For Our Rights v. Ige. Concurring in Part, Nakasone, J.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-FEB-2022
07:46 AM
Dkt. 111 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---o0o---
FOR OUR RIGHTS, a Hawai#i corporation,
Diana Lomma, David R. Hamman, Randi Hamman, Janet Eisenbach,
Levana Lomma Keikaika, Lawrence K. Paille, Geralyn Schulkind,
Leonard Schulkind, Daniel Hoshimoto, Christina Cole,
Francesca Woolger, Na#ea Lindsey, Michael Mazzone,
Lanette J. Harley, and Loraine L. Patch, Plaintiffs-Appellants,
v.
DAVID IGE, in his official capacity as Governor
of the State of Hawai#i, HOLLY T. SHIKADA, in her official
capacity as Attorney General for the State of Hawai#i,
and STATE OF HAWAI#I, Defendants-Appellees
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CCV-XX-XXXXXXX)
FEBRUARY 25, 2022
LEONARD, PRESIDING JUDGE, AND MCCULLEN, J., AND
NAKASONE, J., CONCURRING IN PART
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
OPINION OF THE COURT BY LEONARD, J.
This case primarily addresses whether Hawai#i Governor
David Ige exceeded his statutory authority when he issued a
series of proclamations declaring a state of emergency in
response to the Covid-19 pandemic. For the reasons set forth
herein, we hold that Hawaii's Emergency Management Act (defined
below) authorizes the Hawai#i Governor to declare the existence
of a state of emergency whenever, in his or her sole judgment,
the Governor finds that circumstances giving rise to a
declaration of a state of emergency have occurred (or that there
is imminent danger or threat of an emergency), regardless of
whether a prior emergency proclamation has been issued based on
the same, continuing, and/or otherwise related circumstances. On
that basis, we affirm in part the trial court's judgment, but we
vacate the trial court's judgment to the extent it was based on
mootness.
Plaintiffs-Appellants For Our Rights, a Hawai#i
corporation, Diana Lomma, David R. Hamman, Randi Hamman, Janet
Eisenbach, Levana Lomma Keikaika, Lawrence K. Paille, Geralyn
Schulkind, Leonard Schulkind, Daniel Hashimoto, Christina Cole,
Francesca Woolger, Na#ea Lindsey, Michael Mazzone, Lanette J.
Harley, and Loraine L. Patch (collectively, For Our Rights or
Appellants)1 appeal from the December 23, 2020 Final Judgment
1
It appears that Plaintiff-Appellant Daniel Hashimoto passed away
during the pendency of this appeal with no substitution of a representative.
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(Judgment) entered by the Circuit Court of the Fifth Circuit
(Circuit Court) against them and in favor of Defendants-Appellees
David Ige, in his official capacity as Governor of the State of
Hawai#i (Governor Ige), Holly T. Shikada, in her official
capacity as Attorney General for the State of Hawai#i, and the
State of Hawai#i (Appellees).2 Appellants also challenge the
Circuit Court's November 19, 2020 Order Granting Defendants'
Motion to Dismiss Plaintiffs' First Amended Complaint (Dismissal
Order).
I. BACKGROUND
A. Covid-19 Emergency Proclamations
On March 4, 2020, Governor Ige issued a proclamation
(Initial Proclamation) in response to the Covid-19 pandemic,
pursuant to Hawaii Revised Statutes (HRS) §§ 127A-2, -12, -13, -
14, -16, -30 (Supp. 2019). By its terms, the Initial Proclamation
continued through April 29, 2020.3 The Initial Proclamation
provided, inter alia, numerous references to the United States
Centers for Disease Control and Prevention, World Health
Organization, and United States Secretary of Health and Human
Services, declaring Covid-19 an international concern. The
Initial Proclamation, inter alia, authorized emergency relief and
2
The Honorable Kathleen N.A. Watanabe presided.
3
Office of the Governor, Proclamation (2020),
https://governor.hawaii.gov/wp-content/uploads/2020/03/2003020-GOV-Emergency-P
roclamation_COVID-19.pdf.
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emergency management functions, suspended various statutes, and
prohibited the increase of the selling price of various
commodities, including food, water, medical supplies, and
cleaning supplies.
