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Akina v. Hawaii Motion for Civil Contempt 15A551

Akina v. Hawaii Motion for Civil Contempt 15A551

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No. 15A551 the Supreme Court the United States
____________________________________________________
KELI AKINA, KEALII MAKEKAU, JOSEPH KENT, YOSHIMASA SEAN MITSUI, PEDRO
KANA GAPERO, and MELISSA LEINA ALA MONIZ,
Applicants,
THE STATE HAWAII, GOVERNOR DAVID IGE, ROBERT LINDSEY JR.,
Chairperson, Board Trustees, Office Hawaiian Affairs, COLETTE MACHADO,
PETER APO, HAUNANI APOLIONA, ROWENA M.N. AKANA, JOHN WAIHE IV, CARMEN
HULU LINDSEY, DAN AHUNA, LEINA ALA AHU ISA, Trustees, Office Hawaiian
Affairs, KAMANA OPONO CRABBE, Chief Exec. Officer, Office Hawaiian Affairs,
JOHN WAIHE III, Chairman, Native Hawaiian Roll Commission, ALEHU
ANTHONY, LEI KIHOI, ROBIN DANNER, MAHEALANI WENDT, Commissioners, Native
Hawaiian Roll Commission, CLYDE NAMU Exec. Director, Native Hawaiian
Roll Commission, THE AKAMAI FOUNDATION, and THE AUPUNI FOUNDATION,
Respondents.
______________________________________________________________________________
MOTION FOR CIVIL CONTEMPT
______________________________________________________________________________
Michael Lilly
NING LILLY JONES
707 Richards Street, Suite 700
Honolulu, Hawaii 96813
(808) 528-1100
michael@nljlaw.com
Robert Popper, Counsel Record
JUDICIAL WATCH, INC.
425 Third Street,
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org Christopher Coates
LAW OFFICES CHRISTOPHER COATES
934 Compass Point
Charleston, South Carolina 29412
(843) 609-7080
curriecoates@gmail.com
William Consovoy Michael Connolly
CONSOVOY MCCARTHY PARK PLLC
3033 Wilson Boulevard
Arlington, Virginia 22201
(703) 243-9423
will@consovoymccarthy.com
Dated: December 22, 2015
Attorneys for Applicants
TABLE CONTENTS
TABLE AUTHORITIES ......................................................................................... iii
BACKGROUND AND PROCEDURAL HISTORY....................................................... Statement Facts .............................................................................................. Procedural History ..............................................................................................
ARGUMENT ..................................................................................................................
Respondents Are Violation The Letter and Spirit
The Court Temporary Injunction. ......................................................................
II. The Court Should Hold Respondents Contempt And Take All Steps
Necessary Enforce The Temporary Injunction. .............................................
CONCLUSION.............................................................................................................
SUPPLEMENTAL APPENDIX
Supplemental Appendix Court Orders
The United States Supreme Court Order
Granting Temporary Injunction Pending
Ninth Circuit Appellate Review (Dec. 2015)
Supp. App. 427a
The Honorable Justice Anthony Kennedy
Temporary Injunction Pending Further Order
The United States Supreme Court
(Nov. 27, 2015)
Supp. App. 428a
Supplemental Appendix Exhibits Record
Lead Counsel Email Correspondence
Regarding Aupuni Failure
Comply with Court Order (Dec. 21, 2015) Aupuni Press Release Terminating
Scheduled Election (Dec. 15, 2015)
Supp. App. 432a-433a Aupuni Letter Delegates Regarding
Election Termination (Dec. 15, 2015)
Supp. App. 429a-431a
Supp. App. 434a-435a Aupuni Question and Answer
Planned Aha Convention (Dec. 15, 2015)
Supp. App. 436a-438a Aupuni Press Release Extending
Election Three Weeks (Nov. 30, 2015)
Supp. App. 439a-440a Aupuni Frequently Asked Questions Native Hawaiian Election (Sept. 30, 2015)
Supp. App. 441a-449a Aupuni Notice Election
(Sept. 30, 2015)
Supp. App. 450a-453a Aupuni List Qualified Delegates
(Sept. 30, 2015)
Supp. App. 454a-458a
Further Correspondence
Regarding Aupuni Failure
Comply with Court Order (Dec. 21-22, 2015)
Supp. App. 459a-461a
TABLE AUTHORITIES
FEDERAL CASES
Arakaki State Hawaii, 314 F.3d 1091 (9th Cir. 2002) ........................................
