Carmichael v. Ige

• Citation: 470 F.Supp.3d 1133
• Decision Date: 02 July 2020
• Docket Number: CIVIL NO. 20-00273 JAO-WRP
• Parties: Holly CARMICHAEL; Timothy Aaron Carmichael; Brooke McGowan; and Russell Hirsch, Plaintiffs, v. David IGE, in his official capacity as Governor of the State of Hawaii, Defendant.
• Court: U.S. District Court — District of Hawaii

470 F.Supp.3d 1133

Holly CARMICHAEL; Timothy Aaron Carmichael; Brooke McGowan; and Russell Hirsch, Plaintiffs,

v.David IGE, in his official capacity as Governor of the State of Hawaii, Defendant.

CIVIL NO. 20-00273 JAO-WRP

United States District Court, D. Hawai‘i.

Signed July 2, 2020

Harmeet K. Dhillon, Pro Hac Vice, Mark P. Meuser, Pro Hac Vice, Dhillon Law Group, Inc., San Francisco, CA, Lloyd James Hochberg, Jr., Topa Financial Center, Honolulu, HI, for Plaintiffs.

Clare E. Connors, Craig Y. Iha, Ewan C. Rayner, Nicholas Matthew McLean, William Maxwell Levins, Department of the Attorney General, State of Hawaii, Honolulu, HI, for Defendant.

ORDER DENYING PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE

Jill A. Otake, United States District Judge

Plaintiffs Holly Lynn Carmichael and Timothy Aaron Carmichael (collectively, "the Carmichaels") and Russell Hirsch ("Hirsch"), non-residents of Hawai'i, and Brooke McGowan ("McGowan"), a resident of Hawai'i, challenge Defendant Governor David Ige's ("Defendant") Emergency Proclamations regarding COVID-19 as unconstitutional under the Fifth and Fourteenth Amendments to the Constitution. Claiming that there is no emergency in Hawai'i or the United States, Plaintiffs seek temporary injunctive relief enjoining Defendant from enforcing the 14-day quarantine requirements¹ of the Emergency Proclamations and an order to show cause why a preliminary injunction should not issue. The Court DENIES the Application for the following reasons.

BACKGROUND

Like many states across the nation and countries around the world, Hawai'i has issued a series of Emergency Proclamations "to limit the spread of COVID–19, a novel severe acute respiratory illness" with "no known cure, no effective treatment, and no vaccine." S. Bay United Pentecostal Church v. Newsom , ––– U.S. ––––, 140 S. Ct. 1613, 1613, 207 L.Ed.2d 154 (2020) (mem.) (Roberts, C.J., concurring). Further complicating efforts to contain COVID-19 is the fact that individuals who are "infected but asymptomatic ... may unwittingly infect others." Id. As of today, there are more than 10,533,779 cases and 512,842 deaths globally. See https://covid19.who.int/ (last visited July 2, 2020). The United States has seen 2,679,230 cases and 128,024 deaths.² See https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited July 2, 2020). Defendant contends that, due at least in part to the measures implemented in Hawai'i to address the pandemic, COVID-19 numbers have remained relatively low, with 946 cases and 18 deaths to date. See https://health.hawaii.gov/coronavirusdisease2019/ (last visited July 2, 2020).

I. Factual History

A. Plaintiffs

1. The Carmichaels

Residents of California, the Carmichaels visit Maui up to ten times per year to use their vacation condominium in Lahaina. Compl. ¶¶ 58–59. They place the unit in a rental pool when it is unoccupied. Id. ¶ 59. The Carmichaels made travel arrangements to visit Hawai'i on April 1, 2020, but cancelled after learning of the quarantine. Id. ¶¶ 60–61. As Defendant extended the quarantine, the Carmichaels cancelled all rescheduled travel plans. Appl., Decl. of Holly Carmichael ("Carmichael Decl."), ECF No. 12-7 ¶¶ 4–8. Because the quarantine remains in effect, the Carmichaels have been unable and/or unwilling to travel to Maui. Compl. ¶¶ 62–63. They have concerns about necessary repairs to their unit, which "often require[ ] interaction with local tradesmen and always require[ ] at least one drive into Kahului for necessary parts, followed by a visit to the Lahaina Ace Hardware for items [they] later discover are also needed." Carmichael Decl. ¶¶ 9–12. And they claim that once at their unit, the Emergency Proclamations prohibit them from exiting their unit to dispose of trash. Id. ¶ 13.

2. Brooke McGowan

McGowan resides in Hawai'i and had plans to travel to the mainland to assist her daughter with a federally funded green roofs project this summer³ and visit her 90-year-old grandmother who is suffering from Alzheimer's. Id. ¶¶ 66–67. Without further explanation, she claims it is impossible to do both and complete a quarantine upon returning to Hawai'i. Id. ¶ 68.

3. Russell Hirsch

Hirsch, a Nevada resident, owns two properties in Hawai'i—a farm in Hilo on Hawai'i Island where he grows fruit trees, and a home in Kailua on O‘ahu. Id. ¶ 70. Hirsch cites three reasons he wishes to travel to Hawai'i: (1) maintain his properties—tend to his fruit trees in Hilo and perform electrical work on his Kailua home that would cost substantially more if completed by an electrician; (2) celebrate his daughter's graduation where she grew up; and (3) address a potential lawsuit involving the removal of his fruit trees. Id. ¶¶ 71–73. Hirsch alleges that the quarantine prevents him from doing any of this. Id. ¶ 74.

