Reining in the State’s Emergency Powers; Why we Must Restore Checks and Balances

Hawaii Together, with host Keli'i Akina and guests Sandy Ma and Malia Blom Hill, April 11, 2022 

Many of the most draconian measures of Hawaii’s coronavirus lockdown measures have been lifted, but it still is important that we reform the state’s emergency-management law, according to Sandy Ma, executive director of Common Cause Hawaii, and Malia Blom Hill, policy director for the Grassroot Institute of Hawaii.

Ma and Hill were the guests this past Monday on Keli’i Akina’s latest “Hawaii Together” program on Think Tech Hawaii. The was “Reining in the state’s emergency powers.”

“I know that it may seem like it’s not as pressing [to rein in the governor’s emergency powers],” said Hill.  “But I will just remind you that the nature of the emergency powers are such that you can be right back in it — like that — just at the say-so of the governor, which means that it’s still an important issue; it still needs to be addressed.”

Hill said the most notable problem is “the vagueness about what happens once the initial emergency ends.”

Current law, she said, “says an emergency can last for 60 days — because these are pretty remarkable powers that are being given to the executive, things that are, you know, almost legislative in nature, [such as] the ability to basically change the law for a temporary time.”

But after the emergency period ends, then what?

“The statute says it terminates after 60 days, and then it says nothing else. So that’s where, over the last two years, we’ve seen a lot of frustration. Because what has happened in real life, in practice, is that the governor and the mayors have just kept extending the emergency through additional proclamations. 

“And, you know, 60 days is one thing. Two years is another. That is a very long time for an executive to have powers that go far beyond what we really assign to the executive constitutionally.” 

Ma, said it also is important that our government remain transparent and accountable during states of emergency, because that is how we are able to “keep tabs on government.” Yet, she said, the governor suspended both the state’s open-meetings and open-records laws for well over a year.

“So while government was functioning, no one knew what government actions were taking place. So that was incredibly troublesome for the public.”

Ma said emergency or not, “We should always be watchful of our government. Always.”

To view the entire half-hour conversation, click on the video above. A complete transcript is provided.

SB3089: Text, Status

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4-11-22, Sandy Ma and Malia Blom Hill with Keli’i Akina on “Hawaii Together.” 

Keli’i Akina: Aloha, everyone. Welcome to “Hawaii Together” on the ThinkTech Hawaii broadcast network. I’m Keli’i Akina, your host and president of the Grassroot Institute of Hawaii. 

We’re down to the final weeks of the 2022 legislative session. and I’m very pleased to see that there’s a bill to limit the governor’s emergency power. It’s making its way near the finish line. We hope it crosses. Now that bodes well for transparency and for accountability here in Hawaii, as limiting executive power during emergencies is an essential part of good governance.

The bill we’re looking at is SB3089, and it would specify limits to the governor’s emergency powers and help protect the state’s traditional constitutional balance of powers.

To discuss this matter today, I’m so delighted to have with us two individuals who understand the issues very well. They’ve been working on this bill and they’ve been communicating to the public what we need to be looking at. 

Sandy Ma is the executive director of Common Cause Hawaii and Malia Blom Hill is the policy director of the Grassroot Institute of Hawaii. Just so glad to continue working with both of these individuals. 

Sandy, welcome to the program. Thank you so much for being here.

Sandy Ma: Thank you for having us.

Akina: Good to have you back. I love to collaborate with your organization. Could you tell us at the start, just a little bit about your background and what led you to work with Common Cause Hawaii?

Ma: Yes, of course. My name is Sandy Ma, and I’m the executive director of Common Cause Hawaii. Common Cause is a national nonprofit dedicated to holding power accountable. Our purpose is to make sure that people can engage with government and know how our government functions, and to ensure that our government is transparent and responsive to the people.

I grew up on the East Coast, went to undergrad and then to law school. I started off in the nonprofit sector on the East Coast, and then moved to Hawaii and practiced in the nonprofit sector here in Hawaii. Then moved over and did some private practice law firm jobs, moved over to government. And when this opportunity came up with Common Cause to be the executive director here, to participate in making our Hawaii government more accountable to the public, I jumped on this opportunity. And it has been a great ride for me here in Hawaii and in making sure that the people know how to engage in government. 

