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Important developments in the two lawsuits that are on file challenging Hawaii Governor David Ige’s emergency proclamation and myriad supplemental proclamations.

First, we were all set to post the briefs and summarize the arguments for tomorrow’s scheduled U.S. District Court hearing on a motion for preliminary injunction in the first case when earlier today, the plaintiffs in that case voluntarily dismissed the lawsuit without prejudice. As a result, the court vacated tomorrow’s scheduled hearing and ordered the case closed:

EO: In light of Plaintiffs’ Notice of Dismissal, Dkt. No. 26, the Court vacates the briefing requirements set forth in Dkt. No. 24 with respect to Defendants’ Motion to Consolidate (Dkt. No. 22), and vacates the June 26, 2020 hearing on Plaintiffs’ Motion for Preliminary Injunction (Dkt. No. 15). All pending motions are deemed withdrawn and/or moot, and the Clerk is directed to close this case. (JUDGE DERRICK K. WATSON)(tyk) (Entered:…

Continue Reading One Left: Lawsuit Challenging Hawaii Gov’s COVID Orders Voluntarily Dismissed … And Other Developments

Yesterday, in the second of two cases that we’ve been following (both of which are in the U.S. District Court for the District of Hawaii, and are challenging the Hawaii Governor’s coronavirus-related shutdown orders for a variety of reasons, see For Our Rights v. Ige (assigned to Judge Watson) and Carmichael v. Ige (assigned to Judge Otake)), the United States (via the U.S. Attorney and the Department of Justice) filed a Statement of Interest, arguing the shut-down orders violate the Privileges and Immunities Clause of the Constitution (article IV, section 2). You know, that’s the “and” clause, that doesn’t do much (but it does prohibit discrimination against out-of-state residents).

The Statement asserts that the Governor’s two-week self-quarantine requirement, which is imposed on all inbound travelers regardless of residency is “effective[ly] discriminati[on]” against nonresidents because yes, both tourists, nonresidents, and returning residents must shut themselves in after arrival, but …

Continue Reading Federal Court To USA In Hawaii Quarantine Challenge: Explain Why You Filed P&I Right To Travel Amicus, When Plaintiffs Didn’t Raise P&I Right To Travel In The Complaint

Note: please join us today, Tuesday, June, 23, 2020 (12 noon Hawaii Time) for a (free!) webinar. We’ll analyze the latest on “Lockdowns, testing and tracking: Are they all really legal?”

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There have been quite a few lawsuits filed nationwide challenging the various shut-down and “essential”/”nonessential” distinctions being made. So many that we can’t keep track of all of them, only the complaints that allege takings. See here, here, here, here, here, here, here, here, here, here, here, here and here, for a sampling.

So far, two lawsuits have been filed challenging the Hawaii Governor’s corornavirus-related orders (neither alleges a taking, but we’re following along because … 808). See here and here for the complaints.

Here’s the latest:

1. In the first case filed (For Our Rights v. Ige), …

Continue Reading Mark Your Calendars: Hearings Set For Two Challenges To Hawaii Gov’s Lockdown Orders

A new, must-add-to-your-reading-list article from takings and expropriations law scholar Professor Shai Stern.

In “Pandemic Takings: Compensating for Public Health Emergency Regulation,” Professor Stern dives into a question a lot of us have been pondering lately, namely whether the pandemic-related shutdown orders might trigger the Just Compensation imperative in the Fifth Amendment’s Takings Clause.

Takings arguments have been raised in may of the legal challenges to coronavirus shut-down orders that have been filed nationwide (see here, here, here, here, here, here, here, here, here, here, here, here and here, for a sampling). But do these claims have any chance of succeeding? Read the article and find out. (Our thoughts on the takings aspects of the shutdowns orders: Evaluating Emergency Takings: Flattening The Economic Curve.) 

Here’s the Abstract:

The COVID-19 pandemic led all states…

Continue Reading New Must-Read Article: “Pandemic Takings: Compensating for Public Health Emergency Regulation” (Prof. Shai Stern)

Please join us tomorrow, Tuesday, June, 23, 2020 (12 noon Hawaii Time) for a (free!) webinar. We’ll analyze the latest on “Lockdowns, testing and tracking: Are they all really legal?”

We’ll be joining constitutional lawyer Jeff Portnoy and Dr. Keli’i Akina for the program, sponsored by the Grassroot Institute of Hawaii. Sign up now, space limited!

We’ll be discussing the legal questions that have arisen from the shut-down orders, including takings, state-law limitations, and the two federal court lawsuits that are pending. supplemental orders under the automatic termination provision (among other claims) (see here and here for the complaints).

