Many groups nationwide have filed lawsuits against the coronavirus emergency orders declared by their governors. Some have been successful. Others not, including at least two so far in Hawaii, in both state and federal court. Can Hawaii’s seemingly interminable state lockdown, first ordered in March, ever be overturned in court?
On Friday, Oct. 23, the Grassroot institute of Hawaii sponsored a free webinar during which three legal experts discussed the trends of lawsuits across the nation and whether they offered any hope for Hawaii. Our guests were:
>> Honolulu attorney James Hochberg, who specializes in real estate law, education law and defending religious liberties.
>> Patrick Wright, a former Michigan Supreme Court commissioner who now directs the Michigan-based Mackinac Center Legal Foundation. The foundation just last month succeeded in overturning Michigan Gov. Gretchen Whitmer’s extended COVID-19 emergency executive orders.
>> Elliot Engstrom is legal director of American Juris Link, a legal network based in Arizona that connects litigators across organizations. He has closely followed the lawsuits happening across the nation and has been working hard to connect lawyers to support coronavirus-related lawsuits.
Each of the guests gave short presentations at the beginning of the webinar, then conversed briefly with Keli‘i Akina, Grassroot Institute of Hawaii president, before answering questions fielded from the audience by Joe Kent, institute executive vice president.
A complete transcription of the webinar is provided below.
Webinar: Can Hawaii’s lockdowns be overturned?
Keli’i Akina: Aloha to everyone. On behalf of the Grassroot Institute, welcome to our special lunchtime seminar online today. I want to say aloha to all of you. There are over 280 people registered, and they’re coming in right now.
In addition to our registrants, we have a large audience viewing us on Facebook. We encourage you to go ahead and ask questions when the time comes, either by entering your questions on Facebook or more directly here. Communicate with us, if you’re part of the webinar.
Today is October 23rd, 2020. We live in incredible times, in which things are happening that have never happened in our lifetime before. We’re going to take a look at what’s going on across the nation and ask this question today: Can Hawaii’s lockdowns be overturned in court?
With me, I’ll have attorneys Elliot Engstrom, Patrick Wright and Jim Hochberg. Basically, we all know that many groups nationwide have filed lawsuits against the coronavirus emergency orders declared by their governors. Some have been successful; most have not. What about Hawaii? Could we learn a few lessons from this? Could Hawaii’s extended emergency lockdowns ever be overturned in court?
That’s what we’re going to talk about today. Our format is very simple. I’m going to ask each of our guests after I introduce them to respond to an opening question I have for them and I may follow that up, and then we get into the meat of today’s seminar, the opportunity for you out there to ask your questions, and Joe [Kent] will moderate that time.
First, let me introduce our guests today and let them say hello. The first guest is Elliot Engstrom. He’s all the way in North Carolina right now. He’s the legal director of American Juris Link, a legal network in Arizona that connects litigators across organizations. He’s closely followed the lawsuits across the nation, and he’s connected many lawyers to support coronavirus-related lawsuits. Engstrom earned his JD from the University of Georgia. Let me give you just a few seconds, Elliot, to say hello and aloha to our audience here.
Elliot Engstrom: Yes, thank you. I’m glad to be here today. As you mentioned, I’m legal director for American Juris Link. We have been collecting research about these lawsuits around the country in order to support the lawyers in the courtrooms, and I’m looking forward to talking about what we’ve done today.
Akina: Looking forward to hearing what you have to say, Elliot. Our second guest today is attorney Patrick Wright. He’s in Michigan right now. Patrick is the vice president of legal affairs at the Mackinac Center for Public Policy, a sister organization to the Grassroot Institute here in Hawaii. There, he directs the Mackinac Legal Foundation or the Mackinac Center Legal Foundation. The center was recently successful in overturning Michigan Gov. Gretchen Whitmer’s extended emergency executive orders. Congratulations on that. Wright received his law degree at George Washington U. and in Washington, D.C. Patrick, welcome to our seminar today at the Grassroot Institute.
Patrick Wright: Thanks for having me. Aloha, everyone. I look forward to talking to you.
Akina: Our third guest today is here in Honolulu with us, a dear friend of many years, Jim Hochberg. He’s a Honolulu attorney who specializes in real estate law, education law and defending religious liberties. Hochberg’s most recently filed lawsuit against the Hawaii Gov. David Ige’s COVID-19 emergency proclamations, unfortunately, was defeated this week. Hochberg earned his JD from the William S. Richardson School of Law at the University of Hawaii at Mānoa. Jim, welcome to the program. Let me let you say aloha to our audience of over 280 registrants for the webinar. Jim is there. He’s just logged in. We don’t have audio on Jim, so we may have —
Jim Hochberg: Yes, we do [have audio]. That was my bad. I was muted. Anyway, good job with a couple of hundred, almost 300 people.
Akina: Welcome, Jim. We’re glad to have you on board. Once again, I’m going to ask an opening question to each of the panelists and ask them for a very brief response with just 2 to 3 minutes. After that, you’ll have an opportunity to ask your questions, and they’ll have the opportunity to follow up any further. First, let’s go to Elliot. Elliot Engstrom: What sort of constitutional challenges to shutdown orders have you seen, and how successful [have] these challenges been?
