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Na'i Aupuni and the Akamai Foundation Brief

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Na'i Aupuni and the Akamai Foundation Brief Case: 15-17134, 02/05/2016, ID: 9856376, DktEntry: 67-1, Page 1 of 46 NO. 15-17134 ______________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________________________________ KELIʻI AKINA, ET AL., Plaintiffs-Appellants, v. THE STATE OF HAWAI‘I, ET AL., Defendants-Appellees. ________________________________________________ On Appeal from the United States District Court for the District of Hawai‘i Honorable J. Michael Seabright, United States District Judge (Civil No. 15-00322 JMS-BMK) ______________________________________________________________ ANSWERING BRIEF AND ADDENDUM OF DEFENDANTS-APPELLEES NA‘I AUPUNI AND THE AKAMAI FOUNDATION ______________________________________________________________ SULLIVAN MEHEULA LEE McCORRISTON MILLER A Limited Liability Law Partnership MUKAI MacKINNON LLP WILLIAM MEHEULA DAVID J. MINKIN NADINE Y. ANDO TROY J.H. ANDRADE NATASHA L.N. BALDAUF JESSICA M. WAN 745 Fort Street, Suite 800 Five Waterfront Plaza, 4th Floor Honolulu, Hawai‘i 96813 500 Ala Moana Boulevard Telephone: (808) 599-9555 Honolulu, Hawai‘i 96813 Telephone: (808) 529-7300 Counsel for Defendants-Appellees NAʻI AUPUNI and THE AKAMAI Counsel for Defendant-Appellee FOUNDATION NAʻI AUPUNI February 5, 2016 337285.1 Case: 15-17134, 02/05/2016, ID: 9856376, DktEntry: 67-1, Page 2 of 46 CORPORATE DISCLOSURE STATMENT Pursuant to Federal Rules of Appellate Procedure (“FRAP”) Rule 26.1, Defendant-Appellee Na‘i Aupuni hereby states that it has no parent corporation or public corporation that owns 10% or more of its stock. Pursuant to FRAP Rule 26.1, Defendant-Appellee The Akamai Foundation hereby states that it has no parent corporation or public corporation that owns 10% or more of its stock. 337285.1 Case: 15-17134, 02/05/2016, ID: 9856376, DktEntry: 67-1, Page 3 of 46 TABLE OF CONTENTS Page(s) I. STATEMENT OF JURISDICTION ............................................................... 1 II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ................... 2 III. STATUTORY AUTHORITIES ...................................................................... 2 IV. STATEMENT OF THE CASE ....................................................................... 2 A. Act 195 and the Native Hawaiian Roll Commission ............................ 2 B. Na‘i Aupuni ........................................................................................... 4 C. Procedural History ................................................................................. 7 V. SUMMARY OF ARGUMENT .....................................................................11 VI. STANDARDS OF REVIEW .........................................................................12 VII. ARGUMENT .................................................................................................13 A. This Appeal is Moot As the Court Cannot Grant Any Effectual Relief ...................................................................................................13 B. The District Court Did Not Err in Concluding that Appellants Were Not Likely to Succeed on the Merits of Their Claims ..............19 1. The District Court Did Not Clearly Err in Concluding that NA was Not Performing a Public Function .......................20 2. The District Court Did Not Clearly Err in Concluding that NA is Not Engaged in Joint Action ....................................23 3. The District Court Properly Concluded that Countervailing Reasons Counsel Against Finding State Action ........................................................................................26 i 337285.1 Case: 15-17134, 02/05/2016, ID: 9856376, DktEntry: 67-1, Page 4 of 46 4. The Restriction on Voting to Native Hawaiians is Narrowly Tailored to Meet the State’s Compelling Interest in Facilitating the Organizing of the Indigenous Native Hawaiian Community ....................................................27 5. The District Court Did Not Err in Concluding that Appellants Were Not Likely to Succeed on Their First Amendment Claims ...................................................................29 C. Appellants Cannot Demonstrate Irreparable Harm and Cannot Show that the Balance of Equities and Public Interest Tip in Their Favor ..........................................................................................31 VIII. CONCLUSION ..............................................................................................35 ii 337285.1 Case: 15-17134, 02/05/2016, ID: 9856376, DktEntry: 67-1, Page 5 of 46 TABLE OF AUTHORITIES Page(s) CASES Affordable Housing Dev. Corp. v. City of Fresno, 433 F.3d 1182 (9th Cir. 2006) .......................................................................16 Blum v. Yaretsky, 457 U.S. 991 (1982).......................................................................................25 Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).......................................................................... 