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Lawsuit challenges Gov. David Ige’s emergency powers

  • CINDY ELLEN RUSSELL / CRUSSELL@STARADVERTISER.COM 
                                Gov. David Ige announced Monday during a news conference at the state Capitol that the interisland travel quarantine will be lifted today. Ige is being challenged in a lawsuit filed by Kauai and Big Island residents claiming the governor exceeded his emergency proclamation powers related to COVID-19.

    CINDY ELLEN RUSSELL / CRUSSELL@STARADVERTISER.COM

    Gov. David Ige announced Monday during a news conference at the state Capitol that the interisland travel quarantine will be lifted today. Ige is being challenged in a lawsuit filed by Kauai and Big Island residents claiming the governor exceeded his emergency proclamation powers related to COVID-19.

Hawaii residents from Kauai and the Big Island have filed a lawsuit challenging Gov. David Ige’s emergency proclamations related to the spread of COVID-19.

The lawsuit says Ige exceeded his powers as governor by extending the 60-day emergency period allowed by state law. His March 4 proclamation was set to end April 29, but on Wednesday he extended the disaster emergency relief period through July 31 — nearly five months since March 4.

“You have a king who is both making the laws and enforcing them. … What’s to stop the governor from extending the emergency and the emergency proclamations?” Marc Victor, the plaintiffs’ attorney from The Attorneys for Freedom Law Firm, said. “We could have an emergency that’s such a huge problem and the legislature can’t convene and we can’t get anything done. … (That lets) the governor be king for 60 days, but after 60 days you can’t be king anymore.”

The plaintiffs listed in the federal civil rights action include an association called For Our Rights and over a dozen named individuals against Ige, state Attorney General Clare Connors and the state of Hawaii.

It’s not the first time the governor’s use of emergency powers has been called into question.

Ige was met with criticism for suspending state laws that required government agencies to meet in public. Concerns were also raised when he required the state’s mayors to obtain his or the Hawaii Emergency Management Agency director’s approval before issuing an emergency order for their respective counties.

The lawsuit also focuses on the 14-day quarantine for interisland travelers and those flying from out of state. The lawsuit states that residents have a right to “freedom of movement” and that a mandatory quarantine “amounts to house arrest of the traveling individual.”

Investigators from the state Department of the Attorney General have been arresting individuals who violate quarantine rules, usually by leaving their listed accommodations before completing their two-week quarantine.

On March 26, Ige discouraged tourism after ordering a 14-day travel quarantine for passengers coming from out of state, and on April 1 he included interisland travelers.

The interisland quarantine will end today, but on Wednesday Ige extended the quarantine for out-of-state passengers until July 31.

Mitigating the spread of COVID-19 did not necessitate such intrusive rules, Victor said, which could have been more “narrowly tailored.” He said the travel quarantines are “like using a sledgehammer to swat a mosquito.”

One alternative he suggested was to have travelers tested once they land in Hawaii or before they board a flight to the islands.

The third problem addressed in the lawsuit, also involving the quarantine, states that the quarantine rules are “constitutionally void for vagueness” because people can’t be sure what the rules are.

“For example, when the governor says, ‘Stay in your home.’ … Well, I live in a condo. Do I get to exit my condo to walk down the hall to put the trash in the chute, or am I violating the law if I do that?” Victor said.

When asked to respond to the issues brought up in the lawsuit, Krishna Jayaram, special assistant to the attorney general, said the allegations are unfounded.

“The Governor’s Emergency Proclamation for COVID-19 and the subsequent supplementary proclamations were properly and lawfully issued pursuant to the Governor’s statutory authority and his determination that an emergency exists due to the COVID-19 pandemic and the danger and threat it poses to Hawaii,” Jayaram said in a statement. “Plaintiffs’ allegations — including alleged constitutional violations stemming from the Governor’s actions — are without merit.”

The lawsuit also listed the harm done to the plaintiffs as a result of Ige’s proclamations. They include lost employment and financial hardship for business owners, emotional distress, social exclusion and even deterioration of physical health.

Those hardships, especially the financial ones, are likely meant to reflect what many residents in Hawaii are facing.

The state Department of Labor and Industrial Relations reported Wednesday that about 230,000 unemployment claims have been filed in the state, an order of magnitude greater than the 20,000-claim load it normally handled prior to the arrival of COVID-19.

Many unemployment claims are coming from workers dependent on tourism, which has become effectively nonexistent in Hawaii’s economy since March.

About 78,000 of the 121,000 nonagricultural jobs lost in Hawaii in April were in tourism-heavy industries — hospitality, trade and transportation — according to the state Department of Business, Economic Development and Tourism.

The lost jobs are related to the drop-off in tourists coming to Hawaii. A snapshot of that is the latest report from the Hawaii Tourism Authority, which said May 28 that there was a 99.5% drop in visitor arrivals in April compared with last year.

The state’s economy may have paid a heavy price, but it at least has a low COVID-19 death toll to show for it.

As of Monday there have been just 17 deaths in Hawaii related to COVID-19 and only 728 total positive cases, according to the state Department of Health. The 12 deaths in Alaska make it the only state in the U.S. with fewer coronavirus deaths than Hawaii.

COVID-19 appeared to be under control in the state, which recorded no more than five new cases in a single day throughout May. Since then Ige and the county’s mayors have been slowly reopening Hawaii’s economy, with many businesses reopening and more tourists arriving.

But a recent spike in new cases is a reminder that Hawaii has not staved off COVID-19 completely, according to Lt. Gov. Josh Green.

“We have not had any new fatalities, but we do have concerns. … This is a reminder that the pandemic is not yet done,” Green said Saturday in an Instagram post. “I know people are doing more normal things like going to restaurants and going back to work, but we have to be very careful.”

Green, the state’s COVID-19 health care liaison, said the state will be “very mindful” about when to reopen tourism to the mainland.

In addition to the lawsuit, For Our Rights has filed a temporary restraining order that would prohibit the enforcement of Ige’s Eighth Supplementary Proclamation, which extended the state’s disaster emergency relief period to June 30, while the parties brief a motion for preliminary injunction.

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