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Akina v Hawaii reply 15A551

Akina v Hawaii reply 15A551

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Date Created:November 27, 2015

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Tags:Fifteenth, Aupuni, Injunction, Akina, applicants, Hawaiians, Respondents, hawaiian, Native, Ninth, Reply, Election, amendment, Hawaii, Commission, Circuit, Supreme Court, court


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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.
______________________________________________________________________________
REPLY SUPPORT EMERGENCY APPLICATION
FOR INJUNCTION PENDING APPELLATE REVIEW
___________________________________________________________________________
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: November 27, 2015
Attorneys for Applicants
TABLE CONTENTS
TABLE CONTENTS .................................................................................................
TABLE AUTHORITIES ..........................................................................................
INTRODUCTION ..........................................................................................................
ARGUMENT ..................................................................................................................
Respondents Arguments Cast Doubt Applicants Indisputably
Clear Right Relief .........................................................................................
II.
Respondents Cannot Deny That Applicants Will Suffer Irreparable
Harm Absent The Court Intervention ..........................................................
III. The Balance Equities And Public Interest Support Temporary
Injunction..........................................................................................................
CONCLUSION.............................................................................................................
TABLE AUTHORITIES
FEDERAL CASES
Bolling Sharpe, 347 U.S. 497 (1954) .........................................................................
Burton Wilmington Parking Auth., 365 U.S 715 (1961)...........................................
Lugar Edmondson Oil Co., 457 U.S. 922 (1982) .......................................................
Ohno Yasuma, 723 F.3d 984 (9th Cir. 2013) ............................................................
Rendell-Baker Kohn, 457 U.S. 830 (1982).................................................................
Rice Cayetano, 528 U.S. 495 (2000) ...................................................................
South Carolina Katzenbach, 383 U.S. 301 (1966) ....................................................
STATE STATUTES
HAW. REV. STAT. 10-17(a) ............................................................................................
HAW. REV. STAT. 10H-3 ...............................................................................................
HAW. REV. STAT. 10H-4(b) .......................................................................................
HAW. REV. STAT. 10H-5 ............................................................................................... Rice Cayetano, 528 U.S. 495, 499 (2000), this Court ruled that the
Fifteenth Amendment prohibited the State Hawaii from holding election
which only Native Hawaiians could vote. Respondents have planned and organized
the election from which Applicants have been excluded order circumvent that
ruling. Indeed, the briefs Respondent Office Hawaiian Affairs OHA Br. and
Respondents Aupuni al. Aupuni Br. confirm that this process was
engineered both substantively and procedurally avoid judicial review all
costs. Substantively, despite the fact that the State has funded, organized, directed,
and encouraged this election, Respondents claim the Fifteenth Amendment
inapplicable because the State has left the counting the ballots private
organization. But that state-run election under any test. Furthermore, there question that the election will decide important governmental policies.
Procedurally, Respondents argue that relief should denied because the
case posture. But Respondents created this emergency setting timetable for
the election that was designed foreclose judicial review. Indeed, they admit
choosing accelerated timetable the hope completing the election before
could challenged.
Respondents equitable arguments thus ring hollow.
Emergency relief needed for the same reason why Respondents rushed hold the
election: the harm Applicants will suffer being denied the right vote this
election cannot remedied once the ballots are counted and the result certified.
Respondents should not allowed use gamesmanship run out the clock. The
Court should grant the application for injunction pending appellate review.
RESPONDENTS ARGUMENTS CAST DOUBT APPLICANTS
INDISPUTABLY CLEAR RIGHT RELIEF.
Applicants constitutional challenge likely prevail the Court grants the
injunction needed order allow the case appealed the ordinary course.
Respondents have violated the Fifteenth Amendment because they are excluding
Applicants from voting state election the basis their ancestry.