Engstrom: Yes, so to give you some context, we’ve been collecting and sharing this information with attorneys around the country. The reason is because of these constitutional challenges — we are seeing more of these lawsuits filed in response to a single-trigger event than we’ve probably ever seen in response to anything else. I’m an attorney myself. Lawsuits often take three, five … lawsuits can take 10 years, right? These decisions are being decided lightning fast, and so we’re trying to help the lawyers keep up.
In terms of how these constitutional lawsuits are going, I would say there’s probably two main approaches that we’ve seen courts take. That’s a bit oversimplifying it, but there’s two main approaches. One approach is to let the order stand. There’s this philosophy of courts don’t want to be managing the pandemic, courts don’t want to be deciding, “Are masks good or bad?” They aren’t doctors. They aren’t scientists. “Let the experts be the experts.” That’s one way the courts have thought about this.
There’s another way the courts have thought about it, which has been to say, “We’re going to do our job of enforcing the Constitution.” When it’s an emergency, people still have rights. During emergencies, sometimes that’s when people’s rights are the most fragile.
Akina: Thank you, Elliot. Let me follow up with a political question, since you’ve been observing this across the nation. It’s said that the path to an anti-lockdown lawsuit is more difficult in Hawaii, as our local judges are expected to side with the governor. Is there any hope to be found from lawsuits you’ve seen taking place in other blue states?
Engstrom: I think that in terms of what’s happened in other blue states, there have been successes. I would say that Pennsylvania is a swing state that leans blue. That’s been one of the biggest cases around the country in terms of overturning lockdown orders. We have Pat [Wright] here from Michigan. I would say Michigan’s a blue state. We have a success there. Even in California, we’ve had a lot of churches in California who have been successful.
I think that goes back to where the overall trend has been upholding the orders in response to constitutional lawsuits which, again, are lawsuits about rights. When we see success areas, we try to hone in on what are those and why they are happening so that we can share them with places like Grassroot.
Churches are one big success area, where they’ve been able to say, “We have fundamental right to worship and it’s being violated.” Even with some of the essential versus nonessential lawsuits, when governments have been made to explain how they came up with what’s an essential business and what’s a nonessential business, we’ve seen that sometimes when they have to explain that, courts aren’t buying it.
Akina: Very good. Very good. Well, thank you, Elliot, appreciate that. We’ve got a lot to learn from that here in Hawaii.
We go from North Carolina now, a little bit west to Michigan. Patrick, Michigan, of course, you were very much involved with, just had a significant victory in challenging the governor’s lockdown. Before we get into the case itself, which you can talk about later on, can you tell us a bit about Michigan’s lockdown orders?
Wright: Sure. We started our lockdown on March 10. When this lawsuit here finally got decided, we were on about Executive Order 200. We had 190 lockdowns, about one a day. It was very hard for all of us to keep up with. We would go through things like you could use half of a store. You couldn’t go out. You had to stay in your house. You couldn’t visit relatives over certain holidays.
I had my father in the hospital with my mom. Only one of us was allowed in to visit at one time. We shut down our other hospital services for two months, and that’s what our suit was about. So we’ve had a very wide range of actions taken by our governor. Many people consider Michigan to have had the most stringent set of executive orders in the country. Even though we finished our lawsuit, the governor here is not done trying to micromanage 10 million people’s lives.
Akina: Patrick, what was the basis for your case, briefly, and what really won it in court in terms of the judge’s decision?
Wright: We made both statutory arguments related to whether or not the governor had the powers as the Legislature wrote the statute. By and large, we lost those arguments. What we won on was a state constitutional claim that by having the governor have unlimited power for unlimited time with essentially no checks on the power, she was saying she could wait out the end of the disease, wait until there was a vaccine and fix any economic harm, and do it all on an emergency basis and ignore any other state laws or state constitution provisions while she did so. The Supreme Court here said that was too much and struck down the statutes that she was acting under.
Akina: Well, thank you. I look forward to hearing a bit more about that later on in the Q&A. Now, we come back here to Hawaii.
Jim, good to have you back at the Grassroot Institute again. You’ve been involved in two cases. The first one, I believe, was a federal case, Carmichael v. Ige. It challenged the lockdowns on U.S. constitutional grounds. That was dismissed back in July. Most recently, Partal v. Ige in state court challenging the lockdowns under state law. Could you explain very briefly what you were challenging in these cases and why? I realized they are different cases, so there may be some differentiation there.
Hochberg: Oh, they’re completely different cases. If you’re going to sue in federal court, you have to pretty much limit yourself to federal cause of action, where you get bounced out and all kinds of other stuff. In the federal court case — and I did both of these cases with Harmeet Dhillon as my pro hac vice co-counsel from The Center for American Liberty. We challenged the really extreme travel ban that Gov. Ige had put in place here, if you were coming from the mainland.
Our clients owned a property in Hawaii but lived on the mainland. They needed to come to Hawaii to care for their property, but they didn’t have enough time to come here, quarantine for two weeks and then go to Home Depot and get whatever tools they needed to work on their properties because you weren’t allowed to leave your house. Because there was no differentiation between people that needed to be quarantined and people who did not need to be quarantined, it was just a blanket. They get you in the hallway coming off the gangway from the airplane and, bang, you’re quarantined.
We filed that case. The judge that we got, a new district court judge, Jill Otake, took the South Bay Pentecostal Church opinion that Justice Roberts wrote at the U.S. Supreme Court, just his own little one-pager, and basically said the federal court shouldn’t be second-guessing elected officials on these medical things. She hit us over the head with that and denied our request for a temporary restraining order.