Through the date of this Opinion, Governor Ige has
issued subsequent Covid-19-related proclamations on March 16,
2020, March 21, 2020, March 23, 2020, March 31, 2020, April 16,
2020, April 25, 2020, May 5, 2020, May 18, 2020, June 10, 2020
(Ninth Supplementary Proclamation Related to the Covid-19
Emergency (Ninth Proclamation)), July 17, 2020 (Tenth
Proclamation Related to the Covid-19 Emergency (Tenth
Proclamation)), August 6, 2020 (Eleventh Proclamation Related to
the Covid-19 Emergency Interisland Travel Quarantine (Eleventh
Proclamation)), August 20, 2020 (Twelfth Proclamation Related to
the Covid-19 Emergency), September 22, 2020 (Thirteenth
Proclamation Related to the Covid-19 Emergency), October 13, 2020
(Fourteenth Proclamation Related to the Covid-19 Emergency),
November 16, 2020 (Fifteenth Proclamation Related to the Covid-19
Emergency), November 23, 2020 (Sixteenth Proclamation Related to
the Covid-19 Emergency), December 16, 2020 (Seventeenth
Proclamation Related to the Covid-19 Emergency), February 12,
2021 (Eighteenth Proclamation Related to the Covid-19 Emergency),
April 9, 2021 (Ninteenth Proclamation Related to the Covid-19
Emergency), May 7, 2021 (Twentieth Proclamation Related to the
Covid-19 Emergency Quarantine for Travel Between Counties), May
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25, 2021 (Amendment Nineteenth Proclamation Related to the Covid-
19 Emergency), June 7, 2021 (Twenty-First Proclamation Related to
the Covid-19 Emergency), August 5, 2021 (Emergency Proclamation
Related to the Covid-19 Response), October 1, 2021 (Emergency
Proclamation Related to the State's Covid-19 Delta Response),
November 29, 2021 (Emergency Proclamation Related to Covid-19),
January 26, 2022 (Emergency Proclamation Related to Covid-19
(Omicron Variant)), and February 5, 2022 (Amendment Emergency
Proclamation Related to Covid-19 (Omicron Variant)).
B. Procedural History
For Our Rights filed a complaint on September 1, 2020,
and a First Amended Complaint (the Complaint) on September 24,
2020. The Complaint alleged that the individual plaintiffs,
along with other people in Hawai#i, were suffering and would
continue to suffer from numerous harms as a result of Governor
Ige's Covid-19-related proclamations, including the specific
harms to the plaintiffs that were identified in the Complaint,
including but not limited to anxiety, prevention of travel to see
family, lost employment, destruction of business, lost income and
other heavy financial losses, lost business opportunities, lost
mental health care and other health care services, loss of
freedom, serious emotional distress, depression, hopelessness,
homelessness, isolation, social exclusion, pain, injury to
health, alienation, fear, suicidal thoughts, and other
deprivations.
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The Complaint asserted two causes of action (Count I
and Count II). In Count I, the Complaint alleged, inter alia,
that Governor Ige's Ninth, Tenth, and Eleventh Proclamations are
unconstitutional and exceed the authority statutorily delegated
by the Hawai#i Legislature to the Hawai#i Governor to declare an
emergency and promulgate rules and regulations to facilitate the
government response to such declared emergency, and that
Appellants are suffering harms directly related to the continued
application and enforcement of those and any preceding
supplemental proclamations. More specifically, Count I alleges
that, under the Hawai#i Constitution, the Governor does not hold
an enumerated power to declare states of emergency and that the
emergency powers statutorily conferred by the Legislature to the
Governor are expressly limited to a period not to exceed 60 days.
Count I further alleges that Governor Ige's use of supplemental
proclamations is an unauthorized attempt to circumvent the
Legislature's express 60-day limit and therefore, the Ninth,
Tenth, and Eleventh Proclamation, and any and all such
supplemental proclamations, exceed the Governor's statutory and
constitutional authority.
In Count II, the Complaint further alleged, inter alia,
that Governor Ige's Ninth, Tenth, and Eleventh Proclamations are
unconstitutionally vague and deprive Appellants of due process
under the constitutions of the State of Hawai#i and the United
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States. Appellants did not challenge Governor Ige's Initial
Proclamation.
The Complaint sought, inter alia, declaratory and
injunctive relief with respect to the Ninth, Tenth, and Eleventh
Proclamations, as well as any and all further supplemental
proclamations, including a declaration that such supplemental
proclamations are unconstitutional, invalid, null, and void, and
that Appellees (among others) be enjoined from enforcing them.
On October 8, 2020, Appellees filed a Motion to Dismiss
Plaintiffs' First Amended Complaint (Motion to Dismiss), arguing
that the Complaint in its entirety should be dismissed for
failure to state a claim upon which relief can be granted, and
contending that: (1) because Appellants did not challenge the
subsequent emergency proclamations that were then in effect,
Appellants lack standing and their claims are moot; (2) Governor
Ige's emergency proclamations are fully authorized under HRS
chapter 127A; and (3) Appellants' void-for-vagueness arguments
failed to meet applicable legal standards.
On November 9, 2020, Appellants filed a memorandum in
opposition in which they argued, inter alia: (1) the Complaint
is not moot because the controversy is capable of repetition yet
evading review, the public interest exception to the mootness
doctrine applies, and contrary to Appellees' contention,
injunctive and declaratory relief remain justiciable based on the
Complaint's allegations; (2) neither the Hawai#i Constitution nor
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HRS chapter 127A confer unlimited and unreviewable powers on the
Governor; and (3) unless the applicable statutes impose an
enforceable limitation, the Governor's authority to declare an
emergency amounts to a blank check to usurp legislative power and
here, Governor Ige's proclamations have ignored and therefore
failed to avert their catastrophic impacts and protect the
welfare of the people of the Hawai#i. Appellees filed a reply
memorandum contending, inter alia, that the restrictions in the
emergency proclamations have saved lives and that the
proclamations were based on reassessments and evolving
circumstances.
