Amicus Curiae Brief — Republican Party v. Mink

4 Supreme Court, U.S.

No. 85-1425 . ~ FILED

183

JOSEPH F. SPANIOL, JR.

IN THE port ;

Supreme Court of the United States

OCTOBER TERM, 1985

REPUBLICAN PARTY OF HAWAII, TORAKI MATSUMOTO,

AND RUDY PACARRO,

Appellants,

Vv.

PATSY MINK, MARILYN BORNHORST, AND

RAYMOND K. Pua, City CLERK,

CITY AND COUNTY OF HONOLULU,

Appellees.

On Appeal From The Supreme Court Of Hawaii

BRIEF OF THE STATE OF HAWAII AS AMICUS

CURIAE IN SUPPORT OF APPELLEES MINK AND

BORNHORST

JAMES H. DANNENBERG

First Deputy

Attorney General

Counsel of Record

CORINNE K.A. WATANABE

Attorney General

State of Hawaii

STEVEN S. MICHAELS

Deputy Attorney General

State of Hawai

State Capitoi

Honolulu, Hawaii 96813

(808) 548-4740

Counsel for the

State of Hawaii

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

1. Whether any substantial federal question is pre-

sented by a local ordinance that renders an elected

official who is duly recalled by a majority of the vot-

ers ineligible to run in the special election to fill the

vacancy created by the majority’s decision?

2. Whether the filing of a timely post-judgment

motion to amend a state court judgment to provide

substantial new rights to one of the parties and a

subsequent modification of the judgment granting the

relief requested requires the filing of a new notice of

appeal to perfect jurisdiction in this Court under 28

U.S.C. § 1257(2) (1982)?

3. Whether claims that city councilmen, recalled

from office by a majority of the voters after having

switched political parties during their terms of office,

have been unconsitutionally denied an opportunity to

run in a special election to fill the vacancies created

by the recall are justiciable when:

(a) the councilmen were never previously recalled;

(b) the councilmen have given no indication that

they desire to switch parties again in the middle

of their terms;

(c) the special election has been held; and

(d) the political party from which the councilmen

defected would be entitied to fill vacancies by

appointment if the special election results were

invalidated;

4. Whether claims that the manner in which the highest

court of a state disposed of a petition for mandamus vi-

olated the Constitution

(a) have been forfeited or otherwise not preserved

for review in this Court when the claimant fails

to invoke an available opportunity to present such

procedural claims to the state court by means of

a motion for reconsideration; and, if preserved

for review,

(b) present a substantial federal question when

the claimant was given full and fair notice of the

relief sought, and an opportunity to litigate

whether the relief should be granted, and the

relief granted did not exceed that prayed for?

5. Whether an appeal from a state court judgment

may be employed to obtain an advisory ruling from

this Court as to the res judicata effect of the state

court judgment in proceedings in the inferior federal

courts?

ill

TABLE OF CONTENTS

CERBTIOND FRGTEEDD cccccsccccccescccesscescsccscccccssscsccesees

I ao ses cencndsebannaneeonguneciasasesoubin iii

BE TE III cocccccoccecosccsncnscscocescosnsoseoesoeses iv

INTEREST OF THE AMICUS CURIAE ...........cccceecseeeeeees l

ees essaitesoniueesnbesnonnte 4

TT ss censeesendatenvenneniennoosunas 5

BEATER OF THI CAGE ccccccccccccccccccccccccccsccccccccssees 5

EEE ESE SE RH Oo 9

I. The Appeal Presents No Substantial Fed-

SSA IER Aer Soo De ae OO )

= The Appeal is Riddled with Procedural De-

ects

CONCLUSION

iv

TABLE OF AUTHORITIES

CASES: Page

Anderson v. Celebrezze, 460 U.S. 780

SEITE. soisuccasiietancliieabiadegeabienetabinainenbemiaianiaiaadiediiminneh 10,11,16

Board of Regents v. New Left Educ. Project, 404 U.S.

