Fasi v. Cayetano

• Decision Date: 09 July 1990
• Docket Number: Civ. No. 90-00455 ACK.
• Citation: 752 F. Supp. 942
• Parties: Frank F. FASI, Mayor of the City and County of Honolulu, Sharon Gibo, Mark Shiira, Kiyoshi Kimura, Plaintiffs, v. Benjamin CAYETANO, Lieutenant Governor, State of Hawaii, and Morris Takushi, Director of Elections, State of Hawaii, Defendants.
• Court: U.S. District Court — District of Hawaii

752 F. Supp. 942

Frank F. FASI, Mayor of the City and County of Honolulu, Sharon Gibo, Mark Shiira, Kiyoshi Kimura, Plaintiffs, v. Benjamin CAYETANO, Lieutenant Governor, State of Hawaii, and Morris Takushi, Director of Elections, State of Hawaii, Defendants.

Civ. No. 90-00455 ACK.

United States District Court, D. Hawaii.

July 9, 1990.

COPYRIGHT MATERIAL OMITTED

William C. McCorriston, Mark J. Bennett, McCorriston, Miho & Miller, James J. Bickerton, Bickerton, Ramos-Saunders & Dang, Honolulu, Hawaii, for plaintiffs.

Warren Price, III, Atty. Gen., State of Hawaii, Charleen M. Aina, Gary Kim, Steven S. Michaels, Deputy Attys. Gen., Honolulu, Hawaii, for defendants.

Before FONG, Chief Judge, and KAY and DAVID A. EZRA, District Judges.

ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND MOTION TO SET ASIDE STAY

The plaintiffs in this case are Frank F. Fasi, Mayor of the City and County of Honolulu, Sharon Gibo, Mark Shiira, and Kiyoshi Kimura, the latter three being voters in the State of Hawaii. On July 2, 1990, the court, sitting en banc, heard plaintiffs' motion for preliminary injunction. Plaintiffs seek an order from this court enjoining defendants Benjamin Cayetano, Lieutenant Governor of the State of Hawaii, and Morris Takushi, Director of Elections for the State of Hawaii, from enforcing Article II, section 7 of the Hawaii State Constitution (the "resign-to-run" provision), effectively requiring defendants to place Frank Fasi's name on the Republican primary ballot. In the alternative, plaintiffs ask the court to lift the stay imposed in Burdick v. Takushi, 737 F.Supp. 582 (D.Haw.1990) (Fong, C.J.) and require defendants to allow write-in voting during the 1990 primary and general elections for Governor of the State of Hawaii.

Plaintiffs allege that this court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343(a)(3), 28 U.S.C. § 1343(a)(4), 28 U.S.C. § 2201, 28 U.S.C. § 2202, 42 U.S.C. § 1983, the First and Fourteenth Amendments to the United States Constitution, and Article 1, section 10, clause 1 of the United States Constitution.

BACKGROUND

Plaintiff Frank F. Fasi is the Mayor of the City and County of Honolulu. The remaining plaintiffs are voters who would vote for Mayor Fasi if his name appeared on the ballot or if they were allowed to write in Mayor Fasi's name as a write-in candidate.

On May 21, 1990, Mayor Fasi filed nomination papers with the Office of the Lieutenant Governor of the State of Hawaii to have his name placed on the 1990 Republican primary ballot for nomination as the Republican candidate for Governor of the State of Hawaii. Fasi's nomination papers were rejected because Fasi refused to resign from his office pursuant to Article II, section 7 of the Hawaii State Constitution. That provision (Hawaii's "resign-to-run" amendment) provides:

Any elected public officer shall resign from that office before being eligible as a candidate for another public office, if the term of the office sought begins before the end of the term of the office held.

Defendants contend that Mayor Fasi must resign by July 24, 1990 if he wants to be a candidate for election as Governor.

Plaintiffs concede and therefore do not challenge the constitutionality of the provision as written. Rather, plaintiffs contend that the resign-to-run provision, as applied in conjunction with Hawaii's ban on write-in voting: (1) denies them their constitutional rights pursuant to the First and Fourteenth Amendments of the United States Constitution, (2) denies Mayor Fasi his right to equal protection under the law pursuant to the Fourteenth Amendment of the United States Constitution, and (3) violates Article I, section 10, clause 1 of the United States Constitution as a bill of attainder.

