As it often the case in the law, when you peel back one layer of an onion, you get more and more and more. In this case, after writing yesterday’s post on the three judge panel reviewing Governor Ige’s Emergency Proclamation for TMT, we wondered what other three judge panels exist in Hawaii law. We couldn’t find any others and think that the old three judge panel from Haw. Rev. Stat. 127 flowed from the Three Judge Panel Act of 1910. This federal statute was designed to protect statutes from “hasty invalidation from federal judges”, see The Three-Judge Court Act of 1910: Purpose, Procedure and Alternatives (available here). After the U.S. Supreme Court’s decision in Ex Parte Young, which allowed for such invalidation by a single judge, Congress limited the power of a single judge to invalidate a statute by passing the Three Judge Panel Act of 1910.Since Haw. Rev. Stat. 127 was passed in the territorial era, it makes sense for the local statute to follow that federal form.But, in 1976, Congress acted again to pull back from the use of these special courts. As noted by Justice Antonin Scalia:
Rare today, three-judge district courts were more common in the decades before 1976, when they were required for various adjudications, including the grant of an “interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute . . . upon the ground of the unconstitutionality of such statute.” 28
U. S. C. §2281 (1970 ed.), repealed, Pub. L. 94–381, §1, 90 Stat. 1119. See Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 3–12
(1964). Decisions of three-judge courts could, then as now, be appealed as of right directly to this Court. 28 U. S. C. §1253. In 1976, Congress substantially curtailed the circumstances under which a three-judge court is required. It was no longer required for the grant of an injunction against state statutes, see Pub. L. 94–381, §1, 90 Stat. 1119 (repealing 28 U. S. C. §2281), but was mandated for “an action . . . challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.” Id., §3, now codified at 28 U. S. C. §2284(a).
Shapiro v. McManus, 136 S. Ct. 450 (2015). We haven’t heard from our latest three judge panel yet, but will post when we do.