A federal judge on Friday let stand Gov. David Ige’s authority to impose a 14-day quarantine on passengers arriving in Hawaii in a move that protects his plan to reopen the state’s tourism industry with a number of safeguards designed to protect residents and travelers.
Ruling in the state’s favor, U.S. District Judge Jill Otake said the U.S. Constitution allows Ige to take extraordinary steps to protect public health and safety, even if the actions implicate certain fundamental rights.
“In these unprecedented times, it is not the Court’s role to second-guess the decisions of state officials who have the expertise to assess the COVID-19 pandemic and institute appropriate measures to minimize its impact to this community,” she wrote in her 35-page opinion issued on Friday.
The ruling means the state can move ahead with a plan to open Hawaii to tourism, which Ige announced June 24. That plan, set to go into effect on Aug. 1, calls for maintaining the quarantine but allowing people to sidestep it by showing they tested negative for the virus within three days of traveling to Hawaii.
Many details of the plan still need to be worked out, including the testing program for visitors. Otake said lifting restrictions immediately as the plaintiffs want would undermine these efforts.
“Until Defendant implements the components of Hawaii’s risk mitigation strategy, a sudden, wholesale lifting of all restrictions in the Emergency Proclamations would be highly detrimental and disruptive,” Otake wrote. “Defendant is confronting a dynamic situation fraught with uncertainty.”
The action, which sought a temporary order blocking Hawaii’s quarantine, was brought by four people with connections to the state who said Ige’s orders infringed their fundamental rights.
Holly and Timothy Carmichael are residents of California and trustees of a trust that owns a condo on Maui. Brooke McGowan is an Oahu resident with family on the mainland. Russell Hirsh lives in Nevada and owns a house in Kailua and a farm in Hilo.
The plaintiffs challenged the law under several principles of the U.S. Constitution, chiefly the Fifth Amendment’s due process clause, the Fourteenth Amendment’s equal protection clause and the right to travel, which isn’t explicitly spelled out in the Constitution, but established as a fundamental right in various U.S. Supreme Court cases.
Central to the case was the question of whether the COVID-19 pandemic posed such a threat to public health and safety that Ige could exercise emergency powers recognized by the U.S. Supreme Court. The Supreme Court, Ninth Circuit Court of Appeals and other courts have all applied this standard to uphold the actions of state and local governments during the current crisis.
In May, U.S. Supreme Court Chief Justice John Roberts articulated a position on such powers after a San Diego County church challenged California Gov. Gavin Newsom’s order restricting large gatherings. The court rejected the church’s argument that the order improperly infringed the right to practice religion.
In a concurring opinion, Roberts said state and local officials have that power to impose restrictions to protect public health, even when fundamental rights are implicated.
“Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘un-elected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people,” Roberts wrote.
The plaintiffs tried to undermine this argument, principally by asserting that COVID-19 didn’t create a public health emergency in Hawaii that would trigger Ige’s expanded powers. But Otake rejected the argument by pointing to testimony from state public health officials, including the state epidemiologist, Dr. Sarah Park.
“Plaintiffs’ theory that no emergency exists here or throughout the United States is contradicted by the record and readily available information,” Otake wrote.
“We’re looking at appealing,” said Jim Hochberg, local counsel for the plaintiffs. He noted that the Legislature and the governor have announced changes to the quarantine policy. But he said, “We’re waiting to see what they actually do.”
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