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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
11-SEP-2025
12:34 PM
Dkt. 36 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---LEONARD K. NAKOA III, DANIEL PALAKIKO, TOM COFFMAN, LLEWELYN (BILLY) KAOHELAULIʻI, VAL TURALDE, ELIZABETH OKINAKA, TOM KEALIʻI
KANAHELE, RUPERT ROWE, ELLEN EBATA, and JEFFREY LINDNER,
Plaintiffs-Appellants,
vs.
GOVERNOR OF THE STATE OF HAWAIʻI, HAWAIʻI HOUSING FINANCE AND
DEVELOPMENT CORPORATION, State of Hawaiʻi,
Defendants-Appellees.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CAAP-XX-XXXXXXX; CASE NO. 2CSP-XX-XXXXXXX)
SEPTEMBER 11, 2025
RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.
OPINION OF THE COURT BY EDDINS, J.
This case concerns the scope of a governor’s executive
powers under Hawaiʻi’s emergency management statute, Hawaiʻi
Revised Statutes (HRS) chapter 127A. Plaintiffs challenge a
series of emergency proclamations relating to affordable housing *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
issued by Governor Josh Green suspending various state law
provisions and establishing emergency rules to expedite
affordable housing project approval and construction. Since
issuing the first proclamation in 2023, the governor has renewed
the proclamations every sixty days. The most recent version of
the affordable housing proclamation (the Fifteenth Proclamation)
remains in effect today.
This case’s procedural posture presents several issues. We
hold that the case is justiciable, Plaintiffs have standing, and
Plaintiffs’ failure to strictly follow procedural requirements
does not bar their suit. So we reach the merits.
We hold that a reviewing court will not disturb an
emergency proclamation when (1) the emergency proclamation is
rationally related to the health, safety, and welfare of the
public, and (2) the executive action taken under the
proclamation is reasonably necessary to address the emergency.
Applying this standard, the Sixth through Fifteenth
proclamations are valid. These proclamations are rationally
related to the health, safety, and welfare of the public, and
the executive action taken under the proclamations are
reasonably necessary to address the emergency situation. See
HRS §§ 127A-1 (Supp. 2022); 127A-14(a) (Supp. 2019); Amdor v.
Grisham, No. S-1-SC-40105, 2025 WL 718840, at *15-16 (N.M. Mar.
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6, 2025); Worthington v. Fauver, 440 A.2d 1128, 1135 (N.J.
1982).
In contrast, the first five emergency proclamations’
measures addressing affordable housing exceed the governor’s
emergency powers. Those proclamations were rationally related
to the health, safety, and welfare of the public. But the
executive action taken was not reasonably necessary to address
the declared emergency. The early proclamations opened project
certification to all housing projects, not just affordable
housing. Those actions exceeded the governor’s HRS chapter 127A
emergency powers.
I.
A. The Proclamations
On July 17, 2023, Governor Josh Green issued a Proclamation
Relating to Housing (First Proclamation), the first in a series
of sixty-day emergency proclamations regarding affordable
housing.
The proclamations, issued pursuant to HRS chapter 127A,
declared affordable housing a state emergency, and suspended
various state laws to expedite affordable housing approval and
construction. These sixty-day proclamations were issued
consecutively. This series of proclamations includes the
governor’s July 2023 Proclamation Relating to Housing (First
Proclamation), September 2023 Proclamation Relating to
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Affordable Housing (Second Proclamation), and the Second
Proclamation Relating to Affordable Housing (Third Proclamation)
through the Fourteenth Proclamation Relating to Affordable
Housing (Fifteenth Proclamation). The most recent proclamation,
the Fifteenth Proclamation, expires on September 26, 2025.
The First Proclamation declared that “the severe shortfall
of affordable housing had been recognized as early as 1935, when
the Territory of Hawaiʻi passed Act 190, Session Laws of Hawaiʻi
1935, creating the Hawaiʻi Housing Authority.” This shortfall
“has never been adequately addressed, contributing to a 1,200%
increase in home prices over the last 45 years.” Thus, there is
a “housing crisis” impacting, among other things, health, and
the emigration-related loss of talented or essential workers,
and Native Hawaiian residents. The First Proclamation also
stated that it addressed “the need for an immediate and profound
solution to Hawaiʻi’s housing shortage” and that “urgent action
is needed to combat” decreasing population, and adverse social,
economic, and health outcomes in the state.
The First Proclamation announced, “the current threat to
the health, safety, and welfare of the people of the State of
Hawaiʻi caused by the lack of affordable housing constitutes an
emergency under [HRS § 127A-14], and warrants preemptive and
protective actions.”
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The First Proclamation established a State Lead Housing
Officer (SLHO) position and the Build Beyond Barriers Working
Group (Working Group). The Working Group was tasked with
overseeing a project certification application process.
Certified projects were not subject to state or county laws
suspended under the proclamation.
The proclamation suspended twenty-two HRS chapters and
statutory provisions. Relevant to Plaintiffs’ appeal, it
suspended HRS chapter 6E (historic preservation), HRS chapter
103D (the procurement code, in relation to solicitation), HRS
chapter 46 (general provisions related to county organization,
including zoning), HRS chapter 76 (civil service), HRS chapter
343 (environmental impact statements), HRS § 201H-38 (2017)
(housing exemptions), and HRS § 205-3.1(a) (2017) and § 205-4(a)
(2017 & Supp. 2021) (Land Use Commission district boundary
amendment provisions).
The proclamation issued rules to guide its suspension of
laws. Citing HRS § 127A-25 (Supp. 2014), the proclamation
established “Rules Relating to Project Certification Pursuant to
the Governor’s Emergency Proclamation Relating to Housing”
(Project Certification Rules) that defined terms, and described
the Working Group’s state and non-state entity membership, the
certification application process, project eligibility,
development agreements, and project prioritization. Section 9
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of the rules detailed the “application of suspended laws” for
HRS chapters 6E, 46, 76, 103D, 343, and HRS §§ 205-3.1(a), 205-4, and 201H-38(a).
On September 15, 2023, the governor issued his Proclamation
Relating to Affordable Housing (Second Proclamation). The
proclamation removed the SLHO position and directed the Director
of the Office of Planning and Sustainable Development, Executive
Director of the Hawaiʻi Public Housing Authority (HPHA), and the
Hawaiʻi Housing Finance and Development Corporation (HHFDC)
Executive Director to carry out the proclamation.
The governor later abolished the Build Beyond Barriers
Working Group in his Sixth Proclamation issued in February 2024.
He directed the HHFDC “to take appropriate action to support and
carry out the intent and purposes of this Proclamation.”
The Plaintiffs’ case filings cover the first six
proclamations related to affordable housing. To date, the
governor has issued fifteen emergency proclamations. See Off.
of the Governor, Fourteenth Proclamation Relating to Affordable
Housing, accessible at https://governor.hawaii.gov/wpcontent/uploads/2025/07/2507086-ATG_Fourteenth-ProclamationRelating-to-Affordable-Housing.pdf [https://perma.cc/JT34-N5GS].
Because all emergency proclamations in this series are based on
the same declared emergency, this opinion assesses all
proclamations issued as of the date of this case’s judgment. We
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take judicial notice of all emergency proclamations issued after
this case began.
B. Plaintiffs’ Claims
A month after the First Proclamation issued, in August
2023, Plaintiffs filed a Petition for Writ of Quo Warranto
against the State Lead Housing Officer and the Build Beyond
Barriers Working Group. Later they filed a first amended
petition.
Plaintiffs are from Kauaʻi, Oʻahu, and Maui. Some
plaintiffs are “descendent[s] of the aboriginal people who
inhabited the Hawaiian Islands prior to 1778.” Plaintiffs say
they “want to be able to testify on matters concerning fasttracked affordable housing projects” before their respective
county councils. They are also “concerned about fairness in
government expenditures, including that prospective bidders and
offerors act in good faith in the public procurement process.”
First, Plaintiffs alleged that the First Proclamation
violated HRS chapter 127A. Plaintiffs claimed that “[l]ack of
affordable housing is not an ‘occurrence, or imminent threat
thereof’ and therefore cannot constitute an emergency” under HRS
§ 127A-2. Because the Proclamation “lack[ed] a lawful basis to
declare a state of emergency[] . . . [t]he establishment of the
SLHO and the Working Group” sidestepped the law. Plaintiffs
also believed that the Proclamation violated article I, § 15 of
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the Hawaiʻi Constitution (habeas corpus and suspension of laws).
Second, Plaintiffs alleged that the Proclamation exceeded
the governor’s HRS chapter 127A authority. Because HRS chapter
127A does not authorize amendment or modification of state or
county laws, the Proclamation and Project Certification Rules’
“alternative processes” (allowing the SLHO and the Working Group
to certify projects) “exceed[ed] the emergency management
authority delegated by statute.” Plaintiffs said that the
“alternative processes” are void and unlawful. They also
claimed that the amendments and modifications of state or county
laws violated the separation of powers, and article I, section
15 of the Hawaiʻi Constitution.
C. The State’s Motion to Dismiss
The State moved to dismiss Plaintiffs’ petition.
The State offered several arguments. First, the State
argued that claims against the SLHO and the Working Group lacked
merit because the writ of quo warranto mechanism under HRS
§ 659-1 (2016) cannot be used to challenge the validity of the
SLHO and the Working Group. Second, because the SLHO had
already resigned, the claims against the SLHO were moot and no
mootness exception applied. Third, the State argued that the
governor, as the “sole judge” of the existence of a state of
emergency, lawfully issued an emergency declaration. Last, the
State maintained that the proclamations violated neither the
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separation of powers, nor article I, section 15 of the Hawaiʻi
Constitution.
Circuit Court of the Second Circuit Judge Peter T. Cahill
granted the State’s motion without prejudice. The court ruled
that “the mechanism employed by [Plaintiffs] is inapplicable at
this point in the case. [Plaintiffs’] assertions are moot, that
although they may be repeated, they will not necessarily evade
review and, in fact, they can be reviewed.” The court also
rejected Plaintiffs’ claims that the governor lacked a lawful
basis to issue the emergency proclamations. Relying on the
Intermediate Court of Appeals’ (ICA) decision in For Our Rights
v. Ige, 151 Hawaiʻi 1, 507 P.3d 531 (App. 2022), it reasoned that
“the Governor does have the power to issue any emergency
proclamation that he has been authorized to do so under the
statute for addressing any imminent danger or power.” The
court, though, acknowledged that “[Plaintiffs] are correct in
both questioning the interpretation of ‘imminent danger,’ and
expressing concerns over the opportunity for recurrence.”
