 to today's show, The State of the State of Hawaii on Think Tech Hawaii. I'm your host Stephanie Stoll Dalton and today's show continues. Our discussion from our last show was a discussion of COVID-19's impact on the status of Hawaii's small businesses providing professional services specifically the practice of law. In our last time conversation, we discussed how the setbacks for small businesses are currently unavoidable as the virus continues to be even more difficult and even our less COVID affected state, one of the least deaths in the nation. So legal practices are declining and even going away as clientele postpone and cancel and no longer use professional legal services. This situation prompts questions about how the state government has and has not intervened to protect small businesses that underpin the state's welfare and health. We will cover some of the questions from the perspective of a recent case with our guest today who are two experienced Hawaii lawyers. And the first one is Scott Makuaqani who has whose business focuses on estate planning and administration and James Hochberg whose focus includes contract related issues and constitutional litigation. Welcome Scott and welcome Jim glad you're back. Thanks. Well on the last show we talked about Hawaii's dire economic situation and and it's decline and its potential future decline unless something really changes soon. And now we've talked about what the state can do to lessen the damage for the economy and other areas too but this this questions how the governor's use of his emergency powers can help. That was one of our topics last time. So you both and Jim especially explained an action in early May of the government to impose an order 17127A on the state which required a 14 day quarantine for all visitors that has since been extended until the end of July. But Jim bought a case challenging the unconstitutionality of this order and maybe more. Well would you briefly summarize your issues that you shared last time against the thanks. Yeah I'd be glad to actually. So Hawaii is exactly the same as every other state except we're 3000 miles away in the middle of the water but we are part of the United States. We are governed by the same constitution even with all that water in between and because the Constitution of the United States guarantees the right to interstate travel just the way people can drive from California through every state all the way to Florida or New York and they can't be stopped and they can't be required to pay an entry fee or have an immigration stop or you know you can't do that stuff. It applies here too. People have the constitutional right to travel to Hawaii. Now our case was bringing up the point that because the people have the right to come here the government can only interfere with that through like this quarantine if they meet the constitutional standards and constitutional standards require that the government use the least restrictive means to accomplish their legal goal and our case is saying judge quarantining every single person that gets off an airplane without regard to whether they are contagious or not or infected or anything else is too broad. It's too sweeping and broad and it's not targeted to solving the problem. It's just making it easy on the government to do their job. If they're not doing their job right they're doing it as easy as they can and so Harmeet Dillon from the American Center for Liberty and I co-counsel she's in San Francisco. I'm local counsel here we filed that case in federal court a couple of weeks ago and we followed it up with a motion for a temporary restraining order which means we asked the judge before the case get started to order that the state of Hawaii the governor essentially stop quarantining people that don't have any reason to be quarantined except they're getting off an airplane in front of and behind the person in line and what the judge said was she didn't want to issue that relief which is actually it's hard to get you don't always get restraining orders at the beginning of the case and she said she didn't want to do it and so she did not and it's important for people to realize she did not rule on the merits of the case she ruled on whether we could have that emergency relief at the beginning or whether we have to go through the process to prove our right to have that kind of injunctive relief so the press coverage that says she upheld quarantine she actually wasn't even asked at this stage to do that and yet um the newspapers I mean the the publicity on it did use the the word upheld it did it did it's like that hell how did they make that mistake and so here's the interesting thing if if you want I can share what she started and ended her 25 page order or motion and and basically she's focusing in on Chief Justice John Roberts at the U.S. Supreme Court a couple of weeks ago in a case about COVID dealing with churches not being allowed to meet in California it went to the Supreme Court on an emergency order not after the case was done and he basically said the Constitution principally entrusts the safety and the health of the people to politically accountable officials in the states to guard and protect the latitude of officials must be especially broad when acting in areas fraught with medical and scientific uncertainties if officials do not exceed these broad limits they should not be subject to second guessing by an unelected federal judiciary which doesn't have the expertise of medical stuff so basically what the judge was saying is she's not going to get involved in that question at the beginning of the case she's going to want us to present the medical evidence and all that kind of stuff and she still may decide that it's better to leave it up to the elected officials but the very cool thing is after we filed our lawsuit both the governor and the legislature activated themselves to do what we said they should be doing which is this testing regime and not quarantining everybody so they kind of prove that we were right what they were doing and still are doing isn't right and now they're working on maybe depending on how it comes out