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Update: our thoughts on the Hawaii-law claims in this article, “Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority,” 43 U. Haw. L. Rev. ___ (forthcoming 2020).

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Here’s the second complaint filed in the U.S. District Court for the District of Hawaii challenging the governor’s coronnavirus shut down orders. Back in March, the governor issued a proclamation declaring an emergency, and since then has issued nine “supplemental” declarations, re-upping the end date which is now the end of July). Here’s the first complaint (in that case, the plaintiffs dropped their request for a TRO, and the court has scheduled a hearing on a motion for preliminary injunction for June 26, 2020).

There’s a Fifth Amendment claim (sorry, not a takings claim, but a right to travel), as well as a host of federal constitutional claims (due process, equal protection, section …

Continue Reading New (Hawaii) Complaint: Coronavirus Orders Violate Right To Travel, Equal Protection, Due Process (And More)

Here’s the latest complaint challenging coronavirus-related orders (in this case, the City of Los Angeles’ rent payment and eviction moratoria) as a taking.

More here from the LA Times: “Landlord group sues city of L.A. over coronavirus anti-eviction protections.”

You should probably read the entire document, as it is drafted well. But it is long (48 pages – it even has a Table of Contents and a Table of Authorities), so here are the key parts of the Introduction in case you don’t have time to digest the whole complaint:

1. In the wake of the novel coronavirus, Defendants City of Los Angeles, City Council of the City of Los Angeles, and Mayor Eric Garcetti (collectively “City” or “Defendants”) hastily instituted a series of ordinances which prohibit lessors and landlords, such as Plaintiff’s members, from exercising their contractual remedies where tenants refuse to pay rent on the…

Continue Reading New Fed Ct Complaint: Coronavirus Rent Freeze And Eviction Moratorium Is A Taking

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Next Wednesday, June 17, 2020, at 5:30pm Hawaii Time, we’ll be speaking for the King Kamehameha V Judiciary History Center about “Constitutional Law and States of Emergency: Lessons from the COVID-19 Pandemic.”

This is a one-hour program, open to the public, where we will take a dive into Hawaii’s emergency preparedness and response laws, how Hawaii’s courts have treated emergencies, plagues, pandemics, and quarantines in the past (we have a long history there), and respond to (moderated) audience questions.

Space limited to 100 attendees, although it will be recorded and posted on the Center’s YouTube channel. Here’s the program description:

The King Kamehameha V Judiciary History Center invites you to join our live webinar with attorney Robert H. Thomas as he shares his expertise about constitutional rights and civil liberties during the COVID-19 pandemic. He will share lessons from Hawaiʻi’s history of public health laws during…

Continue Reading Upcoming Judiciary History Center Program: “Constitutional Law and States of Emergency: Lessons from the COVID-19 Pandemic” – Wed., June 17, 2020, 5:30pm HST

Here’s the latest court order telling business and property owners that they have little chance of success on the claims asserted in various mostly-constitutional challenges to shut-down orders.

This time the businesses are in North Carolina, and appear to be — ahem — so-called “gentlemen’s clubs” (and by that, we’re not referencing those in St. James’s), which asserted a host of constitutional claims (including takings), and sought immediate relief.

Today, in this order, the district court denied a preliminary injunction (having denied a TRO last week). The main relief sought is an injunction. The entire order is worth reading, even though it doesn’t focus on the takings question. Applying rational basis review, the court concluded that cases like Jacobson show that the governor’s orders “pass[] this deferential test, where it imposes temporary restrictions on businesses to prevent the spread of COVID-19[.]” Slip op. at 19. Allowing some businesses to …

Continue Reading Federal Court: Talleywhacker Not Likely To Win Coronavirus Shut-Down Takings Claim