Bill would add much-needed oversight of state’s emergency powers

By Grassroot Institute of Hawaii, March 29, 2022

The following testimony was submitted by the Grassroot Institute of Hawaii for consideration March 30, 2022, by the House Committee on Judiciary and Hawaiian Affairs.

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To: House Committee on Judiciary & Hawaiian Affairs

      Rep. Mark M. Nakashima, Chair

      Rep. Scot Z. Matayoshi, Vice Chair

From: Grassroot Institute of Hawaii

           Ted Kefalas, Director of Strategic Campaigns

RE: SB3089 SD2 HD1— RELATING TO EMERGENCY MANAGEMENT

Comments Only

Dear Chair and Committee Members:

The Grassroot Institute of Hawaii would like to offer its comments on SB3089 SD2 HD1, which would amend the state’s emergency-management statute to clarify that the powers granted for emergency purposes should not be inconsistent with the Hawaii Constitution, require justification for the suspension of laws and place limits on such suspensions, and allow the Legislature or county councils to terminate an emergency, in part or in whole, by a two-thirds vote. 

If enacted, this bill would be an important step toward addressing an oversight in the state’s current emergency-management law that was not apparent until the COVID-19 lockdowns: the lack of a meaningful legislative check on the governor’s emergency powers.

Of special note is the bill’s prohibition against suspending public records requests during an emergency. This is an important addition that will preserve transparency and help improve public trust in government. 

At present, the law includes a 60-day limit on emergencies, but does not address what should happen if an emergency exceeds that limit. Thus, it is possible for the governor to extend an emergency period indefinitely, with little input or oversight from the legislative branch. 

This bill does attempt to create a legislative check on the possibility of an unending emergency arising from the governor’s or a mayor’s ability to issue supplemental proclamations extending the original emergency period. However, that check would be more meaningful if multiple extensions of an emergency required legislative approval, regardless of whether the Legislature is in session.

Here are some proposed amendments that would make the bill better.

In Section 3, add the following after the amendments to Section 127A-1, subsection (c):

 (d) The exercise of any emergency power the governor or other official may have under the Hawaii Constitution and state law that binds or regulates the public are limited as follows: 

(1) State courts shall have jurisdiction to hear cases challenging the lawfulness of state and local emergency orders, including compliance with this chapter’s limitations on such orders, and the courts shall expedite consideration of such challenges to the extent practicable. Inequality in the applicability or impact of emergency orders on analogous groups, situations, and circumstances may constitute one ground among others for a court to invalidate or enjoin an emergency order, or some of its applications, on the basis that it is not narrowly tailored to serve a compelling public health or safety purpose. 

In Section 6, amend Section 127A-14, subsection (d) to read:

(d)  A state of emergency and a local state of emergency shall terminate automatically sixty days after the issuance of a proclamation of a state of emergency or local state of emergency, respectively, [or] unless extended or terminated by a separate or supplementary proclamation of the governor or mayor, [whichever occurs first]provided that the proclamation extending the emergency meets the following qualifications:

It is the first extension of the emergency period issued by the governor or mayor and extends that emergency by no more than 60 days.

The Legislature has approved the extension by concurrent resolution.

The Legislature has not convened a special session to debate the extension of the emergency within 10 days of the issue date of the proclamation extending the emergency. 

Pursuant to the Legislature’s rules governing petition for a special session, the House and Senate may petition the President of the Senate and Speaker of the House to convene a special session for the purpose of debating the extension of the emergency. The petition and special session must occur within 10 days of the issue date of the proclamation extending the emergency. If the special session does not convene within 10 days, the extension is deemed approved by the Legislature.

If the Speaker of the House or President of the Senate notifies the governor or mayor of the need for a special session to debate the extension of an emergency, the governor or mayor may withdraw the proclamation extending the emergency and allow the emergency to terminate.

In addition, add the following after Section 127-A14 (e):

(f) A proclamation by the governor declaring the existence of a state of emergency arising from the same emergency or disaster for which a previous emergency proclamation was terminated by the Legislature may be authorized for a period of up to sixty days only upon request of the governor and adoption of a concurrent resolution by the Legislature.

(g) The governor or mayor shall proclaim the termination of a state of emergency or local state of emergency, respectively, at the earliest possible date that conditions warrant

Throughout the COVID-19 emergency, we have had the opportunity to learn more about what we do well and what could be improved. This bill, if enacted, would be a good start toward making our state better-equipped to handle future emergencies.

Thank you for the opportunity to submit our comments.

Sincerely,

Ted Kefalas

Director of Strategic Campaigns

Grassroot Institute of Hawaii