Tom Yamachika is president of the Tax Foundation of Hawaii, a watchdog nonprofit that monitors Hawaii’s taxes. He also owns Aloha State Tax, a small law firm that focuses on state tax matters.
In this installment of Hawaiian SALT, Yamachika explores the source of gubernatorial emergency powers in Hawaii and suggests limits on the use of such power and how those limits may be enforced.
Copyright 2020 Tom Yamachika.
All rights reserved.
During a natural disaster or other emergency, a state governor is sometimes given emergency powers, including the power to suspend the operation of other duly enacted laws. This article explores the source of this power in Hawaii, which may be typical of other jurisdictions, and suggests limits on the use of emergency power and how those limits may be enforced.
In Hawaii, as in many other jurisdictions, the state constitution creates the position of governor.1 The constitution gives the governor some specified powers but says little, if anything, about the extent of emergency powers beyond the right to mobilize the state’s militia.2
General laws authorize the governor to declare a state of emergency by proclamation if an “emergency or disaster” has occurred or is likely to occur.3 An emergency or disaster is defined as an occurrence or imminent threat thereof “which results or may likely result in loss of life or property and requires, or may require, assistance from other counties or states or from the federal government,” or “which results or may likely result in substantial injury or harm to the population or substantial damage to or loss of property.”4 An emergency proclamation automatically terminates in 60 days,5 but the laws do not prohibit a separate proclamation renewing it if the governor finds that the emergency or disaster is ongoing. The governor is the “sole judge of the existence of the danger, threat, or circumstances giving rise to a declaration of a state of emergency.”6
The statutes give the governor two kinds of special powers: emergency management powers, which are operative even without a state of emergency,7 and emergency powers, which are operative only during a state of emergency.8 Among the emergency powers is the authority to suspend laws:
[Section] 127A-13 Additional powers in an emergency period. (a) In the event of a state of emergency declared by the governor pursuant to section 127A-14, the governor may exercise the following additional powers pertaining to emergency management during the emergency period: . . .
(3) Suspend any law that impedes or tends to impede or be detrimental to the expeditious and efficient execution of, or to conflict with, emergency functions, including laws which by this chapter specifically are made applicable to emergency personnel.9
In response to the COVID-19 pandemic, Gov. David Ige (D) has issued seven proclamations10 and five executive orders,11 many of which suspended laws in whole or in part. The Sixth Supplementary Proclamation contains a 17-page recap of Hawaii laws, including several entire chapters of the Hawaii Revised Statutes, that are suspended.12 That proclamation cites section 127A-13(a)(3) — quoted above — as authority for the suspensions.
So far, only one of the state tax laws has been suspended.13 Haw. Rev. Stat. section 237D-6.5, which has been amended 25 times in its 30-year history, specifies how the state’s transient accommodations tax is to be distributed. The statute is laden with earmarks, and it mandates, among other things, that $103 million annually is to be distributed to the counties.14 With this statute suspended, it is unclear where transient accommodations tax collections — expected to suffer a major negative impact — are to be distributed.
One of the chapters suspended in whole is the state’s open records law, chapter 92F.15 The Office of Information Practices, the agency charged with interpretation and enforcement of the state’s open records laws, advised executive branch agencies and boards that they could ignore requests from the public for information and documents.16 This angered several nonprofit government watchdog groups.17
The sheer number and extent of law suspensions, many of which are of laws (such as those mentioned above) that seemingly have little to do with emergencies, prompts some to think that our governor has overstepped. Are there checks and balances on the governor’s emergency powers?