See
Application Akina, al. Akina Br. 18-25. Respondents are also violating the
Fourteenth Amendment because their decision hold election exclusively for
Native Hawaiians not narrowly tailored further compelling governmental
interest. See Akina Br. 25-26. All Respondents arguments the contrary fail. initial matter, Respondents seek make easy question seem hard burying multi-pronged inquiry. See OHA Br. 11-18; Aupuni Br. 8-15.
The Fifteenth Amendment question here straightforward: Does the Fifteenth
Amendment prevent Respondents from excluding Applicants from voting staterun election because their ancestry? The answer yes. That why this Court, Rice, struck down Hawaii attempts hold election OHA trustees which
only Native Hawaiians could vote. Id. 499. The only difference between this case
and Rice act subterfuge the State decision transfer its power collect
and tabulate the votes cast election non-profit organization. But this
not the first time the Court has faced extraordinary stratagem recalcitrant
State. South Carolina Katzenbach, 383 U.S. 301, 335 (1966). There doubt
that this election would violate the Fifteenth Amendment OHA were counting the
votes. That should the end the matter.
But even the Fifteenth-Amendment inquiry complex Respondents
claim, Respondents arguments still fall short. Respondents claim that order
prevail under the Fifteenth Amendment, Applicants must show both that state
action has occurred and that the election will either determine governmental
policies select public officials. OHA Br. 11-18; Aupuni Br. 10. Setting
aside that the Court decisions nowhere require Applicants meet two different
tests for determining whether this state-run election (one which itself has
two alternative tests), neither barrier injunctive relief. explained below,
Applicants clearly pass both tests.
First, Applicants have demonstrated sufficient state action under both the
public function and the joint action tests. initial matter, important
retrace the facts this case. the briefing makes clear, the following facts are
undisputed: facilitate the process forming convention qualified Native
Hawaiians, established for the purpose organizing themselves, HAW.
REV. STAT. 10H-5, the State Hawaii enacted Act 195. This law created
the Native Hawaiian Roll Commission, id. 10H-3; directed the new
commission develop roll containing qualified Native Hawaiians
defined ancestry, id.; and then ordered that the roll shall serve the
basis eligibility participate the organization [a] Native
Hawaiian governing entity, id. 10H-3(2)(A), 10H-4(b).
After Act 195 was passed, new organization, Aupuni, was created
for one reason establish path possible reorganized Hawaiian
government. Appendix App. 412a. Aupuni was created
consultation with members OHA Board, who openly expressed their
desire allow these elections take place while avoiding lawsuit. App.
325a-328a.
After its creation, Aupuni informed OHA that intended use the
voter roll developed the Native Hawaiian Roll Commission run
election. See Aupuni Br. 14.
After providing such assurances, Aupuni entered into series
contracts both directly and indirectly (by incorporation) with OHA
which the contracts stated purpose was effectuate Act 195. Pursuant these contracts, Aupuni received $2.6 million government funds run this election and the constitutional convention that would follow
once the delegates were elected. See Akina Br. 11-13; App. 413a.
The Native Hawaiian Roll Commission created ancestry-based roll
Native Hawaiians and then provided that roll Aupuni used
the election choose delegates the constitutional convention. See
Akina Br. 11-13.1 the forthcoming convention, the delegates will formulate governance
documents for Hawaiian nation, App. 412a, 14(f), and the delegates
recommend reorganized Hawaiian government, hold ratification
referendum 20l6, restricted those Native Hawaiians the roll. Id.
14(g).
These facts, which are all undisputed, see generally OHA Br. 3-7; Aupuni
Br. 2-7, establish state action. previously explained, see Akina Br. 22, the State
conduct constitutes public function because this type election would
traditionally [be] the exclusive prerogative the State. Rendell-Baker Kohn,
457 U.S. 830, 842 (1982). everything but name, the State Hawaii conducting
this election doubt would have not for Rice. minimum, then, this state-regulated election. OHA Br. 14; Aupani Br. 10. Act 195 governs the
qualifications Native Hawaiian voters; creates agency, the Native Hawaiian
Roll Commission, charged with implementing and enforcing those qualifications;
Act 195 provides that the roll shall serve the basis for the eligibility
qualified Native Hawaiians, Haw. Rev. Stat. 10H-4(b) (emphasis added), and all
grants OHA shall used for activities that are consistent with the purposes
this chapter, Id. 10-17(a)(6) (emphases added). Respondents thus could not have
received grant money without complying with Act 195. characterize Aupuni having decided its own use the roll created the Native Hawaiian Roll
Commission, Aupuni Br. OHA Br. 16, thus ignores reality.
and establishes the purposes the election. This election clearly regulated
the state.
