Akina v. Hawaii
| Decision Date | 29 August 2016 |
| Docket Number | No. 15–17134,No. 15–17453,15–17453 |
| Citation | 835 F.3d 1003 |
| Parties | Keli'i Akina; Kealii Makekau; Joseph Kent; Yoshimasa Sean Mitsui; Pedro Kana'e Gapero; Melissa Leina'ala Moniz, Plaintiffs–Appellants, v. State of Hawaii; David Y. Ige, Governor; 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; Na'alehu Anthony; Lei Kihoi; Robin Danner; Mahealani Wendt, Commissioners, Native Hawaiian Roll Commission, in their official capacities; Clyde W. Namu'o, Executive Director, Native Hawaiian Roll Commission, in his official capacity; The Akamai Foundation; The Na'i Aupuni Foundation; Doe Defendants, 1–50, Defendants–Appellees. Keli'i Akina; Kealii Makekau; Joseph Kent; Yoshimasa Sean Mitsui; Pedro Kana'e Gapero; Melissa Leina'ala Moniz, Plaintiffs, v. State of Hawaii; David Y. Ige, Governor; 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; Na'alehu Anthony; Lei Kihoi; Robin Danner; Mahealani Wendt, Commissioners, Native Hawaiian Roll Commission, in their official capacities; Clyde W. Namu'o, Executive Director, Native Hawaiian Roll Commission, in his official capacity; The Akamai Foundation; The Na'i Aupuni Foundation, Defendants–Appellees, v. Samuel L. Kealoha, Jr.; Virgil E. Day; Josiah L. Hoohuli; Patrick L. Kahawaiolaa; Melvin Hoomanawanui, Proposed Intervenors, Movants–Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert D. Popper (argued), Paul J. Orfanedes, Lauren M. Burke, and Chris Fedeli, Judicial Watch, Inc., Washington, D.C.; Michael A. Lilly, Ning Lilly & Jones, Honolulu, Hawaii; H. Christopher Coates, Law Offices of H. Christopher Coates, Charleston, South Carolina; for Plaintiffs–Appellants.
Kannon K. Shanmugam (argued), Ellen E. Oberwetter, Eli S. Schlam, and Masha G. Hansford, Williams & Connolly LLP, Washington, D.C.; Robert G. Klein, McCorriston Miller Mukai MacKinnon LLP, Honolulu, Hawaii; for Defendants–Appellees Robert K. Lindsey, Jr., Collette Y. Machado, Peter Apo, Haunani Apoliona, Rowena Akana, John D. Waihe'e IV, Carmen Hulu Lindsey, Dan Ahuna, Leinaala Ahu Isa, and Kamana'opono Crabbe.
Donna H. Kalama (argued), Girard D. Lau, and Robert T. Nakatsuji, Deputy Attorneys General; Douglas S. Chin, Attorney General; Department of the Attorney General, Honolulu, Hawaii; for Defendants–Appellees State of Hawaii, David Y. Ige, John D. Waihe'e III, Na'alehu Anthony, Lei Kihoi, Robin Danner, Mahealani Wendt, and Clyde W. Namu'o.
David J. Minkin (argued), Troy J.H. Andrade, and Jessica M. Wan, McCorriston Miller Mukai MacKinnon LLP, Honolulu, Hawaii; for Defendant–Appellee The Na'i Aupuni Foundation.
William Meheula, Nadine Y. Ando, and Natasha L.N. Baldauf, Sullivan Meheula Lee LLLP, Honolulu, Hawaii, for Defendants–Appellees The Na'i Aupuni Foundation and The Akamai Foundation.
Walter R. Schoettle (argued), Honolulu, Hawaii, for Movants–Appellants.
Ilya Shapiro, Cato Institute, Washington, D.C.; Noel H. Johnson, Kaylan L. Phillips, and Joseph A. Vanderhulst, Public Interest Legal Foundation, Plainfield, Indiana; for Amici Curiae American Civil Rights Union and Cato Institute.
Sam Hirsch, R. Justin Smith, Matthew R. Oakes, and Robert P. Stockman, Attorneys; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Jody A. Cummings, Scott Keep, Barbara N. Coen, and Daniel D. Lewerenz; Hilary C. Tompkins, Solicitor; Office of the Solicitor, United States Department of the Interior, Washington, D.C.; for Amicus Curiae United States.
Before: Sidney R. Thomas, Chief Judge, and Consuelo M. Callahan and Mary H. Murguia, Circuit Judges.