On November 17, 2020, a hearing was held on the Motion
to Dismiss and the matter was taken under advisement. On
November 19, 2020, the Circuit Court entered the Dismissal Order
granting the Motion to Dismiss with prejudice, and stating:
The Court agrees with, and hereby incorporates, the
arguments presented by the Defendants. Specifically, Haw.
Rev. Stat. ("HRS") chapter 127A, as properly interpreted,
does not support Plaintiffs' claim. The language, purpose,
and history of HRS chapter 127A all demonstrate that the
Governor is empowered to issue supplementary emergency
proclamations extending beyond a single 60-day period.
Further, Plaintiffs' claim in regards to the vagueness of
prior emergency proclamations, which are no longer in
effect, is deemed moot and is dismissed with prejudice.
The Judgment was entered on December 23, 2020. For Our
Rights timely filed a notice of appeal on January 18, 2021.
After the appeal was fully briefed, oral arguments were heard on
January 26, 2022.
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II. POINTS OF ERROR
Appellants raise five points of error on appeal,
contending that the Circuit Court erred: (1) in its
interpretation of HRS chapter 127A; (2) in the Dismissal Order by
adopting Appellees' arguments without further reasoning; (3) by
tacitly adopting Appellees' arguments that Governor Ige may
exercise emergency powers for an indefinite period of time; (4)
by tacitly adopting Appellees' arguments that the Complaint was
moot; and (5) by tacitly adopting Appellees' arguments that
Appellants lacked standing on the grounds of mootness.
III. APPLICABLE STANDARDS OF REVIEW
The Hawai#i Supreme Court has held:
A complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his or her claim that
would entitle him or her to relief. The appellate court
must therefore view a plaintiff's complaint in a light most
favorable to him or her in order to determine whether the
allegations contained therein could warrant relief under any
alternative theory. For this reason, in reviewing a circuit
court's order dismissing a complaint the appellate court's
consideration is strictly limited to the allegations of the
complaint, and the appellate court must deem those
allegations to be true.
Kealoha v. Machado, 131 Hawai#i 62, 74, 315 P.3d 213, 225 (2013)
(brackets and ellipses omitted) (quoting County of Kaua#i v.
Baptiste, 115 Hawai#i 15, 24, 165 P.3d 916, 925 (2007)). That
said, "the court is not required to accept conclusory allegations
on the legal effect of the events alleged." Id. (citation
omitted).
"A circuit court's ruling on a motion to dismiss is
reviewed de novo." Id. (citation omitted).
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A circuit court's interpretation of a statute is a
question of law, which is reviewed de novo, as is a court's
determination of an issue of standing. State v. Castillon, 144
Hawai#i 406, 411, 443 P.3d 98, 103 (2019) (citation omitted)
(statutory interpretation); Tax Found. of Hawai#i v. State, 144
Hawai#i 175, 185, 439 P.3d 127, 137 (2019) (standing). Mootness
is an issue of subject matter jurisdiction, and therefore, is a
question of law reviewed de novo. Hamilton ex rel. Lethem v.
Lethem, 119 Hawai#i 1, 4-5, 193 P.3d 839, 842-43 (2008).
IV. DISCUSSION
A. HRS Chapter 127A
The Circuit Court granted Appellees' request to dismiss
Count I of the Complaint for failure to state a claim upon which
relief can be granted, based on the court's conclusion that:
[HRS] chapter 127A, as properly interpreted, does not
support Plaintiffs' claim. The language, purpose, and
history of HRS chapter 127A all demonstrate that the
Governor is empowered to issue supplementary emergency
proclamations extending beyond a single 60-day period.
Appellants' primary contention on appeal is that the
Circuit Court erred as a matter of law in its interpretation of
key provisions of HRS chapter 127A, in particular HRS § 127A-14
(Supp. 2019), which provides in relevant part:
§ 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.
. . . .
(c) The governor . . . shall be the sole judge of the
existence of the danger, threat, or circumstances giving
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rise to a declaration of a state of emergency in the State.
. . . This section shall not limit the power and authority
of the governor under section 127A-13(a)(5).
(d) A state of emergency . . . shall terminate
automatically sixty days after the issuance of a
proclamation of a state of emergency . . ., or by a separate
proclamation of the governor . . ., whichever occurs first.
(References to mayoral powers and local states of emergency
omitted).
Appellants do not dispute that HRS § 127A-14(a)
authorized Governor Ige's declaration of a state of emergency in
the Initial Proclamation. Rather, Appellants contend that, on
its face, HRS § 127A-14 limits the Governor's emergency powers to
a single, 60-day period. Appellants rely on subsection (d) of
HRS § 127-14, which states that "[a] state of emergency shall
terminate automatically sixty days after the issuance of a
proclamation of a state of emergency, or by a separate
proclamation of the governor, whichever occurs first." (Cleaned
up).
