Eugene Hamamoto v. David Ige ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EUGENE HAMAMOTO; JOHN P. ROCO, No. 15-15572
Plaintiffs-Appellants,
D.C. No.
v. 1:14-cv-00491-
DKW-BMK
DAVID Y. IGE, Governor of the State
of Hawaii; DEMOCRATIC PARTY OF
HAWAII; SCOTT T. NAGO, in his OPINION
official capacity as the Chief
Election Officer of the State of
Hawaii; BRIAN EVANS,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted August 10, 2017
Pasadena, California
Filed January 25, 2018
2 HAMAMOTO V. IGE
Before: Stephen Reinhardt, Susan P. Graber*,
and Morgan Christen, Circuit Judges.
Per Curiam Opinion
SUMMARY**
Civil Rights
The panel affirmed the district court’s dismissal of
plaintiffs’ complaint alleging that the temporary appointment
of then-Lieutenant Governor Brian Schatz as the United
States senator from Hawaii violated their rights under the
Seventeenth Amendment.
Schatz was appointed on December 26, 2012, by then-
Governor Neil Abercrombie after Senator Daniel K. Inouye
passed away, creating a vacancy in the representation of
Hawaii in the Senate. On May 11, 2014, Hawaii’s Chief
Election Officer announced a special election for the office.
Plaintiffs sued, alleging that the temporary appointment and
pending special election violated their rights under the
Seventeenth Amendment. The district court dismissed the
complaint, holding that the vacancy election conducted five
*
This case was submitted to a panel that included Judge Kozinski,
who recently retired. Following Judge Kozinski’s retirement, Judge
Graber was drawn by lot to replace him. Ninth Circuit General Order
3.2.h. Judge Graber has read the briefs, reviewed the record, and listened
to oral argument.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HAMAMOTO V. IGE 3
days after the filing of plaintiffs’ complaint mooted their
challenge and that the exception for cases “capable of
repetition, yet evading review” did not apply.
The panel first held that plaintiffs’ failure to seek a
preliminary injunction did not foreclose the availability of
the “capable of repetition, yet evading review” exception
to mootness. The panel determined that a temporary
appointment to the United States Senate under Hawaii
Revised Statute § 17-1 lasts, at most, two years and five
months. Hence, the panel recognized that the controversy
over the legality of such an appointment is one of inherently
limited duration. The panel noted, however, that the judicial
system has developed procedures for expediting review of
time-sensitive controversies. The panel held that plaintiffs
had not demonstrated that expedited review would have been
unavailable in a case like theirs. The panel held that because
it was not convinced that two years and five months was
inadequate time for a case of this type to receive plenary
review by the federal courts, the “capable of repetition, yet
evading review” exception to mootness did not apply.
COUNSEL
Sean Morales-Doyle (argued), Michael P. Persoon, and
Thomas H. Geoghegan, Despres Schwartz & Geoghegan Ltd.,
Chicago, Illinois; James Hochberg, Honolulu, Hawaii; for
Plaintiffs-Appellants.
Clyde J. Wadsworth (argued), Valri Lei Kunimoto, Deirdre
Marie-Iha, and Patricia Ohara, Deputy Attorneys General;
Douglas S. Chin, Attorney General; Department of the
4 HAMAMOTO V. IGE
Attorney General, Honolulu, Hawaii; for Defendants-
Appellees David Y. Ige and Scott T. Nago.
Brian A. Kang (argued), Watanabe Ing LLP, Honolulu,
Hawaii; for Defendants-Appellee Democratic Party of
Hawaii.
OPINION
PER CURIAM:
Plaintiffs Eugene Hamamoto and John Roco allege that
the temporary appointment of then-Lieutenant Governor
Brian Schatz as United States senator from Hawaii violated
their rights under the Seventeenth Amendment. The district
court held that a vacancy election conducted five days after
the filing of their complaint mooted their challenge and that
the exception for cases “capable of repetition, yet evading
review” did not apply. We affirm.
BACKGROUND
On December 17, 2012, Senator Daniel K. Inouye passed
away, creating a vacancy in the representation of Hawaii in
the Senate. Hawaii Revised Statute § 17-1 provides, in
relevant part:
When a vacancy occurs in the office of United
States senator, the vacancy shall be filled for
the unexpired term at the following state
general election. . . . The chief election
officer shall issue a proclamation designating
the election for filling the vacancy. . . .
