‘Emergencies do not suspend constitutional rights’

Opponents of Hawaii’s economic and social lockdowns were greeted with good news on Monday, namely that “lockdown restrictions imposed by Pennsylvania Gov. Tom Wolf (D), including a ban on large gatherings and the closure of ‘non-life sustaining businesses,’ are unconstitutional.”

Honolulu attorney Marc Victor, whose firm Attorneys For Freedom is pursuing a similar case in Hawaii, said on Keli’i Akina’s “Hawaii Together” program that the Pennsylvania ruling affirmed the idea that, “Emergencies do not suspend constitutional rights.”

Akina asked attorney Jody Broaddus, also with Attorneys For Freedom, if the new ruling offered any hope to “Hawaii businesses that have been shuttered by the emergency orders?”

Absolutely, she said. “I think the judge in the Pennsylvania case did an excellent job of presenting the constitutional issues, not just saying there’s an emergency and you can turn a blind eye. With the businesses, people have a right to earn a [living], and the court was cognizant of that. Another thing that the court did is …  a good job of opening up that you can’t just say people can do certain things but not certain things when it’s the same issue.”

Watch the video below to hear the rest of what Victor and Broaduss had to say about the Pennsylvania decision and their own legal efforts to lift Hawaii’s lockdowns. Or you can read the full transcript.

9-14-20 Marc Victor and Jody Broaddus on “Hawaii Together”

Keli’i Akina: Aloha, and welcome to “Hawaii Together” on the ThinkTech Hawaii Broadcast Network. I’m Keli’i Akina, president of the Grassroot Institute and your host for this program. 

Well, if you’re like me, you’re probably at home now locked down in response to the coronavirus pandemic. While that’s the response of our government to institute lockdowns and use emergency powers, there are a lot of people who aren’t happy with it.

For one thing, it’s also shut down the capacity to do business. Many businesses, including the tourist industry, have just gone under. It’s a terrible thing taking place in terms of the impact, or unintended consequences, of these lockdowns. Today, I got two attorneys who are going to talk a bit about the legality of these lockdowns and whether they can be challenged.

My guests today are Marc Victor and Jody Broaddus of Attorneys For Freedom, with offices in Honolulu and Las Vegas. 

We’ve got breaking news. I was going to talk with them about a case that they’re running in terms of fighting against lockdowns in Hawaii, but as it turns out, Pennsylvania has acted today. We’re going to take a look right at that at the top. First, let me welcome Marc. Marc, welcome to the program. Tell me a little bit about your firm and also introduce Jody to us.

Marc Victor: Well, thank you, Keli’i. It’s a real honor to be on your program here today. I’m appearing with one of the partners of our law firm here, Attorneys For Freedom. This is Jody Broaddus. Jody is very involved in all of the civil cases at our firm, so I wanted to ask her to appear with me today. Our law firm is really different from every other law firm because we’re a group of activists. We’re freedom activists. I think that Attorneys For Freedom is not just a name. It should mean something.

What it means to us is that every attorney who is employed by this firm is really a freedom activist, which basically means that we like a free market economics. We like a free economy. We also feel very strongly about protecting civil liberties; basically, the rights of people to live peacefully however they choose as long as they’re not bothering other people. Because we’re activists and we are proud to be in Honolulu, we’re very interested and energized to do what we can to really try to improve the state of Hawaii.

Akina: Well, Jody, I’d like to welcome you as well to the program. I hope you’ll get to visit us soon here in Hawaii, especially once the quarantine has lifted.

Jody Broaddus: Oh, I hope so too. I’m looking forward to it.

Akina: Well, thanks for being here. Let’s just jump right into it. I said there was breaking news today from Pennsylvania. What do you both think about the decision handed down today by a Pennsylvania-district [federal] court judge? It’s one in which he found that stay-at-home orders and caps on group sizes were unconstitutional. Marc?

Victor: Keli’i, this is the decision I wish we had received initially in the Honolulu federal district court. This was a case, if you recall, [through which] our law firm was the first to bring a federal challenge in Honolulu. We went to the federal court. 

Basically, for strategy reasons, after a different firm brought a lawsuit, we withdrew. Our plaintiffs decided they wanted to withdraw the suit.

So we didn’t get to argue that case, but the other firm from the mainland argued that case,[which resulted] in what I would call a terrible decision from the judge in that case. It’s almost the polar opposite type of a decision that they got in Pennsylvania. The judge in Pennsylvania did something close to [what] I think … I would have done, if I was the judge there. Basically, if I had to put this in a one-liner, it would be this: “Emergencies do not suspend constitutional rights.”