The plain language of HRS § 127A-14(d) provides for the
automatic termination of any state of emergency no later than 60
days after the issuance of a proclamation of a state of
emergency. Alternatively, a state of emergency can be terminated
sooner, by means of a separate proclamation of the governor
declaring that the emergency is over. Id. Accordingly, as
agreed by all parties to this appeal, Governor Ige's Initial
Proclamation, issued on March 4, 2020, terminated automatically
no later than 60 days after March 4, 2020.
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The disputed issue is whether Governor Ige acted beyond
his statutorily-granted authority when he issued subsequent
emergency proclamations in response to the same emergency – in
this case, the worldwide outbreak of Covid-19 – notwithstanding
the continuing nature of the emergency. Appellants urge this
court to interpret HRS § 127A-14(d) as a hard limit on the
Governor's use of emergency powers, one 60-day period only, one
and done. Appellants point to, inter alia, the extraordinary
nature of the powers given to the Governor under chapter 127A,
describing them as broad, arbitrary, unreviewable, unilateral,
unchecked, and far-reaching. However, Appellants (and Appellees)
candidly admit that the Circuit Court did not reach any sort of
constitutional challenge to the statute; such issues are not
properly before us on appeal. See generally Zanakis-Pico v.
Cutter Dodge, Inc., 98 Hawai#i 309, 319 n.19, 47 P.3d 1222, 1232
n.19 (2002) (because the circuit court did not reach a question,
the supreme court did not reach it either); see also City & Cty.
of Honolulu v. Sherman, 110 Hawai#i 39, 56 n.7, 129 P.3d 542, 559
n.7 (2006) ("A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitutional
questions in advance of the necessity of deciding them.")
(citation omitted). The question before this court is limited to
whether the statute itself prohibits the Governor from declaring
more than one state of emergency, lasting no longer than 60 days,
per emergency, and concomitantly, whether the statute authorizes
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the Governor to issue more than one emergency proclamation – in
this instance, numerous emergency proclamations collectively
spanning a period of years – in response to essentially the same
emergency.
HRS § 127A-14(d) does not expressly state that the
Governor is precluded from issuing more than one emergency
proclamation based on the same emergency, although it provides
that any state of emergency terminates automatically in 60 days,
if it is not terminated sooner. Thus, we consider this provision
in the context of the entirety of HRS chapter 127A (the Emergency
Management Act or the Act).
HRS § 127A-1 (Supp. 2019) sets forth the Legislature's
intent to provide comprehensive powers to the Governor to act
when faced with "emergencies of unprecedented size and
destructiveness" as follows:
§ 127A-1 Policy and purpose. (a) Because of the
existing and increasing possibility of the occurrence of
disasters or emergencies of unprecedented size and
destructiveness resulting from natural or man-made hazards,
and in order to ensure that the preparations of this State
will be adequate to deal with such disasters or emergencies;
to ensure the administration of state and federal programs
providing disaster relief to individuals; and generally to
protect the public health, safety, and welfare, and to
preserve the lives and property of the people of the State,
it is hereby found and declared to be necessary:
(1) To provide for emergency management by the
State, and to authorize the creation of local
organizations for emergency management in the
counties of the State;
(2) To confer upon the governor and upon the mayors
of the counties of the State the emergency
powers necessary to prepare for and respond to
emergencies or disasters;
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(3) To provide for the rendering of mutual aid among
the counties of the State and with other states
and in cooperation with the federal government
with respect to the carrying out of emergency
management functions;
(4) To permit out-of-state utilities to provide
services in the State pursuant to a mutual
assistance agreement with a state utility to
repair, renovate, or install electrical or
natural gas facilities that have been damaged,
impaired, or destroyed due to or in connection
with such disasters or emergencies; and
(5) To provide programs, in cooperation with other
governmental agencies, the private sector, and
nonprofit organizations, to educate and train
the public to be prepared for emergencies and
disasters.
(b) It is further declared to be the purpose of this
chapter and the policy of the State that all emergency
management functions of this State and its counties be
coordinated to the maximum extent with the comparable
functions of the federal government, including its various
departments, and agencies of other states and localities,
and with private-sector and nonprofit organizations, to the
end that the most effective preparation and use may be made
of the nation's personnel, resources, and facilities for
dealing with any emergency or disaster that may occur.
(c) It is the intent of the legislature to provide
for and confer comprehensive powers for the purposes stated
herein. This chapter shall be liberally construed to
effectuate its purposes; provided that this chapter shall
not be construed as conferring any power or permitting any
action which is inconsistent with the Constitution and laws
of the United States, but, in so construing this chapter,
due consideration shall be given to the circumstances as
they exist from time to time. This chapter shall not be
deemed to have been amended by any act hereafter enacted at
the same or any other session of the legislature, unless
this chapter is amended by express reference.