In the end, the circuit court determined this was an
emergency powers case. “[T]he focus should be then on the
Governor’s constitutional authority instead of the SHLO and the
Working Group.” The court commented that Plaintiffs, if they so
chose, could amend their petition to direct their constitutional
authority claims towards the governor, not the [SLHO] and
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Working Group. It reasoned that the “mechanism [Plaintiffs]
employ[ed]” – the quo warranto petition – was inapplicable at
this point in the case. Then the court sensibly ruled. To
“eliminate yet another lawsuit being filed, [and] somebody else
having to review all of the same issues,” the court dismissed
the petition without prejudice and gave Plaintiffs until
February 16, 2024 to amend their quo warranto petition.
On March 19, 2024, Plaintiffs filed an amended complaint,
this time against the governor and HHFDC. Plaintiffs’
declaratory relief complaint was nearly identical to their quo
warranto petition. The amended complaint alleged the same
counts, minus reference to the SLHO, Working Group, and former
defendants’ lack of authority to hold office. While the quo
warranto petition sought both ouster from office and declaratory
relief, the amended complaint solely sought declaratory relief.
The State filed a second motion to dismiss. The State
argued that Plaintiffs lacked standing to pursue HRS § 632-1
(2016) relief because they did not allege concrete interests
impacted by a legal right or privilege. The State also argued
that Plaintiffs did not take the proper procedural path for
injunctive relief. Per HRS § 127A-27 (Supp. 2014), a threejudge panel appointed by the Chief Justice of the Hawaiʻi Supreme
Court hears challenges to the executive branch’s use of
emergency powers. Thus, Plaintiffs were barred from seeking HRS
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§ 632-1 declaratory relief before a single circuit court judge,
the State maintained.
Plaintiffs countered that they had standing to challenge
the proclamations. They said that the proclamations infringed
on concrete interests, including their interest in protecting
their constitutional rights. Plaintiffs argued that they have
constitutional rights to a clean and healthful environment “as
defined by laws relating to environmental quality - HRS §§ 46-4,
201H-38, and 205.” Suspension of HRS § 201H-38, Plaintiffs
believed, impacts HRS chapter 205, a law related to
environmental quality. This HRS § 201H-38 suspension,
Plaintiffs argued, also impacts county council zoning powers
under HRS § 46-4 (Supp. 2017), implicating the environment and
Plaintiffs’ constitutional right to a clean and healthful
environment. Plaintiffs further claimed concrete interests in
their First Amendment free speech rights, and their taxpayer
statuses.
On June 3, 2024, the circuit court granted the State’s
motion to dismiss and denied Plaintiffs’ motion for summary
judgment.
D. Appeal and transfer to this court
Plaintiffs appealed. After both parties completed ICA
briefing, Plaintiffs requested transfer to this court per HRS
§ 602-58 (2016).
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Plaintiffs argue that the circuit court erred in dismissing
their constitutional limitation challenges regarding suspension
and “rewriting” of laws, and dismissing their quo warranto
petition and declaratory relief complaint based on mootness.
This court accepted transfer.
We vacate the circuit court’s decision to dismiss
Plaintiffs’ declaratory judgment claims. We decline to address
whether the circuit court erred in denying Plaintiffs’ quo
warranto claims.
First, we tackle the State’s procedural arguments.
Mootness, standing, and HRS § 127A-27 requirements do not bar
Plaintiffs’ action.
The circuit court erred in holding that Plaintiffs’ claims
were moot. Plaintiffs met all factors under the public interest
exception to mootness. See Kahoʻohanohano v. State, 114 Hawaiʻi
302, 333, 162 P.3d 696, 727 (2007). The public has an interest
in judicial clarification of the scope of statewide, serial
emergency proclamations issued to address affordable housing.
See id. The same interest exists for the validity of the
suspension of laws related to public procurement, environmental
and historic properties protection, and county zoning. See id.;
Office of Hawaiian Affairs v. Kondo, 153 Hawaiʻi 170, 177, 528
P.3d 243, 250 (2023). This case “offers a chance to guide
public officers,” and the issues raised in this case are “apt to
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resurface.” See id.
Next, Plaintiffs have standing to bring their claims under
HRS § 632-1. We hold that in this particular case, HRS § 46-4
is a law relating to environmental quality to the extent that
its suspension impacts Plaintiffs’ constitutional right to a
clean and healthful environment under article XI, section 9 of
the Hawaiʻi Constitution. See Tax Foundation of Hawaiʻi v.
State, 144 Hawaiʻi 175, 189, 439 P.3d 127, 141 (2019); County of
Hawaiʻi v. Ala Loop Homeowners, 123 Hawaiʻi 391, 409-10, 235 P.3d
1103, 1121-22 (2010).
As to the State’s position that Plaintiffs’ action started
in the wrong place because they overlooked HRS § 127A-27’s
three-judge panel process, we agree with the State. HRS § 127A27 is the proper path to challenge emergency proclamations.
Bypassing the three-judge panel, though, is not fatal to
Plaintiffs’ case under the circumstances. Plaintiffs’ decision
to file a declaratory judgment action does not foreclose their
claims. They reasonably relied on For Our Rights v. Ige, where
the ICA examined the merits of a COVID-19 proclamations
challenge without dismissing the case for failure to follow HRS
§ 127A-27’s procedure. 151 Hawaiʻi at 4, 11, 507 P.3d at 534,
541 (cert rejected).
Because our opinion guides future suits under HRS chapter
127A, we reach the merits. Judicial review standards are needed
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to aid courts appraising emergency proclamations.
First, we address the parties’ points regarding the
definition of “emergency.” We hold that a narrow reading unduly
constrains the legislature’s intent to centralize executive
powers and promote agility during an emergency. Long-standing
issues that escalate or reach crisis-levels may constitute an
“emergency.” Under these circumstances, the executive branch
has discretion to act in the best interest of public health,
safety, and welfare.
Second, we address judicial review of a governor’s
emergency proclamations under the statute. HRS § 127A-14’s
command that the governor “shall be the sole judge of the
existence of the danger, threat, or circumstances giving rise to
a declaration[] . . . of a state of emergency in the State” does
not, as the State seemingly suggests, abrogate judicial review
of whether the governor complied with the statute in issuing an
emergency proclamation. This court may review whether a
governor acts within their authority to declare an emergency
under HRS chapter 127A.
Third, we articulate a standard for judicial review of
emergency proclamations under HRS chapter 127A. We conclude
that the governor properly exercised his emergency authority in
proclamations Six through Fifteen. These emergency
proclamations were rationally related to the health, safety, and
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welfare of the public, and the executive action taken under the
proclamations were reasonably necessary to address the emergency
situation. See HRS §§ 127A-1; 127A-14(a); Worthington, 440 A.2d
at 1135.
The standard for reviewing emergency declarations applies
prospectively. The certification process has operated thus far
in reliance on its validity. So, while we do not void the First
through Fifth Proclamations, we hold that the first five
proclamations exceeded the scope of the emergency management
statute. The proclamations were all rationally related to the
health, safety, and welfare of the public. But the
proclamations’ Build Beyond Barriers Working Group and overinclusive certification process, absent further limitations
tailored to the development of affordable housing, was not
reasonably necessary to address the declared emergency.
We also stress that the First Proclamation - by suspending
numerous chapters of the Hawaiʻi Revised Statutes and enacting
accompanying rules that consolidated significant decision-making
with SLHO - was not reasonably necessary to address the declared
emergency. Again, because our opinion is prospective, we review
this proclamation to aid the executive branch and litigants, and
to guide courts assessing emergency proclamations in the future.
Last, we hold that the proclamations did not violate the
separation of powers. The governor’s interpretation of the
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statute does not invade the province of the legislature. See
Casey v. Lamont, 258 A.3d 647, 663-66 (Conn. 2021). The
legislature also did not unconstitutionally delegate to the
governor the authority to suspend laws and make rules to carry
out the emergency management statute in HRS § 127A-13(3) (Supp.
2019) and HRS § 127A-25.
We vacate the court’s procedurally-related dismissal of
Plaintiffs’ claims.
We hold that the Sixth through Fifteenth affordable housing
proclamations were rationally related to public health, safety,
and welfare, and the actions taken under the proclamation were
reasonably necessary.
To start, we discuss justiciability.
II.
A. The circuit court erred in holding that Plaintiffs’ claims
were moot
The public interest exception to mootness applies to
Plaintiffs’ claims.
“[W]hen the question involved affects the public interest
and an authoritative determination is desirable for the guidance
of public officials, a case will not be considered moot.”
Kahoʻohanohano, 114 Hawaiʻi at 333, 162 P.3d at 727. The “public
interest” exception to mootness examines the following criteria:
“(1) the public or private nature of the question presented, (2)
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the desirability of an authoritative determination for the
future guidance of public officers, and (3) the likelihood of
future recurrence of the question.” Id. (cleaned up).
Plaintiffs’ claims satisfy these criteria.
First, the public has an interest in resolution of the
issues raised by Plaintiffs. See id.; Kondo, 153 Hawaiʻi at 177,
528 P.3d at 250. Plaintiffs argue that this suit raises
“concern[s] [regarding] the proper procedures, order, and
implementation of governmental authority over a range of
statutory subjects, including transparency in public
procurement, environmental and historic properties protection,
and contributions to public schools.” Plaintiffs’ suit also
raises unique questions regarding the scope of the governor’s
powers to declare emergency proclamations, and what types of
purported “disasters” or “emergencies” warrant executive action.
These statewide issues have public interest. See Carmichael v.
Bd. of Land & Nat. Res., 150 Hawaiʻi 547, 561, 506 P.3d 211, 225
(2022) (issues are “public” if they implicate “political and
legislative issues that affect a significant number of Hawaiʻi
residents”).
Because emergency proclamations terminate automatically
after sixty days, and then must be replaced by a new
proclamation to continue the state of emergency, these
proclamations are difficult to challenge. See HRS § 127A-14(d).
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Given the burden to challenge this type of executive action, we
also consider the adjudication of these issues important to the
broader public.
