Here’s the latest in the remaining federal court challenge to Hawaii Governor David Ige’s coronavirus-related series of orders which, among other things, suspended a wide range of statutes, ordered activities deemed “nonessential” to stop or be limited, imposed a two-week self-quarantine on interisland, mainland, and international travelers, effectively shut down one of the main engines of the Hawaii economy—tourism, and compelled most residents to remain at home as much as possible and avoid large indoor gatherings.

The plaintiffs sought a temporary restraining order, and the court scheduled a hearing for Thursday, July 2, 2020. Apparently, the hearing was originally planned to be “virtual,” with the lawyers and parties participating by Zoom, while the public could listen in (audio only) via telephone.

But then yesterday, the Hawaii Attorney General asked the court for “an adjustment to the format” of the hearing, to allow the AG to appear in person. The plaintiffs’ counsel responded responded that if the court granted the AG’s request, that she too would attend in person. Since she is not in Hawaii, this would necessitate a waiver — from the Governor — of the usual 14-day inbound quarantine, one of the very restrictions that the plaintiffs are challenging. 

The court agreed to cancel the virtual hearing and consider arguments in-person:

EO: Based on the Attorney General’s request to convert the 7/2/20 Zoom hearing to an in-person proceeding for Plaintiffs’ Application for Temporary Restraining Order and for Order to Show Cause Why Preliminary Injunction Should Not Issue, and there being no opposition by Plaintiffs, the Court shall conduct an in-person hearing. The parties are notified of the following:

(1) They shall inform the Court, by no later than noon on Monday 6/29/20, of the number of parties and counsel who will attend the hearing, and whether any parties or Mark P. Meuser seek to attend telephonically. Those attending telephonically shall provide the Courtroom Manager with their contact information.

(2) Save for the parties and Mr. Meuser (should they attend telephonically), the hearing will be exclusively in person. That is, it will not be broadcast or accessible to the public by remote means.

(3) Everyone entering the courthouse is subject to the mitigation measures set forth in the June 1, 2020 Temporary General Order Regarding District of Hawaii Response to COVID-19 Emergency, which includes wearing “a face mask covering the nose and mouth while in all public areas of the courthouse.” Counsel may bring face shields if they wish, for the purpose of arguments; otherwise they are expected to wear masks during arguments.

(JUDGE JILL A. OTAKE)(otake1) (Entered: 06/26/2020)

So here’s the bottom lines:

  • The AG, who is arguing in favor of government limits on in-person indoor gatherings, actually asked the court to conduct an in-person indoor gathering. So in a case where the issue is whether public gatherings are a source of disease transmission, the lawyer arguing in favor of the restriction asked the court to shift from a 100% safe means, to a public gathering. Seems that could undercut the argument, no?
  • The attorney arguing the 14-day quarantine is unconstitutional actually must obtain a waiver of the allegedly unconstitutional rule in order to appear and argue that the quarantine rule is unconstitutional.
  • The public and members of the press, who would have been able to at least listen to the arguments next week by phone and remain sheltered-in-place, will now have to put themselves at (supposed) risk by coming down to the courthouse indoor gathering.
  • The arguing advocates either have to mask up while presenting arguments or wear a face shield. Never done that, and we bet it will look and feel odd.

Strange times, indeed.