Notably, the stated purpose of the Emergency Management
Act is "to protect the public health, safety, and welfare, and to
preserve the lives and property of the people of the State." HRS
§ 127A-1(a). The means provided to effectuate that purpose
include the authorization of emergency powers. HRS § 127A-
1(a)(2). Of particular importance here, the Legislature
affirmatively stated that:
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It is the intent of the legislature to provide for and
confer comprehensive powers for the purposes stated herein.
This chapter shall be liberally construed to effectuate its
purposes[.]
HRS § 127A-1(c).
HRS § 127A-2 (Supp. 2019) defines emergency as "any
occurrence, or imminent threat thereof, which results or may
likely result in substantial injury or harm to the population or
substantial damage to or loss of property."
Even in the absence of a declared state of emergency,
HRS § 127A-12 (Supp. 2019) provides the Governor with wide-
ranging powers pertaining to emergency management. The
additional powers provided to the Governor by HRS § 127A-13(a)
(Supp. 2019) during a declared state of emergency are
extraordinary and potentially effect innumerable aspects of
government functions, commercial activities, and the lives and
property of the people of the State, as follows:
§ 127A-13 Additional powers in an emergency period.
(a) In the event of a state of emergency declared by the
governor pursuant to section 127A-14, the governor may
exercise the following additional powers pertaining to
emergency management during the emergency period:
(1) Provide for and require the quarantine or
segregation of persons who are affected with or
believed to have been exposed to any infectious,
communicable, or other disease that is, in the
governor's opinion, dangerous to the public
health and safety, or persons who are the source
of other contamination, in any case where, in
the governor's opinion, the existing laws are
not adequate to assure the public health and
safety; provide for the care and treatment of
the persons; supplement the provisions of
sections 325-32 to 325-38 concerning compulsory
immunization programs; provide for the isolation
or closing of property which is a source of
contamination or is in a dangerous condition in
any case where, in the governor's opinion, the
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existing laws are not adequate to assure the
public health and safety, and designate as
public nuisances acts, practices, conduct, or
conditions that are dangerous to the public
health or safety or to property; authorize that
public nuisances be summarily abated and, if
need be, that the property be destroyed, by any
police officer or authorized person, or provide
for the cleansing or repair of property, and if
the cleansing or repair is to be at the expense
of the owner, the procedure therefor shall
follow as nearly as may be the provisions of
section 322-2, which shall be applicable; and
further, authorize without the permission of the
owners or occupants, entry on private premises
for any such purposes;
(2) Relieve hardships and inequities, or
obstructions to the public health, safety, or
welfare, found by the governor to exist in the
laws and to result from the operation of federal
programs or measures taken under this chapter,
by suspending the laws, in whole or in part, or
by alleviating the provisions of laws on such
terms and conditions as the governor may impose,
including licensing laws, quarantine laws, and
laws relating to labels, grades, and standards;
(3) Suspend any law that impedes or tends to impede
or be detrimental to the expeditious and
efficient execution of, or to conflict with,
emergency functions, including laws which by
this chapter specifically are made applicable to
emergency personnel;
(4) Suspend the provisions of any regulatory law
prescribing the procedures for out-of-state
utilities to conduct business in the State
including any licensing laws applicable to
out-of-state utilities or their respective
employees, as well as any order, rule, or
regulation of any state agency, if strict
compliance with the provisions of any such law,
order, rule, or regulation would in any way
prevent, hinder, or delay necessary action of a
state utility in coping with the emergency or
disaster with assistance that may be provided
under a mutual assistance agreement;
(5) In the event of disaster or emergency beyond
local control, or an event which, in the opinion
of the governor, is such as to make state
operational control necessary, or upon request
of the local entity, assume direct operational
control over all or any part of the emergency
management functions within the affected area;
(6) Shut off water mains, gas mains, electric power
connections, or suspend other services, and, to
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the extent permitted by or under federal law,
suspend electronic media transmission;
(7) Direct and control the mandatory evacuation of
the civilian population;
(8) Exercise additional emergency functions to the
extent necessary to prevent hoarding, waste, or
destruction of materials, supplies, commodities,
accommodations, facilities, and services, to
effectuate equitable distribution thereof, or to
establish priorities therein as the public
welfare may require; to investigate; and
notwithstanding any other law to the contrary,
to regulate or prohibit, by means of licensing,
rationing, or otherwise, the storage,
transportation, use, possession, maintenance,
furnishing, sale, or distribution thereof, and
any business or any transaction related thereto;
(9) Suspend section 8-1, relating to state holidays,
except the last paragraph relating to holidays
declared by the president, which shall remain
unaffected, and in the event of the suspension,
the governor may establish state holidays by
proclamation;
(10) Adjust the hours for voting to take into
consideration the working hours of the voters
during the emergency period, and suspend those
provisions of section 11-131 that fix the hours
for voting, and fix other hours by stating the
same in the election proclamation or notice, as
the case may be;
