Lomma v. Connors

539 F.Supp.3d 1094

Levana LOMMA, Plaintiff,

v.Clare E. CONNORS, in her individual and official capacity as Attorney General of the State of Hawai'i ; David Y. Ige, in his individual and official capacity as Governor of the State of Hawai'i; Derek S.K. Kawakami, in his individual and official capacity as Mayor of the County of Kauai, Defendants.

CIVIL NO. 20-00456 JAO-RT

United States District Court, D. Hawai‘i.

Signed May 17, 2021

Levana Lomma, Kapaa, HI, Pro Se.

Ewan C. Rayner, Nicholas Matthew McLean, Craig Y. Iha, David D. Day, Office of the Attorney General, Honolulu, HI, for Defendants Clare E. Connors, David Y. Ige.

Charles Arthur Foster, Office of the County Attorney, Lihue, HI, for Defendant Derek S.K. Kawakami.

ORDER DISMISSING IN PART AND STAYING IN PART THIS CASE

Jill A. Otake, United States District Judge

Pro se Plaintiff Levana Lomma ("Plaintiff") challenges the constitutionality of the Mask Mandate in the Eighteenth Proclamation Related to the COVID-19 Emergency ("Eighteenth Proclamation") issued by Defendant David Ige, Governor of the State of Hawai'i ("Governor Ige"), approved by Defendant Clare Connors as Attorney General of the State of Hawai'i ("AG Connors"), and enforced by Defendant Derek Kawakami, Mayor of Kauai ("Mayor Kawakami") (collectively, "Defendants"). Defendants seek dismissal of Plaintiff's claims or alternatively, for a stay.

The Court finds this matter suitable for disposition without a hearing pursuant to Rule 7.1(c) of the Local Rules of Practice for the United States District Court for the District of Hawaii. For the following reasons, the Court DISMISSES IN PART AND STAYS IN PART this case.

BACKGROUND

I. Factual History

As COVID-19 appeared in Hawai'i, Governor Ige issued an Emergency Proclamation on March 4, 2020, authorizing the expenditure of State monies, and suspending specified Hawai‘i statutes. See https://governor.hawaii.gov/wp-content/uploads/2020/03/2003020-GOV-Emergency-Proclamation_COVID-19.pdf (last visited May 17, 2021). Since then, Governor Ige has issued a series of supplemental proclamations. The Eighteenth Proclamation,¹ issued on February 12, 2021, is the subject of this lawsuit and includes a Mask Mandate requiring all individuals with the State of Hawai'i to "wear a face covering over their nose and mouth when in public." https://governor.hawaii.gov/wp-content/uploads/2021/02/2102078-ATG_Eighteenth-Proclamation-Related-to-the-COVID-19-Emergency-distribution-signed.pdf (last visited May 17, 2021). "Face covering" is defined as: "a tightly woven fabric (without holes, vents, or valves) that is secured to the head with either ties or straps, or simply wrapped and tied around the wearer's nose and mouth." Id.

Exhibit J to the Eighteenth Proclamation sets forth the following exceptions to the Mask Mandate:

A. Individuals with medical conditions or disabilities where the wearing of a face covering may pose a health or safety risk to the individual;

B. Children under the age of 5;

C. While working at a desk or work station and not actively engaged with other employees, customers, or visitors, provided that the individual's desk or workstation is not located in a common or shared area and physical distancing of at least six (6) feet is maintained;

D. While eating, drinking, smoking, as permitted by applicable law;

E. Inside private automobiles, provided the only occupants are members of the same household/living unit/residence;

F. While receiving services allowed under a State or county order, rule, or proclamation that require access to that individual's nose or mouth;

G. Where federal or state safety or health regulations, or a financial institution's policy (based on security concerns), prohibit the wearing of facial coverings;

H. Individuals who are communicating with the hearing impaired while actively communicating (e.g., signing or lip reading);

I. First responders (police, fire fighters, lifeguards, etc.) to the extent that wearing face coverings may impair or impede the safety of the first responder in the performance of his/her duty;

J. While outdoors when physical distance of six (6) feet from other individuals (who are not members of the same household/living unit/residence) can be maintained at all times; and

K. As specifically allowed by a provision of a State or county COVID-19 related order, rule, or proclamation.

Id. Face shields may not substitute face coverings unless one of these exceptions apply or an individual cannot "wear a face covering due to medical conditions or disabilities where the wearing of a face covering may pose a health or safety risk to the person." Id.

Plaintiff complains that pursuant to the Eighteenth Proclamation, the Kauai Athletic Club required her to wear a mask while exercising, in violation of her "rights to free speech, expression, religion, privacy, free association, and right to breathe." ECF No. 37 ¶ 28. As result, Plaintiff cancelled her membership with the club. See id.