We just agreed to dismiss the case. There wasn’t enough of a record to do any kind of appeal. She was actually amazingly unfriendly in the way the judge was working with us in the case. We just decided this is not a good judge to be messing with on a case like this. The state case we filed in July was looking at the actual emergency power statute, which said that after the 60th day following the issuance of the proclamation of the state of emergency, the state of emergency automatically expires.
Since March 4 and May 3 was 60 days, in July, the 60 days were long gone. In July, the state Legislature actually came back into the session when our Carmichael hearing was coming up. They were passing a travel ban bill to take care of the judge striking the travel ban that the governor had issued. When the judge denied the restraining order in the Carmichael case and the Senate had sent the bill to the House, the House just dropped it.
They were able to and they were going to legislate what would have been needed or whatever, and so they could have. But in the Partal case, the judge said because they did not go back into session to modify the 60-day, they must not have thought it was a problem. It’s some of the most interesting litigation I’ve ever been involved [in], and I’ve been doing this for 36 years. COVID is a boogeyman to judges, at least in Hawaii.
Akina: Now, the state argued, and successfully, in Partal that the emergency relief period can be extended. What do you consider the biggest flaw in that argument?
Hochberg: Well, actually, what they argued was each successive emergency proclamation that was entitled “supplemental” — and it had a number on it and they got all the way up to 15, I believe — they said each one of those was a new proclamation with a new 60-day period. The only problem is not one of them said that. In fact, what every one of them said is on March 4, the governor declared the emergency, and then they went through the litany of all the prior supplemental proclamations and then tagged on at the end the new decision-making that the governor was putting out in the latest version.
So they didn’t actually view it that way while they were doing it. In the technical legal argument, it was a case in Partal simply of statutory construction. Does 60 days mean 60 days? At the end of the 60 days, the Legislature is supposed to take back its lawmaking function and not continue to let the governor be the entire legislative and executive branch. The judge agreed that was the issue. She agreed the language was not ambiguous.
But because of the boogeyman of COVID and, of course, the State of Hawaii Department of Health argued in both cases, the Feb. 1, 2020, medical understanding of COVID: Everybody’s going to get it, and everybody’s going to die. In Hawaii, we had the smallest number of cases, the smallest number of deaths, but they made it sound like we were Upstate New York in the care homes. Their medical people put in declarations under oath, a testimony of how bad it is everywhere, but not really here.
Akina: Well, Jim, thank you very much for that explanation. There are some serious …
Hochberg: … The judge doesn’t want to deal with it.
Akina: Yes, thanks for the explanation, Jim. There’s some serious implications, obviously, in terms of the governor’s continued use of emergency powers, and so we’ve not seen the end of it at all.
I want to go straight to the question-and-answer period now and honor all of you who have tuned in. We will moderate this, or Joe Kent, our executive vice president, will moderate the Q&A session. Feel free to ask whatever you like of these attorneys. We look forward to their responses. Joe, why don’t you take it away?
Joe Kent: Sure, and you can keep the questions rolling in and we’ll get to them. We’ll try to get to all the questions. So far, we have two. Tam Hunt asks: “What is the most successful approach for challenging lockdowns and emergency orders and Democratic-dominated states and courts?”
Wright: There’s really not been a great victory in any state court that is a pure blue state, be it with their courts, with the Legislature, with the governor. The closest you might see is in Pennsylvania, where a federal district court in the Western District of Pennsylvania — so out of Pittsburgh — entered an order that’s probably up before the Third Circuit right now. We had a very similar order in Michigan, where a federal judge got tired of the state not putting forward good evidence as to why COVID needed this response. The judge opened up all of the gyms.
They went to the Sixth Circuit for us. That’s in Ohio, in Cincinnati, Ohio. The judges, there are two Trump judges and one Bush judge. Eight are district judge’s launch. They said, “No, you can’t do that. It’s rational basis review.” This is very similar. They looked at Chief Justice Robert’s order that essentially said, “Even with a fundamental right, we’re going to defer to what the state legislators have done.” So there is some slim hope in federal courts, if you don’t trust your state court system. However, you’re probably in a very difficult position in either court system.
Engstrom: If I could just weigh in on that, I would say one method of challenging these orders that has been a little more successful in some cases has been to make it not about constitutional rights but just about, “Does the government even have the power to do what it’s doing?” I think that’s what we saw in — I’ll obviously defer to Pat, but I think that’s part that we saw in Michigan, which is, can the governor even do what the governor is doing? For example, one thing we figured out pretty early on was the constitutional challenges to mask mandates were not going well.
We shared that pretty quickly … and we saw every kind of constitutional claim you could think of thrown at masks such as speech, religion, all kinds of stuff. Yet sometimes, we’ve seen lawsuits where someone sued, for example, in Louisiana — I know, not a blue state, but an example — a mayor was sued about a mask mandate, not, “You’re violating my rights,” but just, “Mayors can’t do that,” and the judge bought it. Maybe if the lawsuits can be a little bit more about the law and less about, “Are masks good, are masks bad?” “Are lockdowns good or are lockdowns bad?”, that might be a way to go.