(11) Assure the continuity of service by critical
infrastructure facilities, both publicly and
privately owned, by regulating or, if necessary
to the continuation of the service thereof, by
taking over and operating the same; and
(12) Except as provided in section 134-7.2, whenever
in the governor's opinion, the laws of the State
do not adequately provide for the common
defense, public health, safety, and welfare,
investigate, regulate, or prohibit the storage,
transportation, use, possession, maintenance,
furnishing, sale, or distribution of, as well as
any transaction related to, explosives,
firearms, and ammunition, inflammable materials
and other objects, implements, substances,
businesses, or services of a hazardous or
dangerous character, or particularly capable of
misuse, or obstructive of or tending to obstruct
law enforcement, emergency management, or
military operations, including intoxicating
liquor and the liquor business; and authorize
the seizure and forfeiture of any such objects,
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implements, or substances unlawfully possessed,
as provided in this chapter. 4
HRS § 127A-21 (Supp. 2019) specifically authorizes the
Governor to "requisition and take over any materials, facilities,
or real property or improvements," during the pendency of an
emergency proclamation, subject to fair and just compensation and
damages. See also HRS § 127A-22 (Supp. 2019) (regarding
determination of compensation); and HRS § 127A-23 (Supp. 2019)
(regarding determination of damages). HRS § 127A-25 (Supp. 2019)
provides the Governor rule-making authority not subject to HRS
chapter 91. The Emergency Management Act also includes
provisions for the enforcement of any rule issued under the Act
and punishment including not more than one year of imprisonment
and/or a fine of not more than $5,000 for violation of any such
rule. See HRS § 127A-28 (Supp. 2019) (regarding injunctions);
HRS § 127A-29 (Supp. 2019) (regarding misdemeanor penalties for
violations). HRS § 127A-30 (Supp 2019) prohibits, inter alia,
most price increases for any commodities, such as food, water,
fuel, and other merchandise.
With the stated purposes and policy goals of the
Emergency Management Act in mind, and in light of the sweeping
scope of its provisions, we return to HRS § 127A-14. Subsection
4
No issue concerning the constitutionality of these powers (or any
other part of the Emergency Management Act), either on the face of the statute
or as applied in the context of Governor Ige's Covid-19 emergency
proclamations, is before the court in this appeal.
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(a) of HRS § 127A-14 directly authorizes the Governor's
declaration of a state of emergency and simply states:
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.
The only condition or limitation in HRS § 127A-14(a) to
the Governor's authority to issue an emergency is a finding by
the Governor 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]." Subsection (c) of HRS § 127A-14
provides that the Governor "shall be the sole judge of the
existence of the danger, threat, or circumstances giving rise to
a declaration of a state of emergency in the State[.]" As
discussed above, subsection (d) of HRS § 127A-14 provides for the
automatic termination of any state of emergency 60 days after the
issuance of a proclamation of a state of emergency (unless
terminated sooner), but does not expressly preclude the Governor
from issuing more than one emergency proclamation based on the
same emergency.
Read together with HRS § 127A-14(c) & (d), and in light
of the Emergency Management Act as a whole, we hold that HRS
§ 127A-14(a) authorizes the Governor to declare the existence of
a state of emergency whenever, in his or her sole judgment, he or
she finds that circumstances giving rise to a declaration of a
state of emergency have occurred (or that there is imminent
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danger or threat of an emergency), regardless of whether a prior
emergency proclamation has been issued based on the same,
continuing, and/or otherwise related circumstances. This
statutory authority, in essence, requires an independent finding
by the Governor that such circumstances exist each time a
proclamation is issued; in other words, the statute does not
permit the Governor to "extend" a prior state of emergency in
contravention of the automatic termination provision in HRS §
127A-14(a). That said, there is no requirement that the
Governor's finding state that new circumstances giving rise to a
declaration of a state of emergency have occurred.
We recognize the breadth and gravity of this statutory
interpretation. However, we have reviewed the legislative
history of the Emergency Management Act and found nothing
inconsistent with or casting doubt on our reading of the Act. At
oral argument, Appellants acknowledged that nothing in the
legislative history supports an alternative conclusion.
Instead, Appellants urged us to follow the Wisconsin
Supreme Court's interpretation of that state's emergency powers
act to require legislative action to extend a state of emergency
beyond 60 days. However, the Wisconsin court's determination was
based primarily on the plain language of the Wisconsin statute,
which specifies that "[a] state of emergency shall not exceed 60
days, unless the state of emergency is extended by joint
resolution of the legislature." See Fabick v. Evers, 956 N.W.2d
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856, 862 (Wis. 2021) (quoting Wis. Stat. § 323.10 (West 2019-
20)). The Wisconsin Supreme Court reasoned that the plain
language of the statute enabled the governor to issue an
emergency order for up to 60 days, but "the legislature reserves
for itself the power to determine the policies that govern the
state's response to an ongoing problem." Fabick, 956 N.W.2d at
865. Hawaii's Emergency Management Act, as currently enacted,
contains no such reservation.
Appellants similarly point to the Michigan Supreme
Court's opinion in In re Certified Questions From the United
States District Court, Western District of Michigan, Southern
Division v. Governor of Michigan, 958 N.W.2d 1 (Mich. 2020).