In recent years, emergency proclamations have increasingly
affected many areas of public policy. During his tenure, the
governor has issued statewide, ongoing, serial emergency
proclamations on issues ranging from axis deer (a holdover from
the prior administration) and dilapidated hotels, to school bus
services. See Office of the Governor David Y. Ige, Governor Ige
Extends Emergency Disaster Relief for Maui Axis Deer Crisis Into
January (Nov. 18, 2022),
https://hdoa.hawaii.gov/blog/main/axisdeer5thproc/
[https://perma.cc/2WG6-VWGY]; Office of the Governor, Nineteenth
Proclamation Relating to Axis Deer, accessible at
https://governor.hawaii.gov/wpcontent/uploads/2025/02/2502091_Nineteenth-ProclamationRelating-to-Axis-Deer.pdf [https://perma.cc/B5GY-DWJU]; Office
of the Governor, Thirteenth Proclamation Relating to Uncle
Billy’s Hilo Bay Hotel, accessible at
https://governor.hawaii.gov/wpcontent/uploads/2025/06/2506001_ATG-Thirteenth-ProclamationRelating-to-Uncle-Billys-Hilo-Bay-Hotel.pdf
[https://perma.cc/FY8W-93RW]; Office of the Governor, Fifth
Proclamation Relating to School Bus Services, accessible at
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https://governor.hawaii.gov/wpcontent/uploads/2025/03/2503083_Fifth-Proclamation-Relating-toSchool-Bus-Services.pdf [https://perma.cc/4JFG-VHVW].
While this case confines our review to the affordable
housing proclamations, governors’ recent reliance on the
emergency proclamation mechanism (and future governors’
potential use of this mechanism) for issues not typically
considered traditional “emergencies” is of a public nature.
Clarifying the application of governance statutes also
serves a public interest. Kondo held that the public had an
interest in resolving the dispute between the Office of the
Auditor and the Office of Hawaiian Affairs – “two
constitutionally created state government agencies.” 153 Hawaiʻi
at 177, 528 P.3d at 250. We also reasoned that “interpretation
of major statutes” holds public importance. Id.
Here, the interpretation of the governor’s powers under HRS
chapter 127A has public importance because it involves the use
of these extraordinary powers. See id. The public has an
interest in the interpretation of this statute because the
governor and county mayors may continue to issue proclamations
on any number of issues. (For purposes of this opinion,
reference to the governor’s powers also refers to county mayors’
equivalent powers.) The public has an interest in a declaratory
judgment as to whether the governor may issue emergency
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proclamations for allegedly non-imminent issues, and engage in
rulemaking related to the suspension of laws based on those
proclamations.
Second, this case “offers a chance to guide public
officers.” See id. Kondo clarified “how the Office of the
Auditor and an auditee tread when disclosure of privileged
communications is at stake.” Id. This case allows us to
establish judicial review standards for emergency proclamations
under the emergency management statute. See id.
Third, the issues raised in this case are “apt to
resurface.” Id. The initial circuit court proceedings only
involved the First and Second Proclamations. By the time the
Plaintiffs filed their amended complaint (after the second
circuit court dismissal), the Governor had issued his Fifth
Proclamation. Since then, the Governor has issued ten more
proclamations. The current proclamation (the Fifteenth) expires
on September 26, 2025. See Off. of the Governor, Fourteenth
Proclamation Relating to Affordable Housing. This issue –
whether affordable housing under these proclamations constitute
an “emergency” or “disaster” - is thus likely to recur in
another sixty-day proclamation.
Because Plaintiffs’ claims fall within the public interest
exception to mootness, they were not moot.
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B. Plaintiffs have standing under HRS § 632-1 because they
have a “concrete interest” in the right to a clean and
healthful environment
Plaintiffs have standing under HRS § 632-1 if they have a
“concrete interest in a legal relation, status, right, or
privilege that is challenged or denied by the other party.” Tax
Foundation, 144 Hawaiʻi at 189, 439 P.3d at 141 (citing HRS
§ 632-1(b)).
The executive’s use of emergency powers is by nature
uncommon and extraordinary. This case’s questions regarding the
bounds of legislatively-conferred emergency powers are of great
public interest and judicial importance. This weighty subject
matter - paired with our case law interpreting the
constitutional right to a clean and healthful environment -grounds Plaintiffs’ HRS § 632-1 concrete interest, and in turn,
standing. See Haw. Const. art. XI, § 9.
The proclamations suspend HRS § 46-4. This consequential
use of executive authority to sideline the law governing the
county zoning framework leads us to hold that HRS § 46-4 is a
law relating to environmental quality that has impacted
Plaintiffs’ right to a clean and healthful environment. Haw.
Const. art. XI, § 9. Plaintiffs have standing under HRS § 632-1. See Tax Foundation, 144 Hawaiʻi at 189, 439 P.3d at 141.
We decline, though, to hold that Plaintiffs have a concrete
interest in their First Amendment rights to testify at county
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council meetings about HRS § 201H-38 affordable housing project
approvals. Plaintiffs seem to conflate the First Amendment
right to free speech with the procedural due process opportunity
to be heard. See Haw. Const. art. I, § 4, § 5. The suspension
of the county approval requirement for HHFDC affordable housing
projects does not violate a putative right to testify before the
county council or the HHFDC. We also hold that there is no
taxpayer standing. See Hawaii’s Thousand Friends v. Anderson,
70 Haw. 276, 282, 768 P.2d 1293, 1298 (1989).
Plaintiffs must have a stake in the controversy. Standing
supports our constitutional structure. Legislative policy and
constitutional purposes inform standing. Here, legislative
policy declarations framing the right to a clean and healthful
environment guide our standing analysis.
This court “believe[s] [the] judicial power to resolve
public disputes in a system of government where there is a
separation of powers should be limited to those questions
capable of judicial resolution and presented in an adversary
context.” Life of the Land v. Land Use Comm’n of State of Haw.,
63 Haw. 166, 171-72, 623 P.2d 431, 438 (1981). But our
prudential rules “may also be tempered, or even prescribed, by
legislative and constitutional declarations of policy.” Id. at
172, 623 P.2d at 438. These policy declarations include HRS
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chapter 632 and article XI, section 9 of the Hawaiʻi
Constitution. Id. at 172 n.5, 623 P.2d at 438 n.5.
Our state constitution confers a right to a clean and
healthful environment. Haw. Const. art. XI, § 9; Matter of Maui
Elec. Co., Ltd., 150 Hawaiʻi 528, 538 n.15, 506 P.3d 192, 202
n.15 (2022). “Though this right is constitutionally vested, its
parameters are defined by ‘laws relating to environmental
quality.’” Id.; Haw. Const. art. XI, § 9.
HRS § 46-4 governs county zoning. It provides that
“[z]oning in all counties shall be accomplished within the
framework of a long-range, comprehensive general plan prepared
or being prepared to guide the overall future development of the
county.” HRS § 46-4(a). Counties may regulate “[t]he areas
bordering natural watercourses, channels, and streams, in which
trades or industries, filling or dumping, erection of
structures, and the location of buildings may be prohibited or
restricted.” HRS § 46-4(a)(3). Counties may also establish
other regulations “to permit and encourage the orderly
development of land resources within their jurisdictions.” HRS
§ 46-4(a)(12).
Because the counties have the option to engage in
conservation efforts via zoning, we hold that the suspension of
HRS § 46-4 in this case is related to the “conservation,
protection and enhancement of natural resources.” See Ala Loop,
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123 Hawaiʻi at 409, 235 P.3d at 1121.
A fee recovery statute related to environmental quality
litigation further supports our conclusion. HRS § 607-25 (2016)
allows a private party to recover attorney fees and costs
against another private party who develops land without
government agencies’ permits or approvals. This law “reflects
the legislature’s determination that [chapter 46] is an
environmental quality law.” See id. at 410, 235 P.3d at 1122
(citing HRS § 607–25(e)).
In Ala Loop, this court held that HRS chapter 205 was an
environmental quality law, in part, because “in enacting HRS
§ 607–25, the legislature recognized that chapter 205 implements
the guarantee of a clean and healthful environment established
by article XI, section 9.” Id. This court observed that “HRS
§ 607–25(c) provides that ‘[f]or purposes of this section, the
permits or approvals required by law shall include compliance
with the requirements for permits or approvals established by
chapter[] . . . 205 . . . and ordinances or rules adopted
pursuant thereto under chapter 91.’ Thus, permits or approvals
required by chapter 205 are expressly covered by the statute.”
Id.
Ala Loop then described why this fee recovery statute
demonstrates the legislative intent to consider chapter 205 a
law relating to environmental quality. See id. It quoted the
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purpose of HRS § 607–25, which in part aimed to “improve the
implementation of laws to protect health, environmental quality,
and natural resources”:
The legislature finds that article XI, section 9, of the
Constitution of the State of Hawaii has given the public
standing to use the courts to enforce laws intended to
protect the environment. However, the legislature finds
that the public has rarely used this right and that there
have been increasing numbers of after-the-fact permits for
illegal private development. Although the legislature
notes that some government agencies are having difficulty
with the full and timely enforcement of permit requirements
against private parties, after-the-fact permits are not a
desirable form of permit streamlining. For these
reasons, the legislature concludes that to improve the
implementation of laws to protect health, environmental
quality, and natural resources, the impediment of high
legal costs must be reduced for public interest groups by
allowing the award of attorneys’ fees, in cases involving
illegal development by private parties.
Id. (citing 1986 Haw. Sess. Laws Act 80, § 1 at 104–105)
(emphases added). Therefore, based on the legislative intent of
HRS § 607–25, this court held that “Chapter 205 is a ‘law[]
relating to environmental quality’ within the meaning of article
XI, section 9.” Id. at 410, 235 P.3d at 1122.
HRS chapter 46 is also listed among the chapters the
legislature considers related to environmental protection.
For purposes of this section, the permits or
approvals required by law shall include compliance with the
requirements for permits or approvals established by
chapters 6E, 46, 54, 171, 174C, 180C, 183, 183C, 184, 195,
195D, 205, 205A, 266, 342B, 342D, 342F, 342H, 342J, 342L,
and 343 and ordinances or rules adopted pursuant thereto
under chapter 91.
HRS § 607–25(c) (emphases added). Thus, based on Ala Loop’s
reasoning, “permits or approvals required by chapter [46] are
expressly covered by the statute.” See Ala Loop, 123 Hawaiʻi at
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410, 235 P.3d at 1122. And because the legislature in enacting
HRS § 607–25 recognized that HRS chapter 46 “implements the
guarantee of a clean and healthful environment established
by article XI, section 9,” we hold that suspension of HRS § 46-4
under the proclamations impacts Plaintiffs’ article XI, section
9 right to a clean and healthful environment. See id.
