisis and if so, to what extent? I hope you’ll cover that question as well as others, but take it away and we’ll be back with you with a Q&A in about 20 minutes. OK, Robert?

Thomas: Very well. Thank you. Let me first share the screen here. I’m going to give you guys a couple of pictures and just something interesting — more interesting perhaps than me — to take a look at here. Let me share that. 

OK, very good. Like everything else lawyers do, there’s the long answer and then there’s the short answer. We’re going to hold off the short answer for a couple of minutes just to give you a sense of where we’re going today. The title (of this talk is) “Safety and Freedom: Are There Limits to Lockdown?” 

Let’s get to the short answer. Yes, there are limits and, of course, like everything else in the law, the questions are really around the edge. What are those limits? Where are those limits located? 

What I’d like to do is to spend the next 20 minutes or so downloading to you how I look at that question as a lawyer, and not so much to discuss what our government’s policies should be or whether our government is responding correctly to the crisis from a scientific policy standpoint, but rather to try to give you some insight about how judges and courts will evaluate any challenges to the government’s emergency powers.

It’s really not a discussion about what is right and wrong, and should we be shutting down this or doing quarantines or other things, but more about the practical realities of how judges and courts will look at this. 

This first of all reminds me of something I’d like you to keep in mind as we progress: If I were to ask you how many constitutions do we have, one answer might be, well, the U.S. Constitution and there’s one. That comes to mind when we talk about the constitution. We have the shorthand for it, right? We say the First Amendment, the Fourth Amendment and the like, when we’re really talking only about the United States Constitution.

Some of you might say, “No, we have 51 constitutions.” You’d be right because, in addition to the U.S. Constitution, each sovereign state of the union, Hawaii included, has its own different constitution that has, in some cases, equal force or, in some areas, greater importance in the powers that it delegates to various branches of government and the rights that it recognizes. My theory that I’m getting at, at least for this initial portion, is that we really have two constitutions.

First, the legal constitution that we lawyers know and we study and debate, follow these detailed, sometimes inexplicable nuances. 

Then there’s the popular constitution, the constitution that exists in all of our minds and in our culture. Most people don’t know, for example, the detailed contours of First Amendment doctrine, but we all know that we have the right to free speech. This is what I call the “playground constitution.” The rules we somehow learned over the years that in our minds have solidified into rules of law that we all for some reason just follow. The classic case of that is the finders keepers. loser weepers.

Trying to convince any kid that this isn’t a binding rule of law and similarly, try to convince an adult that the U.S. is a republic and not a democracy really doesn’t tell us anything about the actual legal constitution’s guarantee of the republican form of government. Good luck with that argument. 

My point to all of this is that I’m going to ask you to try today to separate out the legal constitutional principles that I’m talking about, what I deal with every day, from the playground constitution of what the kaffeeklatsch might think the constitution requires or even maybe you think the constitution should require, if only we did it right. With that in mind, let’s begin.

Dr. Akina asked me to give you some takeaway points. Here is my first. The big competing concepts that we’re going to be talking about today are illustrated by, I think, two things. First, the legal constitution, and contrary to some folks’ playground constitution, the important point is that the legal constitution is not suspended during times of emergency. That’s so important I’m going to say it again, because if you take nothing else away from today’s conference, it’s this: Your constitutional rights are not suspended in times of emergency. The Constitution has that baked in. It was designed to work equally as well in times of calm as in trying times as we are now experiencing. 

The Supreme Court reminded us of this in a case decided during the Great Depression. We talked about calamities. Forgive me for reading this to you but the court is worth quoting at length: “Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the states were not determined in the light of emergency, and they are not altered by emergency.”

Please, strike from your mind any idea that our rights are somehow suspended in a real or even an imagined emergency. What this tells us is that we should always be good citizens, skeptical of government powers that limit our rights. This doesn’t necessarily mean that you go out and file lawsuits every time you feel like one of your rights is being infringed, but that it remains your duty as a citizen to monitor and question the leaders we reelect.

On the other hand, and this is the second takeaway power, is this: Spam, every Hawaii person’s favorite Plan B. 

I raised this not to suggest that, often in life, the answer doesn’t lie in the law, but that you have an obligation to control and look out for your own. Choose your battles wisely. Are we all chafing under the current restrictions? Oh boy, very likely, right? Are some of us truly suffering? I don’t think there’s any doubt about that. Might the law give you some relief? Well, maybe, and whether it does or it doesn’t or not, Spam up, right?

Don’t necessarily rely on the courts to handle your rights and protect your safety or your government officials to protect your safety. If they tell you, “Well, you can go to the beach,” does that mean you go to the beach? No, you stay home and keep your Spam. 