Bessette Conkey Co., 194 U.S. 324 (1904) ................................................ 16,
Cooper Aaron, 358 U.S. (1958) ............................................................................. parte Robinson, U.S. 505 (1873)..........................................................................
Fleischmann Distilling Corp. Maier Brewing Co.,
386 U.S. 714 (1967) ...........................................................................................
Glover Johnson, 934 F.2d 703 (6th Cir. 1991) ..........................................................
Gompers Buck Stove Range Co.,
221 U.S. 418 (1911) ...........................................................................................
Int Union, United Mine Workers Am. Bagwell,
512 U.S. 821 (1994) ...........................................................................................
John Stetson Co. Stephen Stetson Co.,
128 F.2d 981 (2d Cir. 1942) ..............................................................................
Landmark Legal Found. EPA,
272 Supp. (D.D.C. 2003) .....................................................................
Maness Meyers, 419 U.S. 449 (1975) .......................................................................
Mayor Vicksburg Henson, 231 U.S. 259 (1913)...................................................
McClellan Carland, 217 U.S. 268 (1910) ............................................................
McComb Jacksonville Paper Co., 336 U.S. 187 (1949) ......................... 12, 15, 16,
Morse Republican Party Va., 517 U.S. 186 (1996) ..............................................
Rice Cayetano, 528 U.S. 429 (2000) .........................................................................
Shillitani United States, 384 U.S. 364 (1966) ..........................................................
iii
Smith Allwright, 321 U.S. 649 (1944) ....................................................................
South Carolina Katzenbach, 383 U.S. 301 (1966) ..................................................
Terry Adams, 345 U.S. 461 (1953) ............................................................................
Toledo Scale Co. Computing Scale Co.,
261 U.S. 399 (1923) ...........................................................................................
United States Christie Indus., Inc.,
465 F.2d 1002 (3d Cir. 1972) ............................................................................
FEDERAL STATUTES U.S.C. 1983 ............................................................................................................. U.S.C. 10301 ...........................................................................................................
STATE CASES
Stodder Rosen Talking Mach. Co.,
141 N.E. 569 (Mass. 1923) ................................................................................
STATE STATUTES
HAW. REV. STAT. 10-2 .................................................................................................
HAW. REV. STAT. 10H-2 ..............................................................................................
HAW. REV. STAT. 10H-3 ...............................................................................................
HAW. REV. STAT. 10H-3(a) ...........................................................................................
HAW. REV. STAT. 10H-4 ...............................................................................................
HAW. REV. STAT. 10H-5 ...............................................................................................
HAW. REV. STAT. ANN. 11-155 ...................................................................................
MISCELLANEOUS AUTHORITY
Wright Miller, Enforcement and Collateral Attack Injunctions,
11A Fed. Prac. Proc. Civ. 2960 (3d ed. 2015) .............................................. the Honorable Justices the Supreme Court the United States: December 2015, the Court enjoined Respondents from counting the
ballots cast in, and certifying the winners of, the election described the
application, pending final disposition the appeal the United States Court
Appeals for the Ninth Circuit. Supplemental Appendix Supp. App. 427a. That
election was the means which Respondents were select delegates for
convention concerning whether Native Hawaiians would seek federal tribal status. prohibiting Respondents from certifying the winners, the Court ensured that
Applicants Yoshimasa Sean Mitsui and Joseph William Kent who, because their
race, could not run delegate candidates vote that election would not lose
the right participate this process while their appeal was heard. The injunction
preserved the status quo aid the appellate jurisdiction which might otherwise defeated. McClellan Carland, 217 U.S. 268, 280 (1910).