So that’s how I became the executive director of Common Cause Hawaii, and I very much enjoy working with other nonprofit organizations such as the Grassroot Institute of Hawaii. So thank you very much.

Akina: Thank you, Sandy. And we also enjoy working with you. Appreciate so much what you and Common Cause are doing. 

We also welcome to the program today someone who will be familiar to anyone who has been following the Grassroot Institute for the last decade or so, and that’s Malia Blom Hill. 

Malia is from Hawaii. She started with us here, and thanks to the magic and wonder of telecommunications, she remains on the staff of the Grassroot Institute of Hawaii, although she lives and frequently represents us in Washington, D.C. 

Malia, aloha and welcome to the program. Tell us a little bit about your background.

Malia Blom Hill: Oh, of course. Well, my family, my heart, is in Hawaii, but I also went to law school on the East Coast, and after some work in that general area, I came to Grassroot Institute, first to work on transparency, of all things; they had a very large transparency project.

Then over time I got more involved in the policy side, including transparency still, accountability, a lot of the free market work that Grassroot Institute does. But I’ve been very interested in the issues related to civil liberties.

I’m the author of the “Lockdowns Versus Liberty” report that we did last year, looking at the issue of the emergency powers and Hawaii’s emergency-management law. And that’s become a real strong interest of mine, as we’ve watched what’s happened over the coronavirus pandemic.

Akina: Thank you, and thank you for your work at Grassroot. I’m going to start off by directing a question to you, Malia. You did author “Lockdowns Versus Liberty,” which is available at the Grassroot Institute website. What have you learned about the emergency powers and the emergency management law? How would you explain what this body of law is?

Hill: You know, it’s interesting, because it’s the kind of law that everyone, sort of, you figure, it must exist. It’s the statute that governs exactly how the governor can act in an emergency. And until about two years ago, we thought about it as what to do if there’s a hurricane or some sort of act of God, perhaps a war or military kind of emergency. We didn’t think about it in terms of a healthcare emergency.

And that’s what has really exposed the problems in it, because what the statute does is it just gives the governor power to suspend laws, as needed, to act very quickly and decisively to deal with an emergency situation. However, because it was never created with this sort of vision of an ongoing multi-year health emergency, it has real limitations.

Most notably is the vagueness about what happens once the initial emergency ends. The emergency-management statute says that an emergency can last for 60 days, because these are pretty remarkable powers that are being given to the executive, things that are, you know, almost legislative in nature — you know, the ability to basically change the law for a temporary time. 

So after the emergency period ends, what happens? Well, the statute says it terminates after 60 days, and then it says nothing else. So that’s where, over the last two years, we’ve seen a lot of frustration. Because what has happened in real life, in practice, is that the governor and the mayors have just kept extending the emergency through additional proclamations. 

And you know, 60 days is one thing. Two years is another. And that is a very long time for an executive to have powers that go far beyond what we really assign to the executive constitutionally. 

So, it’s a necessary statute, and I don’t want to create this idea that we have some sort of problem with it, or that we don’t understand that there needs to be a way to deal with emergencies. But one can do so without upsetting the constitutional balance of powers. 

So when we talk about reforming the statute, what we’re really talking about is restoring the balance of powers and making sure that constitutional rights are protected under it.

Akina: Thank you. Sandy, you’re particularly interested and concerned about the transparency aspects of the emergency powers laws and how they may need to be reformed. What are your thoughts on that?

Ma: You’re absolutely correct there. There were two suspensions of laws under Gov [David] Ige’s use of the emergency powers act that we were particularly concerned with. Governor Ige suspended the sunshine law and the public records request act, and he suspended it for a really long time — for well over a year.

This caused great concern amongst good government groups because that affected how we were able to keep tabs on our government. It affected transparency and accountability.

