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In the United States Court of Appeals for the Ninth Circuit

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In the United States Court of Appeals for the Ninth Circuit (1 of 38) Case: 15-17134, 11/13/2015, ID: 9755149, DktEntry: 25-1, Page 1 of 15 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 15-17134 KELI’I AKINA, KEALII MAKEKAU, JOSEPH KENT, YOSHIMASA SEAN MITSUI, PEDRO KANA’E GAPERO, and MELISSA LEINA’ALA MONIZ, Plaintiffs-Appellants, v. THE STATE OF HAWAII; GOVERNOR DAVID Y. IGE, in his official capacity; ROBERT K. LINDSEY JR., Chairperson, Board of Trustees, Office of Hawaiian Affairs, in his official capacity; COLETTE Y. MACHADO, PETER APO, HAUNANI APOLIONA, ROWENA M.N. AKANA, JOHN D. WAIHE’E IV, CARMEN HULU LINDSEY, DAN AHUNA, LEINA’ALA AHU ISA, Trustees, Office of Hawaiian Affairs, in their official capacities; KAMANA’OPONO CRABBE, Chief Executive Officer, Office of Hawaiian Affairs, in his official Capacity; JOHN D. WAIHE’E III, Chairman, Native Hawaiian Roll Commission, in his official Capacity; NĀ’ĀLEHU ANTHONY, LEI KIHOI, ROBIN DANNER, MĀHEALANI WENDT, Commissioners, Native Hawaiian Roll Commission, in their official capacities; CLYDE W. NĀMU’O, Executive Director, Native Hawaiian Roll Commission, in his official capacity; THE AKAMAI FOUNDATION; and THE NA’I AUPUNI FOUNDATION, Defendants-Appellees. PLAINTIFFS-APPELLANTS’ REPLY IN SUPPORT OF THEIR URGENT MOTION FOR AN INJUNCTION WHILE APPEAL IS PENDING On Appeal from the United States District Court for the District of Hawaii Civil No. 15-00322 JMS-BMK (2 of 38) Case: 15-17134, 11/13/2015, ID: 9755149, DktEntry: 25-1, Page 2 of 15 NING LILLY & JONES MICHAEL A. LILLY #1681 707 Richards Street, Suite 700 Honolulu, Hawaii 96813 Telephone: (808) 528-1100 Facsimile: (808) 531-2415 Email: [email protected] JUDICIAL WATCH, INC ROBERT D. POPPER PAUL J. ORFANEDES 425 Third Street, SW Washington, DC 20024 Telephone: (202) 646-5172 Facsimile: (202) 646-5199 Email: [email protected] LAW OFFICE OF CHRISTOPHER COATES CHRISTOPHER COATES 934 Compass Point Charleston, South Carolina 29412 Telephone: (843) 609-080 Email: [email protected] Attorneys for Plaintiffs-Appellants (3 of 38) Case: 15-17134, 11/13/2015, ID: 9755149, DktEntry: 25-1, Page 3 of 15 TABLE OF CONTENTS Introduction ................................................................................................................ 1 Argument.................................................................................................................... 1 I. The Relief Appellants Seek Is Appropriate For an Unlawful Election .......................................................................... 1 II. The Undisputed Facts Establish State Action ............................................ 2 A. There is State Action Under the Public Function Test ............................................................................... 6 B. There Is Joint Action ................................................................... 8 III. The District Court’s Theory of Compelling Justification is Unprecedented and Legal Error .................................................... 9 IV. Appellants Have Suffered a Significant Constitutional Injury Warranting an Injunction ....................................... 10 Conclusion ............................................................................................................... 10 (4 of 38) Case: 15-17134, 11/13/2015, ID: 9755149, DktEntry: 25-1, Page 4 of 15 TABLE OF AUTHORITIES CASES PAGE Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014) ........................................................................ 10 Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967) ......................................................... 1 Bush v. Gore, 531 U.S. 1046 (2000) ......................................................................... 1 Cab Operating Corp. v. City of N.Y., 243 F. Supp. 550 (S.D.N.Y. 1965) ................................................................. 2 Davis v. Guam, 785 F.3d 1311 (9th Cir. 2015) .......................................................... 7 Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978) ......................................................... 2 Hadnott v. Amos, 394 U.S. 358 (1969) ...................................................................... 1 Hamer v. Campbell, 358 F.2d 215 (5th Cir. 1966) ................................................ 1-2 Morse v. Republican Party of Va., 517 U.S. 186 (1996)......................................................................................... 8 Ohno v. Yasuma, 723 F.3d 984 (9th Cir. 2013) ...................................................... 8, 9 Roe v. Mobile Cnty. Appointing Bd., 904 F. Supp. 1315 (S.D. Ala. 1995) ................................................................ 