 Aloha, and welcome to Hawaii Together on the Think Tech Hawaii Broadcasting Network. I'm Joe Kent, Executive Vice President of the Grassroot Institute of Hawaii, and I'm filling in today for Kelly Iakina, our president and CEO. At the Grassroot Institute of Hawaii, we know there are many sides to current issues that we're facing today, and we would just like to invite one side of this very important conversation about COVID-19 restrictions and the balance between safety and liberty. A class action lawsuit was filed in the U.S. District Court on Friday for city and county workers who believe they're being forced to take COVID-19 vaccine or face termination. Private attorneys Sean Louise and Kristin Kokaro join me to discuss the case. So welcome Sean and Kristin. Thank you. Thank you for having us. Thanks so much, and we really are interested in learning more about this case. You represent union workers who are suing over the governor's order that state and county workers must receive the COVID vaccine or submit to regular COVID testing. Can you tell me why the workers are bringing this lawsuit? First of all, did I explain that correctly? Yes, you did. So why are the workers bringing this lawsuit? So the first issue that we have is there's a lot of inconsistency between the different mayors of the different counties. So some of the mayors have basically made it a testing mandate. Unfortunately in Honolulu, the mayor made it more of either choose between taking the vaccine or finding other work. And that was unacceptable to my clients who some of them have 20 years experience, 30 years experience in long careers. Like Amy Pelikai, he's the captain. That is our first named class representative on the lawsuit. His father was a firefighter for 37 years. He grew up in the fire station basically as a child visiting his father at work and things like that. And that was his family's career. And he followed in his father's footsteps. And he's been a firefighter for a long time. And he just wants the freedom to choose. There's no reason why anyone should not have the right and the freedom to choose. Can you explain a bit more about the testing requirements? So that's different between neighbor islands and Oahu? Yes. So I'll let Kristen explain the difference between the neighbor islands and especially the difference in the different costs that's allocated to the workers depending on which island they're on. So please go ahead with that Kristen. Sure. So as Sean said, it's different on the islands in Maui, Kauai, Big Island. They are allowed to opt out of the vaccines and opt for testing weekly. Originally it was going to be on their own time and at their own expense if they could not get into the free testing at this time. It has been decided for most of the first responders that it would be allowed to test during work hours. They would be given a couple hours to go do that testing and it would be compensated. So that has been done on the Big Island, on Kauai, and on Maui. The mayors are giving that allocation, which is different than what's going on in Honolulu. And does your case specifically involve Honolulu or is it statewide? So right now it involves we have class representatives from county of Maui and the city and county of Honolulu. So it actually, tangentially, it involves the other islands as well. However, the class representatives right now that have come forward and are part of the case, we have 12 altogether. So we have 10 from Honolulu made up of the fire department, the police department, the ocean safety, and the emergency medical service technicians. And then on Maui, we actually have the assistant chief of police. And then we also have a firefighter that's been there with a long career. And those are the two of the clients that actually contacted Kristen and offered to be a representative for the police and the fire and just represent the face of those two departments on Maui. And we're very glad that we had 12 courageous heroes, not only in the community fighting fires, protecting us from crime, taking care of our loved ones with medical emergencies, saving our swimmers, tourists, and local alike. We're not only having them there to do their job, but they've also come forward to be courageous and help us with this case, because we do need plaintiffs, of course, to be able to challenge the vaccine mandate. And does it work? I'm sorry. Is this vaccine mandate, by the way, about whether people should take the vaccine, or is it about the right of choice? Yeah, it's about the freedom to choose. And it is so important that each individual has that right to choose. Kristen, would you like to just explain a little bit about why people might just misperceive what the lawsuit is about? Absolutely. Thank you. I think it comes down to when you file a lawsuit regarding a mandate on vaccines, everybody decides that or a lot of people want to decide that it's then a anti-vaccine versus a pro-vaccine type of lawsuit. That is absolutely not the case. And that's not the case of the members that we have in the class. And that's not the positions of the attorney. This is by no means an anti-vaccination or an anti-vaccine case. It is purely a right to choose a case. As our statement said, we have members of the class and attorneys and people involved with this lawsuit that are vaccinated, that families are vaccinated or relatives are vaccinated and they don't have a problem necessarily with anybody else taking the vaccine. And they're not they're not advocating that people not take the vaccine. All they are