 This is Think Tech Hawaii's broadcast of the show, The State of the State of Hawaii. I'm your host, Stephanie Stoll Dalton. Our topic today is the trials of COVID-19 and what they have imposed on the professional small business practices. We are focusing on the law practices and the new trials that they face. Our guests are two attorneys at law who practice in Honolulu and they are coping with the effects imposed on their small businesses by COVID-19. I want to welcome counselor at law Scott McCullochani, welcome Scott. To see you here, thank you for taking the time and attorney at law James Hochberg. So welcome Jim, if that's okay. Jim, okay. Thank you. Thanks for asking. Good. Well, welcome. Well, we know that you all are both very experienced attorneys and know Honolulu business practice as well, particularly for providing the legal services and presumably before COVID-19 business was going well. In the way most of us understand professional services perform and manage and deliver their services to their clientele. So my first question is, I'd like to hear about and the audience I think would like to know what is your business situation like now under COVID-19? As we've experienced it for the last couple of months, I suppose the start is in March. We call it March 2020 is the starting line. So how are things going now in your business? I'll go first. Are really busy and exploring new ways of doing business where we don't have to actually meet face to face with clients to some extent. And just figuring out ways to get documents filed without actually having to send a person down to the Bureau of Conveyances and those kinds of things. So we've actually gotten to be a little bit leaner and meaner and gotten to be more efficient. We haven't had any issues with communicating with clients because we can still do that over the phone. We can still do that over email. So that hasn't been an issue for us at all. It's just it's been an odd experience because especially when we come to work downtown, the place is really pretty empty. It's a little eerie. Same with our building. The building is fairly empty. Most people are working at home, but we being essential have been maintaining pretty regular office hours. So all in all, it's been actually a really good learning experience for us. And like I said, we've gotten a little bit leaner and meaner in the process. Well, well, Jim, maybe you could help us by giving us kind of a baseline, maybe a little more specific about what business was like before and what business is like now for law practices. Well, one thing that people need to understand though is lawyers are probably more like physicians than people realize. And we don't specialize the way they get residencies and all that stuff, but we tend to gravitate to a certain kind of area of practice and sort of stick in there. So what might be true for Scott as an estate planner may not be true for people that do personal injury or other kinds of things. And for me, I basically have a practice that's kind of split down the middle. I do sort of contract related dispute resolution or transactional work half of the time. And about the other half of my work is constitutional litigation, where I team up with organizations on the mainland and we don't charge for our services, which is why I like to team up with them because it's a lot easier on my firm if I'm not charging for my time to have another group doing most of the heavy lifting work. And so during the pre March 4th order by the governor, the first emergency order, I had several different kinds of cases going, which all of a sudden the judges put everything on hold. They didn't want to see anybody. And then they decided that they would do things with telephone hearings. But the ones that I had pending are what are called dispositive motion. So they're either the case is going to end if the judge agrees with whoever's asking for the relief. It's almost like a trial itself without the trial. And so on those hearings, for me, I asked the judge and the judges said, sure, I preferred to wait until we can have in courtroom argument because it's just better. I'm doing an argument with zoom in federal court on July 2nd. I would rather not, but on that case, you know, also, it's always up to the judge because they own their courtroom. And that particular judge said that she wanted that we could come if we wanted my co-counsel in the mainland obviously can't really come July 2nd. So we're doing it with zoom. But since the first emergency order on March 4th, my practice is also mostly with the same clients that I've represented for decades. I do get new cases as well. And I have gotten not one single new case since March with paying customers. I have gotten free ones, but those are easy. I think people maybe don't want to really spend money on lawyers right now because they're not sure if they're going to need it to eat. That's chilling. So if I'm hearing you correctly, you haven't obtained more clientele that are new or paying for your services right now. I've been doing stuff for existing clients with existing cases. And on Monday of this week, I did file a new case in federal court, which has taken a lot of my time during June. And in fact, that case is asking the federal court to tell Governor Ege that he is unlawfully exercising emergency powers since May the 3rd. OK, so how's he taking that, Governor Ege? Well, he was outside my yard protesting, though he wasn't really. Well, he's represented by the Department of the Attorney General. And it's just part of life. When the government does things that violate people's rights, the government