So there’s concerns with the indefinite and prolonged and widespread suspension of our public records act and our sunshine law. Government meetings were still going on, but we were not able to have any guidelines for how the public were able to attend these public meetings. We are particularly concerned with suspensions in the sunshine law, because government meetings were still occurring, even though the sunshine law was suspended.

There were no guidelines in place for how the public could attend these meetings, what decisions were made at these government meetings, how the public could submit testimony, could comment. And so, that was particularly troublesome to Common Cause and other good government groups. 

Another law that was suspended was our state public records request. Especially in COVID times, when we didn’t know how many cases there were, what steps were being taken by government to address the COVID situation, news agencies could not file public records requests to actually find out this information.

So while government was functioning, no one knew what government actions were taking place. So that was incredibly troublesome for the public. 

These laws were suspended up until last year for the public records requests, and the suspension of the sunshine law was just recently lifted. 

So these are all things that the public needs to know about, has a right to know about, and we cannot hold our powers accountable without this.

Akina: Sandy, I appreciate that. Understanding these two laws that got suspended. I think some people might ask the question “What is the big deal?” however. What harm does it bring to limit the sunshine law or public records access for a short period of time? 

I’d be interested in either of your thoughts on that, as well as whether this reflected a national trend, or whether we were actually an outlier in our practice of suspending sunshine and open-records laws. Any further thoughts on that, Sandy? And then Malia.

Ma: That’s a great question. Other states did suspend their sunshine law and their public records requests, but we had the most egregious suspension of both. Ours was suspended for the longest period of time and was the most broad suspension. 

So if we go back and look at states that suspended the sunshine law and the public records requests across the nation, we had the broadest and the longest suspension across the nation. We were an outlier in that sense. 

And why it’s important? It’s important because we can’t keep tabs on our government. We can’t keep tabs on what our government officials are doing, what our elected officials are doing, what our public servants are doing. 

That’s what we’re here for. That’s what the public is supposed to do, is to keep tabs on our government.

Akina: Malia, ostensibly, there must have been some purpose behind the suspension of sunshine law and open-records laws. Our government must have been trying to accomplish something. What was it they were accomplishing? What do we know about their thinking on this?

Hill: Well, if I were to be kind — which I will be for very, very briefly [laughs] — it could be that in the early days of COVID, no one really knew what they were dealing with. So there was this idea of, you know, “No one’s going to be there to deal with it,” or “It’s too dangerous for everyone to be in a room together. We’re just going to …” — and not every state did this but we did — “… we’ll just stop everything and then figure it out from there.”

But that is the problem. And now, to be unkind, there was no need ever to suspend the open-records laws. Our open-records law already envisions the possibility of some need for a delay like this, so that was completely unnecessary. 

As for the sunshine laws, yes, the issue of having everyone in one room together was a real concern for a while. However, there’s two issues there. 

I’m actually going to steal from — I noticed Sandy’s commentaries or something like that. I remember during this, well — she pointed out that Zoom is not the same. And I recognize the irony of saying that [laughs], but Zoom is not the same. Not everyone has access. These open-meetings laws exist so that the public has access, so that we can see, so that we can participate. And that really got shut down. 

Then it has another layer of, you know, who can participate, because making it virtual and keeping it virtual for so long, locks people out of it. 

And, I’m going to be honest. I think it makes it a little easier for the government to keep everyone at this virtual distance — even when it was no longer strictly necessary for health — because it’s just easier to dismiss people, it’s easier to control the situation when you’re doing it all virtually. You don’t have that messiness of having to deal with the public in person. But the public is entitled to be part of that. We need to be able to watch it. We need to be able to see how these decisions are made.

And it’s ironic that you see so many complaints about “People didn’t trust us” and “People kept questioning how we were handling it.” Well, this is why. Because you shut down transparency. Because you were so slow to reopen it. It actually makes the problem worse.

Akina: Were there any requests for information made by Common Cause or Grassroot Institute or other organizations or the media that were frustrated during this period of time because the government wasn’t able or willing to comply?

Ma: Well, Common Cause did not make any requests of government during that time. But I have heard of media agencies making requests of government health organizations for COVID numbers and COVID statistics that were frustrated due to the suspension of the public records act.

