For Our Rights v. Ige

151 Hawai‘i 1

507 P.3d 531

FOR OUR RIGHTS, a Hawai‘i corporation, Diana Lomma, David R. Hamman, Randi Hamman, Janet Eisenbach, Levana Lomma Keikaika, Lawrence K. Paille, Geralyn Schulkind, Leonard Schulkind, Daniel Hoshimoto, Christina Cole, Francesca Woolger, Na‘ea Lindsey, Michael Mazzone, Lanette J. Harley, and Loraine L. Patch, Plaintiffs-Appellants,

v.David IGE, in his official capacity as Governor of the State of Hawai‘i, Holly T. Shikada, in her official capacity as Attorney General for the State of Hawai‘i, and State of Hawai‘i, Defendants-Appellees

NO. CAAP-21-0000024

Intermediate Court of Appeals of Hawai‘i.

FEBRUARY 25, 2022

On the briefs:

Marc J. Victor, Jody L. Broaddus, for Plaintiffs-Appellants.

Nicholas M. McLean, Ewan C. Rayner, David D. Day, Craig Y. Iha, Deputy Attorneys General, for Defendants-Appellees.

LEONARD, PRESIDING JUDGE, AND MCCULLEN, J., AND NAKASONE, J., CONCURRING IN PART

OPINION OF THE COURT BY LEONARD, J.

This case primarily addresses whether Hawai‘i Governor David Ige exceeded his statutory authority when he issued a series of proclamations declaring a state of emergency in response to the Covid-19 pandemic. For the reasons set forth herein, we hold that Hawaii's Emergency Management Act (defined below) authorizes the Hawai‘i Governor to declare the existence of a state of emergency whenever , in his or her sole judgment, the Governor finds that circumstances giving rise to a declaration of a state of emergency have occurred (or that there is imminent danger or threat of an emergency), regardless of whether a prior emergency proclamation has been issued based on the same, continuing, and/or otherwise related circumstances. On that basis, we affirm in part the trial court's judgment, but we vacate the trial court's judgment to the extent it was based on mootness.

Plaintiffs-Appellants For Our Rights, a Hawai‘i corporation, Diana Lomma, David R. Hamman, Randi Hamman, Janet Eisenbach, Levana Lomma Keikaika, Lawrence K. Paille, Geralyn Schulkind, Leonard Schulkind, Daniel Hashimoto, Christina Cole, Francesca Woolger, Na‘ea Lindsey, Michael Mazzone, Lanette J. Harley, and Loraine L. Patch (collectively, For Our Rights or Appellants )¹ appeal from the December 23, 2020 Final Judgment (Judgment ) entered by the Circuit Court of the Fifth Circuit (Circuit Court ) against them and in favor of Defendants-Appellees David Ige, in his official capacity as Governor of the State of Hawai‘i (Governor Ige ), Holly T. Shikada, in her official capacity as Attorney General for the State of Hawai‘i, and the State of Hawai‘i (Appellees ).² Appellants also challenge the Circuit Court's November 19, 2020 Order Granting Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint (Dismissal Order ).

I. BACKGROUND

A. Covid-19 Emergency Proclamations

On March 4, 2020, Governor Ige issued a proclamation (Initial Proclamation ) in response to the Covid-19 pandemic, pursuant to Hawaii Revised Statutes (HRS ) §§ 127A-2, - 12, - 13, - 14, - 16, - 30 (Supp. 2019). By its terms, the Initial Proclamation continued through April 29, 2020.³ The Initial Proclamation provided, inter alia , numerous references to the United States Centers for Disease Control and Prevention, World Health Organization, and United States Secretary of Health and Human Services, declaring Covid-19 an international concern. The Initial Proclamation, inter alia , authorized emergency relief and emergency management functions, suspended various statutes, and prohibited the increase of the selling price of various commodities, including food, water, medical supplies, and cleaning supplies.