The emergency powers statutes provide one answer: Proclamations and executive orders supposedly authorized by the emergency powers statutes may be reviewed by a three-judge panel in circuit court, the court of general jurisdiction.18
The governor’s constitutional duty is to “be responsible for the faithful execution of the laws.”19 In National Tax Limitation Committee v. Schwarzenegger,20 a California appellate court held that the governor has discretion in using emergency powers, but that discretion can be reviewed for abuse.21 The Washington Supreme Court also has categorized emergency gubernatorial powers as discretionary.22
The Hawaii Supreme Court has often described judicial review of executive agency determinations. It has said that a two-step process is required: First, the reviewing court determines whether the Legislature has granted the executive discretion in a matter, and if so, the second step is to review the exercise of that discretion for abuse.23 If the Legislature has not granted the agency discretion over a matter, then the agency’s conclusions are subject to de novo review24:
An appellant seeking to overturn an agency’s determination made within the agency’s sphere of expertise has a high burden to demonstrate that the agency abused its discretion. A “high burden,” a “heavy burden,” and “deference” are all ways of expressing this same concept that a determination made by an administrative agency . . . will not be overturned unless “arbitrary, capricious, or characterized by . . . [a] clearly unwarranted exercise of discretion.”25
Abuse of discretion also has been found if the maker of the decision under review “clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant,”26 which is similar to the California formulation that “a challenger must show the official acted arbitrarily, beyond the bounds of reason or in derogation of the applicable legal standards. Where only one choice can be a reasonable exercise of discretion, a court may compel an official to make that choice.”27
Although the government could be expected to argue that the political question doctrine or separation-of-powers principles require that a challenge to the governor’s emergency authority be non-justiciable,28 the emergency powers act itself provides for judicial review,29 and the law providing for emergency suspension of other statutes provides an ascertainable standard for review — namely, whether the suspension is of “any law that impedes or tends to impede or be detrimental to the expeditious and efficient execution of, or to conflict with, emergency functions.”30 National Tax Limitation Committee also explicitly rejected the political question doctrine and separation-of-powers arguments.31
If a court were to get to the merits, the government’s justification for the kibosh on public records requests, as published, is:
As this is a global pandemic and a serious threat to the safety and welfare of our state’s population, 92F was suspended to give government the maximum flexibility to focus its attention and personnel resources on directly addressing the immediate situation at hand. When the situation is stabilized and there is proper leeway to re-direct those resources, the suspension of 92F will be lifted.32
The problem, however, is that this argument could be used against any law whatsoever that obligates any agency to do anything. If this is a cognizable justification for the suspension of laws, all laws relating to the operation of government could be suspended, and only a dictatorship would be left in its place. Such an interpretation of this paragraph could not have been intended by the Legislature.
In Peer News LLC v. City & County of Honolulu,33 the Hawaii Supreme Court rejected a county government’s assertion that “frustration of a legitimate government function” — an exemption in the open records law34 — could apply categorically. The court held that the agency “must articulate a real connection between disclosure of the particular record it is seeking to withhold and the likely frustration of a specific legitimate government function.”35 The court then quoted a 2003 Office of Information Practices opinion that stated, “We would be remiss in our statutory duties if we simply accepted [the University of Hawaii’s] statement that disclosure [of the head coach’s compensation package] will frustrate a legitimate government function without any factual basis to support UH’s assertion” that disclosure “could have the impact of frustrating the Athletic Director’s ability to maintain a cohesive coaching team and a successful athletic program.”36
If there were a factual basis for the resource constraint argument — for example, if the respondent agency happened to be the Department of Labor and Industrial Relations struggling to process a huge spike in unemployment claims37 — then the agency would be justified in putting the request aside for a while. In this author’s opinion, however, even this is not adequate justification for wholly ignoring the request.
As the U.S. Supreme Court once said:
Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the Federal Government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under our constitutional system.38
FOOTNOTES
1 Haw. Const. Art. V, section 1.
2 Haw. Const. Art. V, section 5, states:
The governor shall be responsible for the faithful execution of the laws. The governor shall be commander in chief of the armed forces of the State and may call out such forces to execute the laws, suppress or prevent insurrection or lawless violence or repel invasion. The governor shall, at the beginning of each session, and may, at other times, give to the legislature information concerning the affairs of the State and recommend to its consideration such measures as the governor shall deem expedient.
The governor may grant reprieves, commutations and pardons, after conviction, for all offenses, subject to regulation by law as to the manner of applying for the same. The legislature may, by general law, authorize the governor to grant pardons before conviction, to grant pardons for impeachment and to restore civil rights denied by reason of conviction of offenses by tribunals other than those of this State.
3 Haw. Rev. Stat. section 127A-14.
4 Haw. Rev. Stat. section 127A-2.
5 Haw. Rev. Stat. section 127A-14(d).
6 Haw. Rev. Stat. section 127A-14(c).
7 Haw. Rev. Stat. section 127A-12.
8 Haw. Rev. Stat. section 127A-13.
9 Haw. Rev. Stat. section 127A-13(3). Paragraphs (2) and (4) also allow for the suspension of laws, but are much more limited in application.