B. Emergency Proclamations

As COVID-19 appeared in Hawai'i, Defendant issued an Emergency Proclamation on March 4, 2020, authorizing the expenditure of State monies, and suspending specified Hawai'i statutes. Opp'n, Ex. A, ECF No. 34 at 4–7. Defendant's March 16, 2020 Supplementary Proclamation suspended additional State laws so the State could effectively respond to the emergency. Id. , Ex. B, ECF No. 34-1.

On March 21, 2020, Defendant issued a Second Supplementary Proclamation that imposed a 14-day quarantine, effective March 26, 2020, applying to all persons entering Hawai'i , both residents and non-residents alike, with a few exceptions related to emergency and critical infrastructure functions. Id. , Ex. C, ECF No. 34-2 at 1. The Second Supplementary Proclamation imposed misdemeanor criminal penalties for violations of the quarantine rules. Id.

In response to the community-based transmission of COVID-19, Defendant issued a Third Supplementary Proclamation on March 23, 2020, imposing a stay-at-home mandate with limited exceptions. Id. , Ex. D, ECF No. 34-3 at 2. This Third Supplementary Proclamation restricted non-essential businesses, identified prohibited and permissible activities outside the home, prohibited gatherings of more than 10 people, and established social distancing requirements. Id. at 2–8. As with the quarantine, violation of the stay-at-home provisions is a misdemeanor. Id. at 8.

On March 31, 2020, Defendant issued a Fourth Supplementary Proclamation, extending the quarantine to interisland travelers, effective April 1, 2020, with several identified exceptions. Opp'n, Ex. E, ECF No. 34-4 at 2. The criminal provisions extended to these quarantine rules. Id.

Defendant's Fifth Supplementary Proclamation, issued on April 16, 2020, implemented enhanced social distancing requirements and an eviction moratorium. Appl., Ex. 6, ECF No. 12-2 at 33–40. On April 25, 2020, Defendant issued a Sixth Supplementary Proclamation amending and restating all prior proclamations and orders related to the COVID-19 emergency. Id. , Ex. 7, ECF No. 12-2 at 42–75.

The May 5, 2020 Seventh Supplementary Proclamation eased restrictions and authorized the reopening of certain business and activities, subject to social distancing guidelines, transitioning from a stay-at-home phase to a safer-at-home phase. Opp'n, Ex. F, ECF No. 34-5. The May 18, 2020 Eighth Supplementary Proclamation extended the quarantine and eviction moratorium until June 30, 2020. Id. , Ex. G, ECF No. 34-6. It also authorized the next phase of reopening: the act-with-care phase. Id.

On June 10, 2020, Defendant issued a Ninth Supplementary Proclamation lifting the interisland quarantine on June 16, 2020 while extending the interstate quarantine until July 31, 2020. Opp'n, Ex. H, ECF No. 34-7 at 9, 31.

On June 25, 2020, Defendant announced the August 1, 2020 implementation of the trans-Pacific pre-testing program, which allows travelers to avoid quarantine by supplying a negative COVID-19 test obtained within 72 hours of arrival in Hawai'i. Opp'n, Decl. of Bruce S. Anderson, Ph.D ("Anderson Decl."), ECF No. 33-5 ¶ 8. Those with temperatures exceeding 100.4 or exhibiting other signs of infection will undergo secondary screening and be offered a COVID-19 test. Id.

II. Procedural History

Plaintiffs commenced this action on June 15, 2020, alleging that Defendant's Emergency Proclamations violate their Fifth and Fourteenth Amendment rights. They assert the following claims: Count 1 – Fifth Amendment violation of the right to travel; Count 2 – Fifth Amendment due process violation of the right to liberty; Count 3 – Fourteenth Amendment equal protection violation; and Count 4 – Fifth and Fourteenth Amendment due process and equal protection violations caused by the Emergency Proclamations. Plaintiffs request an order temporarily, preliminarily, and permanently enjoining Defendant from enforcing his Emergency Proclamations or otherwise interfering with their constitutional rights, and for an award of attorneys’ fees and costs. Compl. at 27.

The present Application followed on June 17, 2020. ECF No. 12.

LEGAL STANDARD

The standards governing temporary restraining orders ("TRO") and preliminary injunctions are "substantially identical." Washington v. Trump , 847 F.3d 1151, 1159 n.3 (9th Cir. 2017) (citation omitted); see Kaiser Found. Health Plan, Inc. v. Queen's Med. Ctr., Inc. , 423 F. Supp. 3d 947, 951 n.1 (D. Haw. 2019). To obtain preliminary injunctive relief, a plaintiff must establish: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in favor of the plaintiff; and (4) an injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citations omitted). Where, as here, the government is a party, the last two factors merge. See Drakes Bay Oyster Co. v. Jewell , 747 F.3d 1073, 1092 (9th Cir. 2014).

The Ninth Circuit also employs a "sliding scale" approach to preliminary injunctions, under...