The affordable housing proclamations initially suspended
HRS chapter 46 in its entirety “to the extent necessary to allow
for the construction, repair, renovation, and occupancy of
housing and infrastructure projects certified under this
Proclamation.” In the Fifth Proclamation, the governor modified
the suspension of laws section to cite specific sections of HRS
chapter 46. Rather than suspending the entire chapter, the
proclamation now only suspended HRS § 46-4 (County Zoning), HRS
§ 46-1.5 (2012 & Supp. 2023) (impact fees); HRS § 46-142.5
(2012) (School Impact Districts; New Building Permit
Requirements), HRS § 46-143 (2012) (Impact Fee Calculation), and
HRS § 46-146 (2012) (Time of Assessment and Collection of Impact
Fees).
We hold that HRS § 46-4 is a law relating to environmental
quality in this case. The proclamations’ suspension of HRS
§ 46-4 impacts Plaintiffs’ constitutional right to a clean and
healthful environment. See Ala Loop, 123 Hawaiʻi at 409-10, 235
P.3d at 1121-22. Plaintiffs thus have a HRS § 632-1 “concrete
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interest” in their right to a clean and healthful environment,
which was impacted by suspension of HRS § 46-4. See Tax
Foundation, 144 Hawaiʻi at 189, 439 P.3d at 141.
Suspension of the environmental quality-related statute is
a sufficient “concrete interest” in this case to grant
Plaintiffs standing to challenge the proclamations’ validity.
See id.
C. HRS § 127A-27 is the proper avenue to challenge emergency
proclamations, but Plaintiffs’ decision not to pursue that
procedure does not bar their suit
HRS § 127A-27 sets forth detailed procedures for parties
challenging proclamations issued under the emergency management
statute. These procedures - requiring a three-judge panel and
expedited hearings - are virtually identical to the processes
from the statute’s initial enactment by the Territorial
Legislature in 1951. See 1951 Haw. Sess. Laws, Act 268,
§ 13192, at 632-34.
We hold that these procedures continue to govern challenges
to gubernatorial or mayoral actions under HRS chapter 127A.
Per HRS § 127A-27, parties challenging proclamations,
orders, or rules made under this chapter must follow specific
procedural requirements. A party must submit an application
seeking suspension of the proclamation to the circuit court, who
must notify the Chief Justice of the Hawaiʻi Supreme Court. HRS
§ 127A-27. The Chief Justice then assigns two other circuit
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court judges to sit with the circuit court judge to determine
the application. Id.
The application may not be heard or determined until five
days after the governor and attorney general receive notice.
Id. The court may issue a temporary stay or suspension of the
challenged proclamation for up to ten days, until the
application is decided. Id. Courts must expedite and give the
injunction application precedence, and set a hearing on the
application for “the earliest practicable day.” Id. And if the
court grants a stay or suspension, the application must be set
for a hearing within five days of the order granting stay or
suspension. Id.
Last, the party who obtained the temporary stay or
suspension must proceed with their application for a preliminary
or interlocutory injunction. Id. For the final hearing of such
a suit, the same three-panel judge and expediency requirements
apply. Id.
We hold that this procedure governs suits filed for
preliminary and interlocutory injunctions, and for declaratory
actions. See id. A declaratory action in this context
essentially asks for injunctive relief. It seeks a declaration
that the proclamation is void, which would invalidate and
therefore suspend the emergency proclamation. See 22A Am. Jur.
2d Declaratory Judgments § 197 (2025) (“Injunctive relief often
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flows from a declaratory judgment that a particular law is
unconstitutional or otherwise void.”). Plaintiffs also
frequently seek declaratory judgments and injunctive relief
simultaneously when seeking to invalidate government actions.
See, e.g., Flores v. Logan, 151 Hawaiʻi 357, 426, 513 P.3d 423,
360 (2022); Ching v. Case, 145 Hawaiʻi 148, 155, 449 P.3d 1146,
1153 (2019). The end goal of a preliminary or interlocutory
injunction or temporary restraining order related to emergency
proclamations is “[an] order[] suspending, enjoining, or
restraining the enforcement, operation[] . . . of [the emergency
proclamation].” HRS § 127A-27. Thus, declaratory judgments -intended to “afford relief from the uncertainty and insecurity
attendant upon controversies over legal rights” – clearly fit
within HRS § 127A-27’s distinct avenue for relief. See HRS
§ 632-6 (2016).
We hold that declaratory actions must follow the procedural
requirements of HRS § 127A-27.
Plaintiffs, as the State points out, did not follow HRS
§ 127A-27’s procedures. We believe, though, that under the
circumstances and the unclear application of HRS § 127A-27
procedures before now, this procedural lapse is understandable.
We rule on the merits.
First, as discussed, this case raises significant public
interest and access to justice considerations.
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Second, Plaintiffs understandably relied on the procedure
followed in For Our Rights, where the ICA reached the merits of
a challenge to the constitutionality of Governor David Ige’s
COVID-19 proclamations’ extension beyond the initial sixty-day
proclamation. For Our Rights, 151 Hawaiʻi at 4, 11, 507 P.3d at
534, 541. In allowing Plaintiffs to amend their quo warranto
petition, the circuit court did not mention that claims must
follow the HRS chapter 127A framework. We conclude that
Plaintiffs reasonably relied on For Our Rights and the circuit
court’s indications to stray from the HRS § 127A-27 procedural
requirements.
By seeking a declaratory judgment, Plaintiffs also
understandably looked to our liberal declaratory action laws.
HRS chapter 632’s purpose is to “afford relief from the
uncertainty and insecurity attendant upon controversies over
legal rights[] . . . with a view to making the courts more
serviceable to the people.” HRS § 632-6. Thus, “[o]ur
declaratory action laws are ‘liberally interpreted and
administered.’” Kondo, 153 Hawaiʻi at 175, 528 P.3d at 248. In
our view, Plaintiffs reasonably relied on this broad access to
justice purpose in solely seeking declaratory judgment.
Last, this court has an obligation to resolve matters of
law. See HRS § 602-5(a) (2016) (“[T]he supreme court shall have
jurisdiction and powers . . . [t]o hear and determine all
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questions of law, or of mixed law and fact, which are properly
brought before it by application for a writ of certiorari to the
intermediate appellate court or by transfer as provided in this
chapter.”). Hawaiʻi law “prefers adjudication on the merits.”
Dean v. Dep’t of Educ., 154 Hawaiʻi 298, 302, 550 P.3d 1156, 1160
(2024).
Given the public and legal import of Plaintiffs’ claims,
and the need to provide judicial standards for reviewing
emergency proclamations, we address the merits. See id.
D. The governor’s emergency powers
Only the governor and county mayors have the power to
declare a state of emergency. Emergencies may include natural
disasters like a tsunami or hurricane. Worldwide crises
affecting Hawaiʻi (like the global pandemic) also qualify. Some
emergencies may involve the executive’s decisions on distinct
issues impacting public health, safety, and welfare. Like this
case.
Hawaiʻi’s emergency management statute grants the executive
branch wide-ranging powers during emergencies. In addition to
the power to suspend laws, the governor may also direct
evacuations, enter into mutual aid agreements, restrict
congregation in dangerous areas, take possession of and use
state property (including airports and schools), and more. HRS
§ 127A-12 (Supp. 2022).
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The judiciary’s role is not to second-guess the wisdom of
executive decision-making under the emergency management
statute. Declaring and confronting an emergency is left to the
governor. Emergencies call for swift and centralized decisionmaking. They require efficient government preparation and
response. See HRS § 127A-1.
Given the extent of these emergency powers, checks are
essential to constrain misuse. Judicial review ensures that an
executive’s use of emergency power is tailored to the crisis,
grounded in fact, and does not become arbitrary, excessive, or
indefinite.
The executive branch’s discretion to address emergencies
impacting health, safety, and welfare is well-established. See,
e.g., Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 29
(1905); Grisham v. Romero, 483 P.3d 545, 557 (N.M. 2021).
We hold that a reviewing court will not disturb a governor
or mayor’s use of emergency powers when (1) the emergency
proclamation is rationally related to the health, safety, and
welfare of the public, and (2) the executive action taken under
the proclamation is reasonably necessary to address the
emergency.
First, the declared emergency must have a rational
relationship to the public’s health, safety and welfare. A
plausible factual basis must support the emergency declaration
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and emergency measures taken. Courts may not accept mere
assertions of necessity. Rather, the executive must establish a
rational connection between the facts, the actions taken, and
the restrictions imposed. Worthington, 440 A.2d at 1137; Amdor,
2025 WL 718840, at *16.
Second, proportionality is key to an executive’s exercise
of HRS chapter 127A powers. Emergency actions must be
reasonably necessary to address the targeted emergency. The
emergency measures must also be tailored to the specific crisis.
Worthington, 440 A.2d at 1137. They must be limited in time and
scope, and subject to ongoing review or modification as
conditions evolve. If the factual basis for the emergency
dwindles or dissolves, continued reliance on emergency authority
may be unjustified. Judicial intervention is then available to
protect the public’s interest. Our constitutional structure
demands that an executive’s use of emergency powers is not
arbitrary, excessive, or indefinite.
We conclude that the First Proclamation through the Fifth
Proclamation exceeded the scope of the emergency management
statute.
These proclamations were rationally related to the health,
safety, and welfare of the public. But the Build Beyond
Barriers Working Group and its overly-inclusive certification
process, with no specific limitations to affordable housing, was
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not reasonably necessary to address the declared emergency. The
First Proclamation, in particular, swept too broadly. It
suspended twenty-two chapters and statutory provisions of the
Hawaiʻi Revised Statutes. See HRS § 127A-13(a) (the governor may
“[s]uspend any law that impedes or tends to impede or be
detrimental to the expeditious and efficient execution of, or to
conflict with, emergency functions”). And it appended rules
that consolidated significant decision-making power with the
SLHO – outside the structure of legislatively authorized state
agencies.
Because affordable housing projects have already been
approved through the expedited certification process, this
holding applies prospectively. We do not invalidate the first
five emergency proclamations.
The Sixth Proclamation through the Fifteenth Proclamation,
in contrast to the earlier proclamations, did not exceed the
governor’s authority. Those emergency proclamations satisfied
HRS chapter 127A. They were (1) rationally related to the
health, safety, and welfare of the public, and (2) reasonably
necessary to address the emergency.
We begin by detailing the powers granted under Hawaiʻi’s
emergency management statute.
1. The emergency management statute
Like most states, Hawaiʻi’s emergency management statute
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grants the governor and county mayors vast powers to prepare for
and address emergencies. HRS §§ 127A-1, 127A-12, 127A-13; see
For Our Rights, 151 Hawaiʻi at 7, 507 P.3d at 537.
