Nakoa III v. Governor of the State of Hawai'i.

• Court: Hawaii Supreme Court
• Decided: September 11, 2025
• Docket: SCAP-24-0000401
• Status: Published

Opinion

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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

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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/wp-

content/uploads/2025/07/2507086-ATG_Fourteenth-Proclamation-

Relating-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 fast-

tracked 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 three-

judge 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 § 127A-

27 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 over-

inclusive 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

“[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/wp-

content/uploads/2025/02/2502091_Nineteenth-Proclamation-

Relating-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

content/uploads/2025/06/2506001_ATG-Thirteenth-Proclamation-

Relating-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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content/uploads/2025/03/2503083_Fifth-Proclamation-Relating-to-

School-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 decision-

making. 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 § 127A-

14(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

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

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 gunshot-

related 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

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,

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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,

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

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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

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

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 decision-

making 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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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 legislatively-

reserved “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 non-

delegation 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