Wright: Well, what we call that is we’ve all got a “structural challenge” as opposed to a “fundamental rights challenge,” and so this is going back to high school civics, the separation of powers question of, OK, the legislature is the one that makes the law. The executive is the one that enforces it, and the judges interpret it. We’re going to give, in an emergency, the executive some ability to respond quickly until we figure out what’s going on in the ground, and at what point do you bring the legislature back in? That’s the structural argument that we made … You made a very similar argument. It just didn’t go well.
Kent: I want to move on. A question for Jim: Francie asks, “What was the bill ID that the legislators were trying to pass but ended up dropping? Was that the emergency powers measure during the special session?”
Hochberg: No. Actually, because of COVID, [the] session didn’t continue from January to April and May. They stopped coming and they came back. It was not a special session. But it was House Bill 2502. That was the bill that they were doing, the travel ban, testing requirements and all that kind of stuff.
Kent: Patrick, how was the Michigan governor trying to get around the decision, Jan asks?
Wright: Yes, I had a full 48 hours to bask in my victory before the governor started to undermine it, so it was amusing in that way. What has happened is that the court said that, under one statute, when the emergency ends and the legislature doesn’t renew the emergency, and it’s over, and then under the second one was the statute that was found to be unconstitutional, what she’s done is she’s gone to other statutes. We have a health code, 698 pages of health code. She’s saying that there’s ways to fight epidemics, and that those give her some power. We have the Michigan Occupational Health and Safety Act. She’s using that as another way. She’s not gotten everything back that she had before, but she’s doing her best to maintain the control that she thinks is necessary in order to fight this.
Kent: Someone asks: “How can the federal government help us here in Hawaii since our government will not?” Jim, do you want to take that one?
Hochberg: Well, yes, in my Carmichael case in federal court, our U.S. attorney actually filed a statement of interest. Believe it or not, the federal judge threw it out. She didn’t want to hear it, [laughs] but the U.S. attorney did agree with our position and tried to come in to help us, but this is an interesting place to live.
Kent: Kim Payne asked: “If Trump wins, is there anything he could do from the federal level to force the state’s hands to open?” Or I guess any president. Can they just force states to open things, Elliot?
Engstrom: I don’t think that the federal government can force states to open. There’s probably some rules about federal funding being withheld for certain activities, but that’s getting a little beyond what I know about federal funding and the relationship with the states. I think the federal government can certainly exert pressure, absolutely.
Wright: It used to be under a case called South Dakota v. Dole. You could tie all the strings you wanted onto federal funding to make states do certain things. The problem actually is the Obamacare case has loosened that a little bit — the NFIB v. Sebelius case — and then, of course, you have to be able to pass a budget with a Democratic House that’s going to tie some of this stuff up. Right now, that’s just not going to happen with split government on the federal level.
Hochberg: It’s interesting in the current presidential election discussion. The guys running for president have to discuss what they would do with a lockdown or not. It’s really not their responsibility, it’s the governor’s.
Kent: Jim, Deborah asks: “Can the state Legislature just rescind the emergency order privilege?”
Hochberg: Yes, the Legislature can come in, make it a different time period, put restrictions on it. There’s a lot of things the Legislature can do because we vote for them to make our laws. That’s their job, and they’re hiding out from this problem. This is not a good political problem. If you get involved in a COVID thing, you’re going to lose, because it just isn’t going to go well no matter who you are. And they’re hiding. They’re letting the governor take all of the heat.
Wright: Presuming without knowing that any legislation would have to survive a governor’s veto …
Hochberg: Well, that’s true.
Wright: … if that’s not the case, and that’s unique, and so it’s a little bit hard to make a legislative solution. Some other states had actually had, if their legislature put in a resolution that said that the emergency couldn’t be extended, that that would end it and those got overturned by what’s known as a legislative veto. I think it happened in Oregon and a couple of other states. It is somewhat difficult when you have a governor who has the ability to veto your legislation to find a legislative solution.
Hochberg: Practically speaking for Hawaii, because we’re out here in the middle of the Pacific, generally speaking, everybody here supports the San Francisco 49ers. In our political structure, everybody wears a 49er jersey. We don’t have a two-party system, so don’t count on the Legislature to come in and fix anything on this COVID thing.
Kent: Danny Hashimoto, he’s the president of For Our Rights on Kauai, and he says their group has filed a lawsuit regarding the 60-day expiration period against Gov. Ige and the state of Hawaii. Their court case is Nov. 17 before Judge Kathleen Watanabe. He asked: “What points do we need to argue to win that, that haven’t been argued yet?” Jim?
Hochberg: Well, I can tell you that when you sue the governor, his lawyers are the same guys in every case on every island in every court. They’re increasing the arguments in their favor with every judge that rules in their favor. On Kauai, they’re going to have the federal case. They’re going to have my state case. There have been some other cases. When they come into the judge on Kauai, which is a very small island, and they say, “Well, look, Judge, all these other judges agreed with the governor having this power,” it’s a pretty steep uphill climb.
Kent: Elliot, what about transparency? Have you seen in other states that transparency has been a problem? Kathy asks:, “Is there any hope of at least getting part of the governor’s emergency order repealed with respect to the transparency part?”
Engstrom: By transparency, like the governor having to explain?
Kent: The transparency laws in Hawaii. So we’re unable to ask for open records requests and things like that. Sunshine laws, too.