deserves to be taken to task for it. And because I'm an attorney that litigates constitutional issues, my avenue is to sue and ask a judge to get involved. Other people, who knows, they can give a big campaign contribution and solve the problem or something. But that's never been my way of doing business. Well, then how does the governor do that? Is this what we hear are executive actions of somewhat like what the president does? How does he impact or affect your life, the governor? That's a great question. So the law that we are using now is relatively new. It was passed for the first time in 2014. And it is an act by the legislature. And maybe just so people remember civics, the way the government in America on the federal level and in the states and Hawaii on the state level is divided up. The lawmaking is done by the legislature. And the execution of the laws that the legislature passes is done by the governor and his executive branch. And then you've got the judiciary to resolve disputes about it. So the lawmaking power of the legislature includes passing laws, making us either do things or refrain from doing things. But it also encompasses deciding what tax money is going to be spent on. And the governor takes the money the legislature gives them in the normal course of life and has to deal with implementing what the legislature decides. Enter chapter 127A, which is the emergency chapter. And what the legislature did in 2014 is they said, OK, you know what, if we have an emergency, we're going to give the governor power to do all of the legislating, including deciding how to spend money. We're not going to be involved. He can do order people around. He can make laws. He doesn't have to follow the sunshine laws on getting input from the community and regulating and that kind of thing. But they said it automatically terminates on the 60th day after the day of the proclamation of the emergency. So in Hawaii, Governor E. Gay proclaimed the emergency about COVID on March the 4th, 2020. So that means that at the stroke of midnight plus a little smudge more past midnight on the 60th day, his power terminated automatically. And on May 3rd, the legislature, by their own setup, was supposed to come back into work and take over the lawmaking and the spending. And we were supposed to be able to participate in rulemaking to give our input and that kind of stuff. But it didn't happen. And as far as I know, the only legislative action that the Hawaii legislature has taken is to segregate a billion plus, I think maybe $1.3 billion of the federal money into the rainy day fund because the governor actually has authority to spend every penny and they wanted to save it for themselves when they come back to work. So that's the only legislative act I'm aware of in the last 100 and something days that the legislature did. So because the law that the governor's using says, without it, there's no supplemental proclamations that extend the 60 days, none of that's in the lot. Just says it automatically terminates on the 60th day. That was May 3rd. And as you know, the community's been beaten down bad by the closed down and the quarantine and all this stuff. And so when the governor started pushing deadlines out, past May 3rd is when I decided that it was time to bring a lawsuit and let the court straighten it out. So are you, you are speaking of the community. So when you mentioned the community, these are other advocates for pursuing this issue and are they out of the legal profession too? Are they other legal, Kauai legal people that are doing this? Or is it a more general community? Yeah, by community, I meant every one of us that lives here. All of us are suffering. We're all suffering. I mean, nobody that I know of has been free of the burdens. So it's not anything specific to the legal profession or something in particular. So it's a general question that's on behalf of all residents, isn't it? Well, and in particular, the lawsuit that I filed focuses on our constitutional right to interstate travel. Like if you noticed, if you live in California for the last hundred and something days, you've been without anybody even blinking, able to drive all the way to New York or Florida if you want. And that's because we have the right to interstate travel under the Fifth Amendment of the Constitution and the 14th Amendment. So nobody's quarantining people between states anywhere but the far reaching state of Alaska and Hawaii. And the reason the governor could pull it off, whatever his motivation was, the reason he could pull it off is every person walking down the gangplank getting out of an airplane is a single file person that they can quarantine. They can make them do what they want. But the statute itself that is this chapter 127A only empowers the governor during this emergency to quarantine people that he actually thinks have a communicable disease or that they're infectious. And they're just quarantining every single human if they don't even ask you if you've been tested. And it's kind of interesting, today's newspaper, the governor is now coming out saying, maybe they will do testing and let people come over and stuff like that. Okay, so it is only with regard to the infectiousness of a person. I mean, so is that what's in the 127A emergency law that the 60 days is about? It's disasters like tsunamis and hurricanes which we're not dealing with. Or emergencies like COVID which we are dealing with. So I'm focusing on the infectiousness emergency, not the disaster part, because obviously we're not having a natural disaster. Oh, oh, what kind of a disaster is it? If it's anyway, it's not there. Like