That’s been really the feeling across the country, at least in my opinion, by a lot of people wearing black robes. It’s been, “Look, there’s an emergency. All these great protections and things that we have in our Constitution that the Founding Fathers and framers of the Constitution put out there — that stuff doesn’t matter anymore because we’re in an emergency.” 

I think that this judge in Pennsylvania basically gave a little bit of lip service to that saying, “Look, at the beginning … ”  — and I feel the same way. At the beginning, we don’t know exactly what’s going on. You have to give a little bit of deference. [But] now, here we are in September. We’ve got a lot more information about [what] the kill rate is on this virus and how many people get ill and who’s really vulnerable and who’s not. 

Things have to change. We cannot get lulled into this endless idea that governors can just continually keep issuing and reissuing these proclamations that fly in the face of everything about American jurisprudence.

Our separation of powers is out the window. In essence, we got one person now both making laws and enforcing laws and continuing to just go on and on until, if the day ever comes, that the governor decides that the emergency no longer exists. This is an untenable position. I really cheer on, and I am really happy to read, the decision from Pennsylvania. I’m sure it’s going to be appealed. I hope the judges on the Court of Appeals feel the same way.

Akina: Well, I like what you said. Emergencies do not suspend constitutional rights. That’s something that should be inscribed on a monument in Washington, D.C., of all places. 

I’d like to ask Jody a little bit more about the Pennsylvania case. I know you’ve just finished reading it. The Pennsylvania judge also ruled against the closure of non-life-sustaining businesses and wrote about the right to earn a living. That was remarkable.

Broaddus: Absolutely.

Akina: Do you think this offers any hope to Hawaii businesses that have been shuttered by the emergency orders? By the way, there’s not a day that goes by here that we don’t learn of another dozen businesses that have been shut down, in which they just can’t operate and function or even to get started up again.

Broaddus: No, you’re absolutely correct. I think the judge in the Pennsylvania case did an excellent job of presenting the constitutional issues, not just saying there’s an emergency and you can turn a blind eye. With the businesses, people have a right to earn a [living], and the court was cognizant of that. Another thing that the court did is, it really did a good job of opening up that you can’t just say people can do certain things but not [other] things when it’s the same issue.

For example, you can’t tell people not to go to the grocery store, but you can let them go to church. The exposure is still the same. I think that opens up the door for the businesses, and especially in Hawaii that have been devastated by this. There’s a lot of different ways to look at this, but I think the strong one is, is you have these constitutional protections that are just being cast away.

I think that’s the problem that we’ve had so far with dealing with the courts and the governor in Hawaii: “We’re throwing away all personal liberties because we’re the parent. We’re going to decide what’s best for you, regardless of whether you’ve been exposed to it, regardless of whether you have anything.” It’s an overreaching, global type of restriction that has no limitation.

Akina: Terrible. It’s as if we’re creating a government that is our parent rather than the servant of the people.

 One of the big items in the Pennsylvania case was the fact that the emergency response has seemed to be primed to go on indefinitely, forever. The judge in the case said that the Constitution cannot accept the “new normal” that allows for the infringement of basic liberties. What do you think? Do you think that the fact that the lockdown has no end in sight changes the legal situation that we were in back in March at the beginning of the lockdowns, Marc?

Victor: I think it dramatically changes things, right? I think everybody — not everybody, but most people — understand that, when we’re looking at the TV and there’s something new coming; there’s a new virus, it’s novel, we don’t know how it works, and we see it’s coming and people are dying, OK, fine. Most people say, “Look, we got to be reasonable. We got to take some precautions.”

But so much time has passed now, and we have a lot of evidence that this isn’t going to destroy the human race. We know how to deal with this virus. The government, like governments generally are, they’re not responsive. They don’t change. What happened in Hawaii was wise in our statutes. They say, “Look, emergencies happen. The governor is hereby granted 60 days to declare an emergency and to get things done.”

That makes sense, Keli’i, because 60 days is enough time to get the Legislature together. They are the professional lawmakers, and they should act. They haven’t acted in Hawaii. It’s not appropriate for the governor to continually act, really, as a one-man, iron-fisted dictator. 