II. Procedural History

Plaintiff commenced this action on October 23, 2020. On October 26, 2020, she filed a Motion for a Speedy Hearing under Rule 57 of Fed. R. Civ. P., ECF No. 6, followed by an Amended Complaint on October 28, 2020. ECF No. 8. Based on the parties’ agreement, Plaintiff then filed a Second Amended Complaint ("SAC"). ECF Nos. 36–37. The SAC asserts infringement upon Plaintiff's (1) free speech and expression under the First Amendment "by abridging [her] ability to speak audibly and clearly, removing facial expression which is an aspect of the content of speech, forcing the adoption of a cult-like religious tradition, which violates [her] religious convictions" and (2) "God-given right to breathe freely and to simply be left alone," both of which are fundamental rights protected by the Ninth Amendment. ECF No. 37 ¶ 2. Although Plaintiff characterizes this lawsuit as a constitutional challenge, id. ¶ 1, she also appears to accuse Governor Ige of lacking the authority under Hawai'i Revised Statutes ("HRS") § 127A-2 to issue the Eighteenth Proclamation.² Id. ¶ 45. According to Plaintiff, COVID-19 is not a public health emergency in Hawai‘i, masks are not effective in minimizing the spread of COVID-19 and may in fact increase its spread, and masks pose health risks by decreasing oxygen intake and forcing excessive carbon dioxide intake. Id. ¶ 65.

Plaintiff requests a declaration that the Eighteenth Proclamation is unconstitutional and void, an injunction prohibiting Defendants from enforcing it, and fees and costs. Id. at 40.

On March 9, 2021, Mayor Kawakami filed a Motion to Dismiss Second Amended Complaint for Declaratory and Emergency Injunctive Relief Filed on February 28, 2021 [ECF No. 37]. ECF No. 38. On March 11, 2021, Governor Ige and AG Connors (collectively, "State Defendants") filed a Motion to Dismiss Second Amended Complaint. ECF No. 40. Plaintiff filed oppositions on April 2, 2021. ECF Nos. 43–44.

On April 7, 2021, the Court issued an Entering Order ("EO") directing the parties "to explain whether the disposition of the state court appeal in For Our Rights, et al. v. Ige, et al. , or any other state court case, could affect this case. And if so, whether a stay would be appropriate." ECF No. 45. The parties filed responses on April 12, 2021, ECF Nos. 46–48, and additional supplemental memoranda on April 20 and 23, 2021. ECF Nos. 51–53.

For Our Rights was filed in the Hawai'i Circuit Court of the Fifth Circuit on September 1, 2020, challenging Governor Ige's authority to extend a 60-day state of emergency through supplemental proclamations under HRS Chapter 127A and alleging that the proclamations were unconstitutionally vague. ECF No. 46 at 2; ECF No. 48 at 2; ECF No. 47 at 3. Plaintiff, the Chief Executive Officer of For Our Rights, a non-profit corporation, was one of 17 plaintiffs in the lawsuit. ECF No. 48 at 2. The state court granted the defendants’³ motion to dismiss, concluding that HRS Chapter 127A empowers Governor Ige to issue supplemental proclamations beyond a single 60-day period. ECF No. 47 at 3; ECF No. 47-3 at 2. In addition, the state court deemed moot and dismissed with prejudice the plaintiffs’ claim that prior supplemental proclamations were vague. ECF No. 47 at 3; ECF No. 47-3 at 2. The plaintiffs appealed to the Hawai'i Intermediate Court of Appeals ("ICA"), and the opening brief deadline was April 29, 2021. ECF No. 47 at 3–4; ECF No. 47-5.

DISCUSSION

The parties agree that For Our Rights could affect this case. ECF Nos. 46–48. Defendants argue that abstention pursuant to Railroad Commission v. Pullman Co. , 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), is appropriate, and State Defendants also argue that the Court could impose a stay pursuant to its inherent powers. ECF Nos. 46–47, 51–52. Plaintiff contends that the Court must assert its jurisdiction because this case involves federal constitutional claims that were not presented in For Our Rights and the Pullman requirements are not satisfied.⁴ ECF No. 53 at 2, 6–9.

The Pullman abstention doctrine authorizes district courts to postpone "the exercise of federal jurisdiction when ‘a federal constitutional issue ... might be mooted or presented in a different posture by a state court determination of pertinent state law.’ " C-Y Dev. Co. v. City of Redlands , 703 F.2d 375, 377 (9th Cir. 1983) (quoting County of Allegheny v. Frank Mashuda Co. , 360 U.S. 185, 189, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959) ). "And it is not even necessary that the state adjudication ‘obviate the need to decide all the federal constitutional questions’ as long as it will ‘reduce the contours’ of the litigation." Smelt v. County of Orange (Smelt II ), 447 F.3d 673, 679 (9th Cir. 2006) (quoting id. at 380 ).

Pullman abstention is appropriate where:

(1) the case touches on a sensitive area of social policy upon which the federal courts ought not enter unless no alternative to its adjudication is open, (2) constitutional adjudication plainly can be avoided if a definite ruling on the state issue

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