Engstrom: I would think that — and this is something kind of across the board with some of these orders — is that I think that the longer they go on, hopefully, courts will become more willing to question what the governor is doing. We have even seen some judges begin to say, “Yes, in temporary emergencies, you’ve got to let the governments do what they need to do, but we’re six, seven, eight months in — not a temporary emergency anymore.” I would say that that’s the argument to make, is that this is the new normal. In a normal world, you have to have transparency. You have to have open government.
Hochberg: Let me say that before I filed the first lawsuit, I called the state Department of Health epidemiologist, Dr. Park. I asked her if she couldn’t please include, in just the number of daily positive case results, could they give us the data on how many had no symptoms, how many had some symptoms, how many actually were under the weather, how many were sick enough to go to the doctor, how many got put in the hospital, how many were in ICU.
She said all that data is too hard to collect. We were just chatting on the phone, and I said, “Well, no, it can’t be. When you’re asking the questions that you asked, just ask these questions, too.” Honest to God, Dr. Park’s response to me was, “Well, now, you’re getting aggressive. I’m hanging up,” and she hung up on me.
Kent: There’s a lot of questions about the epidemiological aspects. Mimi asked: “Why don’t the deaths from other illnesses such as tuberculosis and others, [the] increase [in] suicide, the increase in drug use, increase in abuse, affect the governor to stop the shutdowns?” She’s trying to balance the bad and the good and all that. Patrick, do you have the response?
Wright: That’s one of the reasons we chose the plaintiffs we did. In our case, we had medical providers throughout the state of Michigan. We had three separate health clinics in Michigan. We were arguing that most of our COVID damage was occurring in the southeast portion of the state. These places were being forced not to see cancer patients, diabetes patients, heart patients. There’s 10 million people in Michigan. It’s not as if their other health concerns just stopped.
For two months, nobody could go see their doctor. So we were trying to say we’re balancing life against life, in the hope that this would give us the best set of plaintiffs instead of saying we can’t open up a T-shirt shop versus people might die if the governor’s orders aren’t taken into place.
But the question really hits on something that’s difficult, and that is putting the epidemiology on trial. Nobody’s really done what we’ll call a Scopes Monkey Trial of epidemiology yet, where they’ve taken the experts, they’ve run them through depositions, they brought them to trial and they put them through their paces. Most of the courts are just accepting the epidemiologists’ and the governors’ viewpoints that this is a high danger and that all of this stuff is required. It would be expensive, too, and probably take a while to do it. But at some point, somebody may have to file that kind of suit to create a breakthrough for everybody else.
Kent: I want to get to some other questions here. Thanks. Peter asks: “Can the president require all citizens to wear masks?” That’s No.1. No. 2, “I believe a governor could require their state citizens to wear masks.” Basically, can the president or a state governor actually require everyone to wear masks? Let’s see. Elliot, what do you think?
Engstrom: Whether the president can require everyone to wear masks, I don’t think so. As to governors, I think we can have an academic discussion about, “Do governors’ emergency powers go there or not?” I have not seen a lot of success in lawsuits trying to challenge mask mandates. In terms of, “Can they do it?” Well, they’re doing it and judges aren’t stopping them. That’s what I would have to say about that.
Kent: Part of this is the judges. In Hawaii’s judges … Jim, maybe you can speak to this better. Hawaii’s judges aren’t the same as the judges in Michigan or in Pennsylvania, and that’s the root of the problem, would you say?
Hochberg: Well, some states elect judges. Some counties elect judges. Our judges all come through a very tight-knit group of people. There’s a Judicial Selection Commission where the governor and the bar association, the Supreme Court, the Speaker of the House, the president of the Senate appoint people to pick five names. They give the five names to the governor. The governor picks one, gives it to the state Senate, and then the Senate advises and consents.
In Hawaii, nobody’s ever responsible for a bad judge because nobody knows who’s on the Judicial Selection Commission. If you elected your judges, you would directly have some influence. We do not have that here. The other thing we don’t have here is everybody wears a 49ers jersey, including the people that get picked by the Judicial Selection Commission to become judges. That’s why my response is, if you’re in a blue state, move.
Wright: I do want to hit on one quick point if you don’t mind, Joe, and that is, right now, we have a president that has largely let the federal system work and said each state is responsible for its own response. In the presidential election, you saw that Joe Biden had indicated that he might try and take a more vibrant role in fighting COVID on the federal level. So we’re really not sure what the full federal power is because President Trump hasn’t tried to use it yet. If we do have a new president coming in, that may change.
Kent: George asks an interesting question. He’s basically [asked]: “What is the criteria for ending things like the mask mandate in all this?” He says: “How can we make these people tell us how … What is the evaluation? When it will be safe to go maskless in public, or is this just going to go on forever? Isn’t that a breach of our rights?”
Hochberg: In Hawaii, if you have asthma, you don’t have to wear a mask in public. If they ever had a trial over whether masks are good or bad, we’d know and the mayor … I don’t know. There seems to be no rhyme or reason to the new restrictions that are coming out. I can’t make sense out of why this new one and why that old one’s gone. I don’t know.
Kent: There’s a lot of questions that are about particular circumstances of certain people in the lockdown. Doug says that he runs a military and veteran outreach program and has been completely disadvantaged in his ability to serve his population, because I guess they can’t meet and all of that. Is there a good argument for the disparate impact on certain groups, or maybe disabled folks in this, or is that argument not really strong in this case?
