 Welcome to today's Think Tech Show. It's the state of the state of Hawaii and I'm your host Stephanie Stoll Dalton. Today we're going to continue in a way discussions we've had about COVID-19's impact on Hawaii. And today we'll be talking about the government's decisions and moves to, I suppose protect us from it. And my guest today to help us discuss that is an experienced Hawaii attorney, James Hochberg and his specialties include real estate law and contract related issues and constitutional litigation. So we're really pleased to have Jim here to talk about some of these complicated issues and their issues that not all of us are familiar with and unless we're involved in them and he's gonna help us understand better how it all works and how the citizen should be informed about this given we are coming up to a voting opportunity. So we need to know how these work. So Jim, welcome. Well, thanks for asking me to help try to explain it. Well, you know, it's just a real pleasure and it's a privilege to have you for this time. I really, I'm not trying to copy Rachel, but I am grateful that you're here to talk to us for these minutes about some of these complicated issues. Many of us are dealing with those issues of is it protection or not protection or how is it that we're supposed to be protected by our leaders. And one of the ways that we're being protected or there might be a better word for that that you might come up with is through the quarantine situation. So I mean, I think that at the fundamental level the question really is whether quarantine is constitutional. And so I was gonna ask if you could kind of talk to us about what the quarantine is and is it constitutional and whose responsibility is it to impose quarantine? Who has the right to impose that sort of thing on the citizens of the state and perhaps as generalizable to other states too. Okay, so, and it's a really complicated question but I'll try to walk us through both the statute and the constitutional issues. And I did file a lawsuit in June with Harmeet Dillon from the Center for American Liberty in California on behalf of a bunch of people that live on the mainland but own real estate in Hawaii and had planned and needed to come here in the late spring, early summer to maintain their properties and this quarantine thing became an issue. And because Hawaii had very low levels of infection, very few deaths and it did not appear that the infections were resulting in hospital stays in Hawaii different from in places on the mainland. And as we know, even on the mainland the number of infections has moved around the country at different times having these so-called peaks in Florida or Arizona or whatever. But back in May and June when I was working on filing the case Hawaii had really very few. So the United States Constitution gives citizens in the United States the fundamental right to travel between states. So there's no borders between states. You can drive from California to New York to Florida to Alaska, you can't drive to Hawaii not because you don't have the right it's because there's no streets, it's water. So you have to fly or boat to get here. And because of that geographic situation Governor E. Gay decided to take advantage of that natural barrier and force quarantine of every single person that came off an airplane and they weren't letting people get off boats unless you fit into an essential worker exempted category and then you didn't have to quarantine. So if you were to think of it in terms of how it actually occurred. So you get on an airplane, you fly to Honolulu from LA when the plane lands and the doors open and everybody gets up and grabs their stuff you start walking off. When you get into the hallway off the plane Governor E. Gay had military uniform national guardsmen as well as police officers and other state workers taking your temperature asking for your cell number, calling your cell number while you're standing there to make sure the number you gave is gonna ring in your pocket, finding out where you were staying and all this kind of stuff without regard to whether or not you were sick. So the statute that the governor was relying on is Hawaii Revised Statutes Chapter 127A which gives the governor the power to quarantine people on an individualized basis who are actually sick. You have to exhibit a reason to be quarantined. It's not legal under his powers to quarantine everybody because it's so easy to do like cattle going into the butcher area, you know? And so our clients needed to come to Hawaii to take care of their real estate investments but they would have had to quarantine for 14 days which in a condo meant you couldn't even go down the hall and dump your trash on the floor that you lived on at the trash chute. At your home, you couldn't leave the property that kind of a thing. And so we called the lawsuit asking- Before you- Yeah, well I want to just know with those powers that the government were, are those the governor's emergency powers? That is the emergency power statute, yes. Okay, good. I didn't hear the emergency part. So okay, that's clear. Great, okay. Then what happened in the lawsuit? So because the right to travel between states is a US constitutional right, you filed that claim in federal court. So we did. And the federal judge was asked by us to issue a temporary restraining order, restraining the governor from continuing to just quarantine everybody without meeting the standard while the case was going forward because every single person on the plane was their rights were being infringed and maybe there was no need. So the government needed to prove that there was a quote unquote compelling state interest for the governor to violate rights. And if they could prove there was a compelling state interest at what they were actually doing was the least restrictive means to accomplish that compelling state interest. So back in June, based on the low level of incidents of COVID virus and the very small number of COVID deaths that the Department of Health was reporting, we submitted a medical economists expert testimony telling the judge Hawaii does not have a medical emergency and therefore there is no compelling state