Have Hawaii's Covid emergency proclamations expired? (Read 6460 times)

msp3

Have Hawaii's Covid emergency proclamations expired?
« on: May 21, 2020, 12:57:58 PM »
GOVERNMENT & REGULATIONS
PUPU PLATTER 212

By A. Kam Napier
Editor-in-Chief, Pacific Business News
6 hours ago
Unlawful lockdowns?

I get calls from business leaders asking what we can do, or what they can do, to stop the government overreach into Hawaii’s economy and get us all opening faster.

Trying to find an answer had me doing some homework in Hawaii Revised Statutes, looking into recall elections (doesn’t seem a governor can be recalled, though mayors can be) and the emergency powers themselves.

That’s when I noticed something very interesting. Technically, the proclamations from Gov. David Ige and Mayor Kirk Caldwell declaring an emergency and invoking their ability to make rules with the force of law, have expired. They were issued March 4, and automatically expired 60 days later, on May 3.

Here’s the portion of the law I’m referring to: “§127A-14 State of emergency. … (d) A state of emergency and a local state of emergency shall terminate automatically sixty days after the issuance of a proclamation of a state of emergency or local state of emergency, respectively, or by a separate proclamation of the governor or mayor, whichever occurs first. [L 2014, c 111, pt of §2; am L 2019, c 214, §5]”

https://www.bizjournals.com/pacific/news/2020/05/21/are-hawaiis-covid-emergency-proclamations-legal.html

changemyoil66

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #1 on: May 21, 2020, 01:46:28 PM »
HRS mentions a 60 day limit without going through the house/senate.  It's been about 63 days since Ige's 1st proc.  But IDK if every new proc resets this clock.  He just had one a few days ago (proc 8).

groveler

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #2 on: May 21, 2020, 02:53:16 PM »
HRS mentions a 60 day limit without going through the house/senate.  It's been about 63 days since Ige's 1st proc.  But IDK if every new proc resets this clock.  He just had one a few days ago (proc 8).
Yes there is a limit.  They have exceeded it.
Don't like it?  Go to court.
Kind of like gun rights in this state,
you'll be dead and broke before it gets resolved
and your Constitutional  rights are recognized.
It is the Democrat party way.

Rocky

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #3 on: May 21, 2020, 04:38:51 PM »
GOVERNMENT & REGULATIONS
PUPU PLATTER 212

By A. Kam Napier
Editor-in-Chief, Pacific Business News
6 hours ago
Unlawful lockdowns?
I get calls from business leaders asking what we can do, or what they can do, to stop the government overreach into Hawaii’s economy and get us all opening faster.

https://www.facebook.com/inthenow/videos/539715860297387/?d=n
“I ask you to judge me by the enemies I have made.”
                                                           Franklin D. Roosevelt

zippz

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #4 on: May 21, 2020, 08:15:21 PM »
It's one of those things the Government will say just follow it and the courts will figure it out later.  The current proclamation is probably expired and null.  The intent of it is to give the Governor the power to handle a sudden emergency then the legislature has time to call a special session to pass laws for the longer term.  It wouldn't make sense where the Governor has a 60 day limit but can keep extending it himself (through additional proclamations).  It'd be like a genie  giving you 3 wishes and you wish for more wishes.

zippz

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #5 on: May 21, 2020, 08:16:48 PM »
Another tidbit I found...

But I called ACLU Hawaii and spoke to Legal Director Matteo Caballero to ask, am I right about this? He spent some time doing his homework before getting back to me, which I appreciate.  “You’re not wrong,” he said, “though the matter is more complicated than that.”  Cabellero notes ACLU Hawaii isn’t taking a position on this question. “We’re concerned with government overreach and, while we understand it’s an emergency, we ask the government to act in ways informed by science, responsive to the situation, and taking civil liberties into account.”

In other words...we're too busy right now freeing inmates from prison.

eyeeatingfish

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #6 on: May 21, 2020, 08:54:20 PM »
HRS mentions a 60 day limit without going through the house/senate.  It's been about 63 days since Ige's 1st proc.  But IDK if every new proc resets this clock.  He just had one a few days ago (proc 8).

I was thinking the same thing. I was reading through the chapter and I didn't see anything that explicitly covered how it worked past the 60 days. Maybe the governor just has to declare an emergency again which restarts the clock?

Flapp_Jackson

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #7 on: May 21, 2020, 10:23:17 PM »
I was thinking the same thing. I was reading through the chapter and I didn't see anything that explicitly covered how it worked past the 60 days. Maybe the governor just has to declare an emergency again which restarts the clock?