a tsunami that actually showed up like in Hilo in the fifties or sixties. Yeah, well, I mean, I guess the newspaper's been running this, but that really is very informative and is gonna have a big impact on who's coming in and who's gonna be able to play when they get here or stay in quarantine. I mean, this is what, so what is the outcome that you're seeking then through this lawsuit? So what will be your desirable outcome if you get one? There's two different parts to most lawsuits. One is a declaration by the court that the person who did wrong did wrong. And then the second one is a remedy for the wrong done. In our case, we're asking the court to make a declaration that the governor's exceeding his lawful authority and that it has to immediately stop. Which will simply turn the issue back to the legislators that we elected. We elected these people to do their work for us and they're not showing up. So we're not in the case that I currently have asking for money damages or anything like that. That is a possibility. And I'd like to talk a little bit about that because the 127A law, it does have provisions for being compensated when the government requisitions your property. Exactly, okay. So all right, now on the, before going on to what you wanna talk more about, which would be very helpful. Then what about the fact that this condition we're in was unimaginable when this law came about in 2014. Is there any, what you call that remediation, but you call that some kind of mitigation for the governor and the people that were responsible for it now are keeping us without governance, technically, I guess. Is what about the fact that it was unimaginable that, or is it that it is imaginable and I'm just making a statement that's unsupportable. It's kind of interesting, but I don't wanna monopolize the conversation. So I wanna let Scott, he's a smart guy known for a long time. We gotta get him in here too. All right, Scott, would you please give us some more information about what Jim's talking about? I know very little about Jim's lawsuit. I've done no researching of the statutes or anything like that, but it sounds like the statute that was passed was passed in order to provide sort of emergency leadership in certain circumstances. And an emergency is an emergency, whether it's COVID or a natural disaster or whatever it is. So it seems to me that the statute was designed to deal with situations like we're in now. It's just that nobody's really paying attention other than people like Jim as to how long the governor should be able to keep making these rules and how long the legislature should be sitting on its hands. The duration variable just wasn't considered at all. So I think that was... There's a deadline. The statute apparently says you got 60 days to deal with your emergency. All right, so what would be then the remedy? And Scott, can you speak to that before Jim, before we go back to Jim? Good question. I'm curious as to what Jim's asking for. Certainly that the rulemaking, the unlawful rulemaking stop, but I mean, I'm not sure how that all plays out. Well, the unlawful rulemaking or regulations that those then actually have no, no, they can't be enforced technically, right? I mean, that what you're saying is they're not really enforceable. They shouldn't be. Well, they are enforceable. They're being enforced. People that left quarantine are being arrested. Really? Okay. So what should have happened? I think is on the 4th of March when the governor announced the emergency proclamation. And if you actually read it, he says in there that Hawaii doesn't have any COVID cases yet and we didn't. But he recites the things going on in New York and Italy and China and wanting to protect Hawaii. He's exercising the emergency powers. The quarantine was not part of the original setup. And it was the stay at home and that kind of stuff. So the legislature should have continued to work on how they were gonna help us get over the closing of the economy so that on the 59th day, they already figured it out and they didn't bother. And the reason they quit working, apparently, one of the senators tested positive for COVID, which today's newspaper, he says he doesn't think he really was, but because of that, they all went home. Oh, that was why they went. Okay. So on the 3rd of May, they should have been at work. They should have said, this is how we figured out to solve the problem. Hawaii only has, I think at that time, 10 deaths and 400 cases. So maybe we can open up because we don't really have the same problem. We could have gone back to work ourselves. Maybe we didn't even need to close us down except for interstate travel at the very beginning. It turned out, I think, most everywhere in the United States to be less of a problem than they thought because the densely populated East Coast cities that made old folks home take COVID positive patients is why the death rate was so huge. And across the country, there may be increases today in the number of positive cases. And that's always what the news is saying, but it's a completely unhelpful measure. What exactly is a positive case? Does that mean that they tested somebody and it was like, oh, did you know that you have COVID? And they're like, no, I felt completely fine. Or, well, you know, I did have the flu and but it only took three days and then I got over it. Or does it mean they had to get hospitalization because they had other underlying issues or does it mean that they were in intensive care? There's a whole spectrum of what a positive result is and nobody's telling us and you can't find it on the health department website when