Keli'i Akina v. State of Hawaii

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELI’I AKINA; KEALII MAKEKAU; No. 15-17134
JOSEPH KENT; YOSHIMASA SEAN
MITSUI; PEDRO KANA’E GAPERO; D.C. No.
MELISSA LEINA’ALA MONIZ, 1:15-cv-00322-
Plaintiffs-Appellants, JMS-BMK
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
2 AKINA V. STATE OF HAWAII
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; No. 15-17453
JOSEPH KENT; YOSHIMASA SEAN
MITSUI; PEDRO KANA’E GAPERO; D.C. No.
MELISSA LEINA’ALA MONIZ, 1:15-cv-00322-
Plaintiffs, JMS-BMK
v.
OPINION
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,
AKINA V. STATE OF HAWAII 3
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.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, Chief Judge, Presiding
Argued and Submitted June 17, 2016
Honolulu, Hawaii
Filed August 29, 2016
4 AKINA V. STATE OF HAWAII
Before: Sidney R. Thomas, Chief Judge,
and Consuelo M. Callahan and Mary H. Murguia, Circuit
Judges.
Per Curiam Opinion
SUMMARY*
Civil Rights
The panel dismissed plaintiffs’ interlocutory appeal as
moot and affirmed the district court’s denial of a motion to
intervene in a lawsuit brought by Hawaii residents who
challenged efforts by a group of Native Hawaiians to
establish their own government, in accordance with measures
approved by the Hawaii Legislature.
Plaintiffs appealed from 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. The panel noted that the challenged election had
been cancelled, that plaintiffs did not argue that similar
elections will occur in the future, that a ratification vote on a
draft constitution had not been called and that no other
ratification elections were scheduled. The panel further noted
that one of the defendants had dissolved as a non-profit
corporation and any future election would likely be held by
an entity that was not a party to this litigation. Given those
changed circumstances, the panel concluded that the court
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AKINA V. STATE OF HAWAII 5
could not provide any effective relief sought in the
preliminary injunction request. The panel held that plaintiffs’
appeal did not fall within an exception to the mootness
doctrine.
The panel also affirmed the district court’s denial of a
motion to intervene as of right in the plaintiffs’ underlying
lawsuit. The prospective intervenors, who qualified as Native
Hawaiians under a definition that was narrower than that
established by the Hawaii Legislature, sought to challenge the
more liberal definition, and the creation of a Native Hawaiian
government based on that definition, as well as the related
expenditure of state trust funds intended to benefit Native
Hawaiians. The panel held that to the extent that the
proposed intervenors sought to stop the delegate and
ratification elections, their appeal was moot. To the extent
they sought to intervene on other grounds, the panel agreed
with the district court that the prospective intervenors’
interests would not, as a practical matter, be impaired or
impeded as a result of the plaintiffs’ litigation. The panel
agreed that the proposed intervenors’ claims would raise
entirely different issues from those raised by the plaintiffs,
and that the proposed intervenors could adequately protect
their interests in separate litigation.
COUNSEL
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.
6 AKINA V. STATE OF HAWAII
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, Leina’ala 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
AKINA V. STATE OF HAWAII 7
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.
OPINION
PER CURIAM:
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.
I.
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
8 AKINA V. STATE OF HAWAII
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
Na528 U.S. 495, 526–27 (2000) (Breyer, J., concurring). The prospective
intervenors in this case are among those who believe the definition of
Native Hawaiian should be more restrictive. In this opinion, “Native
Hawaiian” refers to the definition in the 2011 legislation, unless otherwise
noted.
An 555 U.S. 7 (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, — S. Ct.
AKINA V. STATE OF HAWAII 11
—, 193 L. Ed. 2d 420 (Nov. 27, 2015) (mem.). On December
2, 2015, a five-Justice majority of the Supreme Court
enjoined the defendants “from counting ballots cast in, and
certifying winners of, the election described in the
application, pending final disposition of the appeal by” this
court. Akina v. Hawaii, 136 S. Ct. 581 (2015) (mem.).
Two weeks after the Supreme Court’s order, Na136 S. Ct. 922
(2016) (mem.).
The 347 F.3d 742, 745
(9th Cir. 2003).
An interlocutory appeal of the denial of a preliminary
injunction is moot when a court can no longer grant any
effective relief sought in the injunction request. See In Def. of
Animals v. U.S. Dep’t of Interior, 648 F.3d 1012, 1013 (9th
Cir. 2011) (per curiam); see generally Campbell-Ewald Co.
v. Gomez, 136 S. Ct. 663, 669 (2016). The interlocutory
appeal may be moot even though the underlying case still
presents a live controversy. In Def. of Animals, 648 F.3d at
1013; see also CMM Cable Rep., Inc. v. Ocean Coast Props.,
Inc., 48 F.3d 618, 621 (1st Cir. 1995).
