Burdick v. Takushi, Civ. No. 86-0582 HMF
| Decision Date | 10 May 1990 |
| Docket Number | Civ. No. 86-0582 HMF,88-0365 HMF. |
| Citation | 737 F. Supp. 582 |
| Parties | Alan B. BURDICK, Plaintiff, v. Morris TAKUSHI, Director of Elections, State of Hawaii; John Waihee, Lieutenant Governor, State of Hawaii, Defendants. Alan B. BURDICK, Plaintiff, v. Benjamin CAYETANO, in his individual capacity as Lieutenant Governor of the State of Hawaii; Morris Takushi; Director of Elections of the State of Hawaii, Defendants. |
| Court | U.S. District Court — District of Hawaii |
COPYRIGHT MATERIAL OMITTED
American Civil Liberties Union, Kirk Cashmere, Honolulu, Hawaii, Mary Blaine Johnston, Johnston & Day, Wailuku, Maui, Hawaii, and Alan B. Burdick, Honolulu, Hawaii, for plaintiff.
Warren Price and Steven Michaels, Honolulu, Hawaii, for defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF; DENYING DEFENDANTS' COUNTER-MOTION FOR SUMMARY JUDGMENT; AND GRANTING DEFENDANTS' CONDITIONAL COUNTER-MOTION FOR STAY
On May 7, 1990, the court heard oral argument on plaintiff's motion for summary judgment and permanent injunctive relief and defendants' counter-motion for summary judgment and conditional counter-motion for stay.
In June 1986, plaintiff Alan B. Burdick notified defendants, the Director of Elections and the Lieutenant Governor (who serves as the Chief Elections Officer), that he wished to cast one or more write-in votes in the September 1986 primary elections and in future elections. After consulting with the Attorney General's office, defendants advised plaintiff that Hawaii election laws did not provide for write-in voting and that such votes would be disallowed or ignored.
Burdick filed suit in federal district court, claiming that Hawaii's ban on write-in voting violated both the Hawaii Constitution and the United States Constitution. This court agreed, granting plaintiff's motion for summary judgment on the ground that the refusal to permit write-in voting violated plaintiff's constitutionally guaranteed freedoms of expression and association. This court then issued an injunction ordering defendants to provide for the casting and counting of write-in votes in the 1986 general election. Defendants moved for a stay of this court's 1986 injunction which this court denied on October 8, 1986.
Defendants appealed this court's September 29, 1986 order to the Ninth Circuit Court of Appeals, and obtained a stay of the order pending appeal. On May 17, 1988,1 the appellate court issued a decision vacating this court's order on the ground that this court should have abstained from ruling on the federal constitutional issue. The appellate court found that Pullman abstention was proper in this case since the question whether Hawaii's statutes or constitution required or permitted write-in voting was an undecided question of state law, and a definitive resolution of this question might have obviated the need to decide the federal constitutional question. Burdick v. Takushi, 846 F.2d 587 (9th Cir.1988), citing Railroad Commission v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).
Following the Ninth Circuit's decision, the following questions were certified to the Hawaii Supreme Court:
(1) Does the Constitution of the State of Hawaii require Hawaii's election officials to permit the casting of write-in votes and require Hawaii's election officials to count and publish write-in votes?
(2) Do Hawaii's election laws require Hawaii's election officials to permit the casting of write-in votes and require Hawaii's election officials to count and publish write-in votes?
(3) Do Hawaii's election laws permit, but not require, Hawaii's election officials to allow voters to cast write-in votes, and to count and publish write-in votes?
On July 21, 1989, the Hawaii Supreme Court entered a ruling, answering "No" to each of the three questions presented. The court found that Hawaii's statutory election scheme precluded write-in balloting and found this ban on write-in voting permissible under the Hawaii state constitution. Burdick v. Takushi, 70 Haw. 498, 776 P.2d 824 (1989).
Now that the Hawaii Supreme Court has found that Hawaii's statutory election scheme prohibits write-in voting, the federal constitutional issue which this court decided three-and-a-half years ago is again before this court. Specifically, this court must decide whether Hawaii's ban on write-in voting violates the First and Fourteenth Amendments to the United States Constitution.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered when:
... the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The moving party has the initial burden of "identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The movant must be able to show "the absence of a material and triable issue of fact," Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir.1987), although it need not necessarily advance affidavits or similar materials to negate the existence of an issue on which the non-moving party will bear the burden of proof at trial. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. But cf., id., 477 U.S. at 328, 106 S.Ct. at 2555-56 (White, J., concurring).
If the moving party meets its burden, then the opposing party may not defeat a motion for summary judgment in the absence of any significant probative evidence tending to support his legal theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir.1979). The opposing party cannot stand on his pleadings, nor can he simply assert that he will be able to discredit the movant's evidence at trial. See T.W. Elec., 809 F.2d at 630. Similarly, legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). Moreover, "if the factual context makes the nonmoving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." California Architectural Building Products, Inc. v. Franciscan Ceramics, 818 F.2d 1466 at 1468, citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
The standard for a grant of summary judgment reflects the standard governing the grant of a directed verdict. See Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Thus, the question is whether "reasonable minds could differ as to the import of the evidence." Id.
However, when "direct evidence" produced by the moving party conflicts with "direct evidence" produced by the party opposing summary judgment, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." T.W. Elec., 809 F.2d at 631. Also, inferences from the facts must be drawn in the light most favorable to the non-moving party. Id. Inferences may be drawn both from underlying facts that are not in dispute, as well as from disputed facts which the judge is required to resolve in favor of the non-moving party. Id.
The facts of this case are simple and undisputed. Since both parties are asking this court to grant summary judgment in their favor, they agree that no material issue of fact is in dispute and that the court need only concern itself with the disputed issue of law: the constitutionality of Hawaii's ban on write-in voting.
Plaintiff argues that Hawaii's ban on write-in voting violates his and all other voters' free speech rights guaranteed by the U.S. Constitution. Defendants argue that the burden on plaintiff's constitutional rights is permissible because compelling state interests are served by the ban on write-in voting.
Id. at 789, 103 S.Ct. at 1570 (citations omitted). See also Erum v. Cayetano, 881 F.2d 689 (9th Cir.1989); Dixon v. Maryland State Administrative Board of Election Laws, 878 F.2d 776 (4th Cir.1989); Rainbow Coalition of Oklahoma v. Oklahoma State Election Board, 844 F.2d 740 (10th Cir.19...
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