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Oral Argument Before the Hawaii Intermediate Court of Appeals–CAAP-21-0000024

CAAP-21-0000024, Wednesday, January 26,2022, 10 a.m.

FOR OUR RIGHTS, a Hawaii corporation, DIANA LOMMA, DAVID R. HAMMAN, RANDI HAMMAN,JANET EISENBACH, LEVANA LOMMA KEIKAIKA, LAWRENCE K. PAILLE, GERALYN SCHULKIND, LEONDARD SHULKIND, DANIEL HASHIMOTO, CHRISTINA COLE, FRANCESCA WOOLGER, NAEA LINDSEY, MICHAEL MAZZONE, LANETTE J. HARLEY, and LORAINE L. PATCH, Plaintiffs-Appellants, vs. DAVID Y. IGE, in his official capacity as Governor of the State of Hawaiʻi, HOLLY T.M. SHIKADA, in her official capacity as Attorney General for the State of Hawaiʻi, and STATE OF HAWAII, Defendants-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Plaintiffs-Appellants:

Marc J. Victor and Jody L. Broaddus

Attorneys for Defendants-Appellees:

Nicholas M. McLean, Ewan C. Rayner, David D. Day, and Craig Y. Iha, Deputy Attorneys General

COURT: Leonard, Nakasone, and McCullen, JJ.

Listen to the entire audio recording in mp3 format  ]

Brief Description:

Plaintiffs-Appellants For Our Rights, a Hawaiʻi corporation, Diana Lomma, David R. Hamman, Randi Hamman, Janet Eisenbach, Levana Lomma Keikaika, Lawrence K. Paille, Geralyn Schulkind, Leonard Shulkind, Daniel Hashimoto, Christina Cole, Francesca Woolger, Naʻea Lindsey, Michael Mazzone, Lanette J. Harley, and Lorraine L. Patch (Appellants) appeal from the December 23, 2020 Final Judgment entered by the Circuit Court of the Fifth Circuit (Circuit Court) against them and in favor of Defendants-Appellees David Ige, in his official capacity as Governor of the State of Hawaiʻi (Governor Ige), Holly T. Shikada, in her official capacity as Attorney General for the State of Hawaiʻi, and the State of Hawaiʻi (Appellees). Appellants
also challenge the Circuit Court’s November 19, 2020 Order Granting Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint (Dismissal Order).

In their First Amended Complaint (Complaint), Appellants, who are residents of the State of Hawaiʻi (and a government watchdog organization), sought injunctive and declaratory relief with respect to a series of proclamations issued by Governor Ige, which declared a state of emergency stemming from Covid-19, suspended certain laws, and imposed various restrictions and directives. The Complaint alleged, inter alia, that Governor Ige’s ninth, tenth, and eleventh proclamations are unconstitutional and exceed the authority statutorily delegated by the Hawaiʻi Legislature to the Governor to declare an emergency and promulgate rules and regulations to facilitate the government response to such declared emergency, and that Appellants are suffering harms directly related to the continued application and enforcement of those and any preceding supplemental proclamations. The Complaint further alleged, inter alia, that Governor Ige’s ninth, tenth, and eleventh proclamations are unconstitutionally vague and deprive Appellants of due process under the constitutions of the State of Hawaiʻi and the United States. Appellants do not challenge Governor Ige’s initial March 4, 2020 Covid-19 emergency proclamation.

Appellees moved to dismiss the Complaint in its entirety for failure to state a claim upon which relief can be granted, contending that: (1) because Appellants did not challenge the subsequent emergency proclamations that were then in effect, Appellants lack standing and their claims are moot; (2) Governor Ige’s emergency proclamations are fully authorized under Hawaii Revised Statutes (HRS) chapter 127A; and (3) Appellants’ void-for-vagueness arguments failed to meet applicable legal standards. After further briefing and a hearing, the Circuit Court granted Appellees’ motion to dismiss, adopting Appellees’ arguments and concluding that (1) HRS chapter 127A, as properly interpreted, did not support Appellants’ claim that the Governor is not empowered to issue supplementary emergency proclamations extending beyond a single 60-day period, and (2) Appellants’ claims in regards to the vagueness of prior emergency proclamations, no longer in effect, are moot.

Appellants raise five points of error on appeal, contending that the Circuit Court erred: (1) in its interpretation of HRS chapter 127A; (2) in the Dismissal Order by adopting Appellees’ arguments without further reasoning; (3) by tacitly adopting Appellees’ arguments that Governor Ige may exercise emergency powers for an indefinite period of time; (4) by tacitly adopting Appellees’ arguments that the Complaint was moot; and (5) by tacitly adopting Appellees’ arguments that Appellants lacked standing on the grounds of mootness. Appellees argue in response that: Appellants’ interpretation of HRS chapter 127A is wrong; the Circuit Court’s decision was proper and provided sufficient reasoning; Appellants lack standing and their claims are moot; and other arguments not raised in the motion to dismiss warrant upholding the dismissal of the Complaint.