In 2014, the legislature recognized the “increasing
possibility of the occurrence of disasters or emergencies of
unprecedented size and destructiveness resulting from natural or
human-caused hazards.” HRS § 127A-1. HRS chapter 127A confers
powers to the governor and county mayors “necessary to prepare
for and respond to emergencies and disasters.” Id. These
powers, the legislature reasoned, are necessary “generally to
protect the public health, safety, and welfare and to preserve
the lives, property, and environment of the State.” Id.
The legislature was clear that these emergency powers are
intentionally broad. “It is the intent of the legislature to
provide for and confer comprehensive powers for the purposes
stated herein. This chapter shall be liberally construed to
effectuate its purposes.” HRS § 127A-1(c) (emphases added).
HRS chapter 127A defines “emergency” expansively,
encompassing both sudden events and ongoing conditions that
threaten substantial harm to Hawaiʻi’s people, property, or
environment. The legislature designated the governor as the
“sole judge” of whether such circumstances exist. HRS § 127A14(c). This reflects legislative intent to enable fast and
flexible executive response in times of crisis. The executive
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branch must have the authority to respond to emergencies with
agility and resolve.
We believe that not only discrete events, but also ongoing
or evolving conditions that result in significant public harm,
are covered by HRS chapter 127A. See Worthington, 440 A.2d at
1134-35; Amdor, 2025 WL 718840, at *9, *13. There is no
statutory requirement that emergencies be unexpected or
previously non-existent. See HRS § 127A-13; Amdor, 2025 WL
718840, at *9, *13. Rather, long-term issues may reach a level
of severity that requires government intervention. See Amdor,
2025 WL 718840, at *9, *13.
HRS § 127A-14 covers the governor’s emergency powers. To
issue an emergency proclamation, the governor must find that an
“emergency” or “disaster” has occurred or is imminent:
(a) The governor may declare the existence of a state
of emergency in the State by proclamation if the governor
finds that an emergency or a disaster has occurred or that
there is imminent danger or threat of an emergency or a
disaster in any portion of the State.
HRS § 127A-14(a).
“Disaster” is defined by this chapter as “any emergency, or
imminent threat thereof, which results or may likely result in
loss of life, property, or environment and requires, or may
require, assistance from other counties, states, the federal
government, or from private agencies.” HRS § 127A-2 (Supp.
2022). “Emergency” is defined as “any occurrence, or imminent
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threat thereof, which results or may likely result in
substantial injury or harm to the population or substantial
damage to or loss of property or substantial damage to or loss
of the environment.” Id.
“Occurrence” is undefined by HRS § 127A-2. See id. Both
sides concentrated on this word. Is the affordable housing
crisis an “occurrence” such that it is a valid “emergency”?
First, we discuss the parties’ positions regarding the
definition of a “disaster” or “emergency” under HRS chapter
127A. Plaintiffs and the State spar over how sudden or
unexpected an emergency must be. “Occurrence,” Plaintiffs
contend, “is defined as a ‘thing that occurs, happens, or takes
place; an incident or event’ . . . or ‘esp[ecially] something
that happens unexpectedly and without design: HAPPENING.’” The
State counters that “occurrence” may include “continuing
condition[s].” As shown by the global pandemic, the State
explains, where emergency situations develop over time “and are
the result of myriad factors,” limiting an “emergency to
situations where there is a single, identifiable causal ‘event’
would be unworkable.”
We side with the State. A narrow reading of “occurrence”
(and hence, “emergency”) unduly constrains the legislature’s
intent to centralize executive powers and promote agile,
adaptable responses to an emergency. Thus, a long-standing
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issue that has escalated such that a swift, centralized response
is needed, may constitute an emergency. There is no need for
the issue to have “sudden” or “unexpected” qualities. See
Amdor, 2025 WL 718840, at *13.
Worthington articulated how prison overcrowding escalated
from a long-term concern to an “emergency.” Under New Jersey
law, a “disaster” is any “unusual incident” that “endangers the
health, safety or resources of the residents” and is “too large
in scope or unusual in type to be handled in its entirety by
regular municipal operating services.” 440 A.2d at 1133. (Per
that state’s statute, an “emergency” is a “disaster.”) Id.
Plaintiffs argued that there was no “emergency.” Id. Because
prison overcrowding had been recognized as a major problem as
early as 1977, it was not “unusual.” Id. Overcrowding was also
not an “incident,” Plaintiffs said, because there was no “sudden
or unforeseen event.” Id.
The court disagreed. It rejected “this overly narrow
interpretation of the scope of the act.” Id. at 1134. “It is
not a necessary component of an ‘emergency’ that it be sudden or
unforeseen.” Id. at 1135. The court centered the inquiry:
“[t]he question is not whether the incident emerged suddenly,
but whether the scope of the present crisis prevents local
governments from safeguarding the people, property and resources
of the State.” Id. at 1134.
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Long-term issues may reach a breaking point. The record
supported that “the problem of prison overcrowding in New Jersey
ha[d] reached dangerous proportions,” the court observed in
Worthington. Id. at 1131, 1135. Thus, the years-long prison
overcrowding issue grew to an emergency. Id. Foreseeability or
prior government inaction is beside the point. Id. at 1135.
“Even if the current crisis were due in part to legislative and
executive failure to remedy a foreseeable, growing problem, this
would in no way deprive the Governor of the power under the
statute to protect the public against the disaster it now
faces.” Id.
Amdor expressed similar principles. It held that
petitioners challenging emergency orders that “address[ed] gun
violence and drug abuse as public health emergencies pursuant to
the [New Mexico] Public Health Emergency Response Act” failed to
“show that requiring a public health emergency to be sudden or
unforeseen is necessary to abide with legislative intent.”
Amdor, 2025 WL 718840, at *1, *13. There was no evidence that
the New Mexico Legislature did not intend the statute to apply
to “a preexisting condition or agent that rises to an extremely
dangerous or highly infectious level” or “a serious threat to
the public health requiring immediate response but not
necessarily sudden or unforeseen in nature.” Id. at *13. And
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there was no legislative signal that the emergency must be
“novel or unexpected.” Id.
We follow a similar approach. We reject an overly narrow
definition of “emergency” or “disaster” under HRS chapter 127A.
See HRS §§ 127A-2, 127A-14. When a crisis or issue plaguing the
state or a county amplifies to endanger public health, safety,
and welfare, the executive branch has discretion to act.
The executive’s discretion, though, is not absolute.
Emergency powers must be exercised within constitutional bounds
and subject to judicial review. See Jacobson, 197 U.S. at 29;
Amdor, 2025 WL 718840, at *15 (“[A]s Jacobson and other cases
make clear, an exercise of the police power is subject to
judicial review regardless of whether the wielder of the power
is the legislative or executive branch.”).
The State suggests that because a governor may declare an
emergency in their “sole” judgment, the validity of the
proclamation may not be challenged. Plaintiffs are out of luck,
the State’s point goes, because the governor “shall be the sole
judge of the existence of the danger, threat, or circumstances
giving rise to a declaration[] . . . of a state of emergency in
the State[.]” See HRS § 127A-14(c).
The State’s stance eliminates any look at the validity of
an executive’s declaration of an emergency. A circumstance is
an emergency so long as the governor says so. No questions
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asked. We decline to abdicate our judicial role and give the
executive branch absolute, unchecked power to declare an
emergency.
Judicial review is fundamental to ensuring balance within
our government’s co-equal structure. The executive’s use of
emergency powers, therefore, is always subject to judicial
review. See Alakaʻi Na Keiki, Inc. v. Matayoshi, 127 Hawaiʻi
263, 279-82, 277 P.3d 988, 1004-07 (2012) (judicial review is
available “even in the face of language that unambiguously
precludes judicial review” when constitutional rights are
impacted, and where “the agency has acted illegally,
unconstitutionally, or in excess of its jurisdiction”). Also,
we note that the emergency management statute expressly
contemplates judicial review. See HRS § 127A-27.
Plaintiffs claim that the governor exceeded his authority.
Because there is judicial review of the governor’s use of
emergency powers, Plaintiffs have access to justice to challenge
the governor’s emergency proclamations.
Next, we prescribe the standard for judicial review of
executive actions.
2. A standard for judicial review of executive actions
under HRS chapter 127A
The governor and county mayors have broad discretion to
declare and address emergencies. As mentioned, these powers
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have limits. Our standard provides a framework for evaluating
executive actions under HRS chapter 127A. The use of these
powers must be both rationally related to public health, safety,
and welfare, and reasonably necessary to address the emergency.
This approach ensures that extraordinary powers are exercised
only to the extent necessary, are grounded in fact, and remain
subject to meaningful judicial review.
The dual test we adopt operates as a substantive check on
executive authority. It promotes evidence-based, proportionate
responses to emergencies, preserves the constitutional structure
of government, and protects the rights of the people of Hawaiʻi
against government overreach.
Jacobson’s “real or substantial relation” framework informs
our thinking. See 197 U.S. at 31. The Supreme Court reviewed
Massachusetts’ mandatory vaccination law during that state’s
early 20th century smallpox epidemic. Id. at 30-31. The
government may limit individual rights to address public health
and safety, the Court held. Id. at 29-31. But that power is
not absolute or unchecked. State action during a public health
crisis must genuinely connect to the public health objective and
not constitute a “plain, palpable invasion of rights secured by
the fundamental law.” Id. at 31.
Courts have widely adopted Jacobson’s deference to state
and local officials during public health emergencies. See,
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e.g., Desrosiers v. Governor, 158 N.E.3d 827, 842 (Mass. 2020)
(“[W]e will look to see whether the emergency orders bear a
‘real or substantial relation to the protection of the public
health,’ . . . and will not second guess the emergency
orders.”). The global pandemic heightened understandings about
the use of executive police powers and reacquainted courts with
Jacobson’s lessons. See, e.g., Health Freedom Def. Fund, Inc.
v. Carvalho, No. 22-55908, 2025 WL 2167401, at *8 (9th Cir. July
31, 2025) (upholding a Los Angeles school district’s pandemic
vaccination policy and concluding that Jacobson was binding).
Recent cases refine Jacobson’s deferential view, articulate
sensible standards, and guide our approach to emergencies. See
generally Worthington, 440 A.2d 1128; Amdor, 2025 WL 718840;
Beshear v. Acree, 615 S.W.3d 780 (Ky. 2020). These cases reason
that emergency measures must be supported by credible evidence
and tailored to the specific emergency, with ongoing judicial
review to validate the necessity and proportionality of the
executive actions as conditions evolve. They reinforce the
principle that initial deference to executive action is
appropriate. But that deference to the executive’s rationale
may wane as the emergency goes on, and therefore, courts must
assess whether continued measures remain justified and
appropriately limited.