Here, the plaintiffs sought a preliminary injunction solely
to “prevent[] Defendant’s [sic] from undertaking certain voter
registration activities and from calling or holding racially-
exclusive elections for Native Hawaiians.” Before the district
court, the plaintiffs focused their injunction request on the
delegation election. That election, however, has been
cancelled, and the plaintiffs do not argue that similar
elections will occur in the future. Instead, the plaintiffs argue
AKINA V. STATE OF HAWAII 13
on appeal that the injunction should encompass a ratification
vote on the draft constitution produced at the 528 U.S. 167, 189 (2000) (quoting City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)); see also
Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277,
2287 (2012) (remarking that post-appeal “maneuvers
designed to insulate a decision from review by [an appellate
court] must be viewed with a critical eye”). But even in such
circumstances, an appeal may be properly dismissed as moot
if events make “it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.” Friends
of the Earth, 528 U.S. at 189 (citing United States v.
Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203
(1968)). Here, for the reasons previously discussed, the
defendants have met their burden to convince “the court that
the challenged conduct cannot be reasonably expected to start
up again.” Id.
It is possible, and perhaps even likely, that a different
group of individuals who are not parties to this case will try
14 AKINA V. STATE OF HAWAII
to hold a ratification election with private and public funds.
No such vote, however, has been scheduled, and it is unclear
what shape it would take. Any opinion by this court at this
juncture would amount to an impermissible advisory opinion
that would, at most, guide any future ratification efforts. See
Princeton Univ. v. Schmid, 455 U.S. 100, 102 (1982) (per
curiam) (“We do not sit to decide hypothetical issues or to
give advisory opinions about issues as to which there are not
adverse parties before us.”).
For similar reasons, this appeal does not fall within the
exception to mootness for disputes that are “capable of
repetition, yet evading review.” Weinstein v. Bradford,
423 U.S. 147, 148–49 (1975) (per curiam). That exception is
reserved for “‘extraordinary cases’ in which (1) ‘the duration
of the challenged action is too short to be fully litigated
before it ceases,’ and (2) ‘there is a reasonable expectation
that the plaintiffs will be subjected to the same action again.’”
Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798 (9th
Cir. 1999) (en banc) (quoting Am. Rivers v. Nat’l Marine
Fisheries Serv., 126 F.3d 1118, 1124 (9th Cir. 1997)); accord
United States v. Juvenile Male, 564 U.S. 932, 938 (2011) (per
curiam).
Here, the plaintiffs cannot satisfy the second requirement.
There is no reasonable expectation that the plaintiffs will be
subject to the same injury again, given NaArakaki, 324 F.3d at 1082. To the extent that the proposed
intervenors seek to stop the delegate and ratification
elections, their appeal is moot for the reasons previously
discussed. To the extent that they seek to intervene on other
grounds—such as to recover state funds already spent on
election efforts—we hold that the district court did not err by
denying the motion to intervene.
Under Federal Rule of Civil Procedure 24(a), an
individual seeking to intervene as of right must (1) timely
move to intervene; (2) demonstrate “a significantly
protectable interest relating to the property or transaction that
is the subject of the action”; (3) “be situated such that the
disposition of the action may impair or impede the party’s
ability to protect that interest”; and (4) not be adequately
represented by existing parties. Id. at 1083. The question of
whether protectable interests will be impaired by litigation
“must be put in practical terms rather than in legal terms.”
16 AKINA V. STATE OF HAWAII
7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 1908.2 (3d ed. 2007); see
also Smuck v. Hobson, 408 F.2d 175, 179 (D.C. Cir. 1969)
(“The decision whether intervention of right is warranted . . .
involves an accommodation between two potentially
conflicting goals: to achieve judicial economies of scale by
resolving related issues in a single lawsuit, and to prevent the
single lawsuit from becoming fruitlessly complex or
unending.”).
We agree with the district court that the prospective
intervenors’ interests would not, as a practical matter, be
impaired or impeded as a result of the plaintiffs’ litigation.
The district court properly reasoned that the prospective
intervenors’ claims would raise entirely different issues from
those raised by the plaintiffs, and that the proposed
intervenors could adequately protect their interests in separate
litigation. Whereas the plaintiffs argue that the state is being
too restrictive in limiting participation in the formation of a
Native Hawaiian government, the proposed intervenors
would argue that the state should be more restrictive. Further,
as the district court noted, the prospective intervenors’
challenge to the expenditure of state trust funds would
“expand the suit well beyond the scope of the current action.”
See Arakaki, 324 F.3d at 1086 (holding that a prospective
intervenor was “not permitted to inject new, unrelated issues
into the pending litigation”). Regardless of how the plaintiffs’
lawsuit is resolved, the prospective intervenors will remain
free to attempt to organize a native government based on the
narrower definition of Native Hawaiian, and then seek state
and federal recognition. Further, the prospective intervenors
may bring a separate action challenging the expenditure of
trust funds, just as they have done previously in analogous
contexts. See Day v. Apoliona, 616 F.3d 918, 927 (9th Cir.
AKINA V. STATE OF HAWAII 17
2010) (holding that the OHA could legally use trust money to
support legislation that defined “Native Hawaiian” without a
blood quantum requirement); Kealoha v. Machado, 315 P.3d
213, 229–30 (Haw. 2013) (upholding the dismissal of the
prospective intervenors’ claim that OHA’s expenditure of
trust funds for the benefit of a broader set of “Native
Hawaiians” was a breach of fiduciary duty).
We therefore affirm the district court’s order denying
intervention as of right.
III.
For the aforementioned reasons, we DISMISS the
plaintiffs’ interlocutory appeal as moot and AFFIRM the
district court’s denial of the motion to intervene.