2 Southwest Voter Reg. Ed. Project v. Shelley, 344 F.3d 914 (9th Cir. 2003) ........................................................................... 1 Terry v. Adams, 345 U.S. 461 (1953) ........................................................................ 6 STATUTES, RULES, AND REGULATIONS Fed. R. Evid. 401(a) ................................................................................................... 4 Haw. Rev. Stat. § 10-17(a) ........................................................................................ 5 Haw. Rev. Stat. § 10-2 ............................................................................................... 5 Haw. Rev. Stat. § 10H-4(b) ...................................................................................... 5 ii (5 of 38) Case: 15-17134, 11/13/2015, ID: 9755149, DktEntry: 25-1, Page 5 of 15 Appellants submit this reply in further support of their urgent motion for an injunction while an appeal is pending.1 I. The Relief Appellants Seek Is Appropriate For an Unlawful Election. OHA argues that the remedy Appellants seek involves “enjoining an election that is already under way.” OHA Opp. At 17, citing Southwest Voter Reg. Ed. Project v. Shelley, 344 F.3d 914, 919 (9th Cir. 2003) (en banc) (“interference with an election after voting has begun is unprecedented”). But that incorrectly characterizes the relief Appellants request. Appellants do not seek to enjoin the ongoing process of voting, that is, the casting or collection of ballots. Rather, Appellants are requesting a post-election remedy, enjoining the counting of any ballots and the subsequent declaration of winners. Courts have issued many kinds of post-election relief regarding unlawful elections, from enjoining the counting of ballots or the publishing of results to the voiding of elections and the ordering of new elections.2 1 Office of Hawaiian Affairs Appellees are referred to herein as “OHA” and Docket Entry 19-1 as “OHA Br.”; State Appellees are referred to as such and Docket Entry 22 as “State Br.”; and Na’i Aupuni is referred to as NA and Docket Entry 23-1 as “NA Br.” 2 See Bush v. Gore, 531 U.S. 1046, 1047 (2000) (Scalia, J, concurring) (staying a hand-count of ballots “of questionable legality” was better than “[c]ount[ing] first, and rul[ing] upon legality afterwards”); Hadnott v. Amos, 394 U.S. 358, 367 (1969) (ordering officials “promptly to conduct a new election” where candidates were excluded because of race); Bell v. Southwell, 376 F.2d 659, 661, 665 (5th Cir. 1967) (appropriate remedy for overt acts of discrimination was “setting aside the election and requiring the calling of a special election”); Hamer v. Campbell, 358 F.2d 215, (6 of 38) Case: 15-17134, 11/13/2015, ID: 9755149, DktEntry: 25-1, Page 6 of 15 II. The Undisputed Facts Establish State Action. Appellees say little to dispute the basic facts Appellants rely on to show that the election NA is undertaking is state action. Indeed, Appellees ultimately dispute only one fact – and even that one only in part. Except for the autonomy clause in the Grant Agreement upon which they rely, neither Appellees nor the United States mention, in 80 pages of opposition briefs, any of the other interrelated contractual provisions – including the recitals, Whereas clauses, incorporations by reference, and special rights reserved to OHA – that tie NA to OHA, and to OHA’s statutory purpose of carrying out Act 195. See Mot. at 6, 7-9. Appellees fail to mention that Dr. Asam publicly stated that “Na’i Aupuni exists for one reason, which is to establish a path to a possible reorganized Hawaiian government.” Ex. E at 187, ¶ 14(b). Appellees concede that NA was formed in December 2014, just a few months before those contracts were signed, and NA concedes that its own bylaws refer to OHA’s purpose “of enabling 222 (5th Cir. 1966) (district court erred in failing to enjoin discriminatory city election, and “we now must set it aside in order ‘to grant appellants full relief in the same manner as if the said election had been enjoined.’”) (citation omitted); Griffin v. Burns, 570 F.2d 1065, 1069, 1080 (1st Cir. 1978) (district court was right to invalidate a “primary, postpone the general election, and schedule a new primary,” where absentee ballots were improperly rejected); Roe v. Mobile Cnty. Appointing Bd., 904 F. Supp. 1315, 1336 (S.D. Ala. 1995) (permanently enjoining Secretary of State from counting contested absentee ballots); Cab Operating Corp. v. City of N.Y., 243 F. Supp. 550, 560 (S.D.N.Y. 1965) (enjoining “canvassing or counting the votes cast” and “reporting, announcing or publishing” the results where City held election preempted by federal labor law). 2 (7 of 38) Case: 15-17134, 11/13/2015, ID: 9755149, DktEntry: 25-1, Page 7 of 15 Native Hawaiians to participate in self-governance.” NA Br. at 12. NA admits (id. at 13) that “prior to entering into”
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