advocating for is that they have the decision themselves personally without being forced or mandates to make that decision for themselves only. So we really wanted to get that point out that it is not an anti-vaccine lawsuit. It is a right to choose lawsuit and it's a health care decision, a personal health care decision type lawsuit. But in no means are we advocating or saying negative things about about the vaccine. I see. And what are the plaintiffs and clients that are involved in the case, what are they saying? In terms of the vaccine? Yeah, just basically what are they saying is the problem. Do you want me to explain that, Kristen? Sure, go ahead. So basically what they're saying is that their medical right to make the autonomous decisions for their own personal health care is being interfered by the government through government action. And it's kind of shocking, you know, the whole basis for the emergency authorization was it's required to be at both the time of the approval of the vaccine, the experimental drug, it's required to be a wholly incomplete voluntary program as well as at all points following that it has to remain voluntary. So it is just shocking to see the state and local government acting on the color of law as a state or county and taking state action against the community and saying that the vaccine is now going to be mandated. So the state and local government is doing indirectly what the federal government is forbidden to do and what the federal government represented in order to get the emergency use approval of the products, not only the vaccine but the testing as well. For the PCR test, they had to get emergency authorization approval for that, which is set to expire December 31st because it can't really differentiate the difference between influenza, the common cold and the COVID-19. So because of that, that test is going to come to an end and there's going to be other tests, they're going to have to be put forth in order to differentiate between those three categories of disease. And Dr. Fauci himself has pointed out that depending on the level of the machines are set at that it has a big difference in whether or not the machine is accurate for detection of COVID-19 or for other illnesses such as influenza or the common cold. So it's very important that that is pursued. So the state government needs to just comply, I mean this is a matter, this is so clear that this is federal preemption. The federal government through the Emergency Authorization Act has displaced any action to the contrary. It's just Congress made this Emergency Authorization Act so in times of emergency or in times of any kind of natural disaster or many disaster that it would be allowed that they could have emergency use products available. And since the federal government is bound by that, our position and our client's position is that state and local governments are bound as well. So now can you explain again how it works in Honolulu? If I'm a Honolulu county worker and let's say it's my choice not to take the vaccine, then can I still test and keep my job or how does that work in Honolulu? So Kristen, do you want to take that one too? Sure. Honolulu is different than the rest of the islands as I was explaining. So Honolulu right now and I think that's a major point of the lawsuit is they're not being reasonable in their accommodations to the people that do not want to take the test. Right now there's medical exemptions and religious exemptions in Honolulu. Those are the only two exemptions that are allowed in order to let somebody test. They also, it's a little bit unclear and we're a little bit unsure how they're even going to vet those medical and those religious exemptions. Oh, so you're saying, I'm sorry, so if someone doesn't want to take the vaccine then they can only test if they have a certain kind of exemption. That's what you're saying. So if they don't have, go ahead. Yeah, that's why we're labeling it in Honolulu. It's more of a vaccine mandate rather than a testing mandate because that they are not given the opportunity in Honolulu to just say, you know what, I just want to wait and get more information on this vaccine or I don't think this vaccine is right for me. They're not being given that option in Honolulu. You have to have a medical or a religious that is going to be vetted exemption in order to test. Otherwise you do not have a testing right. You basically would have to get the vaccine and that's a major difference between the other island. I see. Now is this about the COVID vaccine in particular or about the collective bargaining agreement with the state? So as far as the collective bargaining agreement that's another thing that is very shocking to us and distasteful as well that the governor and the mayors would circumvent the collective bargaining agreement. These vaccines alter significantly that there's a change to the terms and conditions of their employment. So under Hawaii by statute chapter 89, that has to be negotiated before that can be implemented in what the governor did through his emergency use powers. And there's still a question about whether those emergency use powers can remain in fact greater than 60 days without legislative action. And it can only be used at one time for 60 days and then he needs legislative approval. So that's an issue. And he suspended the chapter 89 thereby tying the hands of the unions, the respective unions all six that deal with the first responders. And by doing so, he could have just, you know, this came out with eight days notice. We