16, 27, 33 Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001).......................................................................................26 Cal. Democratic Party v. Jones, 530 U.S. 567 (2000).......................................................................................21 Carey v. Brown, 447 U.S. 455 (1980).......................................................................................16 Church of Scientology of California v. United States, 506 U.S. 9 (1992) ...........................................................................................13 Davis v. Guam, 785 F.3d 1311 (9th Cir. 2015) ................................................................ 21, 22 Doe v. Kamehameha Schools Bernice Pauahi Bishop Estate, 470 F.3d 827 (9th Cir. 2006) .........................................................................29 Flaggs Bros, Inc. v. Brooks, 436 U.S. 149 (1978).......................................................................................21 Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989 (9th Cir. 2011) .........................................................................12 Foster v. Carson, 347 F.3d 742 (9th Cir. 2003) .........................................................................12 iii 337285.1 Case: 15-17134, 02/05/2016, ID: 9856376, DktEntry: 67-1, Page 6 of 46 FTC v. Enforma Natural Products, 362 F.3d 1204 (9th Cir. 2004) .......................................................................13 Goldie’s Bookstore, Inc. v. Superior Court of Cal., 739 F.2d 466 (9th Cir. 1984) .........................................................................32 Herb Reed Enterps., LLC v. Florida Enter. Mgm’t, Inc., 736 F.3d 1239 (9th Cir. 2013) .......................................................................32 Jeff D. v. Otter, 643 F.3d 278 (9th Cir. 2011) .........................................................................19 Johnson v. Knowles, 113 F.3d 1114 (9th Cir. 1997) .......................................................................21 Kode v. Carlson, 596 F.3d 608 (9th Cir. 2010) .........................................................................19 Mills v. Green, 159 U.S. 651 (1895).......................................................................................13 Murphy v. Hunt, 455 U.S. 478 (1982).......................................................................................13 NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).......................................................................................16 Peterson v. Highland Music, Inc., 140 F.3d 1313 (9th Cir. 1998) .......................................................................15 Polk Cnty. v. Dodson, 454 U.S. 312 (1981).......................................................................................26 Pom Wonderful LLC v. Hubbard, 775 F.3d 1118 (9th Cir. 2014) .......................................................................30 Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234 (10th Cir. 2001) .............................................................. 33, 34 Protectmarriage.com v. Bowen, 752 F.3d 827 (9th Cir. 2014) ............................................................ 13, 17, 18 iv 337285.1 Case: 15-17134, 02/05/2016, ID: 9856376, DktEntry: 67-1, Page 7 of 46 Rendell-Baker v. Kohn, 457 U.S. 830 (1982)................................................................................ 20, 25 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)................................................................................ 16, 33 San Francisco Arts and Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522 (1987).......................................................................................25 Single Moms, Inc. v. Montana Power Co., 331 F.3d 743 (9th Cir. 2003) .........................................................................27 Terry v. Adams, 345 U.S. 461 (1953).......................................................................................20 Tsao v. Desert Palace, Inc., 698 F.3d 1128 (9th Cir. 2012) .......................................................................23 Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) ...........................................................................................19 RULES Ninth Circuit Rule 28-2.7 .......................................................................................... 2 STATUTES 20 U.S.C. § 7512(12)(B) ..........................................................................................29
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