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Some fear liberties will be lost in Hawaii’s COVID-19 pandemic orders

  • DENNIS ODA / DODA@STARADVERTISER.COM
                                People patrol Queen’s Beach in Waikiki on Saturday. Gov. Ige modified his statewide order to allow the public to exercise on beaches, including walking, running or jogging as long as social distancing measures are followed.

    DENNIS ODA / DODA@STARADVERTISER.COM

    People patrol Queen’s Beach in Waikiki on Saturday. Gov. Ige modified his statewide order to allow the public to exercise on beaches, including walking, running or jogging as long as social distancing measures are followed.

Government officials appear to be doing a good job of limiting the damage of the coronavirus pandemic in Hawaii, recording among the lowest COVID-19 infection and death rates in the country.

But at what price?

Over the past few months Hawaii leaders have established curfews, called out the National Guard, set up checkpoints, ordered businesses to close, required the wearing of face masks, deployed drones to clear beaches and waived open records and meetings laws.

Have Gov. David Ige and the mayors of Hawaii’s four counties gone too far in curtailing civil liberties in the name of health and safety?

Some say the answer to that question is “yes” or, at the very least, they’re pushing the envelope.

“I’m not saying there shouldn’t be some restrictions,” attorney Jeff Portnoy said. “I’m just saying we have to be very, very careful at a time of crisis that our civil liberties don’t become the victim.”

Honolulu property rights attorney Robert Thomas said it’s important to note that constitutional rights are not suspended in times of emergency. The Constitution, he said, is designed to work in periods of calm as well as in times of emergency.

“The courts have ruled that an emergency does not create power,” Thomas told a recent Grassroot Institute of Hawaii webinar. “This emergency isn’t a war and it shouldn’t be treated as such.”

PUBLIC MEETINGS

Advocates of open government and transparency were alarmed in mid-March when the governor suspended the state laws requiring agencies to meet in public and make government records public as part of the administration’s emergency COVID-19 response.

Crowds attending open meetings, Ige explained, are contrary to social distancing guidelines. And suspension of the public records laws provides the government flexibility to focus on the crisis at hand, according to state Attorney General Clare Connors.

In making his announcement, Ige said the emergency proclamation made room for hearings and meetings to be conducted through remote technology and telecommunication tools.

But when the Office of Information Practices formally offered its opinion on the proclamation, it did not require boards and commissions to do what they can to abide by the Sunshine Law and the Uniform Information Practices Act within the social distancing limitations.

The interpretation left what appears to be the most extreme order covering such laws in the country, according to Brian Black, president and executive director of the Civil Beat Law Center for the Public Interest.

Black, speaking at a Grassroot Institute webinar Tuesday, said the governor’s order threatens to set a bad precedent for how open meeting and records laws will be handled in the future.

In response to the order, Common Cause Hawaii sent a letter to the governor, signed by more than 40 different groups, asking that government meetings be required to remain open by remote access through audio and video means.

The letter said boards and commissions should provide adequate notice of a meeting and ensure that the public is able to join in via videoconference, telephone and written testimony. Among other recommendations, the letter said public bodies should record all meetings and make the recording available on a public website on a timely basis.

While some government bodies have taken it upon themselves to open up their closed meetings remotely, that hasn’t always been the case.

Sandy Ma, executive director of Common Cause Hawaii, said the Honolulu Salary Commission held a recent meeting that did not live stream or allow for any real-time remote testimony.

“You had to go in person, which is kind of crazy in this public health crisis, when people are under a stay-at-home, work-at-home order,” she said.

Elsewhere, a Honolulu Zoning Committee meeting was held but the materials for the items on the agenda were not posted remotely.

“You actually had to go to Honolulu Hale to access those Zoning Committee materials,” she said.

Ma said Common Cause has sent six or seven letters to boards and commissions urging them to be more open through the use of technology. She encouraged people to demand the same accountability.

“Just because the Sunshine Law may have been suspended, it doesn’t mean they can’t do the right thing,” she said. “They should do the right thing; there’s technology out there. At the very minimum, there’s the phone. Use the phone.”

Ma said boards and commissions need to know the thoughts and desires of citizens as they go about the business they conduct on behalf of the public.

“We understand that they have to move fast. We are in a pandemic. We shouldn’t be bogged down in minutiae, but they should also know what our concerns are,” she said.

ESCALATING RESTRICTIONS

In an interview, Keli‘i Akina, Grassroot Institute CEO and president, said he and others have been wondering when the escalating parade of COVID-19 restrictions are going to stop.

At some point, he said, the economic and social damage caused by the near-lockdown may harm the state more than the virus itself.

“In my view, given the freedom and flexibility to do so, most individuals are quite capable of deciding how best to protect themselves against the coronavirus,” Akina said.

Akina said Hawaii residents must remain vigilant to ensure that individual liberties being given up in the name of public safety are not permanently lost once the coronavirus pandemic is in the rearview mirror.

There have been some lawsuits on the mainland challenging COVID-19 restrictions, claiming economic “takings” deserving of financial reimbursement.

Thomas, an expert on property rights, eminent domain and government takings, said those suits so far have not seen much success.

“Even on the most normal of days, the courts are highly deferential to government claims that it can control your behavior, your business, your property — all in the name of health, safety and welfare,” Thomas said.

In fact, he said, the U.S. Supreme Court some 100 years ago in a Massachusetts case upheld the authority of states to enforce compulsory vaccination laws.

“If it can violate your bodily integrity, it can likely tell you to stay home without a court seriously questioning that. Even in normal times, the courts give government huge latitude in these things, and this is hardly normal times,” he said.

Thomas said anyone who wants to tangle with the government in court over abridged liberties right now should know it isn’t going to be easy.

“Is this the hill you want to fight on?” he said. “Do you want to cooperate — or do you want to whip out your copy of the Constitution and say you can’t stop me. And the next thing you’ll know is that you’ll be in a coronavirus-filled cell with about 20 other people.

“Maybe stocking up on Spam is better than the lawsuit,” he added.

Correction: In an earlier version of this story, Robert Thomas was quoted as saying “This emergency isn’t a war and it should be treated as such.” He actually said, “This emergency isn’t a war and it shouldn’t be treated as such.”

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