started all of our offices. Kristen, my office in Michael Green's office started getting flooded nonstop with calls starting on August 5th when the announcement came out. And the calls have been nonstop and are still flooding our office. We grew from a class of 1200 class members, first responders at the time we filed to now, we have 2000, including other city employees. And also now we have nurses that are contacting our offices as well as other state and county workers, government schools, non-government schools are contacting as well all three of our offices and they're just asking for help. They're just asking for the right to choose. And that's what they see what they want. So there's many other public workers who are interested in this case, you're saying. Absolutely. Yeah. Now, what would you say to a critic who asks, well, why aren't the workers just willing to protect others by getting vaccinated? This is a common argument. Yeah. So I would say this, if you take the captain, for example, he is actually treated COVID patients and he has not caught COVID for a year and a half. And myself, I have not caught COVID. I have taken all the procedures and precautions that I need a year and a half and I haven't been hiding in my house. I've been coming to work every day in my building and I have been going out to dinners meeting with family, friends, relatives, having visitors come from the mainland and visit. So I have not caught COVID and I think there's just a hysteria that's been created in a knee jerk reaction to this pandemic. But when people take the adequate precautions, you don't see fire stations getting shut down. You don't see the police stations, the substations getting shut down. You don't see the rigs being shut down. We had EMS employees who came forward and said that they don't see that happen because they take so much precautions. They wear protective gowns, their goggles, their gloves, and their masks. They have everything. They have these special decontamination units with ultraviolet light as well as a chemical that they spray within the rigs. They decontaminate everything. Same thing with the fire. Same thing with the police. Same thing with the ocean safety. They have the lowest infection rate. Even for the community, there's a lot of people that are not getting sick. So I don't know why anyone for the critics would not allow. I mean, this is America. We should have the right to choose. America is all about freedom. That freedom is enshrined in our Constitution in the Bill of Rights. In all of the whole country, they should really have the right to choose. There's no reason with testing and precautions in safety. There's no reason why. Just because some people get sick is not right to punish the people who are not getting sick and taking care of themselves and doing everything they can to stay healthy and force them to take. Yes, but at the same time, there are a lot of people in the community who are afraid and feel much safer if everyone or as many people can be vaccinated as possible. Playing devil's advocate, what do you say to someone who says we need to mandate vaccines in order to keep the public safe? Yeah, well, it's undisputed that you can take the vaccine and you can still catch COVID-19. And that's quite clear. I mean, in Massachusetts in a small town of about 360 people who contracted COVID, 74 percent of those individuals were vaccinated. So to say that the vaccine, so it's undisputed and the CDC has already admitted that you can still catch COVID even if you're vaccinated. And I think at times, for me personally, just as a matter of simple logic, I think if you take the vaccine and you don't take all the other precautions, you can actually catch it more easily and be more at risk. It's because if you are unvaccinated, you're going to take a lot of precautions and protect yourself. And if you're vaccinated, you might let your guard down and not protect yourself. So if you just look at the number in Massachusetts, that really says something. At the same time, though, my understanding of the vaccine is that if you take it, yes, you could get COVID, but it's much less likely, though. So then doesn't that play into this factor? Or really, is this really a debate about vaccines or just about our free choice? So if I could just address that, because that point that you just made, that's also, so that's individual. The point that you made is that the vaccine, I agree with that point, that the vaccines have shown that if you do catch COVID when you've been vaccinated, the ramifications or the symptoms are less. And that's personal then. That's a risk that everybody is either willing to take to get. If you don't have the vaccination and your symptoms are worse, that's personal. If you take it to lessen the possible symptoms, that's also personal. So there's a difference between the critics coming out and saying, why aren't they willing to protect others? If that's the true argument, that's not an argument about protecting others. That's an argument about protecting yourself. And a lot of times, you see people saying, well, the people that aren't vaccinated are willing to take that risk to have the symptoms exacerbated if they do get it. The police, the first responders, it's been shown they have a low rate of catching COVID and therefore they're not spreading COVID. So I think we would get that message out. If that's a concern for you, especially high risk populations that COVID could affect you very negatively, if you have certain diseases, that's something we would