I think that what’s critically important in this [Pennsylvania] case is that the judge really looked at this case that was decided by the United States Supreme Court in 1905. This case has been repeatedly cited. It was also cited in the case that was decided in the district court in Honolulu. This case out of Massachusetts, it deals with the smallpox and the question of whether Massachusetts could forcefully get people, to force them to take the vaccine. 

But this is a completely different time. Our courts have completely changed how they deal with constitutional issues. We now have tiered levels of scrutiny. This judge was aware of that. The judge also said, “Look, the 1905 case, it doesn’t give carte blanche for states to do whatever they want.”

I got to tell you, Keli’i, this is a problem we’re going to have to address going down the road, because so many people in the freedom world say, “Look, states’ rights, states’ rights. We want the federal government to curtail what they’re doing because the power rests in the state.” That’s great when the federal government is acting in excess of its authority. But when the state government is acting in [excess of] its authority, we’ve got to find a way to curtail this almost unlimited grant of police powers, this right to regulate health, welfare, safety and morals.

There’s just not really a limit on it. We need to do something, and we need to think long-term. We’re going to get past this. This is going to happen in Hawaii just like it’s happened everywhere else. It’s going to be a few months where lots of cases will happen. As more people get it and develop immunity to it, it will wane like it has everywhere else. The question is: Are we going to learn from this and change how we do business in Hawaii? That’s the big issue going forward.

Akina: Well, Marc, that’s certainly one of your goals now. I’m going to ask Jody, in the next two minutes before we go to the break, introduce to us the suit that you guys are bringing here in Hawaii against the governor’s proclamation. What’s that about, just in a couple minutes?

Broaddus: Sure. It’s a lawsuit that we’ve brought on behalf of a group called For Our Rights and has several individuals. We’re asserting various constitutionally based claims. The main one, the primary one that we really are focusing on initially, is the governor’s authority to issue a 60-day proclamation. … That’s all it allows. As Marc addressed earlier, what that 60 days allows is [the] Legislature to come in and make rules and make laws if it wants to. The government by the people, through the people.

What has happened is the governor just keeps extending orders and creating law. Basically, as Marc said, it’s created a dictatorship. The lawsuit is addressing that specific issue. It also talks about the impact on the fundamental right to travel, not only to the states or to the different areas but between islands. Everything is restricted. You have quarantines in place also restricting people from movement even though they haven’t been infected.

Actually, one thing that’s really interesting that is correlative to the Pennsylvania suit: The Pennsylvania suit talked about the quarantine and how it’s defined under Pennsylvania law. Hawaii law defines it the same way. A quarantine applies when someone is affected or has been exposed. We don’t have that here. Everyone has been quarantined without having Hawaii’s own statutory application of what quarantine is for. I think that those things will really help us out in going forward.

Akina: Very good. When we come back from a break, we’re going to hear more about this suit. Hopefully, you’ll tell us a bit about the plaintiffs and how the suit will proceed, and we’ll get into some of the nuts and bolts. 

I’m Keli’i Akina on ThinkTech Hawaii’s “Hawaii Together.” We’ll be right back in just a moment with Attorneys For Freedom. Don’t go away.


Akina: Thanks for sticking around here on ThinkTech Hawaii’s “Hawaii Together.” I’m Keli’i Akina. My guest today is Marc Victor and Jody Broaddus. They are both attorneys at Attorneys For Freedom, talking about a suit that they’re bringing against the governor’s proclamation on shutdowns. Let’s go to Jody first. Tell us a little bit about the plaintiffs and how the suit came about.

Broaddus: Sure. There’s a group called For Our Rights, and they’re based in Kauai. They all live there, and they’re all feeling this really strong impact from the governor’s proclamations. They’re a bunch of individuals. They’re business people. They’re family people. They’re locals. They’re every type. They represent all different types of people just like on any other part of any of the islands. 

They have experienced the same things that other people on the islands have felt: isolation, anxiety, fear, loss of family support. You can’t travel. You can’t see people. Their businesses have been completely devastated. They can’t earn a living. They’re losing all sorts of ways. They’re getting behind on mortgages. They’re losing their right to be able to just live. They’ve been so strongly impacted. They felt a need to come forward, and try and have a way to challenge these proclamations and be able to have a life again.

Akina: How do you plan to go forward with the suit? What’s the basic strategic direction? I don’t want you to give away anything that might disadvantage you in court, but what can you tell us at this point?