interest. And if there's no compelling state interest you cannot violate all these people's rights. You've got to follow what the statute says which is figure out a way to identify who's sick and quarantine them. And in response, the governor's lawyers submitted testimony by the Department of Health physicians, Dr. Park, the epidemiologist and they told the judge that this is a highly infectious disease and it's very, very deadly, which by June was not medically agreed to, maybe in January and February it was. So that's what they reported to the judge. So the judge denied our motion for temporary restraining order and I just want to share with you the language that the court used. They said, the judge said like many states across the nation and countries around the world Hawaii has issued a series of emergency proclamations to limit the spread of COVID-19, a novel severe acute respiratory illness with no known cure, no effective treatment and no vaccine. Further complicating efforts to contain COVID-19 is the fact that individuals who are infected but asymptomatic may unwittingly infect others. As of today, there are more than 10,533,736 people in 179 cases and 512,842 deaths globally. So the judge is not focused on Hawaii. She took the big global approach to get over the question of is there a compelling state interest in Hawaii for people getting off the plane in Hawaii? And then she took the position that Justice John Roberts on the US Supreme Court took shortly before and in the case called South Bay United Pentecostal Church versus Newsom, California church case challenging Governor Newsom of California's ability to treat churches different than other public gatherings. And Judge Robert, Justice Roberts had his own what's called concurring opinion. Nobody else joined in his opinion but he agreed with the outcome of four other justices. So in his opinion, he said federal judges should not substitute their opinion on medically divergent opinions that locally elected political leaders hold in the COVID situation. So our federal judge said, I kind of like that. I'm not going to second guess Governor Ege. But she didn't even look at Governor Ege's number. She looked at global numbers. So it's a little hard to pin down where the judge was really coming from. So she denied our motion for temporary restraining order. And that meant that we were gonna have to do extensive discovery and things to build a record to appeal. We didn't think she was gonna deny the motion. So she did. And so in the end result, the clients decided to just leave, sell their properties, get out of this whole thing. So they actually sold their properties in Hawaii and we didn't even have claims. So we dismissed the case. That was the right to travel case in federal court. Well, you know, yeah. So there are many questions to follow that up but one of them that brings us right back to our Hawaii situation is, if that is what can be done here, in other words, the governor can have an emergency order and the particular Hawaii circumstances can be neglected. Ignored actually, correct. Yeah. Ignored. And then that gets us out of our own status. I mean, that really is in a way a disservice because it's, you know, our issues are not important enough to register in comparison. Well, you know, it's kind of interesting. Today being the day that Judge Barrett became Justice Barrett a few, maybe an hour ago. And that whole discussion was philosophy of judging. Do you want your judges to maintain precedent and apply the law to the facts of the case or do you want them to re-legislate because a legislature didn't make a law they like? So in our federal case, the judge actually said I'm not going to get into the middle of the state government's dispute about COVID. I'm gonna deny your motion. That is kind of a conservative judge approach to the case, although a real conservative judge would have focused on the Hawaii statistics to make the state explain and prove that there's actually a compelling state interest. And under cross-examination with depositions and all kinds of things going down the case we would have been able to have her doctors or have Governor E. Gay's doctors admit that the information they were using was for months and months and months prior to when they submitted it. But anyway, so that was one of the two cases. You have to sue in federal court for federal legal rights. If you want to sue on state legal rights you don't really want to use federal court because the federal judge will likely say you should let your courts decide your state law. So I working with the same mainland law firm with Harmie Dillon, we filed a state court case where we were asking the state judge to read the text of the emergency law because what it says is that the governor or the mayor can issue an emergency declaration a proclamation of state of emergency and it's their opinion, you can't second guess them. But after the 60th day or actually on the 60th day that after the proclamation declaring the state of emergency was declared the state of emergency itself automatically terminates. And so in this case in Hawaii, March 4th was the day Governor E. Gay issued his COVID-19 proclamation of the state of emergency. So that meant that on May 3rd, his 60 days were up and my clients got cited in July. So that was when there should have been no more emergency powers under the actual emergency power statute. So we sued asking the state judge to read that section and rule that everything after May 3rd was unlawful because the powers had ended. And the governor's response in that case was, well, actually each one of our proclamations gets a new 60 days because it's a new proclamation. And in response to that, we argued, well, that could be true, but when we read each one of the 15 supplementary proclamations, not one of them said this is a new proclamation, every one of them said we're starting on March 4th and we're gonna recite every single supplementary proclamation and until we get to this new one and we're gonna add to the old one. And so we pointed out to the judge, if they had said this is a new proclamation and it's good for 60 days, they never did that. So they're not actually telling the