Another thing I’d like you to take away from today is: Let’s dispel the notion that we’re in a war. This emergency isn’t a war, and it shouldn’t be treated as such because in a war, courts may even be less willing to consider valid objections.

You only need to know the infamous Korematsu case and the interning of American citizens justified at the time by, “This is war.” It took 70 years to formally acknowledge that failure to understand that we are in an emergency situation, but we’re certainly not in a war. The U.S. Supreme Court has said that even during a war, for example, the intentional destruction of enemy property is not something that the government is responsible for remedying or paying for.

For example, the famous cases during the Civil War, the Union Army blew up train tracks and bridges in Confederate territory in order to prevent the rebels from using them. After the war, the railroad company asked for compensation from the government for taking up its property.

Now, here’s your first legal point of the day. The U.S. Constitution and the Hawaii Constitution both require that when private property is taken for public use, a very distinct legal term, the government owes just compensation to the property owner. In other words, when your property is effectively pressed into public service, most often through the exercise of eminent domain, but also when the government limits your use of property such that it deprives that property of all use and value, the constitutions require that you’d be paid for it.

It’s unfair, the theory goes, that a single owner bear the burden of what are unquestionably public benefits. The railroad sued for a taking. “You blew up my bridges. You tore up my tracks in order to win the war. That’s a great thing, but why should I have to shoulder the burden for that?” The court said, “No.” The Supreme Court of the United States said, “No, this is war. This was to keep your property from falling into enemy hands, and therefore, no compensation.”

We’ve seen some efforts to analogize the ongoing situation saying, “Well, we can ask you to shut down your business,” and, for example, “Because you’re using your property like enemy property, it’s injurious to the public health, and we’re at war with the coronavirus.” 

But let’s keep the war analogies away, if you don’t mind, because, as I said, this isn’t one. It’s an emergency. The way that they’re treated in the law is completely different. The government isn’t trying to prevent your business from falling into enemy hands when it tells you to shut down for the public health. OK, with that, armed with the Constitution in our left hand and our Spam in our right hand, let’s turn to some of the more prominent questions that have arisen recently about the various orders the government’s put out to do or not do things, all in the name of protecting the public health from the coronavirus crisis.

One thing, just a little bit of maybe perspective: The present emergency is simply the latest in a long line of events that we in Hawaii are unfortunately used to. For example, in 1900, the government officials accidentally burned down Honolulu’s Chinatown when they purposely started fires to respond to an outbreak of the bubonic plague, which makes the coronavirus look like child’s play.

We all know, of course, Kalaupapa is famous as a place of quarantine for the victims of Hansen’s disease, and Sand Island, just off on the other side of Honolulu Harbor. Anyone know the original name of Sand Island? Well, I can’t hear you if you called out, but yes, Quarantine Island; that’s because that’s where they quarantined people inbound off ships, if there was someone suspected of having a potentially communicable disease. Of course, Americans of Japanese descent were interned after Pearl Harbor up in Honouliuli.

I’d like to take you back to an 1880s case decided by the Hawaii Supreme Court. It was the kingdom at the time, so it was the Kingdom Supreme Court. Kingdom officials barred commercial laundries within a certain radius of the intersection of Newton Llano and King, and they barred it because it was believed the dirty laundry was injurious to the public health. Anybody who’s familiar with downtown Honolulu knows what part of town they meant, and that’s Chinatown. But in other parts of town, and in other parts of the kingdom, commercial laundries were allowed, and within Chinatown, noncommercial laundries were allowed.

The objector, a fellow called Pong Ki, pointed out that the measure was both too broad and too narrow and couldn’t really serve the purposes that it was designed to do. Well, we lawyers say it wasn’t closely tailored and the court should strike it down as unfair and irrational. The court rejected the challenge. It said that government officials, well, they had an arguable reason for doing this, and even if it was over-inclusive or under-inclusive, it wasn’t up to a judge to make that call, but it was a call by an elected official and not a judge. This case is really well within the mainstream of both Hawaiian law and American law.

I raised this case, this decision, only to point out that it wasn’t even an emergency in that situation. It was just designed to protect the public health, merely the government doing what the government does. Even there, in the absence of an emergency, the courts paid a high level of deference. The court didn’t seriously question the means used to accomplish the stated goal.

What I’m getting at here and again — here’s another takeaway point — is that even on the most normal of days, courts are highly deferential to government claims that it can control your behavior, your business and your property, all in the name of public health, safety and welfare. If one thing is certain, and I think we can all agree on, these days are not normal days, so courts are going to be looking at any such claims like this with an even more skeptical eye.