However, as the Michigan court recognized, Michigan's emergency
powers statute specifically provides that "[a]fter 28 days, the
governor shall issue an executive order or proclamation declaring
the state of emergency terminated, unless a request by the
governor for an extension of the state of emergency for a
specific number of days is approved by resolution of both houses
of the legislature." Id. at 9 (quoting Mich. Comp. Law. Ann. §
30.403 (West 2019-20)). Thus, the Michigan statute, like the
Wisconsin statute and unlike the Hawai#i statute, expressly
requires legislative action to authorize a state of emergency
beyond the initial statutory period.
Finally, Appellants argue, in various ways, that our
interpretation of the Emergency Management Act would produce an
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absurd result because it would grant the Governor essentially
limitless and endless powers to rule the State by emergency
proclamation, unchecked by legislative or judicial restraints.
See, e.g., State v. Shaw, 150 Hawai#i 56, 61, 497 P.3d 71, 76
(2021) ("[t]he legislature is presumed not to intend an absurd
result, and legislation will be construed to avoid, if possible,
inconsistency, contradiction[,] and illogicality") (citation
omitted). We reject this argument in large part because the
Emergency Management Act itself contemplates judicial review.
HRS § 127A-27 (Supp. 2019) provides in part:
§ 127A-27 Preliminary or interlocutory injunctions and
temporary restraining orders. Notwithstanding any other law to
the contrary, no preliminary or interlocutory injunction, or
temporary restraining order, suspending, enjoining, or restraining
the enforcement, operation, or execution of, or setting aside, in
whole or in part, on the ground of unconstitutionality or for any
other reason or reasons, any provision of this chapter or any
proclamation, order, or rule prescribed, made, or issued under the
authority of this chapter, shall be issued or granted by any court
of the State, or by any judge thereof, unless the application for
the same is presented to a circuit judge, is heard and determined
by the circuit judge sitting with two other circuit judges, and a
majority of the judges concur in granting the application. . . .
In addition, we take judicial notice that the Hawai#i
Legislature has conducted multiple regular and special sessions
since Governor Ige's issuance of the numerous Covid-19-related
emergency proclamations that followed the Initial Proclamation
and thus, the Legislature has had multiple opportunities to amend
the Emergency Management Act to expressly limit the Governor's
use of emergency powers (or otherwise) or to promulgate
resolutions regarding the subject. See generally State v.
Hussein, 122 Hawai#i 495, 529, 229 P.3d 313, 347 (2010)
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(legislative inaction may indicate tacit approval of statutory
interpretation). While we decline to necessarily read tacit
endorsement or approval into legislative inaction, here, the
Legislature passed Act 57 in 2021, which specifically referred to
the Governor's Initial Proclamation and supplemental
proclamations. 2021 Haw. Sess. Laws Act 57, § 1 at 181. Thus,
the Legislature has demonstrated its ability to act in response
to the Governor's proclamations, whether in furtherance or
support of the Governor's actions, as in the case of Act 57, or
in order to limit or otherwise modify the Governor's emergency
powers.
For these reasons, we conclude that the Circuit Court
did not err in rejecting Appellants' argument that HRS chapter
127A limits the Governor's exercise of emergency powers under the
Act to a single, 60-day period.
B. The Dismissal Order
Appellants contend that the Circuit Court erred in the
Dismissal Order when the court adopted Appellees' arguments,
without identifying the precise issues being decided and without
sufficiently elaborating on its reasoning or citing the
authorities relied on by the court. We conclude that this
argument is without merit. The Dismissal Order includes
sufficient detail to allow this court to review the Circuit
Court's ruling. The Circuit Court expressly rejected Appellants'
argument that HRS chapter 127A supported its first claim and
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stated that Appellants' claim in regards to the vagueness of
prior emergency proclamations, i.e., their second claim, was
moot. Appellants cite no authority supporting their contention
that the Circuit Court should be vacated on this ground and we
find none. See generally DL v. CL, 146 Hawai#i 328, 339-40, 463
P.3d 985, 996-97 (2020) (discussing the sufficiency of a family
court order).
C. Mootness
The Circuit Court granted Appellees' request to dismiss
Count II of the Complaint based on Appellees' argument that the
Complaint sought to challenge proclamations that were superseded
and no longer in effect, stating:
Plaintiffs' claim in regards to the vagueness of prior
emergency proclamations, which are no longer in effect, is
deemed moot and is dismissed with prejudice.
On appeal, For Our Rights contends that no issues
before the court are moot.5
It is well-settled that:
A case is moot if it has lost its character as a present,
live controversy of the kind that must exist if courts are
to avoid advisory opinions on abstract propositions of law.
The rule is one of the prudential rules of judicial self-
governance founded in concern about the proper - and
properly limited - role of the courts in a democratic
society. We have said the suit must remain alive throughout
the course of litigation to the moment of final appellate
disposition to escape the mootness bar.
5
As the Circuit Court's dismissal of Count II was based on mootness
and the court did not reach any other issue, our review is limited to whether
Appellants' claim was moot.