We adopt a standard that executive actions during
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emergencies must be rationally related to public health, safety,
and welfare, and reasonably necessary to address the declared
emergency.
a. Rational Relationship
HRS chapter 127A grants the governor and county mayors
broad discretion to declare an emergency. HRS chapter 127A
delegates police power during (or “to prepare for”) disasters
and emergencies. See HRS § 127A-1. These powers have limits.
See HRS § 127A-14(a).
So what constrains a governor or mayor from unlocking vast
powers by declaring an emergency? We hold that a declaration of
emergency must be rationally related to the public’s health,
safety, and welfare. See, e.g., Amdor, 2025 WL 718840, at *15
(“[W]e must assess ‘whether the crisis or emergency upon which
the executive bases its exercise of police power is legitimate
and whether the executive action is reasonably related to the
response to the asserted crisis or emergency.’”); Acree, 615
S.W.3d at 819 (“[T]he individual orders and regulations at issue
in this case are only deficient under [the Kentucky
constitution] if they are unreasonable – that is lack a rational
basis.”) (emphasis added); Worthington, 440 A.2d at 1138 (the
exercise of the governor’s emergency powers is proper “when
[their] actions are authorized by the Disaster Control Act, are
rationally related to the goal of protecting the public, and are
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tailored to the gravity of the emergency”).
We note that the phrase “rationally related,” at first
glance, resembles the “rational basis” standard that courts use
to appraise constitutional challenges to statutes or county
ordinances involving non-fundamental rights. See Daoang v.
Dep’t of Educ., 63 Haw. 501, 504–05, 630 P.2d 629, 631 (1981)
(judicial review of statutes under the “rational basis test” is
limited). Review of executive action – especially when it comes
to emergency powers - is different. See Worthington, 440 A.2d
1135 (“In reviewing executive actions undertaken pursuant to
delegated emergency powers, we must determine whether the
actions are authorized by the statute. This involves, first, a
determination of whether the Executive Order bears a
rational relationship to the legislative goal of protecting the
public.”).
“Rational basis review” is the hands-off, highly
deferential test used to evaluate statutes challenged under the
equal protection and due process clauses. The standard offers
generous latitude to legislative judgment. KNG Corp. v. Kim,
107 Hawaiʻi 73, 83, 110 P.3d 397, 407 (2005) (rational basis
review examines whether a statute “rationally furthers a
legitimate state interest”). As State v. Mallan stressed,
because “it is not within our role to usurp the responsibilities
of the legislature[] . . . [u]nless fundamental rights are
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infringed, due process requires only that legislation survive
rational basis review.” State v. Mallan, 86 Hawaiʻi 440, 454,
950 P.2d 178, 192 (1998). For equal protection claims, a
statute meets rational basis review if the challenged suspect
classification rests on “some ground of difference having a fair
and substantial relation to the object of the legislation, and
is therefore not arbitrary and capricious.” AlohaCare v. Dep’t
of Hum. Servs., 127 Hawaiʻi 76, 89, 276 P.3d 645, 658 (2012);
Hawaii Insurers Council v. Lingle, 120 Hawaiʻi 51, 71, 201 P.3d
564, 584 (2008). For those claims, the burden rests with the
petitioner, who must show “with convincing clarity” that “the
legislature’s classification is not rationally related to the
purpose of the challenged statute.” AlohaCare, 127 Hawaiʻi at
89, 276 P.3d at 658.
Whether an executive’s declared emergency is rationally
related to public health, safety, and welfare is still a
respectful and deferential standard. Judicial review of the
governor’s use of emergency powers under HRS chapter 127A,
however, requires a more exacting assessment than when this
court examines the constitutionality of a law passed by the
legislature. Executive emergency proclamations must address
more than a “legitimate government interest.” Under HRS chapter
127A, they must aim to address public health, safety, and
welfare based on a clear, factually-supported crisis.
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We believe that a “rational relationship” assessment
requiring factual support, as detailed in Amdor, aptly evaluates
the executive branch’s exercise of police power under HRS
chapter 127A when compared to the low bar for assessing
legislative action. See AlohaCare, 127 Hawaiʻi at 89, 276 P.3d
at 658. While a reviewing court does not conduct fact-finding
to substantiate the executive’s emergency proclamation, we hold
that there must be an articulated factual basis to support an
emergency declaration.
Amdor describes a clear factual basis for an emergency. In
Amdor, the New Mexico governor declared a public health
emergency due to gun violence. 2025 WL 718840, at *1. The
court held that the “emergency measure ‘must have some fair
tendency to accomplish, or aid in the accomplishment of,’ that
legitimate police power purpose.” Id. at *16. The executive
order related that “‘guns are the leading cause of death among
children and teens in New Mexico’ and cite[d] relevant deaths of
thirteen-, five-, and eleven-year-old victims.” Id. “Against
this factual backdrop,” the court concluded, “prohibiting
firearm possession from areas frequented by children has some
fair tendency to aid in the accomplishment of fewer gunshotrelated deaths among children.” Id. The emergency orders
prohibiting firearm possession were rationally related to
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addressing documented gun violence impacting child victims. See
id.
We believe this sensible approach to judicial review aligns
with HRS chapter 127A’s legislative intent to grant executive
powers to prepare for and respond to specific emergencies.
Requiring a governor’s emergency proclamation to be rationally
related to public health, safety, and welfare forestalls
executive overreach, while allowing the government to nimbly
address an emergency. But this level of review still requires
something more than the lesser burden of statutory “rational
basis” review. See AlohaCare, 127 Hawaiʻi at 89, 276 P.3d at
658. The executive must specifically demonstrate how the
emergency impacts public health, safety, and welfare, and
factually justify extraordinary government intervention. See
Amdor, 2025 WL 718840, at *16.
Here, the affordable housing proclamations are rationally
related to public health, safety, and welfare. And they
articulate a factual basis for the emergency declaration.
The governor’s proclamations establish a sufficient factual
basis for the affordable housing emergency. The First
Proclamation articulated the emergency for subsequent
proclamations. The lack of affordable housing, it declared,
leads to (1) essential worker and Native Hawaiian migration from
the state, (2) mental health challenges like chronic stress,
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anxiety, and depression, (3) physical health conditions like
health disease, stroke, and cancer, (4) kūpuna poverty, and (5)
reduced quality of life for families, such as barriers to
educational achievements, nutritious food, medical care, and
stability.
We briefly outline the proclamations’ preamble describing
the affordable housing emergency.
First, the proclamation detailed the impact of the “housing
crisis” on residents’ physical and mental health and the
emigration of talented or essential workers and Native Hawaiian
residents. It described the increase in housing costs, Hawaiʻi’s
high cost of living, and how a “large segment of the population
that earns too much to qualify for traditional affordable
housing programs, yet too little to afford to buy or rent market
rate housing.” The proclamation also highlighted, generally,
emigration from the state. It cited the loss of essential
workers such as “healthcare, construction, and educational
professionals” and “talented local people,” and a “decrease in
our Native Hawaiian population.”
Then the proclamation announced that “living in
unaffordable housing is associated with a higher risk of chronic
health conditions such as elevated levels of cholesterol,
respiratory infections, coronary heart disease, cardiovascular
disease, arthritis, stroke and cancer.” Unaffordable housing,
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the proclamation continued, is “also associated with mental
health challenges, including chronic stress, anxiety and
depression.”
Last, the First Proclamation remarked that the high cost of
housing impacts families and elderly residents. Unaffordable
housing requires elderly residents to pay for increased housing
costs out of fixed incomes, “contributing to approximately
22,000 [kūpuna] living in poverty[.]” The proclamation also
commented that “affordable housing is associated with better
health, childhood development, and educational achievement by
freeing up more of a family’s budget for more nutritious food,
access to medical care, and stability where family members can
thrive.”
A reviewing court need not conduct fact-finding to justify
the emergency declaration. A rational relationship only
requires some factual basis. See Amdor, 2025 WL 718840, at *16.
To find a factual basis, courts do not probe and parse
statistics, such as the degree to which chronic health
conditions are substantially linked to a lack of affordable
housing (as opposed to other factors). Thus, plausible, good
faith factual assertions and theories may bridge the
relationship between an emergency and the harm to health,
safety, and welfare.
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We conclude that the First Proclamation sets forth a
rational relationship between affordable housing and the health,
safety, and welfare of Hawaiʻi residents.
Here, the First Proclamation identified public health,
safety, and welfare harms grounded in plausible facts. The high
cost of living in Hawaiʻi, the Native Hawaiian diaspora, metrics
exploring Hawaiʻi’s houseless populations, the common sense link
between unaffordable housing and elevated stress, physical and
mental health conditions, and impacts on kūpuna, are all
rationally related to the public’s health, safety, and welfare.
Thus, addressing affordable housing is rationally related to
protecting public health, safety, and welfare.
This rational relationship holding applies to each
proclamation in the series. Because later proclamations based
on the same “emergency” declared in the First Proclamation
incorporate this rationale, we conclude that all proclamations
(through the Fifteenth Proclamation) recite a rational
relationship between affordable housing and public health,
safety, and welfare.
We also recognize that in some cases, an emergency
proclamation may directly impact a person’s fundamental
constitutional rights. Liberty interests and property takings
come to mind. A heightened standard of review may then apply.
See Gonzales v. Inslee, 535 P.3d 864, 874 (Wash. 2023).
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The legislature has granted the governor and mayors
discretion to respond quickly to emergencies. Our standard
demands that the executive’s declarations are rooted in fact,
and related to public health, safety, and welfare. Here, the
proclamations pass the test.
b. Reasonably necessary
Next, we examine whether the proclamations’ measures are
reasonably necessary to address the declared affordable housing
emergency. Proportionality controls the executive’s response to
the emergency. The actions taken must be sufficiently limited
in time and scope to resolving the issue. And they must be
commensurate to addressing the emergency.