Respondents have violated the Temporary Injunction and should held
civil contempt. December 15, 2015, Aupuni announced that every individual
who ran candidate for delegate the election will seated convention
begin February 2016. Supp. App. 432a. Thus, instead counting the ballots
and seating the candidates receiving the most votes, Aupuni declared every
candidate running for delegate the winner and seated them all. Even worse,
Respondents actions are the latest long pattern recalcitrance. Civil contempt the only way bring them into compliance, thwart willful circumvention the
Temporary Injunction, and ensure respect for the rule law.
BACKGROUND AND PROCEDURAL HISTORY
Statement Facts previously set forth, see Application for Temporary Injunction Pending
Appeal Application 6-14, Hawaii passed Act 195 provide for and
implement the recognition the Native Hawaiian people means and methods
that will facilitate their self-governance. HAW. REV. STAT. 10H-2. that end, Act
195 established Native Hawaiian Roll Commission Commission within the
Office Hawaiian Affairs OHA Id. 10H-3. The Commission responsible for
[p]reparing and maintain[ing] roll qualified Native Hawaiians; certifying that
the individuals the roll qualified Native Hawaiians meet the definition
qualified Native Hawaiians; [and] receiving and maintaining documents that
verify ancestry[.] Id. 10H-3; id. 10H-3(a)(2) (defining racial ancestry criteria).
Act 195 also required the Commission includ[e] the roll qualified Native
Hawaiians all individuals already registered with the State verified
Hawaiians Native Hawaiians. Id. 10H-3(a)(4); id. 10-2. Finally, Act 195
required the Commission publish roll serve the basis for the eligibility
qualified Native Hawaiians participate the organization the Native
Hawaiian governing entity. Id. 10H-4. Publication was intended facilitate the
process under which qualified Native Hawaiians may independently commence the
organization convention qualified Native Hawaiians, established for the
purpose organizing themselves. Id. 10H-5. December 23, 2014, organization called Aupuni was incorporated Hawaii provide process for Native Hawaiians further self-determination
and self-governance for Native Hawaiians. Application Appendix App. 367a.
April 27, 2015, OHA, the Akamai Foundation non-profit organization), and
Aupuni entered into contract which OHA granted the Akamai Foundation
$2,598,000 the condition that the Akamai Foundation direct the use the grant [Na Aupuni] may facilitate election delegates, election and
referendum monitoring, governance Aha [convention], and referendum ratify
any recommendation the delegates arising out the Aha. App. 374a. July
2015, Aupuni announced process for carrying out the delegate election,
convention, and referendum. App. 62a.
One the initial decisions that [Na Aupuni] made was that the voter[s] for
election delegates and the delegates should limited Native Hawaiians. App.
361a. Aupuni announced that would determine eligibility run
delegate and vote the election based the Commission roll qualified Native
Hawaiians. App. 4a; Supp. App. 445a Aupuni will utilize the roll certified
the Commission determine who can serve delegate. Aupuni
determined that the election and convention process should composed Native
Hawaiians that only Native Hawaiian delegates would make membership and
governance decisions. App. 361a. August 2015, Aupuni, through vendor, sent approximately
95,000 certified Native Hawaiians Notice the election delegates that included
information about becoming delegate candidate. App. 21a. The Notice was sent persons who have been certified [the Commission] July 16, 2015. Supp.
App. 450a. The Notice stated that [a]ll eligible voters will have the option
register become delegate candidate and provided code and PIN number
that would allow the recipient register become delegate candidate. Id.
qualify delegate candidate, certified voter needed nominated ten
other eligible voters from any region. Supp. App. 452a. The Notice stated that
there would elected delegates who would apportioned based the
current geographic distribution population within the Roll Commission current
registry. Supp. App. 451a. Certified voters would select from the candidates
representing the area which the voter resides. Id. September 30, 2015, list 209 Native Hawaiians who had qualified delegate candidates was released. See App. 367a; Supp. App. 454a-458a. Voting
began November 2015 and was set end November 30, 2015. App. 22a. Aupuni would then announce the winners the delegate election December 2015. Id.
Procedural History August 13, 2015, Applicants challenged Act 195 under the First,
Fourteenth, and Fifteenth Amendments, well under the Voting Rights Act
1965, U.S.C. 10301, and U.S.C. 1983. The district court denied motion
for preliminary injunction and Applicants timely appealed. The Ninth Circuit
denied Applicants motion for injunction pending appeal November 19, 2015.