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Kaho#ohanohano v. State, 114 Hawai#i 302, 332, 162 P.3d 696, 726
(2007) (emphasis omitted) (quoting Kona Old Hawaiian Trails Group
v. Lyman, 69 Haw. 81, 87, 734 P.2d 161, 165 (1987)).
However, Hawai#i courts recognize certain exceptions to
the mootness doctrine, including: (1) the "capable of
repetition, yet evading review" exception; and (2) the public
interest exception. Hamilton, 119 Hawai#i at 5, 193 P.3d at 843.
We conclude that both of these exceptions apply in this case.
Hawai#i courts recognize that:
The phrase, 'capable of repetition, yet evading
review,' means that 'a court will not dismiss a case on the
grounds of mootness where a challenged governmental action
would evade full review because the passage of time would
prevent any single plaintiff from remaining subject to the
restriction complained of for the period necessary to
complete the lawsuit. '
Hamilton, 119 Hawai#i at 5, 193 P.3d at 843 (citation omitted).
Here, any challenge of a governor's exercise of emergency powers
under HRS chapter 127A would necessarily evade full judicial
review because any given proclamation of a state of emergency
automatically terminates sixty days after the issuance of such
proclamation, if not sooner.
In determining whether the public interest exception to
the mootness doctrine applies, Hawai#i courts consider "(1) the
public or private nature of the question presented, (2) the
desirability of an authoritative determination for future
guidance of public officers, and (3) the likelihood of future
recurrence of the question." Doe v. Doe, 116 Hawai#i 323, 327,
172 P.3d 1067, 1071 (2007) (citations and internal quotation
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marks omitted); see also Yoshimura v. Kaneshiro, 149 Hawai#i 21,
35, 481 P.3d 28, 42 (2021). Here, we conclude that the questions
presented are clearly of a public nature, as the expansive powers
granted to the Governor under the Emergency Management Act can be
applied, with few exceptions, to virtually everyone in the State,
whether resident or visitor, as well as all government and
private enterprises and public and private properties. An
authoritative determination of whether HRS chapter 127A, as
currently enacted, limits the Governor's emergency powers to a
single period of no more than 60 days and whether, inter alia,
the mandates, restrictions, and criminal penalties imposed in
Governor Ige's proclamations would be desirable, as the same or
similar mandates, restrictions, and criminal penalties remain in
place as of this Opinion or could be imposed in future emergency
proclamations. With respect to the third prong of this test, the
mandates, restrictions, and criminal penalties have in fact
reoccurred since the proclamations that were specifically
challenged in the Complaint and it seems likely that similar
measures might be taken in the future in the face of an emergency
or disaster in light of language of the Act, as well as its
application in response to the Covid-19 pandemic.
Accordingly, we conclude that the Circuit Court erred
in dismissing the Complaint in part on the grounds of mootness.6
6
Although not the basis for our decision, for the purpose of
clarity, we note in dictum that the Circuit Court plainly erred in dismissing
(continued...)
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Appellants argue the Circuit Court erred by "tacitly
adopting" Appellees' argument that Appellants lack standing,
which stems principally from the argument that Appellants' claims
are moot. However, upon review, we conclude that the Circuit
Court did not determine that Appellants lack standing.
Accordingly, we need not address the issue here.
V. CONCLUSION
For these reasons, the Circuit Court's December 23,
2020 Judgment is affirmed in part and vacated in part; the
dismissal of Count I of the Complaint is affirmed, and the
dismissal of Count II of the Complaint is vacated. This case is
remanded to the Circuit Court for further proceedings consistent
with this Opinion.
On the briefs:
/s/ Katherine G. Leonard
Marc J. Victor, Presiding Judge
Jody L. Broaddus,
for Plaintiffs-Appellants. /s/ Sonja M.P. McCullen
Associate Judge
Nicholas M. McLean,
Ewan C. Rayner,
David D. Day,
Craig Y. Iha,
Deputy Attorneys General,
for Defendants-Appellees.
6
(...continued)
a claim with prejudice based on that claim being moot. A dismissal for
mootness is a dismissal for lack of jurisdiction. See Hamilton, 119 Hawai #i
at 5-6, 193 P.3d at 843-44. A dismissal for lack of jurisdiction is not a
dismissal on the merits. See Smallwood v. City & Cty. of Honolulu, 118
Hawai#i 139, 154, 185 P.3d 887, 902 (App. 2008). Dismissal for lack of
subject matter jurisdiction should be without prejudice, as a court is unable
to reach the merits of claims over which it has no subject matter
jurisdiction. See, e.g., Target Training Int'l, Ltd. v. Extended Disc N. Am.,
Inc., 645 F. App'x 1018, 1025 (Fed. Cir. 2016); Topper v. Progressive Cty.
Mut. Ins. Co., 598 F. App'x 299, 300 (5th Cir. 2015).
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CONCURRING IN PART
With regard to Count 1, I concur in the result only.
/s/ Karen T. Nakasone
Associate Judge
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