they give us all their statistics. How bad is another case? Is it just a guy that didn't know he was sick? Right, I mean, we're building the plane, right? As we fly it and I see your point, but I think that the context is of course that hopefully their predictions would be larger than actual because then that would mean we're making progress as we go building the plane around our flying activity because we're learning more about it and we're beating the odds and the odds are made as the worst case scenario, presumably. So just to kind of put that in a perspective, I understand, yeah, we need to know a lot more about all the degrees of thickness that we're dealing with because that makes it big. And just like now it's starting to invade the younger generations. Previously it looked like it was only the oldsters that were getting hit that bad, but there seems to be more news all the time as this virus continues to mutate. But no, that's a really good point. So that does seem somewhat standoffishness on the part of our leader to dealing with what's here in front of us. I mean, so it's amazing. So there was nobody paying attention to, I'm not trying to accuse anybody, but that when that May 3rd date came, are you the only one on the island that was raising the red flag? Or does anybody else paying attention to this? Who's watching the clock up there? Well, so I actually spent from that first week of May until last Monday, and then back it off a couple of weeks. So most of the month of May, I spent talking to potential clients who I wasn't gonna charge. So it's not like they didn't wanna do the case because they couldn't afford it. They were all interested in doing the case until they clicked in their mind that I meant their name publicly suing the government. And it was like, oh no, keep me out of this. Go for it, I'm behind you 100%, not my name. So I would have filed it a lot earlier, except I couldn't find local people that were willing to be that guy. Because you needed a contributor. I mean, you needed some backing for that, right? I mean, more than moral support. So really, yeah, but because people were not withholding because they were not wanting to stand up. I mean, they were standing up for the whole principle of it and the need to do it. It was really a matter of funding. Which there wasn't- No, it wasn't a matter of funding. I am not charging my clients for this case. So it was not funding. It was they did not want to be the nail that was gonna get hammered down. That's sad. We have a lot of those very large ass of nails in this. Well, and you know what? That's why we have the government that we have. Well, when reading about the economist projections, they're saying that probably we've got three to five years of recovery and maybe more after this financial disaster, which it is a financial disaster and the kinds of things that are happening that I'm reading about, which I don't, are huge billions and billions of five, six billions of dollars of more debt for the state. And of course, we're reamed out as far as resources to take on all the repairs and the support of people. So is this a part of it too that how has the state been able to support people as it's obligated to do? I mean, has it matched what, and not that it can match what the feds have done or if that's even enough or not enough or whatever, but what has the state been able to do under these circumstances for small businesses other than take care of the federal income? Is that so? I don't know, Scott. Do you have any idea? I think it all came from the federal government. Yeah, what is our state doing for us? What is our state doing to restore the economy? And I think that the worst is ahead of us. We were just seeing the beginning of probably the effects of unemployment and just businesses being shut down beyond simple unemployment, just a lot of small businesses have gone away because they haven't been able to weather the storm. So I- 77% of the local economy is what is supporting who is the gross domestic products, 77% of it and lots and of course legal practices are not tourist dependent, I guess unless maybe some are, I was wondering if that's a factor too because that's a huge portion of the economy that's going down. But the legal practices would be more independent of that downside. Well, as Jim was pointing out earlier, is people don't have income. They're not gonna be able to hire professionals to do anything. They're not gonna be able to hire doctors. They're not gonna be able to hire anybody. So I think we were just beginning to see what our governor heth wrought upon the state by shutting us down the way he did. And by really decimating the tourism industry. And like it or not, one way or another, all of us are dependent to some extent on the tourism industry, whether it's just infusing cash into our economy or on whatever level. But the worst is yet to come, I am pretty sure. I hate to say this, I don't wanna be a doomsayer, but- On that note, Scott, we are going into our Aloha movement. So we are trying to bring news. It's not always guaranteed to be happy or good, but we're bringing news to the community and raising awareness about, especially voter participation and making good choices. So that's a whole nother topic, but this has been enormously informative. And thank you, Jim, for all the information on your ongoing suit. Certainly do wish you luck with that and funding that you may need. So, and Scott, thank you so much for putting this together with Jim. And this is state of the state of Hawaii on Think Tech Hawaii's broadcast. And we'll see you again in two weeks. Thank you so much Aloha.