App. 1a. November 23, 2015, Applicants filed with this Court emergency
application for injunction pending appellate review. Applicants asked the Court
enter injunction against Respondents under the All Writs Act during the
pendency this appeal enjoining them from counting the ballots cast and
certifying the winners the election delegates the upcoming constitutional
convention. Application 4-5.
The Application, particular, explained why Applicants would
irreparably injured they were excluded from voting the election delegates
the convention. Above and beyond the harm that always follows from being denied
the right vote, the election delegates critical component preordained
process that will lead constitutional convention, the drafting documents and
recommendations, and the subsequent ratification rejection these. Applicants
total exclusion from this process denies them the equal opportunity participate
the entire political process. Id. (citations omitted). Every step the process
(of which this election but single part) inflicts new injury Applicants
denying them the equal opportunity participate the political process. Every
subsequent step the convention, the creation documents and recommendations,
and the ratification the delegates actions eliminates the Court ability
return the status quo ante. Indeed, even subsequent decision invalidate the
elections order new elections will not matter [the Department Interior DOI chooses honor the results the current election its administrative
process. Id. 27. November 27, 2015, Justice Kennedy issued temporary injunction
pending further order the undersigned the Court. Supp. App. 428a.
November 30, 2015, Aupuni issued press release stating that was
extending the deadline vote December 21. Supp. App. 439a. The press release
claimed that Aupuni was extending the voting [b]ecause voters may not have
cast their ballots over concerns and questions the recent U.S. Supreme Court[]
decision temporarily stop the vote count. Id. Aupuni strongly encourage[d]
those who have not yet voted cast their ballots. Id. December 2015, this Court issued the Temporary Injunction. The Order
stated: The application for injunction pending appellate review presented
Justice Kennedy and him referred the Court granted. Respondents are
enjoined from counting the ballots cast in, and certifying the winners of, the election
described the application, pending final disposition the appeal the United
States Court Appeals for the Ninth Circuit. Supp. App. 427a. December 15, 2015, Aupuni announced had terminated the Native
Hawaiian election process but will forward with four-week-long Aha
[convention] February. Supp. App. 432a; id. 437a. Aupuni stated that [a]ll
196 Hawaiians who ran candidates will offered seat delegate the
Aha[.] Supp. App. 432a; id. 436a; id. 434a. Accordingly, the convention will
forth planned except: (1) the number delegates increased from
201 (2) the convention will begin February 2016 instead sometime
between February and April; and will last days instead days. Id. 434a; unclear precisely how many delegate candidates there were.
September 30, 2015, Aupuni identified 209 delegate candidates. Supp. App.
454a-458a. December 15, 2015, however, simultaneously claimed that there
were 196 candidates, Supp. App. 432a, and 201 candidates, id. 434a. The precise
number does not have relevance this Motion.
App. 22a. Aupuni claimed take these steps because delays caused the
ongoing litigation could continue for years and this convention was longoverdue. Supp. App. 432a. Aupuni reaffirmed its belie[f] that the convening
this leadership group will the first step toward reorganizing government that
the majority Hawaiians support. Id. 437a. Aupuni also claimed that its
actions meant that the Akina litigation, which seeks stop the counting votes, moot and announced that would take steps dismiss the lawsuit. Supp.
App. 433a. December 21, 2015, Counsel for Applicants notified Respondents that
they were violation the Temporary Injunction and informed them that absent
agreement come into compliance 3:30 EST December 22, 2015,
Applicants would file motion for civil contempt this Court. Counsel for the
respective Respondents indicated their opposition. Counsel for Respondents the
Akamai Foundation and Aupuni claimed that, [i]n compliance with the
11/27/15 Order, Aupuni did not count the votes certify election winners.
Aupuni simply offered all candidates opportunity associate discuss selfgovernance. Supp. App. 429a. Counsel for the State Respondents and for OHA took
the position that they had role the disputed actions. Supp. App. 459a.