Hochberg: They make better clients.
Kent: [Chuckles] Yes. Anyone? Elliot?
Engstrom: Yes, I do think having sympathetic clients matters. I also think that if you’re talking about the impact of the order is one thing we’ve seen, and I kind of alluded to this before, is that if you can tie it to some kind of really important constitutional right, that’s the way to go — if you can’t argue that it’s just not within the government’s powers in the first place.
Wright: Joe, you raised an interesting question. This fits in with the masks and pretty much every other executive order, and that is: When are we going to say that this is the way things are and this is no longer a danger? I think a lot of why there’s some still judicial hesitancy is they’re afraid of a second wave. They’re looking at the Spanish flu and saying, “We had the first wave, and then the second one was way deadlier.”
Everybody, I think, wants to get through this flu season and see what happens. These are the people that are very much pro-safety, pro-orders and for the governors having these powers. A vaccine can take years. The quickest ever was four years for measles. If we’re going to be saying that zero-risk is what we’re shooting for, we’re going to be at this for years at a time. That just can’t be the right answer.
At some point, we’re going to have to say X amount of risk is enough, just like driving a car, just like the flu, just like eating ice cream when you might get too heavy and get artery-clogging things. There has to be some risk that we’re willing to accept. Sooner or later, the courts are going to have to decide what that amount is. They’ve been unwilling to now. Probably after this flu season and they see some more data, maybe then they’ll be willing to step in. But for everybody who can’t go to work or whose job is nonexistent right now, that’s small souls.
Kent: There’s a lot of questions about: “Can they really do this? Can they really cite people for not wearing masks or going on the beach and all this?” I think the lawyers have said, “Yes.” They’re getting away with it, basically.
Hochberg: Well, can I address that though, Joe? Because when you’re getting a citation that has up to a year in jail, you have really extreme rights beyond what a civil lawsuit would have. For the judge to be in a criminal proceeding, he looks at that 60-day rule and he has to treat that very differently in a criminal trial. I think everybody that gets a citation with that one-year-in-prison possibility ought to really hammer on that 60-day automatic termination, because the judge has to look at it differently than the civil judge did.
Kent: There’s a lot of other questions about flu shots, by the way. Now, the governor hasn’t said that flu shots are mandatory or anything. Hypothetically, could the governor mandate the flu shot?
Wright: That’s based off of the 1905 Jacobson case that came out of Massachusetts where the Supreme Court said that you had to be inoculated. I believe it’s for smallpox. That’s one of the cases that Chief Justice Roberts cited in his one-pager that allowed the churches in California to be shut down. Until that case is — in some way, shape or form — attacked, modified or overturned, I would imagine that most of the federal courts are going to say that invasions of the body, including shots, are acceptable with this kind of situation.
Hochberg: It’s interesting. There’s a lot of anti-vax activity, and those guys would have different kinds of arguments to make. I think the attempt to force vaccinations, in Hawaii anyway, would probably result in litigation that would try to get up to the U.S. Supreme Court, because 100 years ago, medicine was very different. They had only had anesthesia since the Civil War. Medicine was very, very young 100 years ago. There’s a lot of other things with the science of vaccines these days and all that kind of stuff. I would hope that the Supreme Court would revisit and modify Jacobson as a result.
Kent: Patrick, there’s someone who asks: “How likely are governments to bring back the emergency orders?” Let’s say cases start to go up again. Could it be that the country locks down again? What do you think?
Wright: Well, that was one of the specific questions [that] was asked in last night’s presidential debate. I do think that it’s possible. I don’t know epidemiology. But when I hear about cases, I’m a little bit less worried than I am about hospitalizations and deaths. It seems that we’re spending a lot of time dealing with this county or this state or this region has had a blabbity-blah percentage upticking cases. Well, all that’s fine and good, but we’re worried about the real harmful effects of this stuff. We’re not worried about somebody having light flu symptoms. We’re worried about somebody being in the hospital and dying because they can’t ventilate properly.
We’re at over 200,000 deaths, but I think that those numbers have largely flattened out over the last couple of months. Again, we can’t be looking at zero, because zero right now just isn’t a possibility. It’s way too much cost for, I don’t think, a sufficient benefit. If we have a second wave in a gigantic spike and we’re back in March and April numbers, well then maybe we come to a different conclusion. I think we’re just going to have to sit and wait for a month and a half or two months and figure out where these things go.
Kent: Elliot, Kevin asks: “Are there any cases in the U.S. appellate courts regarding the general authority of the state to enforce quarantine on healthy people?” Normally, you enforce quarantine on sick people, but now we’re enforcing quarantine on healthy people.
Hochberg: The statute in Hawaii, 127A, which is our Emergency Powers Act, specifically requires that the state of Hawaii have a reason to quarantine anybody that they quarantine, but that’s not what’s going on. You come off an airplane, that’s the reason you’re quarantined.
Kent: Elliot, are you seeing that?
Engstrom: There is a case up in the Third Circuit where a federal district court said stay-at-home orders are unconstitutional, and the Third Circuit’s going to be reviewing that. Again, I do have to say, that case is — as of right now, it’s a little more of an anomaly, but that could change over time. That court found that stay-at-home orders should be presumptively unconstitutional, and that judge wrote that he thought the only reason we did this is because China did it and, do we really want to be doing what China does?