Respondents actions also satisfy the joint action test. See Akina Br. 23-25.
Joint action exists where the government has far insinuated itself into position interdependence with [the private entity] that must recognized joint
participant the challenged activity. Burton Wilmington Parking Auth., 365
U.S 715, 725 (1961). explained above, Aupuni conducting this election
name only. The State Hawaii has authorize[d], encourage[d], [and] facilitate[d] Aupuni conduct. Ohno Yasuma, 723 F.3d 984, 996 (9th Cir. 2013) (citing
Lugar Edmondson Oil Co., 457 U.S. 922, 941 (1982)).
Indeed, disputing
whether Applicants have equitable basis for injunctive relief, Respondents argue
that the Court should not intervene because the important role the State
Hawaii has played the process. See OHA Br. (arguing that injunction
not the public interest because the State Legislature has recognized the
importance this very process issue distinct and unique local
importance
Respondents equitable arguments are misplaced.
But they are
correct that the State Hawaii has played indispensable role here.
Not only Applicants meet both tests for state action, this election also will
clearly determine public governmental policies. OHA Br. 12; Aupuni Br. 810. initial matter, this inquiry part the public function test, see Akina
Br. 22, and therefore satisfied for the reasons stated above, see supra
Moreover, this election will determine which delegates will attend historic
convention decide policies with massive social, political, and economic
consequences. App. 426a. The delegates chosen will draft governance documents,
App. 411a, and decide whether form new nation for Native Hawaiians. App.
275a. undeniable that the establishment new nation enormous
change government policies. Indeed, hard imagine more important
governmental policy than the forming new sovereign. recognized DOI, the
new nation will entitled government-to-government relationship with the
United States and with the State Hawaii. See App. 234a. And OHA has already
announced its intention convey the lands currently holds trust the new
entity created through this convention. See Akina Br. 17. say that this election
will have purely private impact akin private Rotary club electing chapter
president, see OHA Br. untenable.
Finally, relates Applicants Fourteenth Amendment claim, the State
does not dispute that its actions would fail strict scrutiny.
See OHA Br. 18.
Respondent Aupuni, however, defends the district court decision, arguing that
the State racial election categories satisfied compelling interest facilitating
the organizing the indigenous Native Hawaiian community. Aupuni Br. 16.
The State unwillingness defend the district court these terms
understandable.
The district court determination that the State had valid
justification hold election excluding everyone but Native Hawaiians
indefensible. See Akina Br. 25-26. Distinctions between citizens solely because
their ancestry are their very nature odious free people, Rice, 528 U.S.
517, and therefore are contrary our traditions and hence constitutionally
suspect, Bolling Sharpe, 347 U.S. 497, 499 (1954). interest promoting
Native Hawaiian community can justify such classifications. See Rice, 528 U.S.
517.
II.
RESPONDENTS CANNOT DENY THAT APPLICANTS WILL SUFFER
IRREPARABLE HARM ABSENT THE COURT INTERVENTION.
Respondents sole argument for why Applicants will not suffer irreparable
harm from being excluded from election based their ancestry that not election Applicants are entitled vote in. See OHA Br. 18-19; Aupuni Br.
18-20. But that merely attempt sidestep the issue. Respondents not
even attempt dispute that Applicants will suffer irreparable harm they are
likely succeed the merits viz., that Applicants are being unconstitutionally
denied the right vote. That wise concession. See App. 15-18. Without
doubt, the requested injunction needed ensure that election likely being
conducted violation the Constitution not certified.