ARGUMENT
The power punish for contempts inherent all courts; its existence
essential the preservation order judicial proceedings, and the enforcement the judgments, orders, and writs the courts, and consequently the due
administration justice. parte Robinson, U.S. 505, 510 (1873); Shillitani
United States, 384 U.S. 364, 370 (1966) There can question that courts have
inherent power enforce compliance with their lawful orders through civil
contempt. The Court should exercise that authority bring Respondents into
compliance with the Temporary Injunction and end the electoral gamesmanship
that continues cause irreparable harm Applicants.
Respondents Are Violation The Letter and Spirit The Court
Temporary Injunction. civil-contempt proceeding, proof the violation must clear and
convincing and the court must find that the order violated clear and
unambiguous and that, although the party charged had notice the order,
has not diligently attempted reasonable manner comply. Once prima facie
showing violation has been made, the charged party has the burden proving
the inability comply. When the court order unclear, the alleged contemnor
has made effort comply, the court will not find contempt. But violation the
decree need not willful for party held civil contempt. Wright Miller,
Enforcement and Collateral Attack Injunctions, 11A Fed. Prac. Proc. Civ.
2960 (3d ed. 2015) (citations omitted).
Here, the only issue whether Respondents have violated definite and
specific order the court requiring [them] perform refrain from performing
particular act acts with knowledge the court order. Glover Johnson, 934
F.2d 703, 707 (6th Cir. 1991) (citation omitted). There doubt they have. The
Temporary Injunction prohibited Respondents from certifying the winners the
election choose convention delegates. Respondents announcement that would
seat every delegate candidate violates the letter that order. Respondents also
have violated the spirit the Temporary Injunction. The Court issued that order
preserve the status quo and thus ensure that Applicants are not denied the right
participate the process (including the convention) based their racial ancestry
before the Ninth Circuit adjudicates their challenge. Respondents are not permitted defeat the purpose the Court order through gamesmanship.
Announcing that [a]ll 196 Hawaiians who ran candidates will offered
seat delegate the Aha, Supp. App. 432a, certification those candidates winners the election. First, these delegates are winners the election. Aupuni has acknowledged, all delegates that will seated the convention
ran candidates the election that subject this challenge. Id. The fact
that Aupuni expanded the number available delegate spots from equal
the number candidates rendering the counting votes unnecessary does not
mean these candidates are not winners. means that they are all winners. Under
Respondents reasoning, Texas could have evaded Terry Adams which held that
the Jaybird primary violated the Fifteenth Amendment excluding African
Americans allowing every candidate that primary run the Democratic
primaries and the general elections that followed, 345 U.S. 461, 463 (1953), instead counting the ballots and nominating only one winner. inconceivable that the
Court would have deemed such gamesmanship constitute compliance with
order preventing the Jaybirds from nominating candidate through electoral
process pervaded with racial discrimination. too here.
Second, these delegates were selected through the election dispute. These
individuals became delegates only because they ran candidates this election.
And they could candidates only because they were the certified list Native
Hawaiians kept the Native Hawaiian Roll Commission, App. 412a 14(d); were
eligible voters, Supp. App. 452a; and were nominated ten other eligible voters
from any region, id. short, impossible characterize process which
individuals running for office are seated based their status eligible voter
and their ability obtain the nominations needed from eligible voters get the
ballot anything other than election.
Respondents contracts confirm that Aupuni has selected the winners
through the election. The contracts provide that Aupuni organization
whose mission provide assistance the non-political aspects election
Native Hawaiian delegates, Aha [convention], and ratification vote for the purpose Native Hawaiian self-determination. App. 378a (emphasis added). OHA granted
funds that Aupuni may facilitate election delegates, election and
referendum monitoring, governance Aha, and referendum ratify any
recommendation the delegates arising out the Aha. App. 374a (emphasis
added). And Aupuni commit[ed] completing the Scope Services within
months following the date this Agreement executed, including the election
delegates projected occur about November 2015. Id. (emphasis added).
definition, Aupuni only had authority choose delegates via election. There indication the State Respondents, OHA, the Akamai Foundation believe that Aupuni violation these agreements have sought return the funds
used violate the Temporary Injunction. Any claim that these delegates have been
selected via some new process would only further evidence gamesmanship.