HAMAMOTO V. IGE 5
Pending the election, the governor shall make
a temporary appointment to fill the vacancy
by selecting a person from a list of three
prospective appointees submitted by the same
political party as the prior incumbent. The
appointee shall serve until the election and
qualification of the person duly elected to fill
the vacancy and shall be, at the time of
appointment, and shall have been, for at least
six months immediately prior to the
appointment, a member of the same political
party as the prior incumbent. . . .
Haw. Rev. Stat. § 17-1. Pursuant to § 17-1, the Democratic
Party of Hawaii provided a list of three prospective
appointees to then-Governor Neil Abercrombie on December
26, 2012, nine days after Senator Inouye’s death. That same
day, Governor Abercrombie appointed one of the three
candidates, Lieutenant Governor Brian Schatz, to fill the
vacancy temporarily.
On May 11, 2014, Hawaii’s Chief Election Officer, Scott
Nago, announced a special election for the office. The
primary election was scheduled for August 9, 2014, and the
general election for November 4, 2014. The appointed
senator, former Lieutenant Governor Schatz, won the
Democratic primary. On October 30, 2014—five days before
the general election—Plaintiffs sued Governor Abercrombie,
Chief Election Officer Nago, and the Democratic Party of
Hawaii in district court, alleging that the temporary
appointment and the pending special election violated their
6 HAMAMOTO V. IGE
rights under the Seventeenth Amendment.1 Plaintiffs did not
move for a preliminary injunction to stop the general election
from occurring, and Schatz won that election by a decisive
margin.
After Senator Schatz’s victory, Plaintiffs abandoned their
objection to the special election but continued to “seek
declaratory relief to rectify the unconstitutional nature of
Hawaii’s election law.” In February 2015, the district court
dismissed their claim as moot, ruling that the “capable of
repetition, yet evading review” exception to the mootness
doctrine did not apply. Plaintiffs timely appealed. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
STANDARD OF REVIEW
We review the district court’s dismissal of a complaint
under Federal Rule of Civil Procedure 12(b)(1) de novo.
Stratman v. Leisnoi, Inc., 545 F.3d 1161, 1167 (9th Cir.
2008).
DISCUSSION
“Article III of the Constitution limits federal-court
jurisdiction to ‘cases’ and ‘controversies.’” Campbell-Ewald
Co. v. Gomez, 136 S. Ct. 663, 669 (2016). Thus, “[t]o qualify
as a case fit for federal-court adjudication, an actual
1
Plaintiffs sued Governor Abercrombie and Chief Election Officer
Nago in their official capacities. Hawaii’s current governor, David Y. Ige,
was substituted as a defendant when he took office in 2015. Plaintiffs also
named Senator Schatz and the other primary and general candidates for
the vacant Senate seat as defendants. The other candidates were
voluntarily dismissed before the district court, and we granted the parties’
joint motion to dismiss Senator Schatz.
HAMAMOTO V. IGE 7
controversy must be extant at all stages of review, not merely
at the time the complaint is filed.” Davis v. Fed. Election
Comm’n, 554 U.S. 724, 732–33 (2008) (internal quotation
marks omitted). An exception exists, however, for
controversies that are “capable of repetition, yet evading
review.” Kingdomware Techs., Inc. v. United States, 136 S.
Ct. 1969, 1976 (2016). “That exception applies only in
exceptional situations, where (1) the challenged action is in
its duration too short to be fully litigated prior to cessation or
expiration, and (2) there is a reasonable expectation that the
same complaining party will be subject to the same action
again.” Id. (internal quotation marks and brackets omitted).
“For a controversy to be ‘too short to be fully litigated
prior to cessation or expiration,’ it must be of ‘inherently
limited duration.’” Protectmarriage.com-Yes on 8 v. Bowen,
752 F.3d 827, 836 (9th Cir. 2014) (quoting Doe v. Reed,
697 F.3d 1235, 1240 (9th Cir. 2012). That is, the controversy
“will only ever present a live action until a particular date,
after which the alleged injury will either cease or no longer be
redressible.” Id. The “limited duration of [the] controvers[y]
[must be] clear at the action’s inception.” Id.Defendants argue that the controversy presented by this
case is not inherently limited in duration. Rather, Plaintiffs’
failure to seek preliminary injunctive relief caused the case to
become moot after the November 4, 2014 general election.