in the final version a more constitutional process well are you referring to the requirement to have a test result prior to arrival in hawaii well that's not a requirement and that's the other thing the press misses when the governor does a press conference on june 24 and he says stuff but he doesn't follow it up with an official order it's just him giving a press conference so as of right now there is no order to test anybody as we talked about last time the governor's power to order stuff ended on may 3rd in my opinion and i think that's why the legislature last monday came or two mondays ago came back into a session to work on this bill to give the health department the power to test people coming because they realize the governor's out of time okay so uh yeah so it is shifting back into the shape it should have taken in the beginning perhaps with the legislator legislature back and at least they gave the work to the health department it looks like i was going to ask a question about isn't the legislature duty bound to follow up on these things as you said they ran away at the first sign of somebody's three weeks of vacation or whatever and so um is there any consequence to that does that i mean raises the expectation that they will perform their duty well the process that the legislature goes through is an amendment of proposed laws and so i like to wait until they're actually done to see what it turns out to say because what it says when it's a law is what the law is and in our case we are watching and if the governor or the legislature creates a legal obligation on this testing regime and it's it's too irrational or it's too broad or whatever whatever it turns out to be in the final version uh we could amend our complaint and add this new thing that still isn't right to our case case is actually very young uh okay so i had the question that uh i wanted to ask you about the fact that Hawaii and Alaska are the two non-contiguous states right because Puerto Rico is not really the same is it but anyway Alaska and Hawaii are in position to actually uh get themselves protected from people coming in so is it and so with the fifth and the and the um the 14th amendments requiring interstate travel or um insuring or thing we have to be able to have but we can't restrict interstate travel does it mean that um Hawaii and or Alaska would always be unlawful in sure if they close their borders that that really isn't an option no it's no it's not an absolute like that if there was a condition in in the society or in a group of people or something that rendered an emergency such that it was necessary and the the only way the government could accomplish the protecting of the population would be to keep certain people out they would be able to do that that's what they're supposed to do but just waiting at the exit point of the airplane in the terminal with the National Guard uh for each person to come out in single file and capture them into quarantine i mean that's ridiculous that's what they're doing well i understood that it might be and this would be a question of um one other word i went back on the Alaska and Hawaii thing so if Alaska and or Hawaii decided to do that there would still possibly be litigation about it i mean if some can or somebody in Washington state didn't like that because they go up to Alaska they could file a suit right i mean so like you said it can be done but that there there would possibly be uh suits against them for doing it right well yeah the Constitution has requirements that protect our rights and if those rights are violated unlawfully unconstitutionally somebody should sue to protect them that's what you're doing that response that over some of the possibility is uh is certainly uh appropriate coming from legal section but even uh citizen wise there should be oversight too so um okay that is um about that contiguous issue but the other one you brought up is how broad will be whatever they decide may be the screens for people coming in and out and what i've read they're thinking about doing is this testing that has to be done actually where you come from so you come up with your test results and i guess that's where your single file metaphor works uh or example works because then you can't get off the plane if you don't have your evidence of a positive of a negative now would that be considered too broad is that the kind of thing that would be uh what did you say at one time irrationally well i i don't i don't think that that by itself is actually a bad idea because then you identify people that at least as of the time they took the tests were contagious because there's different tests and different test results so if the test says they currently have the virus not that they had it before and now they have the antibody which is different if they are currently infectious those are the people that probably need to be dealt with but then how you deal with them is another thing are you going to put a ankle bracelet on them so you know if they leave the quarantine place i don't think that's permitted i don't know i mean i don't know how crazy the legislation or the governor's order is going to be when it's finalized so somewhere i read that that's one of the things possible but anyway i'm sure they're brainstorming how to manage anything do you know why all the other states don't have the same kind of a quarantine regime well i heard that they are trying though but but the reason the reason that they don't yeah it's too hard to block all the roads it's just impractical but certainly they could do the same thing with the airplanes in fact that's what the florida people say well we can't eat because you're just going to look at our ticket that says we're up from miami so you're not going to let us in um but our license plates but there are other ways to get there and you can't stop people at the border because of their license plates either you have to actually have a specific reason that is geared to accomplish the compelling state interests which in this case is not spreading the disease and that the least restrictive the let the least intrusive way to accomplish