Finally, Aupuni has certified the results this election. Certification
reasonably understood the public release the official election results. Hawaii
law, for example, describes the certification results election [a] certificate election certificate results declaring the results the election
election day. HAW. REV. STAT. ANN. 11-155. The Application therefore explained,
without contradiction from Respondents, that the winners the delegates the
constitutional convention will certified Tuesday, December 2015.
Application December 2015 was the date which the Election results
were announced publicly. App. 22a. this Court injunction had not issued,
Respondents undoubtedly would have used the exact same certification process; did here, Aupuni would have issued press release announcing which
candidates would attend the convention. When announced December 15, 2015
that all the delegate candidates would seated the convention, Aupuni
certified the result. Accordingly, the Court need not look beyond the letter the
Temporary Injunction hold Respondents contempt.
Respondents actions also violate the spirit the Temporary Injunction.
Respondents not have immunity from civil contempt because the plan
scheme which they adopted was not specifically enjoined. Such rule would give
tremendous impetus the program experimentation with disobedience the
law. McComb Jacksonville Paper Co., 336 U.S. 187, 192 (1949). Rather, the
Court must interpret the Temporary Injunction based what the decree was
really designed accomplish. Mayor Vicksburg Henson, 231 U.S. 259, 273
(1913). Courts have long refused permit defendants evade responsibility for
violating injunction, doing through subterfuge thing which not terms
violation, yet produces the same effect accomplishing substantially that which
they were enjoined from doing. Stodder Rosen Talking Mach. Co., 141 N.E. 569,
571 (Mass. 1923); John Stetson Co. Stephen Stetson Co., 128 F.2d 981, 983
(2d Cir. 1942) deciding whether injunction has been violated proper
observe the objects for which the relief was granted and find breach the
decree violation the spirit the injunction, even though its strict letter may
not have been disregarded.
Here, the Court decree was designed ensure that Applicants could have
their day court before Native-Hawaiian convention and referendum were held.
Thus, the Temporary Injunction was aid this Court appellate jurisdiction. U.S.C. 1651(a); McClellan, 217 U.S. 280. Without the Temporary Injunction,
[t]he delegates the planned convention will have been elected without any input
whatsoever from these Applicants, and Applicants and many others will have had say respecting the documents the delegates will create and the recommendations
they will make respecting Native Hawaiian sovereignty. Application other
words, the DOI proceeds has indicated, there will subsequent state
federal election ratification which non Native Hawaiians, like Applicants, will allowed have their say. Id. 17-18 (citation omitted). These delegates, who
became eligible seated racially exclusionary terms, therefore will have
indispensable role political process that guaranteed affect their lives and
the lives everyone their State. Application 16.
Having been thwarted choosing delegates through race-based balloting,
Respondents seek achieve the same result through evasion, viz., use the same
race-based process select delegates, hold the convention and referendum, and
secure tribal status, before Applicants can heard. App. 368a this process
stalled the Courts, the [Commission list will become stale, OHA funding may
not available and may decades before funding, similarly substantial
roll, [and] state and federal government support Native Hawaiian selfgovernance converge [again]. Supp. App. 443a After careful consideration
longer timetable, Aupuni does not believe delaying this process will improve
the outcome there will always people seeking delay the election delegates
and convening Aha merely stopping them from proceeding altogether.
Aupuni wants keep the current timetable reduce the risk that the process
may stopped. Aupuni candid: proceeding despite the Temporary
Injunction because delays caused the ongoing litigation could continue for
years and this convention was long-overdue. Supp. App. 432a.
Indeed, the reason why Respondents are engaged this gamesmanship
because DOI will reestablish [a] formal government-to-government relationship
only [t]he process which the Native Hawaiian community drafted the
governing document ensure[s] that the document was based meaningful input
from representative segments the Native Hawaiian community and reflects the
will the Native Hawaiian community. App. 230a-231a 50.11, 50.16).
Respondents are preparing the ground for this very argument. Their intentions are
tellingly revealed their use particular formulations found the DOI
proposed regulations, which require participation that sufficiently large
demonstrate broad-based community support among Native Hawaiians. App. 231a 50.16(g), (h)). Aupuni parrots this language when tells the candidates
that [o]ne the main reasons behind this decision seat all candidates that
you represent broad-based spectrum the Native Hawaiian community. Supp.