10 Gov. David Ige, Emergency Proclamation for COVID-19 (Mar. 4, 2020) (declaring state of emergency); Supplementary Proclamation (Mar. 16, 2020); Second Supplementary Proclamation (Mar. 21, 2020); Third Supplementary Proclamation (Mar. 23, 2020); Fourth Supplementary Proclamation (Mar. 31, 2020); Fifth Supplementary Proclamation (Apr. 16, 2020); and Sixth Supplementary Proclamation (Apr. 25, 2020). All referenced proclamations are available online.
11 Executive Order 20-01 (Mar. 23, 2020); Executive Order 20-02 (Mar. 29, 2020); Executive Order 20-03 (Apr. 7, 2020); Executive Order 20-04 (Apr. 16, 2020); and Executive Order 20-05 (Apr. 16, 2020). All referenced executive orders are available online.
12 Sixth Supplementary Proclamation Amending and Restating Prior Proclamations and Executive Orders Related to the COVID-19 Emergency (hereinafter “Sixth Supplementary Proclamation”) 16-33 (Apr. 25, 2020).
13 Sixth Supplementary Proclamation, supra note 12, at 19.
14 Haw. Rev. Stat. section 237D-6.5(b)(4).
15 Sixth Supplementary Proclamation, supra note 12, at 18; Supplementary Proclamation, at 3 (Mar. 16, 2020).
16 Office of Information Practices, OIP’s Advice for Agencies and Boards During the Temporary Suspension of the Laws (Mar. 23, 2020).
17 Nick Grube, “Suspension of Hawaii’s Open Government Laws More Extreme Than Other States,” Honolulu Civil Beat (Mar. 30, 2020).
18 Haw. Rev. Stat. section 127A-27.
19 Haw. Const. Art. V, section 5.
20 113 Cal. App. 4th 1266, 8 Cal. Rptr. 3d 4 (2003).
21 Id., 8 Cal. Rptr. 3d, at 13.
22 Cougar Business Owners Association v. State, 97 Wash. 2d 466, 647 P.2d 481 (1982) (“The proclamation of an emergency and the Governor’s issuance of executive orders . . . are by statute committed to the sole discretion of the Governor.”).
23 Paul’s Electrical Service v. Befitel, 104 Haw. 412, 419-20, 91 P.3d 494, 501-02 (2004).
24 Id.
25 Id. at 419, 91 P.3d, at 501 (quoting Hawaii Administrative Procedure Act, Haw. Rev. Stat. section 91-14(g)(6)).
26 Honolulu Civil Beat Inc. v. Department of the Attorney General, No. SCAP-17-0000480 (Mar. 11, 2020); AC v. AC, 134 Haw. 221, 229, 339 P.3d 719, 727 (2014).
27 National Tax Limitation Committee, 113 Cal. App. 4th 1266; California Correctional Supervisors Organization Inc. v. Department of Corrections, 96 Cal. App. 4th 824, 827, 117 Cal. Rptr. 2d 595 (2002).
28 See, e.g., Baker v. Carr, 369 U.S. 186 (1962); Board of Education v. Waihee, 70 Haw. 253, 768 P.2d 1279 (1989); Trustees of the Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 737 P.2d 446, cert. denied, 484 U.S. 898 (1987).
29 Haw. Rev. Stat. section 127A-27.
30 Haw. Rev. Stat. section 127A-13(a)(3).
31 National Tax Limitation Committee, 113 Cal. App. 4th 1266, 8 Cal. Rptr. at 15-21.
32 Office of Information Practices, supra note 16.
33 143 Haw. 472, 431 P.3d 1245 (2018).
34 Haw. Rev. Stat. section 92F-13(3).
35 143 Haw. at 487, 431 P.3d at 1260.
36 Id. (quoting Office of Information Practices Op. 03-16 (Aug. 14, 2003)).
37 See, e.g., “37% of Hawaii’s Labor Force Files Unemployment Claims,” Honolulu Star-Advertiser, Apr. 17, 2020.
38 Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 425-26 (1934).
END FOOTNOTES