Now, there may be circumstances where the courts may take a harder look. For example, at about the same time in San Francisco, there was a belief that bubonic plague was suffering an outbreak, and city officials quarantined Chinatown. The problem is they only quarantined Chinese people in Chinatown, and non-Chinese people were free to come and go. When the federal court took a look at that, it struck down the measure. The difference between that case and, say, the Hawaii case we were talking about just a minute ago was that there was a pretty strong proof that the reason the city officials did this was not to prevent the outbreak of bubonic plague but it was an anti-Chinese discrimination.

The lesson from these cases is, although on one hand the courts will be very deferential in the usual circumstances, if fundamental constitutional rights are involved, in that case it was to be free of racial discrimination. But for example, members of the press, the media, if there’s restrictions put on where they might be able to go or their activities, or religious gatherings, for example, those are probably going to be looked at with a slightly more inquisitive eye by the courts. You’ll see the courts maybe being more likely to step in. Tip: Put on your lawyers’ hats. When you’re looking at this type of situation, ask yourself, is this some general measure or is there some fundamental constitutional right involved or being impacted?

If so, maybe there’s a better chance of having a challenge succeed. Second, ask yourself, what is the government prohibiting? Is it a blanket prohibition? Nobody can go outside between certain hours, or is it some more tailored limitation? Nobody can go to church. In the latter circumstance, the courts are probably going to take a little harder look. The famous case we have, … well, let’s … I want to get to questions, so I don’t want to get into the detail too much of things, but are there limitations to the principle that the government has free rein to do things without serious judicial interference? Well, of course not, and here’s some illustrations of things I think we might see.

Let’s go back to our railroad case for a minute, where the army blew up the tracks. What about if the government were to, say, take over a hotel in order to house doctors, nurses, soldiers, sailors or other things. It brings to mind the aircraft carrier that’s now out of commission on Guam and 5,000 sailors somehow looking for housing on Guam. Can the government simply order a business owner or a hotel owner, or a homeowner even, to allow occupation and not provide compensation? Is this different from the railroad case? Short answer: Yes, it’s different.

The courts have said this is different. It’s not enemy property. We’re simply taking over property for public use and in that case, compensation will very likely be required. Here, your next tip of the day: If the government action in the name of public health safety or welfare impacts the property owner’s rights to occupy his or her own property, the courts are much more likely to require compensation, even if the government has a very good reason under the public health power to commandeer it.

What about this? Let’s say a little more nuanced situation. Government doesn’t come in and say you have to put up doctors in your hotel. What if it says we’re suspending rental obligations or we’re putting in place an eviction moratorium so that you’re letting the tenant occupy property without paying for it?

We’ve seen some examples of this eviction moratoria, even though we haven’t really seen what I would call “rent holidays,” and an eviction moratoria is where the government is saying your ability to collect rent or to enforce eviction or to bring an eviction action to evict a tenant is suspended temporarily, and there’s no lessening of the owner’s ultimate rights to eventually, say, collect the rent once this is over, or evict the tenant.

I think those will very likely not be well-received by courts as long as the owner isn’t being permanently deprived of their right to evict the tenant in the future and may be able to collect rent at that time. We’ve also seen calls for — again, what I would call a rent holiday — by which there is no rent. In other words, the government wipes out the obligation to pay rent during the time of an emergency.

I think those cases, at least in my own thinking, are much more likely to require compensation. Maybe not right now, but maybe when this is all over, and especially if it’s a situation where the lack of rent jeopardizes the owner’s ownership of the property; for example, if the owner has a mortgage that they usually pay with the rent that comes in, so you lose your property because you’ve lost your rent.

That raises the ancillary question about remedy that we often get as lawyers. Can you stop the government? Let’s say you’ve got a pretty good case that the government’s gone too far, that it’s exceeded its powers or otherwise. Can you stop the government versus what I’ve primarily been talking about: seeking after-the-fact compensation? In my view, that’s quite unlikely.

Actually stopping the government right while we’re in the middle of this is something I think a court will be very, very unwilling to do unless the government is acting outside of its powers. We’ve seen cases like that in the past from the Supreme Court of the United States. For example, even during the Korean War, President Truman seized steel mills in order to ensure continued production without being affected by a steelworker strike. The Supreme Court of the United States struck that down.

So far, we’ve seen a lot of lawsuits filed around the country ± none yet in Hawaii as far as I can tell — seeking to stop or enjoin these stay-home or close-down orders, none of which has been anywhere close to successful. 

Let’s wrap it with some takeaway points.

First, government can occupy private property now and pay you later as long as it has the obligation to pay you later. 