App. 434a. Respondents plainly seek use the roll Native Hawaiians and the
nominating process for choosing delegates both which are challenged this
lawsuit meet DOI representative and broad-based and community
requirements, while pointing the decision not count the ballots claim
technical compliance with the Temporary Injunction.
The Court should not allow this stand. Even the Temporary Injunction
does not specifically enjoin this course conduct, which does, allowing
Respondents proceed this fashion would defeat the injunction object. The
racially discriminatory criteria used select delegate candidates was less
subject Applicants challenge (and their Ninth Circuit appeal) than the use
that same criteria restrict their right vote for those candidates. App. 172a173a. Both aspects this state-run process exclude those individuals, like two
the Applicants, who the Commission has not verified Native Hawaiian because the content their blood. Even assuming, then, that what has occurred here
not the certification winners the election, state-run process that restricts
nomination delegate candidates based racial ancestry violates the Fourteenth
Amendment for the same reasons the election violates the Fifteenth Amendment.
See Morse Republican Party Va., 517 U.S. 186, 198-200, 207-213 (1996)
(nominating delegates the functional equivalent the political primary and
exclusion integral part the election process); Smith Allwright, 321 U.S.
649, 662-65 (1944).
The Temporary Injunction cannot avoided merely technical grounds.
The language injunction must read the light the circumstances
surrounding its entry: the relief sought the moving party, the evidence produced the hearing the injunction, and the mischief that the injunction seeks
prevent. United States Christie Indus., Inc., 465 F.2d 1002, 1007 (3d Cir. 1972)
(citations omitted). All those factors indicate that Respondents have violated the
Court decree that the status quo should preserved. Otherwise, this case could
become excellent illustration how avoid accountability for persistent
contumacy. McComb, 336 U.S. 192. Respondents could avoid [c]ivil contempt
today showing that the specific plan [it] adopted was not enjoined, adopt
new plan not specifically enjoined subsequent injunction, and repeat the
pattern until whole series wrongs perpetrated and decree enforcement
goes for naught. Id. 192-93.
Such gamesmanship cannot tolerated. The Court intervened this
important case ensure that the status quo would preserved while Applicants
challenge the racial criteria for nominating, voting on, and ultimately selecting
convention delegates could heard the Ninth Circuit. Declaring all the
delegate candidates the winners instead counting the ballots and seating
some them not preservation the status quo. Respondents are violation
the Temporary Injunction.
II.
The Court Should Hold Respondents Contempt And Take All Steps
Necessary Enforce The Temporary Injunction.
Civil contempt the appropriate means which bring Respondents into
compliance. The purpose contempt proceedings uphold the power the
court, and also secure suitors therein the rights awarded. Bessette Conkey Co., 194 U.S. 324, 327 (1904). Civil contempt proceedings are remedial
and coercive their nature, and the parties chiefly interest their conduct and
prosecution are the individuals whose private rights and remedies they were
instituted protect enforce. Id. 328 (citations and quotations omitted). Civil
contempt, short, sanction enforce compliance with order the court compensate for losses damages sustained reason noncompliance, and
because the purpose remedial, matters not with what intent the defendant did
the prohibited act. McComb, 336 U.S. 191 (citations omitted).
Applicants ask that the Contempt Order include three specific forms relief.
First, the Court should instruct Respondents withdraw the December 15, 2015
certification the delegates and cease and desist any effort send delegates
the convention. The Court should enforce this command through monetary
sanctions. the Court has explained, civil contempt sanctions, those penalties
designed compel future compliance with court order, are considered
coercive and avoidable through obedience, and thus may imposed ordinary
civil proceeding upon notice and opportunity heard. Neither jury trial nor
proof beyond reasonable doubt required. Int Union, United Mine Workers
Am. Bagwell, 512 U.S. 821, 827 (1994). The Court should impose sanctions strong
enough ensure compliance advance February 2016 the date which the
convention scheduled begin.
