While we are slowly migrating this blog as part of a rebranding, we could not pass up the opportunity to delve into one of the legal aspects of the ongoing discourse over the Thirty Meter Telescope (artistic rendering below).
Our friends at Civil Beat published an article about a TMT-related hearing on Monday, July 22, 2019, before three Honolulu based circuit judges. Star-Advertiser also had an article (paywall). Now, many readers continued past that lede, but I stopped and said, Huh?
First, this is the legal challenge to the Governor’s emergency proclamation which can be found here.
Now, three judge panels at the trial court level are very, VERY rare. Reapportionment challenges can be heard by a panel of three Federal judges in the first instance with a direct appeal to the U.S. Supreme Court. 28 U.S.C. 2284 (providing for three judge panels for challenges to reapportionment or when Congress directs).
[Author’s Note: Our experience with Hawaii’s 2010 reapportionment and a three judge panel can be found here.]
So, inquiring minds want to know, a Hawaii state court, three judge panel? Read on and learn.
In 2014, Hawaii enacted Ch. 127A in order to update Hawaii’s civil defense statutory framework following the end of the, ahem, Cold War. The bill, committee reports and testimony can be found here.
The purpose of which was:
Policy and purpose. (a) Because of the existing and increasing possibility of the occurrence of disasters or emergencies of unprecedented size and destructiveness resulting from natural or man-made hazards, and in order to ensure that the preparations of this State will be adequate to deal with such disasters or emergencies; to ensure the administration of state and federal programs providing disaster relief to individuals; and generally to protect the public health, safety, and welfare and to preserve the lives and property of the people of the State, it is hereby found and declared to be necessary:
(1) To provide for emergency management by the State, and to authorize the creation of local organizations for emergency management in the counties of the State;
(2) To confer upon the governor and upon the mayors of the counties of the State the emergency powers necessary to prepare for and respond to emergencies or disasters;
(3) To provide for the rendering of mutual aid among the counties of the State and with other states and in cooperation with the federal government with respect to the carrying out of emergency management functions; and
(4) To provide programs, in cooperation with other governmental agencies, the private sector, and nonprofit organizations, to educate and train the public to be prepared for emergencies and disasters.
(b) It is further declared to be the purpose of this chapter and the policy of the State that all emergency management functions of this State and its counties be coordinated to the maximum extent with the comparable functions of the federal government, including its various departments, and agencies of other states and localities, and with private-sector and nonprofit organizations, to the end that the most effective preparation and use may be made of the nation’s personnel, resources, and facilities for dealing with any emergency or disaster that may occur.
(c) 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; provided that this chapter shall not be construed as conferring any power or permitting any action which is inconsistent with the Constitution and laws of the United States, but, in so construing this chapter, due consideration shall be given to the circumstances as they exist from time to time. This chapter shall not be deemed to have been amended by any act hereafter enacted at the same or any other session of the legislature, unless this chapter is amended by express reference.
Property owners take note: governmental actions which take property can be compensated explicitly by this statute. Haw. Rev. Stat. 127A-22 provides for governmental determination of fair market value of the property lost and if the landowner disagrees with the value, they can take 75% of the government’s offer and sue for the balance.
But, back to the judges THREE.
For temporary restraining orders or preliminary injunctions, Ch. 127A provides for a very unique trial:
[§127A-27] Preliminary or interlocutory injunctions and temporary restraining orders. Notwithstanding any other law to the contrary, no preliminary or interlocutory injunction, or temporary restraining order, suspending, enjoining, or restraining the enforcement, operation, or execution of, or setting aside, in whole or in part, on the ground of unconstitutionality or for any other reason or reasons, any provision of this chapter or any proclamation, order, or rule prescribed, made, or issued under the authority of this chapter, shall be issued or granted by any court of the State, or by any judge thereof, unless the application for the same is presented to a circuit judge, is heard and determined by the circuit judge sitting with two other circuit judges, and a majority of the judges concur in granting the application. When the application is presented to a judge, the judge shall immediately notify the chief justice of the supreme court of the State, or the senior associate justice in the event of the chief justice’s absence or incapacity or a vacancy in the office, who shall forthwith assign two other circuit judges to sit with the circuit judge in hearing and determining the application.
The application shall not be heard or determined before at least five days’ notice of the hearing has been given to the governor and the attorney general, or to the mayor and the county corporation counsel, as applicable, and to such other persons as may be defendants or respondents in the suits. In cases in which immediate irreparable damage would otherwise ensue to the petitioner, the circuit judge to whom the application is made may, after giving notice to the governor and the attorney general, or the mayor and the county corporation counsel, as applicable, and allowing them an opportunity to appear, grant a temporary stay or suspension, in whole or in part, of the operation of the statutory provision, proclamation, order, or rule. The temporary stay or suspension shall remain in force only until the hearing and determination of the application for a preliminary or interlocutory injunction, and in any event for not more than ten days from the date of the order of the judge. If the two additional circuit judges have been assigned to the case, no temporary stay or suspension shall be ordered unless a majority of the three circuit judges shall concur.
In a case of the stay or suspension, the order of the judge or judges shall contain a finding or findings, based upon evidence submitted to the judge or judges and incorporated in the order by reference thereto, that irreparable damage would result to the petitioner, and specifying the nature of the damage and why it is immediate and irreparable. The three circuit judges assigned to sit in the case may, upon a like finding and for good cause shown, appearing from reasons entered of record, continue the temporary stay or suspension for an additional ten-day period, but for only one such period unless the party against whom the order is directed consents that it may be extended for a longer period. The hearing upon an application for a preliminary or interlocutory injunction shall be given precedence and shall be in every way expedited and be assigned for hearing at the earliest practicable day.
If a temporary stay or suspension has been allowed, the application for a preliminary or interlocutory injunction shall be set for hearing within five days after the granting of the stay or suspension. When the matter comes on for hearing, the party who obtained the temporary stay or suspension shall proceed with the application for a preliminary or interlocutory injunction. Otherwise the temporary order shall be dissolved forthwith. No extension of time shall be granted without the approval of at least two of the three judges. Upon the final hearing of any such suit, the same requirement as to judges and the same procedure as to expedition shall apply. [L 2014, c 111, pt of §2]
So, why would we do it this way? Circuit court judges, acting alone, have unsurpassed power to issue life sentences, to jail before trial, to sanction, etc., so why three?
This provision of Ch. 127A was in the Cold War era statute, Haw. Rev. Stat. 127-29. HRS 127-29 dates back to the 1950’s, before Hawaii had an Intermediate Court of Appeals (with three judges).
This statute is for temporary restraining orders or preliminary injunctions to enjoin emergency proclamations which are necessarily very quick, harried court reviews of a case’s circumstances. I think there are a couple of policy reasons for this regime:
First, practical: getting three circuit court judges in a courtroom can be done quickly while allowing for normal judicial review to the Hawaii Supreme Court (and now Intermediate Court of Appeals). Easy on Oahu with over 20 circuit (or acting circuit) judges. Maui only has three circuit judges. Hawaii has four (two on each side). Kauai has two.
Second, judicial practicality: in the legal world, the more judges who sign on to a decision, the more weight that decision has. In the immortal words of Justice Robert Jackson, “We are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U.S. 443, 540 (1953). With three judges, convening in a post-nuclear war, there is greater legitimacy to judicial injunction of a governor than a single judge acting alone.
So, we have an old injunction regime designed for the Cold War. How will it handle the Governor’s proclamation here? Stay tuned.
[Courtesy TMT International Observatory]