Just declaring a new emergency with the same predicate (Covid-19) would be illegal.  You can't make new a new proclamation without a new emergency, especially now that there is more known about the virus and we are entering the time of year when heat and humidity should stop new cases nearly completely. 

Do you really think Ige is stupid enough to try such a transparent end-run around the law?
The reasonable man adapts himself to the world;
the unreasonable one persists in trying to adapt the world to himself.
Therefore, all progress depends on the unreasonable man.
-- George Bernard Shaw

zippz

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #8 on: May 21, 2020, 10:47:43 PM »
Odds are this would lose in court and the Legislature is fine with it.  So the two checks on the Governor's power wouldn't do anything.

1.  the law isn't explicit on the issue
2.  the law gives the Governor and Mayors a lot of power
3.  the legislature passed the law and don't seem to have a problem with the multiple proclamations.
4.  Legislature could change the law right now if they really wanted to.
5.  No way the Hawaii Supreme Court would oppose it.  After all they're too busy releasing prisoners.

Flapp_Jackson

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #9 on: May 21, 2020, 10:56:24 PM »
Wisconsin Supreme Court Says the State's COVID-19 Lockdown
Violated the Rule of Law and the Separation of Powers


A seemingly arcane dispute about administrative law has profound
implications for the limits of public health authority.


Quote
Emergency Order 28 extended Wisconsin's original March 24 lockdown, which would have expired on April 24, until May 26. The sorts of
restrictions this entailed are by now familiar but are worth emphasizing, lest we forget the unprecedented extent to which COVID-19 control
measures have interfered with the liberties and livelihoods of people throughout the country.

Palm's order banned "all forms of travel" except those she deemed essential; required "all for-profit and non-profit businesses" she did not
consider "essential" to "cease all activities" except for "minimum basic operations" and work done at home; prohibited "all public and private
gatherings of any number" involving people who were "not part of a single household"; closed all places of "public amusement and activity,"
whether "indoors or outdoors," except for golf courses; continued the closure of bars and restaurants (except for takeout and delivery) as well
as salons, spas, K–12 schools, and libraries; imposed a 10-person limit on religious gatherings, including weddings and funerals; and required
all residents of the state, except for members of the same household, to maintain a distance of at least six feet from each other. Palm said
violations were punishable by a $250 fine, up to 30 days in jail, or both.

The question before the Wisconsin Supreme Court was not whether these sweeping restrictions were sensible, proportionate, or necessary. It
was whether Palm had the legal authority to impose them.

https://reason.com/2020/05/14/wisconsin-supreme-court-says-the-states-covid-19-lockdown-violated-the-rule-of-law-and-the-separation-of-powers/
The reasonable man adapts himself to the world;
the unreasonable one persists in trying to adapt the world to himself.
Therefore, all progress depends on the unreasonable man.
-- George Bernard Shaw

changemyoil66

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #10 on: May 22, 2020, 09:06:38 AM »
OR also won against their mayor's orders because it exceeded 30 days (I think its only 30).

bass monkey

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #11 on: May 22, 2020, 09:23:04 AM »
OR also won against their mayor's orders because it exceeded 30 days (I think its only 30).


You should post this topic on SSH

changemyoil66

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #12 on: May 22, 2020, 10:02:49 AM »

You should post this topic on SSH

I had some issues with my FB page a few weeks ago and have to use my real name.  So I won't be posting.  Someone else can though.

eyeeatingfish

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #13 on: May 22, 2020, 10:27:55 PM »
Just declaring a new emergency with the same predicate (Covid-19) would be illegal.  You can't make new a new proclamation without a new emergency, especially now that there is more known about the virus and we are entering the time of year when heat and humidity should stop new cases nearly completely. 

Do you really think Ige is stupid enough to try such a transparent end-run around the law?

I don't think he is stupid enough to go past the 60 day limit crossing his fingers that no one knows.

What section states that it has to be a separate emergency? I checked the section about declaring an emergency and found nothing to support your claim. Maybe it is in a different section?

"§127A-14  State of emergency.  (a)  The governor may declare the existence of a state of emergency in the State by proclamation if the governor finds that an emergency or disaster has occurred or that there is imminent danger or threat of an emergency or disaster in any portion of the State."

https://www.capitol.hawaii.gov/hrscurrent/Vol03_Ch0121-0200D/HRS0127A/HRS_0127A-0014.htm

eyeeatingfish

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #14 on: May 22, 2020, 10:30:00 PM »
Odds are this would lose in court and the Legislature is fine with it.  So the two checks on the Governor's power wouldn't do anything.