Second, if the government takes over your business and operates the business itself — for example, if you’re a hotel and it takes over your business to house doctors and nurses, the Constitution, no question, requires just compensation. 

Third, what about if the government orders your business to shut down or decides that it’s not essential so you can’t stay open? All I ask you to remember is this: Government can make you get a vaccine. That was decided 100 years ago by the U.S. Supreme Court, and if it can violate your bodily integrity, it can likely tell you to stay home without a court seriously questioning that. 

Again, even in normal times, courts give the other branches of government huge latitude in these things, and this is hardly normal times. Unless there’s clear proof — and this is your final caveat — unless there’s clear proof of the government’s doing this for some other reasons, such as to impact the media, impact the right of freedom of speech, freedom of press, freedom of religion.

Let me leave you with this before we turn to the questions: This is an emergency, not a war. We still have rights. It’s up to you to remember those and assert them. We still have to guard against inroads of those rights while still, like I said, stocking up on Spam and keeping that Spam in the right hand. 

The big danger — and I think this is the one that we’ll have to guard against when this is all over — is the worst measures, the most intrusive measures onto personal liberties are adopted under the guise of an emergency. We have to make sure when we get back to normal — and I’m very much assured that we will — that we hold our government to account either through the process of the legislative or petitioning-government process or, if necessary, through the courts, to make sure that what were adopted as temporary restrictions on liberty don’t mature into permanent restrictions that, like the frog in the boiling water or the boiling pot, that we just got used to.

With that, thank you. Let me turn it back over to either Joe (Kent) or Joe and Keli’i. I’m not butting up against any kind of deadline at the end of this. I’m happy to take questions as they come in.

Akina: You did a great job, Robert. Thank you very much. It was very insightful, as always. If you’re with us online right now, we welcome your questions. Simply type them out and Joe will field them to Robert. Before we get to that, let me just say this: Robert, your statement at the outset was that one does not surrender one’s constitutional rights during a crisis, but I want to ask you this question: What’s the difference between law and what the courts say a law is in this context?

Thomas: We could have a whole separate hour or two on that question alone. As lawyers, we look at what courts say the law is as what the law is. Now, of course, there’s all sorts of ways to adopt and make law. The first, of course, is by the people we elect  — the legislators with the executive branch mixed in. Our old civics courses would tell us the Legislature makes the laws, the executive enforces the laws and the courts interpret the laws. Well, that may be “playground constitutionalism” again because every branch makes and enforces law. What the courts say is binding, and it is. The other branches, especially in Hawaii, follow what the courts say.

We may not agree with it, but until a later court overrules it or a legislature changes the underlying statute, for example, or the people through the Constitution, let’s say, amend the Constitution, judicial decisions about what the law is are equally as — what should I say? — binding on all of us as a statute or even the Constitution itself. If you simply say, “Well, a court can’t make law, I’m not going to follow it,” I think you do so at your peril.

Akina: All right, well, I’ll do so when you’re representing me.

Thomas: OK, very good. That’s a deal. 

Akina: Several people standing by with questions. Once again, if you’d like to ask anything, go ahead and type it up. I’m going to hand it over to Joe so you can moderate through the question-and-answer time and field those questions now, Robert.

Kent: Sure. We’ve got a lot of great questions coming in, so keep them coming. This one comes from Mark Monoscalco. He says, “Government can take private property but must provide just compensation, but what about due process that should be required prior to the taking?”

Thomas: Good question. Very good question. This is I think a very knowledgeable question from Mark. We’ll get back to the lawyers’ constitution where we have separate provisions in both Hawaii’s and the U.S. constitutions, which not only, as I mentioned, prohibit the taking of private property without compensation, but also, as Mark said, set up certain procedures that must be followed before you deprive someone of property. We see these most often in criminal proceedings and the idea of due process.

If you have some kind of recognized property interest, the courts, Hawaii courts particularly, have been very, very good about this, saying that before the government can deprive you of that property, it has to give you fair notice and fair procedures.

Now, those standards vary case by case, depending on a whole bunch of different factors that I won’t get into, but it’s a significant limitation on the power to simply go ahead and seize your property, let’s say, or destroy your property, unless there is where the emergency exception might come in, or at least the emergency cases that I mentioned.

There is a famous one out of the state of Washington called Miller against Shane. This only a lawyer could come up with this situation. This is where cedar trees harbored a disease that was harmful, not to the cedar trees, but to nearby apple trees, and the state of Washington told the owner, “Destroy your cedar trees, they’re harming apple trees.” It’s not too hard to figure out that apple trees are probably more important to the economy of Washington than cedar trees.