Respondents attempt sidestep this fatal concession suggesting various
ways Applicants can blunt the harm they will suffer from being denied the right
vote. They claim, for example, that Applicants could bring legal challenge some
point the future decision Hawaii the United States recognize
Native Hawaiian self-governing entity, OHA Br. 24; that Applicants could express
their views through the political process what any public change should
occur and that Applicants could submit comments the ongoing rulemaking
proceedings being conducted the Department the Interior, OHA Br. 26. All
these arguments miss the point entirely, however.
Applicants are not primarily basing their claim irreparable injury the
actions self-governing nation Native Hawaiians may take the future. They
are claiming irreparable injury based being denied the right vote whether
there will self-governing nation Native Hawaiians the first place. This paradigmatic claim disenfranchisement. The election will determine which
delegates will attend historic convention decide policies with massive social,
political, and economic consequences.
App. 426a.
The Fifteenth Amendment
entitles Applicants the opportunity vote whom those delegates will be.
remedy say that Applicants can someday challenge the delegates decisions.
Under Respondents theory, state could deny certain racial group the right
vote for the governor state election and court could refrain from enjoining the
state actions because those individuals could one day bring lawsuit challenge
the governor policies. That unthinkable. sure, though, DOI impending rulemaking adds special urgency this
Application. Applicants explained, the denial Applicants constitutional rights
can never undone because [u]nder the DOI administrative process, the agency
can accept this election the will Hawaiians even this election some day
recognized being unconstitutional. Akina Br. 17. other words, soon the
votes are counted and the winners are announced, effective judicial relief may
become impossible. The new delegates will meet, they will form constitution, and
the federal government will formally recognize them new sovereign nation.
Indeed, Respondents never deny that Applicants will powerless stop the
federal government from recognizing the results this election. See generally OHA
Br. 18-26; Aupuni Br. 18-20.
This silence telling. Respondents know that the results this election will irreversible. That why they rushed hold it. moment candor,
Aupuni explained that was rejecting longer timetable because delaying this
process will help those who want delay the election delegates and the
convening [of] Aha stop[] them from proceeding altogether. Aupuni,
Frequently Asked Questions, available http://www.naiaupuni.org/faq.html.
Aupuni thus adopted election timetable for the express purpose reduc[ing]
the risk that the process may stopped. Id. Respondents plan has worked far.
Without this Court intervention, Applicants will forever lose their constitutional
right vote. This should not stand.
III.
THE BALANCE EQUITIES AND PUBLIC INTEREST SUPPORT
TEMPORARY INJUNCTION.
Respondents claims why granting the requested injunction would
inequitable them would harm the public all miss the mark. Here too, all
Respondents arguments presume the correctness its position the merits.
OHA Br. (arguing that enjoining private election process and interfering
with someone else expressive activity would inequitable) (citation and
quotations omitted); OHA Br. (arguing that Aupuni would harmed based interference with core First Amendment rights private organization).
explained above, however, that just attempt sidestep evaluation the
equitable factors their own terms. See supra Respondents have offered
persuasive explanation for why granting the appellate injunction would harm them the public independent their merits arguments.
Nor could they. Unlike Applicants, who will irreparably harmed they
are excluded from voting for delegates violation the Constitution, the only
harm Respondents will suffer delay their plans for short period time
while this appeal adjudicated. Respondents offer explanation why mere delay
will cause them harm comparable let alone greater than the serious harm
Applicants will undoubtedly suffer. That because the only harm Respondents will
suffer the one they have tried avoid all along: timely judicial review
unconstitutional election scheme.
Respondents wrongly contend that injunction will sow confusion among
voters who have not yet voted, cast[] into doubt the election accuracy, and
interfere with election that already underway. OHA Br. 20-21. But these
arguments depend misrepresentation the nature the injunction requested.