Through the date of this Opinion, Governor Ige has issued subsequent Covid-19-related proclamations on March 16, 2020, March 21, 2020, March 23, 2020, March 31, 2020, April 16, 2020, April 25, 2020, May 5, 2020, May 18, 2020, June 10, 2020 (Ninth Supplementary Proclamation Related to the Covid-19 Emergency (Ninth Proclamation )), July 17, 2020 (Tenth Proclamation Related to the Covid-19 Emergency (Tenth Proclamation )), August 6, 2020 (Eleventh Proclamation Related to the Covid-19 Emergency Interisland Travel Quarantine (Eleventh Proclamation )), August 20, 2020 (Twelfth Proclamation Related to the Covid-19 Emergency), September 22, 2020 (Thirteenth Proclamation Related to the Covid-19 Emergency), October 13, 2020 (Fourteenth Proclamation Related to the Covid-19 Emergency), November 16, 2020 (Fifteenth Proclamation Related to the Covid-19 Emergency), November 23, 2020 (Sixteenth Proclamation Related to the Covid-19 Emergency), December 16, 2020 (Seventeenth Proclamation Related to the Covid-19 Emergency), February 12, 2021 (Eighteenth Proclamation Related to the Covid-19 Emergency), April 9, 2021 (Nineteenth Proclamation Related to the Covid-19 Emergency), May 7, 2021 (Twentieth Proclamation Related to the Covid-19 Emergency Quarantine for Travel Between Counties), May 25, 2021 (Amendment Nineteenth Proclamation Related to the Covid-19 Emergency), June 7, 2021 (Twenty-First Proclamation Related to the Covid-19 Emergency), August 5, 2021 (Emergency Proclamation Related to the Covid-19 Response), October 1, 2021 (Emergency Proclamation Related to the State's Covid-19 Delta Response), November 29, 2021 (Emergency Proclamation Related to Covid-19), January 26, 2022 (Emergency Proclamation Related to Covid-19 (Omicron Variant)), and February 5, 2022 (Amendment Emergency Proclamation Related to Covid-19 (Omicron Variant)).

B. Procedural History

For Our Rights filed a complaint on September 1, 2020, and a First Amended Complaint (the Complaint ) on September 24, 2020. The Complaint alleged that the individual plaintiffs, along with other people in Hawai‘i, were suffering and would continue to suffer from numerous harms as a result of Governor Ige's Covid-19-related proclamations, including the specific harms to the plaintiffs that were identified in the Complaint, including but not limited to anxiety, prevention of travel to see family, lost employment, destruction of business, lost income and other heavy financial losses, lost business opportunities, lost mental health care and other health care services, loss of freedom, serious emotional distress, depression, hopelessness, homelessness, isolation, social exclusion, pain, injury to health, alienation, fear, suicidal thoughts, and other deprivations.

The Complaint asserted two causes of action (Count I and Count II ). In Count I, the Complaint alleged, inter alia , that Governor Ige's Ninth, Tenth, and Eleventh Proclamations are unconstitutional and exceed the authority statutorily delegated by the Hawai‘i Legislature to the Hawai‘i Governor to declare an emergency and promulgate rules and regulations to facilitate the government response to such declared emergency, and that Appellants are suffering harms directly related to the continued application and enforcement of those and any preceding supplemental proclamations. More specifically, Count I alleges that, under the Hawai‘i Constitution, the Governor does not hold an enumerated power to declare states of emergency and that the emergency powers statutorily conferred by the Legislature to the Governor are expressly limited to a period not to exceed 60 days. Count I further alleges that Governor Ige's use of supplemental proclamations is an unauthorized attempt to circumvent the Legislature's express 60-day limit and therefore, the Ninth, Tenth, and Eleventh Proclamation, and any and all such supplemental proclamations, exceed the Governor's statutory and constitutional authority.

In Count II, the Complaint further alleged, inter alia , that Governor Ige's Ninth, Tenth, and Eleventh Proclamations are unconstitutionally vague and deprive Appellants of due process under the constitutions of the State of Hawai‘i and the United States. Appellants did not challenge Governor Ige's Initial Proclamation.

The Complaint sought, inter alia , declaratory and injunctive relief with respect to the Ninth, Tenth, and Eleventh Proclamations, as well as any and all further supplemental proclamations, including a declaration that such supplemental proclamations are unconstitutional, invalid, null, and void, and that Appellees (among others) be enjoined from enforcing them.

On October 8, 2020, Appellees filed a Motion to Dismiss Plaintiffs' First Amended Complaint (Motion to Dismiss ), arguing that the Complaint in its entirety should be dismissed for failure to state a claim upon which relief can be granted, and contending that: (1) because Appellants did not challenge the subsequent emergency proclamations that were then in effect, Appellants lack standing and their claims are moot; (2) Governor Ige's emergency proclamations are fully authorized under HRS chapter 127A; and (3) Appellants' void-for-vagueness arguments failed to meet applicable legal standards.

On November 9, 2020, Appellants filed a memorandum in opposition in which they argued, inter alia : (1) the Complaint is not moot because the controversy is capable of repetition yet evading review, the public interest exception to the mootness doctrine applies, and contrary to Appellees' contention, injunctive and declaratory relief remain justiciable based on the Complaint's allegations; (2) neither the Hawai‘i Constitution nor HRS chapter 127A confer unlimited and unreviewable powers on the Governor; and (3) unless the applicable statutes impose an enforceable limitation, the Governor's authority to declare an emergency amounts to a blank check to usurp legislative power and here, Governor Ige's proclamations have ignored and therefore failed to avert their catastrophic impacts and protect the welfare of the people of the Hawai‘i. Appellees filed a reply memorandum contending, inter alia , that the restrictions in the emergency proclamations have saved lives and that the proclamations were based on reassessments and evolving circumstances.

On November 17, 2020, a hearing was held on the Motion to Dismiss and the matter was...