The cedar owner objected and he said, “Wait a minute. they’re not hurting my trees. I have cedar trees and this blight doesn’t hurt my trees. It only hurts apples. That’s not my problem,” And the court rejected a due process challenge and said, “No, even though you have to take the hit for this. Yes, you’re entitled to some notice and some hearing.” Ultimately, the owner of the cedar trees couldn’t stop the state of Washington from ordering him to destroy his own property in the name of the public health, or this case, the health of the apple trees.

That’s a pretty severe case, but also a very good illustration on one thing, on one hand, or three things, actually: How much courts differed as to the judgments of elected officials; how little due process actually stands even in nonemergency times, stands in the way of overbearing government action; and three, that due process itself isn’t much of a hurdle for a court to overcome in terms of notice hearing and the fundamental fairness of the action itself.

Kent: We have a lot of questions. I’m going to lump them together.

Thomas: I will try to keep the answers shorter, too. The danger is you’re giving me an open mic, and you give a lawyer an open mic, that’s dangerous.

Question (Kent): We have a lot of questions about, what about: Can a cop stop me or arrest me for walking on the street? Can they just pull me over? What about going to the beach? Is this all constitutional or is this some kind of argument to protect ourselves against this?

Answer (Thomas): I think the short answer to that is in our first quotation, right? Let me share the screen for a minute. This quotation, “Emergency does not create power.” A police officer has the same ability to stop you during this emergency that he or she does any other day of the week. In other words, I think they have to have reasonable suspicion that a crime was being committed, or maybe probable cause. Forgive me, I’m not a criminal law practitioner, so I don’t know the exact standards. But there’s no special thing that says they can simply stop everybody.

In some cases, we’ve seen challenges, for example, to roadblocks, and there’s an established set of guidelines that the courts apply in nonemergency situations to tell you whether a police officer can stop you on the street or can stop everyone, say, on a particular street from going down the way via a roadblock. It’s not an unlimited power, and my understanding is they have to have either reasonable suspicion that a crime has been committed or even probable cause. They have to be able to articulate it in ways that will make sense to a judge if challenged. Are you in the wrong part of town? …  Are you out after the 11 p.m. to 5 a.m. driving curfew? … Are you in medical scrubs, for example, and are therefore presumed to be maybe a doctor or nurse going to work? I don’t know. But the short answer is emergencies do not increase the power of government agents to stop you on the street.

Again, we’ll go to the second picture. Keep your Spam in your hand and decide: Is this the hill you want to fight on when you make that call? Do you want to cooperate or do you want to whip out your copy of the Constitution and say, “You can’t stop me”? Next thing you know, you’ll be in a coronavirus-filled cell with about 20 other people. Ask yourself, “What’s my most prudent course of action?” And maybe sometimes stocking up on the Spam is better than drafting a lawsuit.

Anyway, maybe a related one to that is the beach, because a lot of people have asked about that. In Hawaii, beaches are public. Don’t we have a right to go there? If I’m a Native Hawaiian, don’t I have certain constitutionally recognized cultural and Native Hawaiian rights to go practice my culture and religion on certain places, in certain sites? Well, my short answer to that is: No right that I know of, that the Constitution recognizes as an unlimited right that gives you the right to do anything. They’re always subject to regulations of time, place and manner of uses and things like that.

Keep that in mind as you ask about particular places that again, on the best of days, your constitutional rights are not unlimited, that they are exercised subject to reasonable restrictions, and most courts, I think, will look at the measures that are being taken through the eye that these are probably going to be reasonable restrictions. Now, the cases we’ve discussed or the situations, there may be exceptions to that general vibe, but I think that’s the presumption that the courts will start with.

Q: We have a few questions about President Trump’s statements about total authority over the states and on opening. Also, another question related about whether the federal government could require vaccines.

A: Why don’t we do the vaccine question first, I think because that one I have a very specific answer to. 

Can the federal government require you to do a vaccine, let’s say if you have religious objections to it? Chances are, yes. There’s a case from I think the 1920s or ’30s on that very grounds, where anyone who did not voluntarily submit to receiving a smallpox vaccine, if I remember correctly, was subject to a $5 criminal penalty. The court upheld it, and that was a question of somebody challenging that on their liberty, says, “My bodily integrity. I don’t want a needle in my arm, in my body.” The court said, “No, … you are jeopardizing other people if you don’t do it and there’s overwhelming science that these vaccines work.” Those combinations, said the court, your constitutional rights, what the court called … “Liberty.” And then you have what the court called “real liberty,” which is liberty subject to your right, your obligation not to hurt other people, and walking around as a potential smallpox carrier is potentially hurting other people, therefore, your right to true liberty has to give way to the public health. That’s the short answer on the vaccine, and what was the other one?