that compelling state interest is what you're trying to do if you could test people and not quarantine people that don't have the virus that's a lot less restrictive on the travelers than only quarantining the infectious ones which is the point that we're making which after we filed our suit now the governor and the legislature are working on which they could have done starting on march 4th they could have been working on that yeah that was your your point that was an important point that they they should have been there and done done the job and then it was done by now and we'd be organized and there wouldn't be all this confusion which is where we are now with all of these people coming into the state yesterday or very recently with um 118 here for vacation so my my co-counsel actually came here from california to do the hearing last week and she told me when she got off the plane she was met by 10 or 11 army men i'm sure they were reservists but they were wearing army fatigues and they had thermometer things for your head and you couldn't get past them without uh successfully completing whatever their testing was and then they have paperwork for you on the quarantine and they asked for your phone number and they called your phone right there to make sure you didn't give them a fake number uh it's very intrusive to everybody regardless of whether they have any risky elements to their person or not i'm very glad to hear that because what i read was that we just as we fill out those forms coming back to hawaii that that was being used to determine the sections of people and what they were going to be doing and now they're telling me we're spending the state spending a lot of money on on making sure they are have temperature information and then what did they do if somebody has the virus would they take them to some special place um i mean that's very interesting because that's what china and and korea and these other nations have done is that they have used that data to identify potentially infectious people and then they've immediately removed them into some containment area holding pattern they didn't go home they didn't go to the hotel and then that's one of the ways we have a stopping to spread but you know why they can do that their citizens don't have any constitutional rights that's right i didn't move to north korea yeah yeah so uh they would fight back probably i mean we would want all of us we want to assert our civil rights and and call a lawyer right because of that intrusion uh if we were contained like that that's a really good point because i have i you know that's one and that's one of the advantages of these dictatorial countries where they can they can manage things a little bit more and i would say that's one of the things that makes our country really exceptional it does and the fact that states want to close themselves off only speaks to the importance of our federal system which is about unification so in and so instead of us doing the kinds of things they do in these other countries with stricter government styles we want to go up we want to go high and get everybody we're on the same boat and we all have to work on this together so it seems like the democratic way is to be able to to lead the country into understanding what their duty is one to another and as citizens um yeah that uh okay well i i'm glad that i didn't realize that much was going on i wonder why that's not publicized so much all right maybe i'm just missing it but i i i really like knowing that because um a lot of people said that they were three there were three hundred ninety nine people on this recent arrival of um a total of 754 i think this was 72 which was um last week anyway so 118 of them i mean 399 of them were visiting friends and family i mean so presumably they call those people at all those places where so they had to put the number on the form probably and that's how they managed to call them presumably because your colleague was called at well do you know that when you come in at the airport right now you cannot take a taxi you cannot do an uber or a lift or a ride chair you cannot ride the bus the only way you can leave the airport is somebody picks you up well that's awesome news for me i guess i'm not being attention well that i mean it's very i'm i'm glad to hear that that we've got that much strictness in in the screening of people coming in other one i mean i've really worried about it since we are increasing now in the numbers of cases so it it occurred to me that we might may not have done these kinds of things but then the other question is who's going to pay for all of this surveillance in screening i mean this is going to be enormously expensive when we go back to receiving certainly like in july of two nineteen we were having thirty five thousand people coming in daily into hawaii who's going to take care of that burden once they lift anything so i mean certainly that would be great for the economy to get all of them in right now come back but then we just have enough we'd have a a set here in hawaii for the movies to come and use with all these empty buildings everywhere because no people would be left presumed Stephanie i'm going to say something that some people are going to go crazy about okay japanese americans were quarantined during the second world war without respect to any individual risk we are not allowed to do that in this country uh-huh clearly well okay i'm that's good to recall that the history um and um we need to respect that sacrifice that they made and mistake that the country made but what are your next steps then on this case so you're seeing there at this point in feeling accomplished in in in the stage of this case you're in and what happened so what are the next steps to so we have a couple of choices and we haven't actually decided yet one thing that we can do is appeal this order denying our requests that's a possibility i don't know that we're going to do that we can move forward with the case and watch and see what the governor and the legislature come up with and like i said earlier fold that new thing if necessary and appropriate into our