1.  the law isn't explicit on the issue
2.  the law gives the Governor and Mayors a lot of power
3.  the legislature passed the law and don't seem to have a problem with the multiple proclamations.
4.  Legislature could change the law right now if they really wanted to.
5.  No way the Hawaii Supreme Court would oppose it.  After all they're too busy releasing prisoners.

Plus we have had wars that have lasted for years without congress ever declaring war so if courts let that slide, I can't imagine local courts are going to get hung up on the 60 day limit.

Flapp_Jackson

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #15 on: May 22, 2020, 10:46:00 PM »
I don't think he is stupid enough to go past the 60 day limit crossing his fingers that no one knows.

What section states that it has to be a separate emergency? I checked the section about declaring an emergency and found nothing to support your claim. Maybe it is in a different section?

"§127A-14  State of emergency.  (a)  The governor may declare the existence of a state of emergency in the State by proclamation if the governor finds that an emergency or disaster has occurred or that there is imminent danger or threat of an emergency or disaster in any portion of the State."

https://www.capitol.hawaii.gov/hrscurrent/Vol03_Ch0121-0200D/HRS0127A/HRS_0127A-0014.htm

It's simple logic.  There's a time limit for a reason.  If he tries to reset the clock, he's violating the law.

Do you honestly think Trump can deploy troops for 60 days without Congressional approval, then deploy more under the premise that it's a different deployment, just to bypass the law?

I see no difference.  An immediate extension of the expired emergency declaration requires legislative consent. 

You can fill volumes with what the laws do not say is illegal.  I think the law is clearly enforcing a time limit for emergencies unless the leg gets a chance to weigh in.  Trying to sidestep that with a "renewed" declaration would be transparently illegal based on the intent of the law.
The reasonable man adapts himself to the world;
the unreasonable one persists in trying to adapt the world to himself.
Therefore, all progress depends on the unreasonable man.
-- George Bernard Shaw

eyeeatingfish

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #16 on: May 22, 2020, 10:57:48 PM »
It's simple logic.  There's a time limit for a reason.  If he tries to reset the clock, he's violating the law.

Do you honestly think Trump can deploy troops for 60 days without Congressional approval, then deploy more under the premise that it's a different deployment, just to bypass the law?

I see no difference.  An immediate extension of the expired emergency declaration requires legislative consent. 

You can fill volumes with what the laws do not say is illegal.  I think the law is clearly enforcing a time limit for emergencies unless the leg gets a chance to weigh in.  Trying to sidestep that with a "renewed" declaration would be transparently illegal based on the intent of the law.

I get the crux of your argument and I agree that it would be abuse if someone could perpetually declare an emergency, however nothing clearly spells this out. This is a shortcoming in the language of the law. I think the legislature should rewrite it to include a way to extend it but also a more clear limitation on how long it can be extended.

Along this same lines, the power to quarantine seems to be outside the bounds of what a governor can do in a quarantine. According to the law, the governor can quarantine someone if he believes the person has the disease in question. Yet we are quarantining people who have no signs and no direct reason to believe have the virus. To me that is the bigger legal question than whether we can go past 60 days.

Flapp_Jackson

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #17 on: May 23, 2020, 12:00:05 AM »
I get the crux of your argument and I agree that it would be abuse if someone could perpetually declare an emergency, however nothing clearly spells this out. This is a shortcoming in the language of the law. I think the legislature should rewrite it to include a way to extend it but also a more clear limitation on how long it can be extended.

Along this same lines, the power to quarantine seems to be outside the bounds of what a governor can do in a quarantine. According to the law, the governor can quarantine someone if he believes the person has the disease in question. Yet we are quarantining people who have no signs and no direct reason to believe have the virus. To me that is the bigger legal question than whether we can go past 60 days.

It is clearly spelled out.  Declaring the same emergency twice back-to-back is an extension of the first one no matter what you try to call it.  Arguing otherwise requires suspension of logic and reasonable understanding of plain English language.

A lockdown is not the same as a quarantine.  Now who's trying to play word games?

Quarantined people do not get to go shopping for food or to visit other essential businesses and services.

Not a difficult concept at all.
The reasonable man adapts himself to the world;
the unreasonable one persists in trying to adapt the world to himself.
Therefore, all progress depends on the unreasonable man.
-- George Bernard Shaw

Rocky

“I ask you to judge me by the enemies I have made.”
                                                           Franklin D. Roosevelt

ren

Re: Have Hawaii's Covid emergency proclamations expired?
« Reply #19 on: May 23, 2020, 09:34:45 AM »
People are still scared and turn to govt. for guidance...no matter how inept govt is we always turn to them  for guidance :crazy: :shaka: :geekdanc: :thumbsup:
Deeds Not Words