Broaddus: Well, litigation, especially civil litigation, can go on for a long period of time, even years. Our goal is to expedite that in this case. We have several different causes of action, and what we’d like to do is get some of the initial ones right in front of the judge immediately. The main one we want to do is we want to file a motion to have the court immediately address the 60-day proclamation and the governor’s authority to keep continuing those. We want to get something in front of the judge. It’s more legally based, not a lot of factual issues on that. It’s based out of the Constitution and the laws of the state.

It should be something that can be brought up immediately without having to go in extensive discovery and extensive types of areas that normally distract from getting something in front of a judge quickly. Our goal was to get this initial issue before the judge. If the judge rules on that, that’s a huge win because it takes away these proclamations and allows the people of Hawaii and the businesses to go on living and start trying to mend all the horrible things that have happened and the experiences they’ve had in trying to get life to some semblance of normalcy.

Akina: What do you hope to accomplish in the long run? If a suit is successful, will it end all the emergency rules, including the county and city rules?

Broaddus: Generally, yes. It will do that because it’s going to be constitutionally based. Because those arguments are constitutionally based towards the governor and the state’s authority, it’s also going to apply to the local levels.

Akina: Now, some of your critics say that emergency proclamations are legal because they don’t really infringe on constitutional rights. Marc, what do you say to that?

Victor: Could you imagine, Keli’i, the argument that being required to stay home, to be imprisoned in your own home doesn’t violate your constitutional rights? This is such an upside-down understanding of anything about constitutional rights. Basically, your right to do virtually everything is curtailed right now in the state of Hawaii. Of course … virtually every constitutional right that you have is being dramatically infringed on — not just infringed, but curtailed and completely taken away. To me, it’s not even a serious argument to say that your constitutional rights are not being infringed right now. Of course they are.

Akina: One of our biggest concerns at the Grassroot Institute when the governor began to exercise his emergency powers is that he curtailed the state’s sunshine and open-records laws. That was one of the first things that he did — and in an unprecedented way that we don’t see anywhere else across the country. Couple of questions: Is your suit going to touch on that at all? And whether your suit touches on it at all, what are your thoughts about it?

Victor: Our suit does not touch on that. The reason it doesn’t is we don’t have plaintiffs that wanted to bring those claims. We would love to bring those claims. I think they’re very serious claims. I think this is exactly the kind of “creeping tyranny,” right? This is exactly what our Founding Fathers were worried about: the creep towards tyranny. They even warned about this. If we do not remain eternally vigilant, we don’t deserve to live in a free society. This is on us.

We all need to look in the mirror and say, “We brought this about. We put these politicians in office. We’ve allowed these laws to be on the books. We have created the stage that has allowed Hawaii, in a shamefully horrible way, to be listed as the 49th freest state in America. The Aloha State, which should be the freest state in the nation, is the 49th freest state,  and it’s our fault.” We need to learn from this.

We’re going to get past it, but we need to learn from it. We need to move forward in a way, if we’re really serious about freedom and liberty and protecting the rights of people to live how they choose. All people, no matter what color your skin is, no matter where you were born, no matter what language you speak, if we’re really serious about being the Aloha State, we need to start walking the walk and not just talking the talk. That’s the long-term plan that we’re going to be pushing at our law firm for the state of Hawaii.

Akina: Jody, what limits would you like to see on the governor’s emergency powers as a result of the success of your suit?

Broaddus: Well, first of all, there’s the 60-day limit. That is what is allowed. I’d like to see that enforced, is that the governor has no more than 60 days. He can’t continue these proclamations out under the guise that he’s just allowed to do so because he wants to. Our first and our primary issue that we need to deal with is stopping the governor from continuing to police all the people and run a dictatorship under how he wants to do it without looking at the people, without taking into consideration there’s constitutional implications that are going on here. 

I think that’s the primary thing we want to see. We want to see the governor take back and stop these proclamations. They’re not authorized under the law, and they shouldn’t be. He’s already exceeded his authority in so many different ways. It just detrimentally impacted so many different people that we need to get back, as Marc said, to this free society. I think the first step is to restrain the governor’s authority to what it actually is.

Akina: Very good. Well, as we reach the end of our program, let’s shift away from litigation and talk about other ways we can bring about change in the government. I know, Marc, you have an innovative idea. You’ve made an offer to the governor, or you will be making an offer to the governor, that could be a win-win solution, a participation between government and the private sector.