Kent: Okay, someone asks about short-term rentals. They say that: “Short-term rentals have proven to be safer than hotels. Can we challenge the nonessential label on short-term rentals?” Are there any cases like that across the country, first of all, and do you think that has any legs? Anyone?
Wright: The difficulty if you’re doing it on a federal constitutional basis trying to make some sort of equal protection argument, is you’re fighting something called the “rational basis test.” The rational basis test essentially says as long as the government can come up with a reason, not even a good reason, then they win. The test even goes so far as if the government can’t come up with a reason, then the judge has to try and do it. It is an extremely difficult test to beat. So unless you can find another vehicle for bringing such a suit, maybe a state law vehicle or some sort of state constitutional right, some sort of state statutory right, even though it appears arbitrary, it is probably going to be upheld by the courts.
Hochberg: There is a provision in the state emergency powers law where if the government requisitions your property, they have to pay you. I think it’s kind of a stretch to say, “You’re requisitioning my property because you won’t let me use it,” because, typically, requisitioning means the government’s using your property. If they want to push that — because if you own a vacation rental, you’re not the most sympathetic client. But maybe if enough people that have vacation rentals are making these claims on the state of Hawaii as requisition property reimbursements, it’ll drive somebody crazy and they’ll get some action.
Wright: We actually looked at that in Michigan, but here was the problem we had. Again, I’ve mentioned we had 10 million people here in Michigan. Let’s assume everybody in Michigan says that they were forced to use their home as a hotel because they were stuck there. You have 10 million people suing 10 million people for damages. It’s kind of circular. It’s not going to get you anywhere because you’re just essentially going to pay for it in your own taxes. There are undoubtedly people who are hurt, more business owners, perhaps the hotels, places like this. But by and large, because of the practicalities, I can’t see too many of those suits being successful.
Hochberg: Well, there’s a distinction though.
Kent: I want to move on quickly, though.
Hochberg: Hang on just a second, Joe. The vacation rental is a vacant condominium that you want people to come to Hawaii and stay in. The governor’s orders here said those don’t qualify, you have to stay in a hotel. You’re not allowed to stay in a vacation rental, so it’s a little different.
Kent: I’m sure there’s more of that ping-pong match. There’s someone else who asks Jim. He says, “That’s not totally correct about the asthma sufferers in Hawaii. If an asthma sufferer wants to ride the public bus system in Hawaii without a mask, the bus says the sufferer must apply for and sign a written exemption by giving up their personal information like a phone number and giving up their private health information via a letter.” He just makes that point. Any response?
Hochberg: That could be true. I don’t ride the bus. I have asthma. I don’t need to wear a mask because I’m specifically exempted. I don’t know if I like the idea of having to apply for the exemption to get on the bus, but I guess that’s what they’re doing. I actually don’t know about it.
Kent: There’s someone, Kim, [who] says that in Jacobson, they only required a $5 fine, I guess if you didn’t get vaccinated. I’m not sure if that’s true or not. She also says they never mandated the vaccination. Does anyone know about that? Just an interesting comment.
Hochberg: Five dollars was a lot of money 120 years ago.
Kent: Five dollars, yes. Just for —
Wright: It doesn’t stand for the proposition that you have to pay $5 or get a shot. It’s essentially become that you can be forced to do things in the face of epidemic or a pandemic, and that’s the way it’s being cited in the Fifth Circuit. It was the way it was being cited by Chief Justice Roberts, etc. The holding was over a $5 fine, but that wasn’t the crux of the opinion.
Kent: Bill Hastings asked: “What impact do you see from the Hawaii charges against the U.S. Surgeon General for going to the beach park? Did you guys hear about that?
Hochberg: I saw that in the news yesterday. I don’t know. I think it’s completely a distraction and it doesn’t matter, but it made the news here.
Kent: [Laughs] OK, if you guys …
Hochberg: Seriously, guys, the Surgeon General was in Hawaii. He went to a park and he got a citation, and he’s represented by counsel in a criminal case yesterday. He pleaded not guilty.
Kent: Right, so that’s that case. Is it discrimination to deem a small independent business nonessential, yet the big box stores are deemed essential? Is there a case there?
Hochberg: That’s that equal protection argument Patrick raised. It’s the hardest one to win.
Engstrom: Yes, we’ve seen a few cases where when governments have had to explain themselves and it’s come out that, “Well, we came up with essential and nonessential when it was five guys hanging out in the room and we did it on the back of a napkin,” the courts haven’t bought that. But my co-panelists are right. It’s a really tough argument.
Kent: Now that we’re starting to open up — we’re on Tier Two now in Honolulu — and they’re starting to let folks in, does that make some of the cases moot then, or do you imagine there’s going to be more cases in the future?
Wright: They can be moot, but you also have the possibility. We had this argument in Michigan. Our governor claimed the ability to dial up or dial down. If you are saying, “OK. We’re dialing down. But if a second wave comes back, we can do all this over again,” then any of this stuff called injunctive relief where you can say, “Stop that,” then all of that would still be valid.
If you had anything for damages where you’re saying, “You owe me money because,” those claims would still be valid. Yes, there is going to be arguments by the state defendants that this is moot and should be thrown out of court, but those should be able to be evaded by most lawyers based on this voluntary cessation doctrine, which means the turning up and down, or if there’s a damages claim.
