 Aloha and welcome to Hawaii Together on the Think Tech Hawaii Broadcast Network. I'm Kelea Akina, President of the Grassroot Institute and just delighted to be with you today and a couple of wonderful guests. Well, it's August of 2021 and we are still in the coronavirus pandemic era. And who would have thought that it would last this long? One of the major problems that we've seen is how to balance the role of government in taking care of public health against the preservation of our personal liberties and rights. As the 2021 legislative session here in Hawaii came to a close, there were many Hawaii residents who were disappointed because the legislature failed to approve a bill that would have placed limits on the governor's emergency powers. We saw during the year of pandemic management that there were emergency decrees that went on perpetually, but they were limited in terms of their expiration date, so to speak. They were renewed over and over. And that left us wondering who's really in charge? Are the people or a small number of individuals perhaps just the governor? Today we're going to talk to Melissa Nusham, a researcher at the Grassroot Institute of Hawaii. She's going to share the results of her research into why a certain bill, the bill we're talking about, failed at the last minute to make it to the governor's desk. Although there was tremendous widespread support from individuals and public interest groups for the bill. And what that means in terms of our civil liberties and our accountable government. I'm also pleased to have with us today Malia Blomhill, the Institute Policy Director. She's going to discuss how that bill would have limited the unchecked power of the governor. So let's go straight to our guests. First of all, Melissa, I know you've been traveling. You just got off the plane from Japan. Thank you so much for joining us today. We're glad to have you on the Grassroot Institute team. Thank you for having me. And Malia, a regular guest here on Think Tech Hawaii's Hawaii together. Thanks for all the work that you do all the way from the East Coast as an ex-patriot of Hawaii on behalf of the Grassroot Institute, managing our policy directions. Thank you. It's a pleasure to be here as always. Well, going back to Melissa, tell us a little bit about your research background. I know you're at Case Western right now. But in terms of the research work you do for your homeland, Hawaii, what have you been writing about at the Grassroot Institute? Sure. Well, over the last two years or so, I've had the pleasure of working at the Grassroot Institute, working on some government accountability as well as some tourism and travel related topics, like the Air Force Corporation, for example. Why is it important for us to look at different models of doing things at Hawaii? For example, look at a little more privatization in terms of the management of our airport operations. Well, I think from a personal level, I'm just one among many young people who really love Hawaii but are kind of concerned with the direction and just the same old that's been happening. So it's been exciting to work with an organization like the Grassroot Institute that's really pushing to change that by working together across the island. Melissa, I ask you to join us today because you've written a paper for us that we've published called Why Reform of Hawaii's Emergency Powers Law Failed? And that's available on our website at grassrootinstitute.org. Could you give us a quick summary of that piece? What were you writing about? Why did you write it and give us a little glimpse into that paper? Well, I think many of us were optimistic about HB103 passing and establishing some of the checks to the governor's executive emergency powers that we were looking for. I mean, it seemed to be making its way steadily through the legislative process, but it was killed at the 11th hour without much of an explanation as to what exactly happened. So we decided to look into that and I'll certainly go into more detail later on, but I guess the reason why the bill never made it through I think can be boiled down to disagreement over the ease with which the governor can extend an emergency, as well as I think a degree of political shenanigans, you could say. What were really the root causes you feel that the bill failed? I mean, there was a tremendous sentiment in the public that although we recognize the role of government in managing the health crisis, we're concerned about accountability. We're concerned about the continued extension of the emergency powers decrees, decree after decree. And there was a lot of sentiment even in the legislature itself for passing that bill. Why do you think it failed? The title of your paper is Why Reform of Hawaii's Emergency Powers Law Failed. Sure. Well, I think it can be explained by, I think, a disagreement between the House and the Senate with over how easy and how easily the governor can extend or renew. Some people in the House felt that the, I guess, the bill as it was was a bit too strict in terms of limiting in terms of his, the governor's ability to do that. And these, I guess, issues were never able to be resolved. And so the bill was informally killed by, in the end. Well, there certainly were political reasons at play. Leah, you've been watching almost all the legislature in the House and the Senate that has to deal with civil liberties and rights and so forth. You certainly watched HB 103. What was that bill about? You know, what was it trying to accomplish? And maybe that can give us deeper insight into how it was received and why it failed. Well, what HB 103 was trying to do was reform the emergency management law, the basically the Hawaii statute that gives the governor the ability to pass all the executive orders, declare a state of emergency. The entire situation under which the people of Hawaii have been living for the last year plus sort of governed by this emergency, the state of emergency, that's all defined by the Emergency Management Act. And