Q: Just whether Trump can …

A: That one will go back to my (earlier point): There’s the playground Constitution and there’s the legal Constitution. The legal answer is that the federal government is one of the enumerated powers. It can only do certain things; everything else, the true sovereigns in this country are the states —  state governments, state officials. 

Trump, on one hand, must have read his Federalist Papers because his approach, generally speaking as I see it, has mostly been one of suggestion and not of command from the federal government. He’s a true believer in states’ rights, maybe on that hand, and yet his most recent statement seems to throw that out the window, By that (I mean) I think he is actually employing the “playground constitution,” the one that’s in our minds. The president is the leader of the nation and we tend to look to him — or one of these days her — as setting the tone and the policy and controlling the economy, when we all know that in reality, it’s really elsewhere or at least should be elsewhere under the legal Constitution.

I think you have to take his statements in the different veins that they are being made. On one hand, his lack of action … within the last couple of months and his deference to the states is fully consistent with the written constitution, and I think the way that it was designed to be. On the other hand, his statements that, “No, we ain’t opening the economy until I say the economy is open,” that’s the playground constitution at play.

Kent: Question from Andrew Walden.

Thomas: Hi, Andrew.

Kent: He asks about the transparency in open records law. He says, basically, if a department or agency doesn’t give you the open records that you request, then what needs to be shown to the court to prove that the UIPA suspension is a subterfuge and not a genuine effort to reduce COVID?

Thomas: Big question … I think I saw my colleague from Maui, Lance Collins, had made some efforts on that question with respect to the Maui County Council. But let me give a 30-second background here for some folks who might not be familiar with the terms that Andrew is raising. What we the UIPA — the Uniform Information Practices Act or law — is effectively our state version of the Freedom of Information Act. It’s a government records act that says anything that’s deemed to be a “government record” — and that is very broadly defined — there is a presumption that the public can access that through the normal means with little effort and low cost, and if nothing else is clear in Hawaii Law, then it’s this: It’s that there’s a very, very strong policy in state law for the freedom of information, transparency, whatever you might call it, but at the same time, alongside those same statutes, there are specific statutes that give the governor and county mayors very strong powers during a crisis, a declared emergency, to suspend statutes. Now, the distinction here is they cannot suspend the Constitution as we know, but they can suspend certain statutes, and among them are the freedom-of-information laws.

I think the courts, if faced with certain challenges, will look at that, and I think on this one, how practical is it? Does everyone’s home computer who works for the state government, who is now working at home, does that become subject to disclosure as a government record? Our courts are very, very, very pro-disclosure and defining what is a government record, but they’re also in favor of the privacy of individuals whose information may be revealed during the course of a request for a government record. 

Kent: What would you need to show to a court in order to prove that they weren’t just trying to duck your question?

Thomas: (That they are using) this time as sort of an advantage to say, “Well, we hate these kind of questions.” And make no mistake — sorry government officials;I know you guys hate IUPA and FOIA requests. Don’t complain to the Legislature if you don’t like that. Again, in normal times, they do not appreciate the extra work that these laws create, as essential as they are to the functioning of government. 

I guess the question is, what do you need to show? I think it’s the same type of facts that you would show any other time the government seems to be dragging its feet. Except in this situation, I would think that the playing field is a little bit altered. It’s not altered legally, but the factual threshold where the court might be willing to accept more the government’s claims that this is really hard, which is normally not a reason to produce a government record, as in, “Oh, this is terrible. I don’t want to assign employees to do it.” Nowadays, maybe that’s going to be a more compelling reason than it usually is. You look at the same factors that you normally would look at in a government records case and amplify it.

You’ve got to look at the hardcore evidence, I think, that this is really a delay. Let’s say, for example, you’ve asked for this over the past two years before there was ever an emergency and the government’s been dragging its feet. Why now? Now, all of a sudden, it throws back at you, “Coronavirus is the reason we can’t give you these things right now.” All of a sudden, it starts looking like this is part of a pattern and not really based on, let’s say, some circumstance occasioned by the coronavirus. Maybe the courts in those cases would look at it harder. At least those are the type of facts that I would look at as a lawyer, if I was asked to drum up the case along those lines.

Kent: Hey, we have just a lot of great questions …

Thomas: Would it make sense for me to give out my contact information now, so if anybody wants to talk offline, continue the conversation? I can’t promise I’ll answer it immediately, but I’ll make every effort to get to every question. My email is rht@hawaiilawyer.com. If you can’t get your question in, hit me up on email and I’ll do my best just, with the caveat that nothing I tell you can be used against me or in a court of law.

Akina: We’ve got some great questions that are lined up already. Robert, may I suggest a speed round?