Applicants not ask the Court enjoin conduct the election.
Voting will
continue unabated and all Hawaiians who have been allowed participate this
election, and want cast ballot, can so. There will confusion, doubt,
interference. Respondents are well aware, Applicants ask only that the Court
enjoin counting the ballots cast and certifying the winners the election
delegates the upcoming constitutional convention.
Akina Br. 28.
Indeed,
Applicants responsibly sought this relief precisely avoid the kind harms
Respondents invoke.
Respondents public-interest arguments fail for similar reasons. simply
untrue that granting the injunction will cause lasting harm the Native
Hawaiians who may wish participate the process determining how
organize themselves and whether seek recognition sovereign entity. OHA
Br. 22. All such Hawaiians will able participate that process and, the
unlikely event Respondents successfully defend against this challenge, their chosen
delegates will able hold the convention. Like Respondents, the only harm that
Native Hawaiians interested declaring themselves sovereign nation will
suffer temporary delay that enterprise.
That minimal delay pales
comparison the strong public interest protecting Applicants legal rights and
ensuring that all elections are conducted conformity with the Constitution.
Finally, last-ditch effort, Respondents argue that the injunction should denied because Applicants undue delay seeking it.
OHA Br. 25.
The
argument factually inaccurate and legally meritless; Applicants moved
expeditiously all stages this litigation. Respondents claim that Applicants
should have filed suit February 2015. Id. But Respondents fail inform the
Court that Aupuni did not announce the election timetable until July 2015.
App. 405a; see also App. 161a, 390a, 406a. Applicants could not have sought
enjoin election that had not yet been scheduled. That why the district court
correctly rejected this very argument. App. 62a Suit was filed within five weeks
when the election schedule was first reported. Plaintiffs could not have sued
enjoin election that was not scheduled. Thus, least claims regarding the
election itself, the timing the suit does not affect the equities. see also App. 95a.
Applicants expeditiously sought appellate review well. Friday,
October 23, the district court issued its oral ruling denying the motion for
preliminary injunction. Applicants filed their notice appeal Monday, October the next business day. The case was docketed Tuesday, October and
Applicants filed their emergency motion for injunction pending appeal two
days later. Applicants moved just quickly seek relief from this Court.
Thursday, November 19, the Ninth Circuit denied Applicants motion for
temporary injunction. Monday, November two business days after
receiving the court decision Applicants filed their Application this Court.2 the end, Applicants were always going need seek emergency appellate
relief this nature the district court denied the preliminary-injunction request.
Under circumstances would have been possible obtain ordinary appellate
Respondents criticize Applicants for seeking extend the time file their
opening brief the Ninth Circuit. OHA Br. 23-24; Aupuni Br. 17-18.
particular, they claim that the motion statement that the extension will not alter
the available remedies undercuts the claim irreparable harm. But Respondents
have backwards. the Court denies this injunction, there may remedy
available Applicants that will protect the constitutional rights this election
jeopardizes and, consequence, Applicants will have seriously consider
whether they can continue with this litigation. See ACRU Amicus Br. 3-7. other
words, that the available judicial remedies will the same whether the Ninth
Circuit briefing schedule delayed few weeks does not mean that those remedies
will sufficiently protect Applicants legal rights. That concern, addition the
resource constraints created this simultaneous request, why Applicants sought
the short extension from the Ninth Circuit.
review from the Ninth Circuit and certiorari review from this Court the district
court 63-page ruling between August and November. Whether Applicants filed
suit one week after the election was announced few weeks later, sought
emergency relief one day after docketing their appeal two, only injunction
pending appeal from the Ninth Circuit this Court would avert the irreparable
injury they will suffer.
But, course, that was the point selecting such
accelerated timetable. Respondents wanted avoid judicial review all costs.
They should not permitted profit from such gamesmanship.
CONCLUSION
For all the foregoing reasons, Applicants respectfully ask 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.
Finally, minimum, Applicants request temporary injunction allow
for full consideration this Application.
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