when it was enacted, you know, I think it's enacted more with the idea of a hurricane, a temporary kind of emergency, and you can tell that was never really intended to deal with something that would go on for months and months and months. So it has a automatic termination of 60 days. And when that termination date came and passed and the governor just extended the emergency, extended the emergency, extended the emergency, things that are very much just like legislation, you know, which is not the executive being passed, you know, serious changes to when things are due, the eviction moratorium, you know, pretty significant changes in our law, they happen through this executive order process. So, you know, the powers during an emergency are really significant, which is why we say wasn't really intended to go for so long. So this bill was an attempt to correct that. You could argue that perhaps it was trying to correct the problem that we have, and yet also trying to still be addressed, you know, the what it was originally intended for and that might be where the problem was because it attended attempted to put limits on the governor's ability to extend and extend and extend an emergency it created a way for the legislature to stop a state of emergency, it required justification for suspension of laws, it created a way to emphasize the importance of any executive actions executive orders having to align with the way constitutional a lot of these things that you know people were talking about during this state of emergency, how do we protect people's rights, how do we get people to do that. So it attempted to address those by putting in a check on how the state of emergency, how long a state of emergency can last and, you know, trying to create some just, you know, trying to force justification for suspending laws and put limits on how long a law could be suspended for. Melissa, as you were watching the bill you noted that there were many groups in the public that came to its defense as well as many legislators. Tell us a little bit about that. Sure. Well, the grassroot Institute certainly supported the bill, as well as Common Cause Hawaii, or the civil law center and even the Hawaii Government Employees Association and I think it's pretty rare to see this group of people all agree on the same bill so I think that just speaks to the importance of what the bill was trying to do. And for the lawmakers it did appear that most people supported it, it had been passed, I think, unanimously in the House and approved 23 to 2 in the Senate, so at least on the surface it seemed like this was something that was being supported by lawmakers. I think that the fact that it got so much support, public support from lawmakers as well as many organizations and groups and then yet failed at the last minute shows us that this is an issue that may come back. I think that the tension between the government's role in taking care of us and the government's duty to give us our liberties is one that continues. So what do you see, Malia? I definitely hope that it is something that comes back. You know, there's a lot of ways to address the issue, but if we've learned anything, it's that the emergency management statute as it is right now is just not capable of dealing with a health emergency. Maybe the answer is to amend this, you know, is a resurrection of HB103. Maybe the answer is to reform that law so that health emergencies are dealt with differently so that you can take that out of the same rubric and maybe that would address the problems of some of the degree, but it's definitely crying out for some kind of response. Where does Hawaii stand? And maybe Malia, you've looked at this across the nation in terms of where we are on this matter compared to other states. And are there reforms being instituted around the country? There have been other states that took much more aggressive action. Some of them early on, there was states where the legislature would just stepped in and basically stopped the state of emergency. One of the odd things is that the reforms that are advocated for, that we advocated for that are in HB103, they do exist in dozens of states. The ability to end the state of emergency by a concurrent resolution of the legislature, that's something that is not uncommon. And so there were places where that happened. There were places where the legislature challenged the way that the executive orders happen themselves. There were states where there were lawsuits. So Hawaii, we're not alone in having an emergency management act like this, but there are a lot of states that have already, you know, already have it there to address the problem differently to have these reforms that we've been pushing for. You know, one of the things that we noticed early on with this bill and this very issue, the state's use of emergency management powers, in particular the governor's use of emergency management powers, was a difficulty in getting information. It didn't seem to be a topic that many officials were really very open to talking about. And I'm wondering what kind of reception, Melissa, you received as you reached out and tried to talk to people about this. Sure. I think one of the things that I was surprised by was just how difficult it was to get those answers from the people who supposedly supported it. I reached out to the offices of, or the office of the representative who introduced the bill to never hear back. And even when you get the answers, it's, you know, can be a bit big and can be difficult to put the pieces together. But I was able to speak to Senator Donna Mercado Kim, who actually opposed the bill, and she was very candid and expressing her reasons as to why she couldn't support it. But I was, but it was a different story for those who at least voted and support for the bill. Leah, is it strange to see, is the way HB 103 died, strange or far for the course area? If I may, it did gripe a little bit. It is strange. But one of the problems, I will say, in having a heavily