Kent: I have a question about this basis. Patrick, you mentioned earlier that courts use rational basis, which is the lowest bar when looking at cases like this. Are other cases that courts have used a higher bar in looking at this, and why do they use the higher bar and how do you get the bar to be higher?
Wright: It’s fundamental rights jurisprudence. Let’s say your church is being shut down versus your T-shirt shop is being shut down. You would have a better argument with the church because you have a fundamental right to worship. If you were to go into federal court, you would get what’s known as strict scrutiny, meaning that the state, in order to take any action against you, would have to have a very significant state interest.
Here, they’re going to argue that they’re saving your life. Chief Justice Robert’s order implies that that argument is going to be sufficient for now. Even when you reach that highest level of scrutiny, we’ve had difficulties making federal constitutional claims. Race is the highest. Religion, worship is one of the highest. Gender is one of the next highest, and then anything else falls on economic or rational basis review, and those cases are extremely difficult to win.
Hochberg: To really do that case, it is a battle of the epidemiologist experts. The court picks who is actually [considered an epidemiological authority]. Did the state prove a compelling state interest based on the epidemiology or not? Across the country, the epidemiologists that come out publicly in favor of hydroxychloroquine and all this kind of stuff, they get smashed publicly. It gets really hard to find experts that are willing to help.
Kent: Well, we are going to ring the bell and say we are in the lightning round now. [Chuckles] I’m going to try to get through some of these questions here. Keep your questions short, and I’ll just try to keep it to one person if you will.
“Suppose a rental property owner had been planning to sell their property when Hawaii’s eviction moratorium was declared. Are they prevented from selling their property? They can’t evict the tenant.” Jim?
Hochberg: Yes, I do a lot of real estate law, and the governor exercised his power to stop evictions. People are stuck. The governor didn’t say the banks can’t charge you your mortgage payment. It’s a very tough situation. How are you going to sell your property with a tenant in it?
Wright: There’s also a federal ban, too.
Kent: Another question for Jim. Laren asks: “What are your thoughts on the recent suit by bar owners?”
Hochberg: Well, they’re going to have a hard run, because they’re trying to get damages. That’s the hardest of all the claims, because it’s just money loss. If you can’t get personal fundamental rights relief in this town, I don’t think you’re going to get money relief.
Kent: Elliot, Deborah asks: “What are our options if our legislative, judicial and executive branches are supporting tyranny in our state?” I guess I would add: Which is the best route to go through? The legislative, the judicial or the executive branch?
Engstrom: I guess if you don’t like all three branches of government, I guess I’d try to go all three. I would say elections matter. [Chuckles] I wish I could fix that situation, but that’s tough.
Wright: I would go with the executive because the executive is the one who’s making the decision as everyone else is deferring to. I would hammer the lobbying effort on the governor.
Hochberg: It’s voting. It really is in this town.
Kent: It’s about voting. Patrick, what is your impression of the politicization of the pandemic having been driven by the presidential election? Do you think that the two concepts are married, and will politics take a back seat after the election?
Wright: I certainly hope so. Here in Michigan, our attempt has been to not discuss partisan politics but the procedures and what’s the best. We think that the separation of power works best at the legislature, and the governor should all be doing this and all having input from all over our state to determine what’s going on. We’re in a horrible political, partisan time. We’ll see if after the election that lessons are not. I am not averse to good science. I just want to make sure that the process is done right and that we don’t end up in a situation where we have one-person rule in the majority of our country for years at a time. That’s untenable and can’t continue.
Kent: OK, do you feel that it’s really a public health position that seems to be influencing the legal avenue of resolution, or is it more of a political one? I guess it’s a similar type of question. It seems that the deck is stacked against challenging the governor’s powers because of the liberal judges. This is Jude [who] asks. Jim?
Hochberg: I think COVID is a boogeyman to the judges. It’s like if two people are in court for a temporary restraining order for fighting each other and they both deny it, the judge is going to grant it anyway because he doesn’t want to be the judge that says no and then one of them ends up dead. It’s kind of like that.
Kent: One more question. There’s lockdown orders at the county level, too, and Laren asks: “Could a group bring a suit just against the mayor or a county?”
Hochberg: No, not in Hawaii because one of the statutes in the emergency powers law that the governor has put in every single one of his proclamations is he’s suspended the rights of the mayors to do anything without his approval, so they aren’t doing anything on their own.
Kent: I see. That’s why they always have to ask him. I see.
Well, I’m going to bring in Keli’i here. Again, that was a great round of questioning and answering. Thanks so much for keeping it short. I apologize. There’s over 50 questions that came in, and we didn’t get to everyone, so I apologize about that. Keli’i.
Akina: Thank you, everyone, for being with us today, especially thanks to Elliot Engstrom and Pat Wright and Jim Hochberg. You all did a great job.
For our viewers who asked questions and weren’t able to hear answers because we have so many, first, thank you for posing your questions. If you’d like to follow through, just contact us at the Grassroot Institute. You can contact Joe Kent, and we’ll be glad to either field the question to one of the panelists today or have some of our staff respond to you and discuss it.
On behalf of the Grassroot Institute, I want to thank everyone for being here today at this very important conversation. It will be online so you can watch it. Just go to grassrootinstitute.org and you can review everything that took place today. Again, thanks to the panelists and to our guests, and to Joe Kent for moderating the questions. Much aloha.