Victor: Well, that’s right, Keli’i. Last week, we sent a very detailed letter directly to the governor. We said, “Look, we’ve seen now that there’s no way to keep coronavirus out of anywhere. It’s crept its way into every nook and cranny of our planet. It’s part of the environment we live in now. Maybe it’s been delayed, but it is here now in Hawaii. It’s going to stay there until enough people get it, and then they generate these antibodies in their system.” How long they last, we don’t know, but we know that people have them after they get them.

So Hawaii, being the gem of the world, is in a wonderful position right now. I’ve spoken with leaders in the private sector, because I like private sector solutions, voluntary solutions. The private sector has said, “Look, Marc, if the governor says we will invite people to the state of Hawaii who can prove they are positive for those vital antibodies, we’ll invite them to come to Hawaii. Let’s let the private sector give them an incentive. Maybe 30%, 40%, or even 50% discounts for people who come to Hawaii.”

Maybe they have to give that all-important convalescent plasma. This will definitely flatten the curve in Hawaii better than anything else that’s happened. It will protect the people in Hawaii with herd immunity who are now just sitting ducks because they’ve been insulated from the rest of the world. It will give the convalescent plasma to help treat the people who actually get it, and it will definitely, immediately open up the economy and save those businesses who are so mightily struggling to just stay in business.

It’s a win-win-win all the way around. It’s even a win for the people who have recovered from [the coronavirus], who now, maybe even for the first time, can come to Hawaii at a tremendous discount. All we need is for the governor to say, “This makes sense. Let’s invite people.” We got to put up a website. Let them prove that they’re positive for antibodies. Let them get a receipt saying they’ve given the plasma. Walk into the resorts that are listed on the website that say, “We’ll give you a discount,” and everybody’s happy.

This can serve as a model for the rest of the world going forward in how to deal with the pandemic. But I haven’t heard anything back yet. I’m going to give the governor some more time. I’m proceeding right now on the understanding that I think the governor may very well have been acting in good faith the entire time. I don’t have any reason to think that he’s not acting with good intentions in mind. Here’s a solution that I think’s a bit out of the box, but it’s a pro-market, pro-freedom solution that’ll get Hawaii opened up immediately.

We’ll see what the governor has to say. I’m happy to send you a copy of the letter with the attachments. You can list it there, and people can look at it and read it. If they think this makes sense, let them get a hold of the governor and say, “Hey, Governor, it’s time to do something proactive instead of sitting and hiding from the coronavirus. Let’s confront it head-on, and let’s work together with our fellow brothers and sisters who have already gotten it and recovered from it to help, mutually, each other.”

Akina: Many people in Hawaii, unfortunately, are very skeptical of the idea of the free market. They’re prejudiced against it, thinking it equates to Gordon Gekko and his “Greed is good” motto. Jody, let me ask you this as a closing comment if you’d make it. What is it that motivates the private sector to institute the kind of solution that Marc talked about? What’s in it for the private sector to make to incentivize their support of it?

Broaddus: Well, number one is they’d be able to open immediately and start generating income, getting a living, being able to provide for their families, saving their homes, building that free life that they want to have. I think that the initial thing for the private sector is, “Hey, we get to go forward. We get to do what we want to do at this point.  Governor is going to open up the society? We can decide how we want to do that.” A lot of people are stuck at home right now. They’re not able to travel. This incentivizes them to travel, to come to Hawaii.

It’s an invitation. It’s going to increase the tourism and help a lot of these businesses that focus on tourism. It’ll also allow businesses that aren’t involved in tourism; it still allows them to open and get back to what they were doing before this whole pandemic ruined their lives. 

I think that there’s a lot of positive things for the private sector in getting the government to open as soon as possible and get these proclamations thrown out. I think that this letter that was sent to the governor is an excellent idea on pushing forward to get to that resolution.

Akina: Jody, thank you for being with us today. Marc, thank you so much for being with us. This has been very enlightening. 

My guests today have been Marc Victor and Jody Broaddus of Attorneys For Freedom, and you can learn more about them real quickly at their website. Marc, what is that, your website?

Victor: Real simple. Just go to Attorneys For Freedom. All spelled out, attorneysforfreedom.com. We’d love to hear from you, whether you agree or disagree. We’re all Americans. Let’s talk civilly, and let’s all figure it out together.

Akina: Great. Until next time, I’m Keli’i Akina, president of Grassroot Institute on the ThinkTech Hawaii broadcast network for “Hawaii Together.” Aloha.



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