We’ve written up our thoughts on these issues in two articles, “Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority,” 43 U. Haw. L. Rev. ___ (forthcoming 2020) (download from SSRN at the link), and “Evaluating Emergency Takings: …

Continue Reading Upcoming (Free) Program: “Lockdowns, testing and tracking: Are they all really legal?” Tuesday, June 23, 2020 (12 noon Hawaii Time)

The University of Hawaii Law Review has graciously agreed to publish an article we’ve been working on, “Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority,” 43 U. Haw. L. Rev. ___ (forthcoming 2020) (download from SSRN at the link).

The article takes a deeper dive into Hawaii’s emergency laws, the judicial history of the Hawaii court on public health emergencies (we unfortunately have a lot of such history), some modern Hawaii Supreme Court jurisprudence, and Hawaii’s love of Spam® (the lunch meat, not the junk email). It also takes a hard look at the most important limitation on government power in an emergency, the statutory requirement that any emergency proclamation automatically terminates no later than sixty days after it is issued.

(Tomorrow, we’ll be joining Honolulu lawyer Jeff Portnoy, and Dr. Keli‘i Akina for a free, open-to-the-public program sponsored by…

Continue Reading New Article: “Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority” (U. Haw. L. Rev. forthcoming 2020)

Here’s the recording of last week’s program we did for the King Kamehameha V Judiciary History Center, “Constitutional Law and States of Emergency: Lessons from Hawaii’s Judicial History for the COVID-19 Pandemic.”

Links to the cases and other materials we referred to in the presentation are posted here.

Tomorrow, we’ll be joining Honolulu lawyer Jeff Portnoy, and Dr. Keli‘i Akina for a free, open-to-the-public program sponsored by the Grassroot Institute of Hawaii, “Lockdowns, testing and tracking: Are they all really legal?“

Jeffrey Portnoy and Robert Thomas will talk about what we can expect as the state and counties slowly lift their seemingly endless stay-at-home orders, which have discriminated between “essential” and “nonessential” workers, mandated “social distancing” and mask-wearing, and imposed 14-day quarantines on arriving airport passengers, both tourists and residents returning home.

During the hourlong event, Portnoy and Thomas will consider whether businesses destroyed or…

Continue Reading Judiciary History Center Program Recording: “Constitutional Law Lessons from Hawaii’s Judicial History for the COVID-19 Pandemic”

KamV Jud History Center

Here are the links and other materials which we spoke about in this afternoon’s program for the King Kamehameha V Judiciary History Center, “Constitutional Law and States of Emergency: Lessons from Hawaii’s Judicial History for the COVID-19 Pandemic.”

“Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the states were not determined in the light of emergency and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject…

Continue Reading Links And Materials From Judiciary History Center Program: Constitutional Law and States of Emergency: Lessons from Hawaii’s Judicial History for the COVID-19 Pandemic

One more to add to your reading queue. The latest complaint alleges, among other claims, that the Illinois governor’s coronavirus shut down orders for businesses deemed “non-essential” result in takings. 

The list of similar challenges keeps growing. See here, here, here, here, here, here, here, here, here, here, here, here and here, for example. The longer this thing goes on, the more like this we’re going to see.

join us later today, Wednesday, June 16, 2020 at 5:30pm Hawaii Time, when we’ll be speaking about this question in a program for the King Kamehameha V Judiciary History Center (open to the public, more details here). Our thoughts on the takings aspects of the shutdowns orders: Evaluating Emergency Takings: Flattening The Economic Curve.

Complaint at Law, Nowlin v. Pritzker, No. 1:20-cv-01229-MMM-JEH (C.D. Continue Reading The Hits Keep Coming: New Complaint Alleges Illinois’ Lockdown Order Is A Taking

Here’s the latest lawsuit challenging a government’s response to the coronavirus pandemic. This one challenges the California Judicial Council’s Emergency Rule 1, which indefinitely closed the courthouse doors to eviction proceedings (what California calls “unlawful detainer”).

This one does not employ a takings rationale, but takes a separation-of-powers approach. It’s concisely drafted, so we recommend you read the entire document. 

Here’s the Introduction:

On April 6, 2020, the California Judicial Council responded to the coronavirus pandemic by issuing 11 emergency rules of court. Among these was Emergency Rule 1 (“ER 1”), which violates the fundamental rights of property owners by indefinitely suspending their right to initiate unlawful detainer actions. The rule creates the perverse incentive for all tenants, whether they face financial hardship or not, to refuse to pay their rent during the crisis. And it immunizes from eviction even tenants who create nuisances, damage property, conduct illegal activity…

Continue Reading New Lawsuit Challenges California’s Indefinite Eviction Moratorium