truth. And in that case, judge agreed with us that the law says 60 days, but even though she agreed that the law says 60 days, she said she wasn't going to enforce that provision because in her mind, the result would be absurd because how could the governor adequately protect us from COVID-19 if he didn't have more than 60 days to fight something that took longer? And I explained to the judge, judge, when that on July 1st was the hearing in the federal court case. The week before that, the state Senate got in gear and actually put together a bill to do a travel ban by legislation. So they showed they can do this and that on July 1st, when the judge denied our motion in that federal case, we have the 4th of July weekend, came back on Monday, the House of Representatives refused to consider the bill because they didn't need it. The federal judge allowed the governor's powers to continue. That they shirked their responsibility and that the governor didn't impose that duty on them at that 60 day mark. So it looks like they didn't pick it up where they should have and weren't even encouraged to do that. So I mean, that's the other side of the strength of your case in that the 60 days was it and then there was no follow up and no effort to do what should have been done by the legislature because isn't that the opportunity for them to kick in and put it into law. And then that's also the opportunity to not do it based on the circumstances having changed if they have. Well, and so you would ask, well, why does it really matter? You know, whether the legislature makes it or the governor makes it and here's why it matters. In the state of Hawaii, we have very few rights as citizens, we have the right to vote for people. Every 10 years we have the right to vote on whether we want a constitutional convention or not, but we can't on the state level do what a lot of people in other states can do. They can recall elected officials, they can put ballot measures to create statutes on the ballot, they can put ballot measures to cancel statutes that they don't like if the government won't do it in the normal course of legislating. So we don't have very many powers. One of them that we do have is to elect these dang legislators and we elect the governor, but the governor represents everybody. So he's not very responsive to any citizen by themselves, whereas our house members are 25,000 people in a house district, senators have maybe three house districts. So numerically a senator and a house member would listen to me more likely than the governor would theoretically, that's, and so our constitution gives the lawmaking power to the legislature, not the governor. The emergency powers act gives the governor the legislative lawmaking power for 60 days. And if he's gonna continue doing it after 60 days, we lost our vote. We did, that's such a good point. Well, I think too on something that's closer, not necessarily closer to home, but I was using that just to say it's more specific to Hawaii and would have consequences. For instance, the governor stopped evictions. So he used that, those emergency powers to cancel eviction options. And but that left all of the owners of property with their mortgage duties. And so what can be done for them? In other words, it cannot do the state, the banks automatically, they're not gonna do anything automatically, is there not then necessary moves after that to prohibit the banks from requiring a regular mortgage payment or something in power? So let me put it into perspective. You wanna buy a house, you go to the bank and get a mortgage loan. You get the title to the house subject to the mortgage loan. If you're not gonna live in the house, you might rent it to another family and they're gonna pay you rent and you're gonna use the rent to pay the mortgage. And that's lovely. Now, the constitution does not permit the government to pass a law interfering in your contract. However, and you have two contracts. You have one with your tenant and one with your bank. But because of this COVID emergency thing, which is a huge boogeyman to public policy makers, because, and this is my own opinion, not one of them have told me they believe this is true, but it looks like to me, they don't wanna make a bad decision because they gotta run for office again. Governor Ege can't run for governor anymore. He's done. He might be able to run for Congress or something. And they're letting him put this all on his shoulder so that all those house and Senate members don't have, they don't get tired with COVID bad stuff. So the federal government in, I think it's in the CARES Act and the state of Hawaii in the COVID-19 emergency proclamations have put a moratorium on a evicting residential tenant. Doesn't apply to commercial property. So the problem that you have is like you said, the landlord doesn't get paid, and if the landlord doesn't get paid and doesn't have other money to pay his mortgage, he's getting squeezed. So the question is, where is the legislature? Why aren't they coming in and saying something? And if they wanted to put a number of months of a limit or if they wanted to prohibit lenders from foreclosing or if they wanted to say, if a homeowner wants to sell the house, he can evict that. You can't even sell your home with a tenant in it that you can't evict. So there are things that the legislature could do. They're being completely mum because I think they don't wanna individually be tarred in the next election with having made a choice that turned out to be a bad one. So that puts our question to be, that is public health or political influence the driving force of these decisions. And then- So let me answer it this way. There was a, not really a debate. It was a, you know that Insights Hawaii show that's on PVN? It's not really a debate, it's kind of a discussion. And I was watching that with Josh Green, the Lieutenant Governor who's a physician, Dr. Park, who at the time was the Department of Health Epidemiologists, a guy that owns a bunch of McDonald's and I think Daryl Hough was the moderator. And so this was way before I filed my lawsuit. And Dr. Park said some things that were kind of, they didn't ring true to me. So I called her