We disagree. It is true that, usually, when an inherent limit
derives from an event that a court order can delay, the
exception to mootness will not apply because “a court can
ensure that a live controversy persists until the action is fully
litigated by enjoining the challenged conduct until the
litigation concludes.” Id. We have not, however, required
plaintiffs to seek a preliminary injunction that perpetuates or
8 HAMAMOTO V. IGE
exacerbates the injury being complained of for the sole
purpose of keeping a controversy alive. In this case, a court
order enjoining the general election from proceeding could
not have alleviated the injury Plaintiffs allegedly suffered
because their claimed harm is having Hawaii’s senate seat
filled on a temporary basis through a mechanism that
allegedly violates the Constitution. An injunction delaying
the general election would have prolonged Plaintiffs’ claimed
injury. We therefore hold that Plaintiffs’ failure to seek a
preliminary injunction here does not foreclose the availability
of the “capable of repetition, yet evading review” exception
to mootness.
By our reading, a temporary appointment to the United
States Senate under Hawaii Revised Statute § 17-1 lasts, at
most, two years and five months.2 Hence, the controversy
over the legality of such an appointment is one of inherently
limited duration. Id. The question remains whether “the
underlying action is almost certain to run its course before
either this court or the Supreme Court can give the case full
consideration.” Alcoa, Inc. v. Bonneville Power Admin., 698
2
At the time this suit was filed, Hawaii Revised Statute § 17-1 stated
that the election must take place at the next state general election, unless
the vacancy occurred less than sixty days before the primary election, in
which case the special election would take place at the general election
next following. Hawaii holds its primary election on the second Saturday
in August. See Haw. Rev. Stat. § 12-2. The Hawaii State Legislature
amended § 17-1 in June 2015 to advance the cutoff date from sixty days
before the primary election to twenty-one days before the deadline for
filing nominating papers, which is the first Tuesday in June. See Haw.
Rev. Stat. § 12-6(a). Thus, if a vacancy occurred in May of an election
year, less than 21 days before the June deadline for filing nominating
papers, under § 17-1 a plaintiff would have two years and five months
before the “general election next following” to litigate a challenge to the
statute.
HAMAMOTO V. IGE 9
F.3d 774, 787 (9th Cir. 2012) (internal quotation marks
omitted). The Supreme Court has held that two years is “too
short to complete judicial review of the lawfulness of . . .
procurement [contracts].” Kingdomware Techs., 136 S. Ct.
at 1976. We have also held three years to be insufficient for
a case involving the legality of a labor agreement to “proceed
beyond district court review.” Johnson v. Rancho Santiago
Cmty. Coll. Dist., 623 F.3d 1011, 1019 (9th Cir. 2010)
(internal quotation marks omitted). But a suit challenging the
appointment of a United States senator raises questions of
national importance, and the judicial system has evolved
procedures for expediting review of time-sensitive
controversies. See, e.g., Sup. Ct. Rule 11 (allowing for
certiorari before judgment “upon a showing that the case is of
such imperative public importance as to justify deviation
from normal appellate practice and to require immediate
determination in [the Supreme] Court.”); 9th Cir. Rule 27–12
(allowing for expedited briefing and hearing “upon a showing
of good cause.”). In Southwest Voter Registration Education
Project v. Shelley, 344 F.3d 914 (9th Cir. 2003) (en banc)
(per curiam), for instance, the plaintiffs sued to enjoin a recall
election that was scheduled to take place just three months
later. Id. at 916–17. The district court denied a preliminary
injunction less than two weeks after suit was filed, a panel of
this court reversed just over three weeks later, and we then
took the case en banc, heard argument, and issued an opinion
in the space of less than two weeks—only 47 days after
plaintiffs first filed suit. Id.Plaintiffs have not demonstrated that expedited review
would have been unavailable in a case like theirs. See Davis,
554 U.S. at 735. Because we are not convinced that two
years and five months is “almost certain[ly]” inadequate time
for a case of this type to receive plenary review by the federal
10 HAMAMOTO V. IGE
courts, we hold that the “capable of repetition, yet evading
review” exception to mootness does not apply.3 Alcoa,
698 F.3d at 787.
CONCLUSION
We affirm the district court’s dismissal of Plaintiffs’
complaint.
AFFIRMED.
3
Because we conclude that this case is moot, we do not reach any of
the other issues presented. See Shell Offshore Inc. v. Greenpeace, Inc.,
815 F.3d 623, 626 (9th Cir. 2016).