existing case um and it's interesting because in in opposition to our motion the governor had four or five medical doctors from the department of health working on the covet stuff submit sworn testimony under oath in the form of a declaration and what's troubling to me about it is the information that they presented was medical information that was thought to be true in february of 2020 not the new information about infectiousness mortality morbidity uh all that you know treatments uh none of that stuff all of what they were saying was the original bad data from february and and that's why i think the judge said i don't want to be the medical divider of truth at this stage so you know we're gonna have epidemiologists that tell modern analysis of what's known and and you know it'll go on from there okay well i wanted to go to um a question about to both of you about um well first of all i think jim is it the case that this may resolve itself too if the legislature does its duty and they work on this and they have an acceptable remedy right for how to handle could be so you could be satisfied and not and the need for more uh litigation could pass is that definitely there's always a need for more litigation don't don't put your say don't become a vegetarian okay well okay so then if you um okay so i understand there'll be something let me explain it this way and i won't be kidding and i gotta let scott talk because he's really a small friend of mine but so there are certain claims that you can bring in federal court and there are different claims you cannot bring in federal court but you can bring in state court so that issue about whether or not the governor's power ran out on may 3rd it's in our case because it's a fact that's the statute that gives rise to the violations but our claims in federal court constitutional rights to travel not overstepping a state law so a state court case is probably going to be brought against the governor's excess unlawful power usage after may 3rd but that would be a different case maybe even different lawyers different clients maybe me i don't but i mean those that's not been tackled in our federal court case and there are reasons to file federal and state cases that to you know the the choice that you take well without your work where's the scrutiny to come from actually to to these issues like like scott are you maybe you can talk to that even though you you're not in the same area of litigation or work in the same area as jim does but is it does it devolve on on the legal profession to kind of provide this i mean it is a citizen's right too and as you've discussed trying to get clients who have these issues in mind and care about them and want to do something about it but they don't want to become the nail in the cough enough the one that or bringing this against the state much less however much you know that you have just to pay for that but but um so but where does the scrutiny fall it's supposed to be on the citizens or is it the legal on the citizens and then the legal profession to respond to that but the constitution isn't really self-effectuating we've got to stand up for our rights and thank god there are people like jim out there who will take the cases and actually go in front of the courts but the constitution really does have to be upheld by the people it's got to be upheld by the people that protects and so yes it is incumbent on the citizenry to stand up and take positions when our constitutional rights are being taken away well that that reminds us of the duty of citizenship but i wanted to know if you all thought we have enough legal tools to deal with extreme crises such as COVID-19 in fact i mean at the federal level supposedly previous administrations had prepared orders for emergency situations like this that haven't been drawn on for the current situation does the state of Hawaii do the same thing is that a part of the repertoire or the agenda of the legislature are they remiss negligent irresponsible and not having something in place they're the lawmakers so would that be a duty they've neglected i mean the governor's going to take the heat on this i'm sure but what about them i don't know if they neglected it this is a pretty unique circumstance so who knew you know that we were going to have to deal with these issues i i guess it can be argued that if the government were doing its job it would think about these kinds of things because it's not that far fetched that there would you know some infection going around the world that we'd want to avoid but i i don't know that at this point we can accuse anyone of not having come up with a plan ahead of time it's just how they've handled it since the issue came up so we can't even use the ignorance of the law is no excuse because there's no law to be ignorant of at this point but all right of those sorts of things should the new mayor and uh as we go to a new governor i mean what kinds of expectations should we have for them to meet these challenges well the thing is in 2014 the hawaii legislature did pass a brand new law which is the law that the governor's using for this emergency power thing so there actually was a law and it was used and it was used properly on march third but that statute limits the governor's power for to 59 days on the 60th day according to the statute language that was written in 2014 it's not like some ancient thing uh it automatically terminated on the 60th day so what that means in the law is on the fifth ninth day may second one nano stroke past midnight on the third of may it ended all by itself nobody had to do anything the legislature gave the governor their legislative power for that 59 days i have a representative and i have a senator why weren't they back at the legislature on may third taking back their legislative authority representing me that's a good question and on that we have to have our aloha time so we're going to end our program on think tech hawaii and i'm going to appreciate that you all we're here to have this stimulating discussion and remind everybody that this is the state of the state of hawaii and we'll see you next time aloha and