Whether the executive action taken under the proclamation
is “reasonably necessary” depends on whether the action is
reasonably related to mitigating the declared emergency. Amdor,
2025 WL 718840, at *16 (“prohibiting firearm possession from
areas frequented by children has some fair tendency to aid in
the accomplishment of fewer gunshot-related deaths among
children and thus is reasonably related to addressing gun
violence as declared and explained in the emergency orders”);
State v. Lee, 51 Haw. 516, 517, 465 P.2d 573, 575 (1970) (“To
justify the state in . . . interposing its authority [o]n behalf
of the public, it must appear - [f]irst, that the interests of
the public (generally, as distinguished from those of a
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particular class) . . . require such interference; and, second,
that the means are reasonably necessary for the accomplishment
of the purpose, and not unduly oppressive upon individuals.”).
The “reasonably necessary” analysis turns on
proportionality. The extent, scope, or scale of the emergency
determines the measures reasonably necessary to address the
emergency. As the emergency intensifies or wanes, the
governor’s responsive measures must accelerate or wind down
proportionately.
If an emergency is more acute and life threatening, and
affects a large swath of the population, then a substantial
response may be warranted. Worthington, 440 A.2d at 1137 (“The
statutory validity of executive actions pursuant to emergency
power will depend on the nature of the emergency and the gravity
of the threat to the public. Thus, a more serious emergency may
justify greater responsive measures.”). In contrast, where the
emergency impacts fewer people and involves comparatively lesser
impacts, the response must be tailored. A governor must limit
an emergency response under HRS chapter 127A to the magnitude
and scope of the potential harm. See id.
Here, the governor’s response involved the suspension of
laws and the issuance of rules for certification of affordable
housing projects. The rules clarifying the application of the
suspension of laws were “intended to expedite the construction,
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development, and redevelopment of housing under the
[proclamations].”
We conclude that the governor’s directives establishing the
Build Beyond Barriers Working Group and the project
certification process in the First Proclamation through the
Fifth Proclamation are not reasonably necessary to address the
declared affordable housing emergency.
To repeat, this ruling is prospective, so we do not
invalidate those emergency proclamations. To clarify our
judicial review standard though, we go on.
Because the first five proclamations’ certification process
expedited all housing development – not just affordable housing
projects – the measures were not reasonably necessary to address
the affordable housing emergency. The first five proclamations
did not limit the proclamations’ rules to affordable housing
projects. They gave priority to affordable housing, but all
developments could be fast-tracked.
More housing alone does not correlate to more affordable
housing in the short term. Expediting development generally is
not a targeted, urgent solution to the lack of affordable
housing. The certification process opened the suspension of
laws and rules to all housing projects. Thus, it was not
reasonably necessary to address the declared affordable housing
emergency.
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Though the Working Group was told to prioritize affordable
housing, the certification process was open to any residential
development. Per the First through Fifth Proclamations’ rules,
project proponents could submit applications to the Working
Group for certification. Projects under the first five
proclamations were eligible for certification if the proponent
had the “skill and experience to develop and manage a project of
the intended size and scope,” had successfully completed and
managed a housing development, and the project was likely to
commence within 36 months from certification. The Working Group
was instructed to prioritize project processing “based on, but
not limited to” (1) the number of proposed affordable housing
units, (2) project financing status, and (3) the proposed
commencement and completion dates.
The First Proclamation opened the certification process to
“multi-unit development or redevelopment projects that replace
existing residential units or creates additional residential
units” and “infrastructure that will primarily provide services
to housing.” The proclamation’s rules only asked the Working
Group to prioritize projects that “inclu[de] . . . affordable
housing as a component of the certified project” and added that
“[t]he amount of affordable housing included in the project may
affect the priority given the project.”
The first five proclamations and their rules did not detail
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a minimum percentage of affordable housing units required for
proposed projects to receive certification. The purpose of the
emergency proclamation is the creation of affordable housing.
We conclude that such an expansive certification process
outlined in the first five proclamations, absent further
limitations, was not reasonably necessary to address the
declared affordable housing emergency.
The Sixth Proclamation applied to (1) state or county
affordable housing projects (projects built on state or county
land and owned by Hawaiʻi Public Housing Authority or HHFDC), (2)
“affordable housing projects” (projects that have existing
agreements with HHFDC under HRS chapter 201H or have an
agreement with a county under an income restriction ordinance),
and (3) HHFDC “certified affordable housing projects” (sixty
percent of the units must be for sale or rent to individuals who
earn 0% to 140% of the area median income).
We conclude that the Sixth Proclamation’s transfer of the
certification function to the HHFDC is reasonably necessary to
address the declared affordable housing emergency. Returning
decision-making to an agency already managing affordable and
low-income housing financing and development programs – and one
with expertise in that area - makes practical sense and respects
existing governance structures. See, e.g., HRS §§ 201H-12
(2017), 201H-33 (2017), 201H-59 (2017), 201H-206 (Supp. 2021).
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Thus, beginning with the Sixth Proclamation, projects may
proceed under the proclamations’ suspension of law and rules if
they are state or county affordable housing projects and
affordable housing projects certified by HHFDC. A state or
county agency that supports housing administration, regulation,
production, or infrastructure for personnel recruitment and
procurement may also proceed under the proclamations’ law
suspensions and rules.
The Sixth Proclamation through the present proclamation
(Fifteenth Proclamation) limits the proclamations’ applicability
more directly to affordable housing development. It also
returns decision-making to HHDFC. Thus, these proclamations are
reasonably necessary to address the declared emergency.
To aid the executive branch, our courts, and others, and
because precedent interpreting Hawaiʻi’s emergency management
statute is slim, we further discuss this case’s context. Of the
first five proclamations, the First Proclamation took an overly
broad approach to addressing the declared emergency. In
addition to establishing the Working Group, the First
Proclamation created a State Lead Housing Officer position and
suspended twenty-two chapters and statutory provisions.
The State Lead Housing Officer “confirmed” all projects
certified by the Working Group, and could approve state or
county projects “suitable to proceed without first going through
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certification.” The SLHO also had the power to determine
whether projects were exempt from certain historic preservation
and environmental review processes under HRS chapters 6E and
343.
The First Proclamation suspended, among other chapters and
statutory provisions, HRS chapter 6E (historic preservation),
HRS chapter 103D (the procurement code, in relation to
solicitation), HRS chapter 46 (general provisions related to
county organization, including zoning), HRS chapter 76 (civil
service), HRS chapter 343 (environmental impact statements), HRS
§ 201H-38 (HHFDC housing exemptions), and HRS §§ 205-3.1(a) and
205-4(a) (Land Use Commission district boundary amendment
provisions).
The First Proclamation’s suspensions were subject to
appended “Rules Relating to Project Certification Pursuant to
the Governor’s Emergency Proclamation Relating to Housing.” The
rules “intended to expedite the construction, development, and
redevelopment of housing under the [First Proclamation] through
the certification of projects that will be allowed to proceed
under the [proclamation].”
We outline the rules relevant to some of the broader
suspensions.
For HRS chapter 6E, the proclamation rules provided that
the SLHO and Working Group may determine that projects in
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“nominally sensitive areas” “may proceed without further review”
under the chapter. Projects in “moderately sensitive areas” may
proceed without further review so long as they proceed under an
“archaeological monitoring program to be implemented by a
qualified archaeological firm[.]” Only projects in “highly
sensitive areas” – a term established only by the proclamations,
and not defined under HRS chapter 6E – require an archaeological
inventory survey.
Next, for HRS chapter 103D, the proclamation rules limited
the suspension of the procurement code to solicitation where
“the department has determined that it is not practicable or
advantageous to procure the services required via traditional
procurement methods.” The proclamation rules for HRS chapter 46
allowed the counties to “adopt reasonable standards to allow the
construction of multi-family residential dwelling units on any
lot where business activities are permitted.”
Last, HRS chapter 343. According to the First
Proclamation’s rules, prior to approving suspension of HRS
chapter 343, the SLHO “shall make a determination for each
certified project whether the project is likely to cause the
irreversible and irretrievable commitment of resources that
cannot be mitigated should it be implemented or whether the
cumulative impact of planned successive actions in the same
place, over time, is likely to be significant, or whether an
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action that is normally insignificant in its impact to the
environment may be significant in a particularly sensitive
environment.”
If the SLHO finds that a project is “likely not . . .
significant in its impact,” the project may proceed. But if the
SLHO finds the project is “likely to cause the irreversible and
irretrievable commitment of resources that cannot be mitigated
or which may be significant in its impact either cumulatively or
because it is being proposed in a particularly sensitive
environment,” the project is subject to the environmental review
process under HRS chapter 343.
These suspensions and rules delegating major decisionmaking to a newly created executive position are not reasonably
necessary to address affordable housing. The proclamations do
not assert the insufficiency of existing agencies to achieve its
decision-making and streamlining goals. Further, while the law
suspensions and certification rules are related to expediting
affordable housing construction generally, suspending large
sections of these chapters is disproportionate to the
proclamations’ recited long-term, gradual harms.
Thus, while we consider all proclamations’ declared
affordable housing emergency rationally related to health,
safety, and welfare, we conclude that the first five
proclamations’ suspension of laws and rules were not reasonably
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necessary to address affordable housing. The governor’s actions
under those proclamations exceeded the scope of his emergency
powers.
We end this section with a comment on protracted
emergencies. In For Our Rights and other pandemic era
challenges, plaintiffs challenged serial proclamations that
extended into years-long emergencies. See For Our Rights, 151
Hawaiʻi at 11, 507 P.3d at 541; CT Freedom All., LLC v. Dep’t of
Educ., 287 A.3d 557, 564-65 (Conn. 2023). As stated, the scope
of the emergency actions taken is one aspect of “necessity”
that’s examined. But courts also look at duration. How long is
emergency action necessary? And how long is too long?
An executive’s measures may no longer be reasonably
necessary if they continue indefinitely or are used to
effectuate permanent policy change without legislative
involvement. See Cnty. of Gloucester v. State, 623 A.2d 763,
768 (N.J. 1993) (“There is no temporal rule of thumb for
determining when an ‘emergency’ ceases to exist. Rather, courts
should consider the passage of time, and other factors such as
the extent to which the problem is within the government’s
control, and the extent to which remedial efforts have been
undertaken.”) (citations omitted)).
Thus, we tack away from the ICA’s suggestion in For Our
Rights that legislative inaction constitutes ratification of
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extended “emergencies.” See For Our Rights, 151 Hawaiʻi at 11,
507 P.3d at 541; Worthington, 440 A.2d at 1138 (“[I]n the
absence of a legislative response, such properly grounded
executive actions could continue to be exercised as long as the
emergency posed a threat to the public.”); Cnty. of Gloucester,
623 A.2d at 769 (“[A]s in Worthington, we remain unwilling ‘to
infer such a legislative intent from mere legislative inaction
in the face of the continued exercise of emergency power by the
Governor.’”).