office, left a message. She actually called me back the next week because the show's on the weekend. And when she called me back, I said, you know, you guys are publishing these statistics about the COVID positive results on the testing and the deaths, but you're not really telling us info that we need. Could you please get the Department of Health to publish? Okay, we have these many positive test results, but these many people had no symptoms. These many people had symptoms, but they weren't really sick. These many people were sick, like they stayed home, but they didn't go to the doctor. These many went to the doctor. These many actually had to go to the hospital. These many were actually in intensive care. These many recovered and her response was, oh, that would be way too hard to collect that kind of data. And I said, Dr. Park, it should be easy to collect the data. You're the state of Hawaii. And her response to me, honest to God was, well, now you're getting aggressive, I'm hanging up. And she hung up. Now, is she appointed by the governor? She is a Department of Health. Well, she's no longer there. She resigned with the other health director, Anderson. They left at the same time within the last month or two. Having to do somewhat with the contract, contact tracing. Yeah, yeah, yeah, something like that. But for her to not want to have that conversation told me it doesn't sound medical. No, I mean, there should have been some discussion of lack of resources or something that would have justified, I mean, nothing justifies rude. That was rude. And you were asking a very important question on behalf of the citizens. And that is an excellent question. We should know all of that. I mean, if we don't know all of that, we don't know where we're going because the issue's getting to be not whether we don't have enough ICU beds anymore as these surges come. Where are the doctors and the nurses that are gonna take care of these people? I mean, so we haven't even gone and we could go to truly the apocalyptic issue then who's gonna take care of anybody? So that's really a disappointing story about her sense of her role. But then that's another discussion, I guess. But I just thought that I would move on up to the other level because I'm curious about it since we are possibly gonna have a different president. And President Trump's competitor seems to think that he can do some things in the country like everybody has to wear the mask or that he could impose this kind of a lockdown or open up a state. Is that something that the president at the federal level would have the capacity to do? So the easy answer is I don't know, I don't believe so. The system of government that we have is called federalism. And the states are sovereign and the federal government is sovereign. And the sovereign states are run by governors and they run their own states. And if you remember at the beginning of COVID, President Trump wanted to do something as a mandate. It wasn't a mask mandate, but it was something. And all of his opponents were screaming, you can't do that, the governors run their states. And I think that's probably true. That doesn't mean that the president could issue an order and for all the people that follow it, it's a perfectly enforced order. And for the ones that don't, a judge somewhere is gonna have to decide. And then the question becomes, what kind of a judge do you get? Do you get a judge that likes to legislate or do you get a judge that likes to apply the constitution is written? And so I can't answer the question as much as I wish I could, but I'm pretty sure under the federalism system, the governors would have the right to refuse. Well, that, do you see that as possibly getting tested going forward? Well, given we're surging and Hawaii seems to be hanging in there steady as she goes. But do you see that being tested going forward? So I do, I do. And I see it being tested because first of all, the old, old Supreme Court case from the Spanish flu, like around the First World War, it's the Jacobson case. And that case was asking whether the government can compel things with this Spanish flu thing, whether they can find you if you won't do what they want you to do. And the court in 20 or in 1915 or 11, I'm not sure exactly when it was, the Jacobson court out of the US Supreme Court said, in a pandemic, the government can punish you if you don't comply with their orders that are based on medical need. But the federal government can. It can be a federal crime. That was actually in the state of California, I believe. I'm not exactly sure. But here's the interesting thing. In 1911, we had only had access to anesthesia for decades. Anesthesia came about around the Civil War in the 1860s. So 70s, 80s, 90s, the 1900s and 1910s. Medicine was so barbarically unsophisticated then compared to now, that I don't believe the Jacobson case should carry that much weight scientifically. But the, and related to that is the ability for us to differentiate between the danger of COVID for different segments of society, I think would convince a judge not to allow a mandate of a vaccine or a mandate of a mask, because again, is there a compelling state interest? And is the demand the least restrictive means to accomplish that compelling state interest? And making everybody take a vaccination seems way more than necessary to accomplish a compelling state interest of keeping people healthy, especially if you don't wanna have the, there's anti-vax folks around that they study the science and they've got reasons for not wanting any kind of vaccination for, you know, blah, blah, blah. And that's their position. Well, you know, we're gonna have to wrap it up after this stimulating discussion. And I so appreciate your being here to talk about it at this level and clearly and giving us all a better understanding of these constitutional issues and these laws and the roles of our leaders. And this is the state of the state of Hawaii show and it's on Think Tech Live. And we appreciate that Jim Hochberg could be here with us. And I'll see you again in two weeks for this program, the state of the state of Hawaii. So mahalo for being our audience and aloha everybody. Thank you.