one party legislature is that the debate doesn't happen as publicly. You might have somewhere where, you know, there's a lot more interaction and discussion and debate through the process. So a bill like HB 103, and there's a lot of them, they just seem like they're just, they just speed through, they motor right through and you think, okay, that's going to be fine. And when the rug gets pulled out from under them, you're left wondering, you know, was it ever intended for it to pass? Was there a lot of debate behind closed doors that we don't know about? And you don't really get your answers unless you have up to the length of listen to go dig into it. So this was strange. It wasn't completely unheard of, but most of the time when a bill kind of just speeds through every committee like that, with so much support, you just expect it to, you know, if it's going, when we were watching it, we thought the problem was going to come to the governor. We expected, you know, maybe it'll get vetoed, it will have to advocate for a veto override. But we didn't think it would just kind of crash and burn as it came out of conference committee. That is strange. Well, we'll come back and talk a little bit more about this subject and broaden it a bit after we take a short break. Thank you so much, both of you, for being here with us. I'm Kaili Ikeena on Think Tech Hawaii's Hawaii Together. And after a short break, we'll be right back with you. Don't go away. Hi, I'm Rusty Kamori, host of Beyond the Lines on Think Tech Hawaii. I was the head coach for the Punahou Boys varsity tennis team for 22 years, and we were fortunate to win 22 consecutive state championships. My show is based on my book, also titled Beyond the Lines, and it's about leadership, creating a superior culture of excellence and finding greatness. I feature a wide range of amazing guests who share valuable insights about how going beyond the lines leads to success in everything you do in life. I'm looking forward to you joining me every Monday at 11am. Aloha. Well, thanks for staying around. We're on Hawaii Together on the Think Tech Hawaii Broadcast Network. I've got Melissa Nushim with us and Malia Blomhill, who are researchers at the Grass Room Institute of Hawaii. Melissa, as we've been talking about the HB103 bill that didn't pass, although we wanted it to pass, we would have loved to have seen the reforms it could bring to the Emergency Powers Act. You saw quite a bit that kind of piqued your interest and your curiosity as to how bills do pass and do fail and so forth, and there were some things that you actually wanted to make note of. What were they? Sure. Well, as Malia mentioned, it's not entirely unheard of for these kinds of bills that have widespread support to die at the last minute. But I think one of the problems was that the explanations that were given by the legislature was insufficient. The Speaker of the House expressed that the reason why the bill failed was because after the bill came out of conference committee, they just realized that the bill didn't include a pathway for the governor to extend or renew an emergency. And I spoke to Representative Linda Ichiyama, who was one of the co-chairs of the conference committee on the outside as well. And she echoed that similar sentiment about the need for the governor to be able to extend or renew an emergency and the final version of the bill lacking that. But the interesting part is that if you look at the earlier versions of the bill before conference committee, they actually all included a pathway for the governor to extend an emergency. It required that he request a legislature at least 12 days in advance to extend the emergency. And then the legislature then had the ability to approve the request via concurrent resolution or deny it. And according to Senator Sharon Moriwaki, who I spoke to was one of the chairs of the conference committee as well. She expressed that it was actually the House side who had a problem with this, this, the provision requiring the 12 days advance notice to request an extension. And the House just felt that this was too much to ask for the governor. And so they just, they felt the need to delete it, which led to some disagreements and that we're not able to be resolved. So ultimately, we have coming out of conference committee. You can correct me if I'm wrong, but what I hear you say is it was a bill that no longer had a pathway for the governor to extend the emergency. Is that right? Right. And why do you think that was beyond some of the political machinations that surrounded that? What rationale would there be for that? Well, I mean, you know, based on what I was told, the pathway that did exist required the concurrent, again, the 12 days advance notice and a concurrent resolution to approve it. And perhaps some people felt that that was just too, too strict, too much to ask. And so it was just removed at the last minute, which led to, despite the fact that these concerns were not raised prior to entering conference committee. So I think that kind of disagreement probably led to the bill failing. Well, let's pull out a little bit from this one bill and this one issue and look overall at the landscape in terms of the conflict between management of public health crisis and our liberties. Malia, you put together for us an excellent white paper called Lockdowns versus Liberty. And that's available at grassrootsinstitute.org. Could you summarize what you were trying to say in that paper? Yeah, that came out during the heart of the emergency. We started opening up again and it was, we started on it in part because we had a lot of people asking, you know, why can't we just sue? You know, we've had these really heavy lockdowns. Why can't we just sue and get our rights back? And so we wanted to explain why that's not possible. Well, how a court looks at these issues. And then we wanted to, you know, having done that say, okay, but there is a problem here in the way that the emergency is conducted. The fact that it can go