Second, the Court should require Respondents judicially preclear any
further steps they seek take with regard selection delegates holding the
convention while the Temporary Injunction remains force. are dealing here
with the power court grant the relief that necessary effect compliance
with its decree. The measure the court power civil contempt proceedings
determined the requirements full remedial relief. McComb, 336 U.S. 193.
Temporary judicial preclearance appropriate given that coverage under Section
3(c) the Voting Rights Act one the remedies that Applicants expressly seek
their complaint. See App. 177a, also necessary ensure compliance with the Temporary Injunction.
Hawaii has demonstrated its unwillingness accept this Court orders binding.
This the third lawsuit, following Rice Cayetano, 528 U.S. 429 (2000), and
Arakaki State Hawaii, 314 F.3d 1091 (9th Cir. 2002), arising out attempt Hawaiian officials use race-based criteria restrict who may participate
the political process. fact, this current regime was engineered evade those
decisions and has been procedurally orchestrated avoid judicial review. See
Application 6-14. And when the Court stepped preserve the status quo,
Respondents flouted the Temporary Injunction and once again tried circumvent
the Court rulings effort evade judicial scrutiny. Preclearance anticircumvention remedy designed combat recalcitrance this sort. ends the
gamesmanship and ensures that those individuals, like Applicants, who are the
object this ceaseless racial discrimination longer must shoulder the burden
bringing challenge upon challenge (or, here, motion upon motion) ingenious
attempts defy the Fourteenth and Fifteenth Amendments. South Carolina
Katzenbach, 383 U.S. 301, 334-35 (1966).
Third, the Court should award Applicants the attorney fees and costs
incurred bringing this Motion. [I]n civil contempt action occasioned willful
disobedience court order award attorney fees may authorized part the fine levied the defendant. Fleischmann Distilling Corp. Maier
Brewing Co., 386 U.S. 714, 718 (1967); Toledo Scale Co. Computing Scale Co., 261
U.S. 399, 428 (1923) [I]t was not abuse discretion this case impose
penalty, compensation for the expenses incurred the successful party the
decree defending its rights the Ohio court. see also Landmark Legal Found. EPA, 272 Supp. 70, (D.D.C. 2003). Respondents actions make such
award especially appropriate this case.
More stake than enforcing compliance with the Temporary Injunction.
The Court divided whether this injunction should issue. But there has
never been division the foundational principle underlying this Motion: all orders
and judgments courts must complied with promptly. Maness Meyers, 419
U.S. 449, 458 (1975). This has been issue special concern when comes
State-sponsored racial discrimination. Cooper Aaron, 358 U.S. 19-20 (1958).
For those authority thus defy the law the land profoundly subversive not
only our constitutional system but the presuppositions democratic society.
Id. (Frankfurter, J., concurring).
Civil contempt reserved for circumstances such this. necessary
the protection the court from insults and oppression while the ordinary
exercise its duty, and enable enforce its judgments and orders necessary
the due administration law and the protection the rights suitors. Bessette,
194 U.S. 333 (citation omitted). party can make himself judge the
validity orders which have been issued, and his own act disobedience set
them aside, then are the courts impotent, and what the Constitution now fittingly
calls the judicial power the United States would mere mockery. Gompers
Buck Stove Range Co., 221 U.S. 418, 450 (1911). All parties this litigation
understood the Temporary Injunction preserve the status quo while Applicants
appeal challenging the race-based means nominating and electing convention
delegates was heard. The Court must enforce its decree.
CONCLUSION
For the foregoing reasons, Applicants respectfully request that the Court
grant the Motion for Civil Contempt.
Respectfully submitted,
Michael Lilly
NING LILLY JONES
707 Richards Street, Suite 700
Honolulu, Hawaii 96813
(808) 528-1100
michael@nljlaw.com
Robert Popper
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street,
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org Christopher Coates
LAW OFFICES CHRISTOPHER COATES
934 Compass Point
Charleston, South Carolina 29412
(843) 609-7080
curriecoates@gmail.com
William Consovoy Michael Connolly
CONSOVOY MCCARTHY PARK PLLC
3033 Wilson Boulevard
Arlington, Virginia 22201
(703) 243-9423
will@consovoymccarthy.com
Attorneys for Applicants