The severity of the emergency informs the proportionality
of the response, including the duration of the response. Just
as a long-term issue may become an emergency based on increasing
danger to the public, an overly-lengthy response may no longer
be necessary to address a decreasing or resolved issue.
In Hawaiʻi, emergency proclamations are only valid for sixty
days. HRS § 127A-14(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[.]”). After
a proclamation terminates, the governor must issue a new
proclamation. For Our Rights, 151 Hawaiʻi at 10, 507 P.3d at 540
(“[HRS § 127A-14(d)] does not expressly preclude the Governor
from issuing more than one emergency proclamation based on the
same emergency.”).
Just because a single proclamation is limited by statute to
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sixty days does not mean the proclamation is “reasonably
necessary” to address the emergency. We consider the total
duration of the emergency dispositive. When the “emergency”
response begins to resemble regular government operations and
functions (or a substitute for policy decisions delegated to
executive branch agencies or the legislature), the emergency may
no longer be necessary.
Two years in, we believe the affordable housing
proclamations still demonstrate reasonable necessity. We stress
though that a “forever” emergency may no longer be reasonably
necessary when it replaces policy decisions better handled by
the legislature, or it exceeds a reasonable time for “emergency”
remediation. See Cnty. of Gloucester, 623 A.2d at 768.
We hold that executive actions taken pursuant to an
emergency declaration under HRS chapter 127A must satisfy a dual
test. Emergency powers may only be used when (1) the emergency
proclamation and subsequent actions are rationally related to
the health, safety, and welfare of the public, and (2) the
actions taken are reasonably necessary to address the emergency.
E. The proclamations did not violate the separation of powers
Plaintiffs claim that the proclamations violate the
separation of powers doctrine. They say the proclamations
“purport[] to rewrite multiple statutes by suspending portions
of them and imposing new structures and processes through which
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they may be augmented or modified.” The governor’s
interpretation of HRS chapter 127A to change laws and create new
rules, Plaintiffs believe, violates the separation of powers.
The State counters that the legislature delegated to the
governor the power to suspend laws under HRS § 127A-13(a)(3) and
the power to enact rules to carry out suspensions under HRS
§ 127A-25.
The separation of powers doctrine is not expressly
mentioned in the Hawaiʻi Constitution. State v. Rogan, 153
Hawaiʻi 233, 245, 573 P.3d 616, 628 (2025). “But in Hawaiʻi,
this court recognizes the ‘sovereign power is divided and
allocated among three co-equal branches.’” Id. (citing Alakaʻi
Na Keiki, 127 Hawaiʻi at 275, 277 P.3d at 1000).
Separated powers is a core principle of our constitutional
system. “Separation of powers concerns arise when one branch of
government interferes with another’s authority.” Id. The
doctrine aims “to preclude a commingling of essentially
different powers of government in the same hands and thereby
prevent a situation where one department would be controlled by,
or subjected, directly or indirectly, to, the coercive influence
of either of the other departments.” Alakaʻi Na Keiki, 127
Hawaiʻi at 275, 277 P.3d at 1000.
Per Hawaiʻi’s emergency management statute, the governor may
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“[s]uspend any law that impedes or tends to impede or be
detrimental to the expeditious and efficient execution of, or to
conflict with, emergency functions.” HRS § 127A-13(a)(3). The
laws may be suspended only in response to a declared state of
emergency and only during the emergency period. Id. “For the
purpose of carrying out any provision of this chapter, the
governor may adopt rules for the State and the mayor may adopt
rules for the county which may, if so stated in the rules, have
the force and effect of law.” HRS § 127A-25(a). “Such rules
shall not be subject to chapter 91.” Id.
Plaintiffs’ argument that the governor’s interpretation of
HRS chapter 127A invades the legislature’s lawmaking powers
lacks merit. The emergency proclamations do not “interfere with
the functions of the Legislature,” nor do they “deprive the
Legislature of its full authority to pass laws.” See
Desrosiers, 158 N.E.3d at 840-41 (no separation of powers
violation because the emergency orders did not prevent the
legislature from passing legislation to address COVID-19). The
governor did not usurp the legislature’s role by passing new
laws or acting outside the scope of his delegated authority.
See id.; Alakaʻi Na Keiki, 127 Hawaiʻi at 275, 277 P.3d at 1000.
Rather, the governor’s rules were authorized by statute, and
directly related to the suspension of laws under the
proclamation. HRS §§ 127A-13(a)(3), 127A-25. Thus, we hold
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that the rules appended to the emergency proclamations were a
valid exercise of HRS chapter 127A emergency powers.
That the governor’s rules under HRS § 127A-25(a) carry the
“force of law,” does not mean the rules involved legislativelyreserved “lawmaking.” Wolf v. Scarnati, 233 A.3d 679, 704 (Pa.
2020) (“Executive orders that affect individuals outside the
executive branch ‘implement existing constitutional or statutory
law.’. . . But an executive order or an administrative
regulation promulgated by an executive agency that implements a
statute still has the force of law. Otherwise, no entity
outside the executive branch could be compelled to abide by a
regulation issued by an executive branch agency. Such a result
would be inconsistent with long-standing precedent.”). The
governor’s statement that the certification rules “carry the
force of law” thus only reflects that the rules are authorized
by statute – not that the governor seeks to engage in
unauthorized lawmaking. See id.
Though Plaintiffs did not raise the non-delegation
doctrine, it often surfaces in separation of power cases. The
State argued that the Governor’s suspension of laws and rules
were “within the authority vested in the Governor by the
Legislature during a time of emergency, and do not present
separation of powers concerns.” We reason that granting the
governor the authority to suspend laws and make rules to carry
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out the emergency management statute in HRS § 127A-13(a)(3) and
HRS § 127A-25 does not violate the non-delegation doctrine. See
Application of Kauai Elec. Div. of Citizens Utilities Co., 60
Haw. 166, 181, 590 P.2d 524, 535 (1978) (“[Hawaiʻi] has adopted
the nondelegation doctrine as part of its own body of
constitutional law.”).
Plaintiffs raising separation of powers claims to contest
pandemic-related emergency powers often relied on the nondelegation doctrine. See Casey, 258 A.3d at 663-66; Acree, 615
S.W.3d at 805.
The statutory safeguards, courts held, were what separated
permissible delegated powers from unconstitutionally-granted
legislative powers. Casey v. Lamont held that the legislature
did not impermissibly delegate its lawmaking function because it
“was as precise as it could be in defining the contours of the
governor’s authority given that there are myriad serious
disasters that could arise and the actions the governor would be
required to take could vary significantly from one serious
disaster to another.” 258 A.3d at 667. Likewise, Beshear v.
Acree held that there was no violation of the non-delegation
doctrine. 615 S.W.3d at 805. The emergency statute includes
“‘safeguards, procedural and otherwise, which prevent an abuse
of discretion’ thereby ‘protecting against unnecessary and
uncontrolled discretionary power.’” Id. at 809 (citations
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omitted).
Here, we hold that the legislature did not
unconstitutionally delegate legislative power to the executive
branch in enacting HRS chapter 127A. The scope and duration of
the emergency “defin[e] the contours” of the governor’s powers.
See Casey, 258 A.3d at 667. The governor may only suspend laws
related to the emergency, and may only suspend those laws during
the emergency period. HRS § 127A-13(a)(3).
We conclude that HRS chapter 127A’s statutory limitations
establish clear safeguards to “protect against uncontrolled
discretionary power.” See Acree, 615 S.W.3d at 809; Casey, 258
A.3d at 663-66. Still, those limits preserve a wide-latitude,
discretionary space for the executive branch to operate when
responding to emergency situations.
Thus, we hold that the legislature’s delegation of the
suspension of laws and rulemaking necessary to address an
emergency under HRS chapter 127A does not violate the separation
of powers.
F. Article I, Section 15 is inapplicable
Last, we address Plaintiffs’ article I, section 15
arguments.
Plaintiffs say that the proclamations violate the Hawaiʻi
Constitution because the governor’s interpretation of a HRS
chapter 127A “emergency” bypasses the “particular cases”
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requirement under article I, section 15. They believe that HRS
§ 127A-13(a)(3) only expressly authorized the suspension of laws
in emergency situations. Because the statute did not expressly
authorize the proclamations’ specific suspension of laws for
housing, Plaintiffs insist the proclamations violate article I,
section 15.
These arguments lack merit.
The Hawaiʻi Constitution’s suspension of laws clause only
covers the privilege of the writ of habeas corpus. Article I,
section 15 does not apply to suspension of laws unrelated to the
writ of habeas corpus. That constitutional provision reads:
“The power of suspending the privilege of the writ of habeas
corpus, and the laws or the execution thereof, shall never be
exercised except by the legislature, or by authority derived
from it to be exercised in such particular cases only as the
legislature shall expressly prescribe.” Haw. Const. art. I,
§ 15. (emphasis added). “Thereof” references the privilege of
habeas corpus. The “particular cases” requirement is thus
specific to suspension of the writ of habeas corpus and related
laws.
The emergency proclamations did not violate article I,
section 15 of the Hawaiʻi Constitution.
G. Prospective Application
We understand the potential impacts of our decision on
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existing affordable housing projects already approved through
the expedited certification process. Thus, this holding only
applies prospectively to projects that have not received
approval under the emergency proclamations as of final judgment
in this case. See League of Women Voters of Honolulu v. State,
150 Hawaiʻi 182, 207, 499 P.3d 382, 407 (2021).
III.
We vacate the circuit court’s order dismissing Plaintiffs’
declaratory judgment claims. We hold that the series of
emergency proclamations related to affordable housing issued by
the governor are valid.
Lance D. Collins /s/ Mark E. Recktenwald (Bianca Isaki, Linda J. Nye,
and Ryan D. Hurley on the /s/ Sabrina S. McKenna briefs)
for appellants /s/ Todd W. Eddins
Ewan C. Rayner /s/ Lisa M. Ginoza (Craig Y. Iha, Linda L.W. Chow,
Klemen Urbanc, Chase S.L. /s/ Vladimir P. Devens Suzumoto on the briefs)
for appellees
David L. Henkin
for amici curiae
Nā ʻOhana o Lele Housing
Committee, American Civil
Liberties Union of Hawaiʻi, E Ola
Kākou Hawaiʻi, Hawaiʻi Advocates
for Truly Affordable Housing,
Sierra Club, and Kūʻikeokalani
Kamakea-ʻŌhelo
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