on indefinitely, the fact that we are missing some guarantees of our constitutional rights. So how can we improve this? How can we make our emergency statute better? How can we make it so that we don't have things happen this way again, that in the future people have more of a voice in the conduct of an emergency, especially a health emergency. And so we looked at what reforms we would suggest when it came to addressing the failures that we had witnessed over the course of the COVID emergency. And we especially thought about, you know, how can we respect the need to protect public health and public safety because you know that is still an issue. And yet also rebalance, restore the balance of powers because, you know, over the over the last year, the governor has become sort of a super legislator. And that's not how our system was set up. The people really have no true voice. And so one of the most important things is getting the people's voice back into the system through restoring the balance of power and creating a legislative check on the governor's or the mayor's as a case may be powers during the emergency. So the idea of being able to end an emergency via concurrent resolution, which was an HB 103 was a big part of it. And yes, the need of the governor to basically get permission, so to speak, to extend an emergency, which, by the way, as a gripe, when HB 103 went through the legislature for almost all of it, there was a reduction that just allowed for automatic renewal of an emergency if the governor proposed it, and the legislature failed to stop it. So to hear that that's the, you know, the lack of that but that had it it had it for almost the entirety of the legislative session, and only lost it at the very end. Anyway, the process legislative process is a frustrating and interesting thing. But anyway, we wanted to basically create restore the balance of power by having the legislature have a check because that's how the people kind of get their voice in. We were a lot more responsive that's that way. So we wanted to make sure that that was there we wanted to create more accountability. We talked a lot about more transparency guarantees, the governor very famously suspended transparency laws, transparency laws at the beginning of the emergency and while he did restore them to some degree, we're still not all the way back. There's still a lot of foot driving there's still a lot of excuse making they don't quite have to get the same transparency benchmarks that they had to before the pandemic. So we wanted to see some kind of guarantee that sunshine laws and transparency laws would be respected. We wanted justification for suspension of laws, which did make it into HB 103 we wanted to see a requirement that there any emergency order was narrowly tailored to address the emergency. Because some things can be very broad and that's when you start to wait into issues of rights. So a lot these these these basic principles that we put forth in terms of how to reform the emergency management law with respect to constitutional principles balance of power transparency and accountability. You know there is often a rush to the courtroom in responding to infringements upon civil liberties. And yet in your paper you make reference to the fact that you did take a look around at the scene nationally at many cases that we're going to to court and and found that that that is not a very fast solution nor nor pragmatic one in the short run that in the long run what we really have to do is change the laws. Exactly. Yes, you know that we rely very heavily on the idea that the courts will defend our rights and you know they're there as a safeguard but the way that courts deal with emergencies makes it a very slow process and not necessarily successful. It's fundamentally a legislative problem. The way that the emergency is conducted is being according to a statute so legislative problem has a legislative solution the court is remedial, you know, after after your rights have been restricted then you go to the court but ideally, you have a situation set up where that never happens to begin with and that requires performing the law. And that's why the reasons why our recommendation was we need to look at the emergency management statute, emergency powers law, not just hope that the courts will will sweep in and help us. The court decisions you've seen don't really show us that even in the best case scenario, we're just going to be litigating for months and months and months or even years. Very good. Well, Malia, thank you very much. I want to give the closing thought to over to Melissa. What would you like to see happen in this next legislative session or next legislative season with respect to the emergency powers bill or act? I think many of us have just been frustrated over the last year and a half or so, with the consequences of the governor's unchecked emergency powers but it's important to remember that the legislature has the ability and the responsibility to rain it in and so far they've kind of put us down but again, like the silver lining is that the bill in the upcoming legislative session, our proposals can be refined to better reflect what it is that we're looking for. And it should really be one of the priorities for the legislators and the legislators who I had the chance to speak with all indicated that they were willing to revisit this issue. And hopefully conversations like these and just providing some clarity on what exactly happened this past legislative session can kind of pave the path for resolving some of the issues that led to the bill filling. Well, thank you very much. Thanks to both of you. My guests today, Melissa Nusham and Malia Blomhill of the Grassroot Institute of Hawaii have given us some wonderful insights. Things to think about as we try to balance the role of government in managing public health and also defending our civil liberties. There's a lot of work ahead. I'm Kelea Iakena on ThinkTek Hawaii's Hawaii Together. Until next time, aloha.