absolutely advocate that if it's right for you and you get the advice of a doctor that you get that vaccine. But in terms of trying to protect the public from people that really aren't catching it and are less worried about the symptoms affecting them, it doesn't hold straight. And it still goes to the option to choose for yourself. I see. And now throughout this pandemic, we've heard that the Supreme Court has upheld mandatory vaccines via Jacobson versus Massachusetts. Now, is it your goal to overturn that decision or is this about something different? Yes. So Jacobson is a 1905 case and it doesn't even really establish the different levels of review. So as far as our clients, it's a fundamental right for the religious liberty aspect to decide whether or not you want to take the vaccine and participate in that program, which is voluntary. And it just occupies, I mean, it occupies the whole federal, I mean, the federal government didn't in the statute, the emergency use, when Congress established that statue, it didn't involve the county and the state governments around the country. It did not do so. It completely occupied that area of law through the statute and the plain language. And there's a thing about, you know, in Canada's construction, if the plain language is clear and it's not vague and ambiguous, it's very clear. It applies that the federal government, that's their job to regulate that entire area. And that's the basic thing of federal preemption. So the case that is closest to this is not Jacobson. It's actually the cases. There's two federal cases that involve, it would be Rumsfeld one and Rumsfeld two, and involve the anthrax vaccination program. And there was a point where the military was actually ordered, not that long ago, a little over a decade ago. And they were ordered, they were ordered to take the anthrax vaccine. And some who actually did not want to participate in the program and objected, they were actually dishonorably discharged. And later, they were actually, that was reversed, and they were honorably discharged because it was established through those two court cases that the vaccine program under emergency use cannot be mandated. It has to be voluntary at all times. So Jacobson is in opposite and not close to the facts of our cases. Actually, Rumsfeld one and two, that is on point for us because that also involve an experimental drug in approval under the Emergency Use Authorization Act. So because of that, and also because it involves a fundamental right, it requires strict scrutiny to show that there's no lesser restrictive means in order to accomplish the purposes of what the government wants to do. But because our clients are not the ones getting sick and they have the lowest infection rates, the government cannot say there's no least restrictive way to maintain safety for the community because it's been already accomplished for the last year and a half. There was no vaccine. Our clients were going to work every day. They were essential workers. These 2000 heroes were going to work and they were not getting sick and they were protecting the community. So this is during the home. So what should the government do then to restore liberty but also restore safety? So it's very simple. Just allow the individual to choose. We don't regulate how much food people will consume if they're going to have diabetes or something like that and we don't regulate for the heart patients. The government is just regulating personal, autonomous healthcare decisions. So for the vaccine, this has always been just a choice that people would make, whether it was a flu vaccine, influenza vaccine. It's supposed to be an optional program and there's no reason to change that because the people that we represent are not the ones that are getting sick and are not infecting the community and they're not a threat to the community. They're actually just doing their job and they've been very successful in having the lowest infection rate. So there's no reason to just start regulating private healthcare decisions. I see. Where does that lead? Does it lead to the government regulating other healthcare decisions for other types of illness? Well, do you think then, so that brings us to whether this lawsuit indicates some kind of growing dissatisfaction in the community about the governor's emergency powers? I mean, do you think so? Yeah, I think there's a lot of people that have issue with the governor of this state and other states just imposing their will on the people. Even the mayor of Honolulu, he represented when he was running to be mayor. He said he thought that the COVID restrictions were too harsh and that it was really hurting our economy and that he was going to come in and advocate for change and really help move us forward. And it's like we're actually going backwards and it's getting a lot worse. So it's like those representations. It's terrible. That's what he ran on. And that's what he was elected to do to bring change to Honolulu, a positive change to make our economy grow again after all that everyone suffered for that year and a half. And it's like now we're just going, it's like it was one step forward. We started to open up and now it's two steps back. I see. Well, I wish we had more time to talk about this, but we'll be following your case with interest. Thanks so much, Sean and Kristen, for joining me and explaining this issue. Thank you. Thank you for having us. Thank you. And thanks so much, everyone, for watching. This is Hawaii Together. We'll see you next week or in two weeks.