I. JUSTICIABILITY—CASE OR CONTROVERSY

Before the court reaches the merits of this dispute, the court will address whether this case presents a justiciable case or controversy within the meaning of Article III of the United States Constitution. The court finds that there is such a justiciable case or controversy before it.

The controversy was created on May 23, 1990 when defendant Cayetano mailed Mayor Fasi a letter explaining why the Mayor's nomination papers would not be accepted. Mayor Fasi's nomination papers were rejected because Mayor Fasi refused to certify that he had or would resign from office pursuant to Article II, section 7. Given the defendants' stated position that, pursuant to the resign-to-run provision, Mayor Fasi's name will not be printed on the ballot during the September primary election for Governor unless he resigns from office before July 24, 1990, it cannot be said that the resign-to-run provision presents only a speculative or hypothetical obstacle to Mayor Fasi's eligibility for election. Therefore, the court finds that Mayor Fasi's allegations are sufficient to create a case or controversy.

II. PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

A. Standard for Issuance of Preliminary Injunction

The Ninth Circuit has developed a multi-pronged test for the propriety of preliminary injunctive relief. The moving party must establish either (1) a combination of probable success on the merits and irreparable injury if denied the preliminary injunction, or (2) that he has raised serious questions on the merits and the balance of hardships tips sharply in his favor. Hankins v. State of Hawaii, 639 F.Supp. 1552, 1553-54 (D.Haw.1986) (Fong, C.J.), citing Benda v. Grand Lodge of International Association of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979).

Accordingly, the court will review the merits of plaintiffs' constitutional claims, and then decide whether plaintiffs are irreparably injured or whether the balance of hardships tips sharply in plaintiffs' favor.

B. First and Fourteenth Amendment Rights

1. Standard of Review

It has not been settled in this Circuit whether this court should apply the traditional balancing test or a strict scrutiny standard of review when evaluating plaintiffs' First Amendment claims.¹ Plaintiffs argue that a strict scrutiny standard of review is appropriate in this case because two rights rather than one are at stake. In Burdick, only the voter's right to vote for the candidate of his choice was at issue. In this case, both Mayor Fasi's right to run for office and the right of voters to vote for a specific candidate of their choice are at stake. Plaintiffs further argue that the injury in this case is more substantial and more direct than the injury in Burdick since in this case, the candidate whom plaintiffs wish to vote for is known whereas in Burdick, the court protected the voter's right to vote for any candidate, known or unknown.

The injury resulting from Hawaii's ban on write-in voting has been redressed by this court's Burdick decision. Only the additional alleged injury to Mayor Fasi's interest in running for Governor without resigning has not been redressed. In Burdick, however, this court made clear that it was not as greatly concerned with the candidate's right to run for political office as it was with the voter's right to vote for the candidate of his choice. See Order Granting Plaintiff's Motion for Summary Judgment and Permanent Injunctive Relief filed May 10, 1990 at 10. Therefore, plaintiffs' argument that in this case the injury to plaintiffs' constitutional rights is greater than in Burdick because the resign-to-run amendment affects not only the voters' right to vote for Mayor Fasi, but also Mayor Fasi's right to be a candidate, is unpersuasive. Additionally, whether the candidate of the voter's choice is known or not, is not a factor affecting the court's decision on the importance of a voter's right of choice. Therefore, the fact that in this case, the candidate of the voter plaintiffs' choice is known does not make the injury to plaintiffs' constitutional right to vote more substantial than had the candidate not been known.

In Burdick, this court applied the balancing test promulgated by the United States Supreme Court in Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547 (1983), to determine the constitutional validity of Hawaii's ban on write-in voting. Under the Anderson court's balancing analysis:

... a court must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.

Id. at 789, 103 S.Ct. at 1570 (citations omitted). The Anderson balancing test has been applied in subsequent appellate decisions. See Erum v. Cayetano, 881 F.2d 689 (9th Cir.1989); Rainbow Coalition of Oklahoma v. Oklahoma State Election Board, 844 F.2d 740 (10th Cir.1988).

This court also noted in Burdick that recent Supreme Court authority suggests that a stricter standard of review, requiring that the law be narrowly tailored to serve a compelling state interest, may be appropriate in certain ballot access cases.² See Order Granting Plaintiff's Motion for Summary Judgment and Preliminary Injunctive Relief at 7. In Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989), the United States Supreme Court reviewed the constitutionality of a California election code provision that banned primary endorsements and imposed restrictions on the internal governance of political...