These appeals concern recent efforts by a group of Native Hawaiians to establish their own government. The plaintiffs are Hawaii residents who challenge that process. They appeal the district court's order denying their request for a preliminary injunction to stop activities related to the drafting and ratification of self-governance documents. Separately, another group of Hawaii residents appeals the district court's denial of their motion to intervene in the plaintiffs' lawsuit. For the reasons that follow, we dismiss the plaintiffs' appeal of the preliminary injunction order as moot, and we affirm the district court's denial of the motion to intervene.
In 2011, the Hawaii Legislature approved measures “to provide for and to implement the recognition of the Native Hawaiian people by means and methods that will facilitate their self-governance.” Haw. Rev. Stat. § 10H–2. The legislation contemplated that Native Hawaiians may “independently” host a convention “for the purpose of organizing themselves.” Id. § 10H–5. The legislation also established a commission to maintain “a roll of qualified Native Hawaiians” who are descendants of the indigenous peoples who founded the Hawaiian nation. Id. § 10H–3.1
Na'i Aupuni, one of the defendants in this case, was a Hawaiian non-profit corporation that supported those Native Hawaiian self-governance efforts. In 2015, Na'i Aupuni proposed holding a constitutional convention or gathering, termed an 'Aha ,2 to discuss and draft self-governance documents, such as a constitution. Na'i Aupuni requested and received grant funds from a state agency, the Office of Hawaiian Affairs (OHA), for the “election of delegates, election and referendum monitoring, a governance 'Aha, and a referendum to ratify any recommendation of the delegates arising out of the 'Aha.” To select delegates for the convention, the organization scheduled a vote-by-mail election and limited the pool of candidates and voters to Native Hawaiians who appeared on the roll maintained by the state commission.
The delegate election was scheduled for November 1 through November 30, 2015. The elected delegates would then attend the constitutional convention to discuss forming a government, and to possibly draft a constitution. Any proposed constitution would then be subject to a ratification vote, with the universe of voters again limited to Native Hawaiians included on the roll maintained by the state commission. At the end of the process, any resulting government would lack an official legal status until it was recognized by the state or federal government.
In August 2015, three months before the planned delegate election, the plaintiffs sued the State of Hawaii, various state government officers and agencies, Na'i Aupuni, and another non-profit organization that was a party to the agreement that provided state funds for Na'i Aupuni's election efforts. Central to the lawsuit was the contention that the delegate election and any election to ratify a constitution were unconstitutional because the state was intertwined in the process and had limited participation based on Hawaiian ancestry. The complaint specifically alleged various violations of the United States Constitution and Voting Rights Act arising from the race-based and viewpoint-based restrictions on voting and candidate eligibility. Among the requested relief, the plaintiffs sought an injunction to prevent the use of the contested roll of Native Hawaiians and “the calling, holding, or certifying of any election utilizing the Roll.” The complaint further asked the court to “enjoin[ ] the defendants from requiring prospective applicants for any voter roll to” make any viewpoint-based declarations or verify their ancestry.
Approximately two weeks after filing the complaint, the plaintiffs moved for a preliminary injunction to “prevent[ ] Defendant's [sic] from undertaking certain voter registration activities and from calling or holding racially-exclusive elections for Native Hawaiians.” A month later, on September 25, 2015, a separate group of Hawaii residents moved to intervene in the lawsuit to challenge the definition of “Native Hawaiian” adopted by Na'i Aupuni and the 2011 state legislation. The residents also sought to recover state trust funds—designated to benefit Native Hawaiians—used in the election efforts.
The district court denied the preliminary injunction request after concluding that the plaintiffs had not met any of the requirements described in Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The district court later denied the motion to intervene, reasoning that the prospective intervenors did not have a “significantly protectable interest relating to” the subject of the plaintiffs' lawsuit, and that they were not “situated such that the disposition of the” lawsuit “may impair or impede” their ability to protect any such interest, quoting Arakaki v. Cayetano , 324 F.3d 1078, 1083 (9th Cir. 2003).
The plaintiffs appealed the district court's preliminary injunction order and sought an injunction pending appeal from this court. A motions panel denied the request for an injunction pending appeal. On November 27, 2015, three days before voting in the delegate election was to end, Justice Kennedy enjoined the counting of ballots and certification of winners “pending further order.” Akina v. Hawaii , ––– U.S. ––––, –––...
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