Testimony: HB1585 HD1 with amendments could rein in governor’s emergency powers

The following testimony was submitted by the Grassroot Institute of Hawaii for consideration Feb. 23, 2022, by the House Committee on Judiciary and Hawaiian Affairs.
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To: House Committee on Judiciary & Hawaiian Affairs
      Rep. Mark M. Nakashima, Chair
      Rep. Scot Z. Matayoshi, Vice Chair

From: Grassroot Institute of Hawaii
           Ted Kefalas, Director of Strategic Campaigns

RE: HB1585 HD1 — RELATING TO EMERGENCY MANAGEMENT

Comments Only

Dear Chair and Committee Members:

The Grassroot Institute of Hawaii would like to offer its comments on HB1585 HD1, which would amend the state’s emergency-management statute to clarify that the powers granted for emergency purposes should not be inconsistent with the Hawaii Constitution, require justification for the suspension of laws and place parameters on such suspensions, and allow the Legislature to terminate an emergency. in part or in whole, by a two-thirds vote. 

If enacted, this bill will take an important step toward addressing an oversight in the state’s current emergency-management law that was not apparent until the COVID-19 pandemic: the lack of a meaningful legislative check on the governor’s emergency powers.

At present, the law includes a 60-day limit on emergencies, but does not address what should happen if an emergency exceeds that limit. Thus, it is possible for the governor to extend an emergency period indefinitely, with little input or oversight from the legislative branch. 

Here are some proposed amendments that would make the bill better.

1. On page 3, add the following after section 2, subsection (c):

 (d) The exercise of any emergency power the governor or other official may have under the Hawaii Constitution and state law that binds or regulates the public are limited as follows: 

   (1) State courts shall have jurisdiction to hear cases challenging the lawfulness of state and local emergency orders, including compliance with this chapter’s limitations on such orders, and the courts shall expedite consideration of such challenges to the extent practicable. Inequality in the applicability or impact of emergency orders on analogous groups, situations, and circumstances may constitute one ground among others for a court to invalidate or enjoin an emergency order, or some of its applications, on the basis that it is not narrowly tailored to serve a compelling public health or safety purpose. 

1. On page 14, change section 5, subsection (d) to read:

(d)  A state of emergency and a local state of emergency shall terminate automatically sixty days after the issuance of a proclamation of a state of emergency or local state of emergency, respectively, [or] unless extended or terminated by a separate or supplementary proclamation of the governor or mayor, [whichever occurs first]provided that the proclamation extending the emergency meets the following qualifications:

1. It is the first extension of the emergency period issued by the governor or mayor and extends that emergency by no more than 60 days.
2. The Legislature has approved the extension by concurrent resolution.
3. The Legislature has not convened a special session to debate the extension of the emergency within 10 days of the issue date of the proclamation extending the emergency. 
   1. Pursuant to the Legislature’s rules governing petition for a special session, the House and Senate may petition the President of the Senate and Speaker of the House to convene a special session for the purpose of debating the extension of the emergency. The petition and special session must occur within 10 days of the issue date of the proclamation extending the emergency. If the special session does not convene within 10 days, the extension is deemed approved by the Legislature.
   2. If the Speaker of the House or President of the Senate notifies the governor or mayor of the need for a special session to debate the extension of an emergency, the governor or mayor may withdraw the proclamation extending the emergency and allow the emergency to terminate.

1. On page 15, add the following after section 5, subsection (e):

(f) A proclamation by the governor declaring the existence of a state of emergency arising from the same emergency or disaster for which a previous emergency proclamation was terminated by the Legislature may be authorized for a period of up to sixty days only upon request of the governor and adoption of a concurrent resolution by the Legislature.

In general, this bill makes several much-needed changes to the existing emergency-management statute, but it would be good to see a firmer statement in favor of preserving government transparency, especially the state’s sunshine laws and open records, as well as stronger guarantees that emergency orders that close a business or deprive an individual of a right would also have to demonstrate a rational basis for the restriction.

Throughout the COVID-19 emergency, we have had the opportunity to learn more about what we do well and what could be improved. This bill, if enacted, would be a good start toward making our state better-equipped to handle future emergencies.

Thank you for the opportunity to submit our comments.

Sincerely,

Ted Kefalas
Director of Strategic Campaigns
Grassroot Institute of Hawaii