Hill: Yeah, Grassroot did a request about the deliberations for COVID. The Associated Press made a similar request, and it was first pushed off under the excuse that they didn’t have to deal with it because the governor had suspended [the act]. 

Then when they did finally respond to us, they said it would cost several hundred thousand dollars — which is its own problem, and possibly the topic of a different episode — but it did definitely affect the open-records request that we made.

Akina: One of the things that the public sees going on when records requests are denied, especially for statistics that may deal with the pandemic and so forth, is that it looks like the government is hiding something. 

The government may or may not be hiding something, but if the public is not given access, and the media is not given access to relevant statistics and so forth, it’s very difficult for government to build trust. 

Did you sense that going on out there, when these requests weren’t complied with?

Hill: Definitely. We are in a position where we are going to hear a lot of those kinds of complaints. And I think that almost everyone saw — especially in the early months or the first year or so of the pandemic — everyone saw the sort of slow dissolving of public trust, this draining away of the belief that they were being heard and responded to, and the fact that you couldn’t get information requests, that they would be delayed.

Even if you were making a request to something completely unrelated to — not the Department of Health or the governor’s office, but, say, HART [Honolulu Authority for Rapid Transportation] — it might take a little longer because, because it could, because they had been given this sort of blank check to just take longer to deal with your open records requests.

Akina: There were other — Yes, go ahead, Sandy, please.

Ma: I think people were just so frustrated with everything that was going on, and the economy, and just being told to stay at home, that there was just a lot of frustration building. And building. And building. 

So I think it just led to a lot of anger towards government in some sense. And If you don’t have transparency with government, then it just leads to a lot of distrust and anger towards government. 

Akina: Malia, when we opened the program, you referred to some other aspects of the emergency laws that need to be reformed. Could you mention a few of them? And, in particular, the need to provide some kind of check and balance by the Legislature on the governor’s or the mayor’s own powers.

Hill: Everyone has something that they remember from the COVID restrictions that they in particular just thought made no sense. Maybe it was a rule about who you could go to dinner with, or how many people, or how far apart, or could you walk on the street, or could you walk at the beach. Everyone has at least one example of something that just seemed arbitrary and irrational and frustrating. 

Part of that frustration — as Sandy noted — is the inability to really bring it to anyone to do anything with it. There’s no petition, there’s no voice. 

That’s one of the problems with the way that the emergency-management statute is structured. Because it can’t envision something that would go on longer than 60 days, it puts an enormous amount of power in the hands of the governor and the mayor to suspend laws, to create new penalties. 

One of the things that has since been addressed, but was a problem, was that there was no real idea of what was going to happen when you violated a COVID order, even if it’s just, you know, “Are you wearing a mask while filling your gas tank?” kind of violation.

And for a while, everyone was racking up misdemeanors, because that’s how unprepared we were to deal with this. And yet, the only say, the only word was the governor’s. 

Usually, when you get new law, when you have a change in the law, that goes through the Legislature. It has a process. People have a way of having a voice in what happens. They can weigh in. And what happens under the emergency-management statute is that that’s just gone.

The legislative check on the executive power is just gone. It’s supposed to be temporary. But, as we’ve seen, it isn’t functioning as temporary. 

And that’s the real problem here, is that we have a statute that we have now, through experience, learned it puts too much power in the hands of the executive without balancing it. 

It’s not to suggest that it’s going to just be this miracle thing, where no executive will ever come up with an emergency proclamation that you won’t like. 

The issue is: Is there a way? Is there a balance? Is there a place for the people’s voice to come through? And that’s why it needs reform. We need some sort of legislative voice, some legislative check on what the governor or the mayor can do.

Akina: Sandy, did you want to add anything to that?

Ma: No. I think that was a great summary by Malia as to why the people’s voice is so important in this process. Because the governor issued over two dozen, I believe, emergency proclamations for COVID. 

Akina: Yes.

Ma: So while we understand the importance of the emergency powers act and the need during these COVID times, we do also want to balance that with transparency and accountability, and the public’s right to participate and to engage in government, even during COVID times.