Thomas: There you go. All right.

Akina: Joe, you send the question to Robert. Robert, you take about 30 seconds or so to try to respond to each one.

Thomas: That’s Keli’i’s nice way of saying, “Stop talking so much, Robert.”

Akina: Go ahead.

Kent: Here we go. What can the average everyday citizen do to push to get things back to normal, perhaps legally too?

Thomas: First is, just be prepared to come shooting out of the gate. It can take all of us to get the economy back on its feet. Keep going, don’t give up. We’ve been through this before. Some of us have been through similar circumstances, none quite this bad before, but talk to your parents and grandparents who ended up interned. My cousins were all interned in World War II, or went through wars, went to Vietnam, who did all sorts of things, who survived the big Lehman Brothers downturn. We’ll get through this. Come roaring out of the gate when we’re done. Be vigilant. That’s my political point. My legal point is to be vigilant. Continue to hold our government officials’ feet to the fire and when this is all over, don’t let them keep what look like temporary measures and make them permanent.

Kent: Another question. How have courts responded to the fact that courts are themselves suspended in many places?

A: I thought very well. We’ve seen the courts being pretty nimble about it. In fact, the Supreme Court of Hawaii at first said, “All deadlines are suspended in all courts for the most part until April 6th.” Then recently it issued an order that told all the lawyers and the parties, “Well, April 6 is it. No more extension of deadlines, it’s back to business as best you can.” The Hawaii Supreme Court has been particularly good about it. Jeff Adele did a session on ThinkTech Hawaii last week with Chief Justice (Mark) Recktenwald, and I recommend you all go take a look at that if you’re interested in that question.

I think both Hawaii courts and every other court that I’ve been participating in has been extremely nimble about it. Normally, judges, lawyers and parties who may have been very antagonistic in normal times were suddenly getting all warm and soft and cooperating with each other. There might be some good coming out of this.

Kent: Another question, from Mark White. He says, “Robert, I believe the government has essentially two requirements to meet when issuing these restrictions. One, a compelling need and two, a narrowly tailored action specific to meet that need. The question is what defines the parameters of narrowly tailored and aren’t blanket proclamations?

Thomas: A very good question. That’s a take on the nuance of that Hawaii Supreme Court case from the kingdom days that I was telling you about. That’s true. The government needs to show a compelling need (and a response) that has been narrowly tailored. But I think the more dispositive question that you asked to ask is: Who makes the decision that some need is compelling, and who makes the decision whether doing X is tailored narrowly enough to be considered constitutional? You might think it’s the courts. Well, I think if nothing else comes out of the cases that I’ve talked about today, and the situations, in most cases it’s the courts saying “No, we’re just judges.” It’s like the unfrozen caveman lawyer routine that Phil Hartman used to do: “Your world frightens and confuses me.”

Judges tend to act like that when there are claims made that a certain action by the government isn’t in furtherance of some compelling need and that it isn’t narrowly tailored. The courts tend to defer in most circumstances. Again, you have to be on guard against letting yourself say, “Well, how come I can’t go out when, let’s say, lawyers are deemed to be essential? How come another profession isn’t deemed to be essential?” We’re right back in the situation that the Hawaii Supreme Court looked at in 1880, saying, “How come only commercial laundries in Chinatown were being affected by their restriction and not everybody, if it’s indeed harmful?’

Kent: Another question: Do you foresee the state adequately compensating businesses for their lost revenues during this time?

Thomas: Tough case, let’s put it that way. One, it’s a general shutdown. Right now, if they were specifically pointing out a business and saying, “You shut down, you shut down, you shut down,” not because there’s any public health reason to do so specific to that business, or if they’re letting some open and some close, well, then you get into those situations where it’s worth taking a much harder look at whether they’re singling out anybody for disparate treatment when they really shouldn’t be and whether there’s any of those compelling needs and narrow tailoring going on.

In these general shutdown orders, it’s much harder because it starts looking like there’s no good reason, like we saw in that San Francisco quarantine case (in which they) quarantined only Chinese people and only in Chinatown, and let everybody else come and go. In those cases, it’s a little bit easier to show that, well, there’s some other reason going on, but these general rules tend to apply to everybody.

The way I would look at it as a lawyer, if some of them didn’t apply to me and applied to you, then maybe I’m going to look at that case where it applied to two different classes of people a lot harder than I normally would. So far, none of those challenges — and there’s been about five or six that I know of around the country saying, “The shutdown order is irrational, it’s burdening me versus somebody else” they haven’t made their proof, and none of them, as far as I know, have been successful so far, even close to successful.

Kent: We got a good question from Stuart Urine.

Thomas: Hi, Stuart.

Kent: In the “rent holiday” example, who would be responsible for compensating the landlord? The government? Do you foresee other examples under current laws where there could be successful regulatory taking suits?

Thomas: Yes, good question. Short answer: Yes, the government … can’t take. But if the government allows a private party to occupy property, then the private party isn’t liable for that taking for compensation, it’s the government itself. It would be the government —, state, federal or city, and county or the county that ordered the rent holiday — that would be the defendant in that kind of case. I’m sorry, what was the second question there?

Kent: The second question is: Are there other successful regulatory taking suits like this?

Thomas: It’s a hard case. The Supreme Court of the United States already said there are, “literally infinite ways” in which government actions can restrict unconstitutionally someone’s use of their property. Potentially, yes, there are others. To me, that’s always been the most obvious one, and I haven’t sat down really and gamed out some other possibilities out there, but that’s why I watch the headlines to see if, “Maybe this one.” 

Is government telling you can’t use your own property? We have cases of people challenging (things like) you have to stay in your house versus you can’t go in your backyard, or why can’t I go to a public park as long as I stay away 6 to 10 to 20 feet or however far it is from somebody? At that point, the government’s just doing that, maybe the argument might go. It’s more convenient to tell us all to stay home than to actually police what we’re doing when we’re doing it unsafely. The short answer to Stuart’s question is: Yes, there’s a billion ways that this might turn into a takings case, but I haven’t seen any just yet.

Kent: Bill Hastings asks: Would a court ever decide that the government has gone too far? For example, businesses closing for months or two months or six months — how far is too far?

Thomas: If it’s simply a question of time, they keep you closed until you go bankrupt, that’s a worse situation, but a better case from a lawyer standpoint. The more the damage, the more likely it is the court will step in, but it’s still a tough case. Again, as long as these type of regulations and limitations are applied to everyone, that is probably the best case for the government, and as long as there is at least some colorable science out there that tells us this thing is still a danger, the courts will not get into digging into who’s right about whether there is indeed a threat from coronavirus.

I have serious doubts about any court doing that, much less a court doing that while we’re in the middle of it. They will almost certainly defer in all but the most extreme cases to the government’s conclusion that, yes, the coronavirus is a problem, and could it go on for a long time? Yes, I don’t think the time alone is determinative of the validity from the Constitution standpoint one way or the other.

Kent: Well, I guess I have a last question here, from Robin Stuber. She asks: Looking at the bright side, what is the biggest opportunity that this unprecedented event has opened up? 

Thomas: That’s a great question. My takeaway from this — and it’s something I as a lawyer who does constitutional law understands, but I think a lot of people may be having their eyes open — is that again, in the best of times, the government has a severe and overarching power to limit your liberty and your use of your property, whether it’s requiring you to get permits that you don’t think are necessary, certificates of needs to have a food truck, let’s say, or classic licensing questions. What we’re seeing now isn’t the government doing anything more they could already do. My message from this, my own takeaway, is to remember how you feel now and make sure that we don’t necessarily even go back to pre-COVID normal. Look for ways in which this situation has taught you to make inroads on other unreasonable intrusions into your life, liberty, property.

Hopefully, in times when we’re not quarantined and worried about our family, friends and colleagues’ health, we can address the more serious questions of the place of free markets because, as some have suggested, free markets are the way out of this. Individual responses: Get your Spam, armor up with your Spam and (don’t be) relying on the governor or the mayor or the City Council to dictate — and I use that word very gently — to mandate by law what you can and cannot do, because I think our freedoms, as we’re all realizing ,maybe for the first time in this concrete way, are very important, and it’s up to us, not them, to make sure that we keep them.

With that, maybe that’s a good way to end it and again, rht@hawaiilawyer.com. Glad to try to answer any questions you may have or just want to send me a note and say, “Hi.”

Akina: We definitely will put your information into a note that goes out to everyone who registered for this program today.

Thomas: I also want to say that I have a blog that you kindly mentioned earlier, and all of these cases that I mentioned today, if you actually want to go read the decisions, I will post those on my blog after we get off this teleconference. You can go read them yourself and tell me I’m wrong about them or I’m reading them wrong, but I will make those available on inversecondemnation.com.

Akina: Very good. Thank you, Robert, so much for being with us today. Thanks to all of our viewers. We appreciate the questions and we apologize that there were a few more questions that didn’t get answered due to time. … On behalf of Grassroot Institute of Hawaii, I thank you so much for joining us today. Again, Robert Thomas, thank you very much. We’ll see you next week, hopefully. Aloha.

Thomas: Aloha.

Kent: Aloha.



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