Akina: The declarations of emergency that the governor issued were supposed to expire after a certain number of days. And as you mentioned, Sandy, we had at least a couple of dozen of these decrees, which appeared to extend the practices of any one emergency decree. 

Malia, your thoughts on that? I know you’ve looked into that. What was going on here, and what needs to be reformed about that?

Hill: Well, this has been the topic of some legal debate, because the statute is silent on what happens after an emergency terminates. It says that an emergency terminates automatically after 60 days. And then it says nothing. 

Now, one could argue — and I think we have, I guess, in the past webinars — that implicitly means, then you can’t do anymore, because that’s it, that’s the end of the emergency. Because otherwise, they could have done something to signify something else.

But what has happened is that the governor has issued successive proclamations extending the emergency, and, to date, no one has successfully challenged that in court. 

So what we have is this sor of open-ended ability to just declare emergencies until the end of time, essentially, because we haven’t really seen any mechanism to prevent that. 

That’s the reform that is needed the most, is basically the ability to stop an emergency, take it outside of the governor. In this case, we want the legislature to be able to step in and declare an end to an emergency.

Akina: Thank you. One of the problems that we had with the successive pronouncement of emergency decrees is that it was hard to tell what the emergency was, and what constituted the beginning and the ending of an emergency. 

Who is it that should determine when we are in a state of emergency that requires the invoking of the emergency powers act?

Hill: It says in the statute that the governor is the sole decision-maker on that. It also says in the statute that an emergency is basically what the governor says it is. 

That’s another sort of gray area. You can see why it would be necessary to have some flexibility there, because, by the nature of it, you don’t really know what an emergency could be. 

But there’s also a reason to worry because at what point is there sufficient risk to health and safety that you should be able to give these rather significant powers to the executive?

Which, again, makes it very important to be able to end an emergency because you need to be able to have somebody else, the Legislature, be able to step in and say, “No, this is not an emergency. It does not warrant this use of short-term power. So we’re just going to terminate this emergency.” 

Again, it just keeps coming back to you. You need these powers, but you need to be able to balance them.

Akina: Sandy, you’ve been tracking SB3089, and there’s a likelihood of it passing. There’s a likelihood of changes being made in conference committee. We’ve only got a minute or two left. Any thoughts about this?

Ma: Our organization’s main concern is to ensure that there is some transparency and accountability through sunshine law and public records requests that’s left in the bill. That the public can have sunshine law and public records requests, that that’s not stripped from the oversight of the Legislature.

Akina: Thank you. Malia, what would you like to see changed in SB3089, or added or deleted?

Hill: Well, I have to agree with Sandy. They keep putting in and taking out these protections for open records and sunshine law, and I want those open-records protections back in. I think it just came out in the last one. 

I’d also like to see a mechanism where the governor basically needed approval before extending to the third and fourth and fifth emergency. That’s the other change I’d like to see.

Akina: Well, it looks like the most draconian measures have been lifted. Most things that people dislike about the emergency powers requirements, whether it be masks or vaccine certification and so forth, have been lifted. 

Just a final thought, is this a time to relax? Or are there things about which we need to be vigilant? As a final word from each of you. We’ll start with Malia.

Hill: I know that it may seem like it’s not as pressing, but I will just remind you that the nature of the emergency powers are such that you can be right back in it — like that — just at the say-so of the governor, which means that it’s still an important issue; it still needs to be addressed.

Akina: Sandy?

Ma: We should always be watchful of our government. Always. [laughs]

Akina: Great note to end on. Thank you so much for being with us today, Sandy Ma, executive director of Common Cause, and Malia Blom Hill, policy director for Grassroot Institute of Hawaii. 

Thank you everyone for joining us. I just want to say “mahalo” from all of us at Grassroot Institute for your vigilance in staying alert and aware of what’s going on in public policy in our state. 

Until next time, I’m Keli’i Akina. We are on the ThinkTech Hawaii broadcast network. This is “Hawaii Together.” Aloha.