UE I< vcceaeatbeatntttiicgianteiocscocccraocsntccssnosnnnie 2

Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673

IEEE -. antpbdesesemmmetesenstnbesdasentadsanidasmadendenismeneness 12

Clements v. Fashing, 457 U.S. 957 (1982) ............ 10

Engle v. Isaac, 456 U.S. 107 (1982)... eee. 12

Erznoznik v. City of Jacksonville, 422 U.S. 205

CETED ‘dinsisusciadieiademannediieniedaiiinennienen 2

F.C.C. v. League of Women Voters, 104 S. Ct. 3106

EEREIITTED cihiaaicecicconsaeiedienieeaiiniiaiaiebiannnbeabsnianiaapiieandaniintndintiaube 5, 13

Firefighters v. Stotts, 104 S. Ct. 2576 (1984) _....... 14

Flast v. Cohen, 392 U.S. 83 (1968) ...........eeeseeeeeee 16

F.T.C. v. Minneapolis-Honeywell Co., 344 U.S. 206

CRE? Saupenaidinceschanmnabs sendieacumaceidiouiceniabibemitiabaiales 12

Griggs v. Provident Consumer Discount Co., 459 U.S.

OO Ce ID hcntetrestnecirnermcnnnensinsonens 13

Hawaii Housing Authority v. Midkiff, 104 S. Ct.

SE EEE, polickeanbcsialadiniainaleibiabidiaiiiieceddabinancen 2

Heath v. Alabama, 106 S. Ct. 433 (1985) ............. 15

Iron Arrow Honor Society v. Heckler, 464 U.S. 67

CR CD cacntsnsescciantinnsetetenincitesinnsm 13

Jefferson v. Abrams, 747 F.2d 94 (2d Cir.

SE ©. ceiicdebeaipiestisienialiabsiedaitiinan ruta tated 14

Lynch v. Illinois State Board of Elections, 682 F.2d

Se Cre Gale BID: ciceicententonsaitencclatitettitincecens 9

Matsumoto v. Pua, No. 85-0950 (D. Hawaii filed

PD Ree oe 6, 7, 10

Matsumoto v. Pua, 775 F.2d 1396 (9th Cir.

STUIITTED -sslsucttevsssscietoscisisiiplicapinadnepiicsedtatiisaniatakdabiamctualads 7, 10, 16

Migra v. Warren City School Dist., 465 U.S. 75

CUED. nussaisscchhibaaeicaninnddatnaannniaminaanaien 16

Mills v. Green, 159 U.S. 651 (1895) .....eeeeeeeeeeeeeees 13

Table of Authorities Continued

Page

Mink v. Pua, 711 P.2d 723 (Hawaii 1985) ........... passim

Murphy v. Hunt, 455 U.S. 478 (1982) (per

IIE sosonducenduecsiscssediedudsnatpielaiaasaabinatiniaitidiimass 14

National Ass’n of Greeting Card Publishers v. United

States Postal Serv., 462 U.S. 810 (1983) _....... 14

Ohio Public Service Co. v. Ohio ex rel. Fritz, 274

Res Te CUE. doeeseniinennpndehaesmneseniceicinvintessesannion 12

Orr v. Orr, 440 U.S. 268 (1979) .........cccccccsscccsseees 15

Parsons Steel, Inc. v. First Alabama Bank, 106 S.

eee UE saiisciseinsninsitntanicblindtnntvinadaptenctennnbecinds 16

Republican Party of Hawati v. Mink, 106 S. Ct. 422

(1985) (Rehnquist, J., as Circuit Justice) _....... 9

Republican Party of Hawaii v. Wathee, 709 P.2d 980

IED TEEN. aidicsennatannecncdssabensansnonouanioaiantaiiabia 4

Robinson v. Ariyoshi, 65 Hawaii 641, 658 P.2d 287

STEIN). scivedeidestesnsiaabinlanennaniicmanaieanaeiuaneniinsuaibehenns 15

Rodriguez v. Popular Democratic Party, 457 U.S. 1

(1982) _..... lecsiktniadienseinndahcaniignaiibinntmbaudadbabadiianiaiiee 9

Silkwood v. Kerr-McGee Corp, 464 U.S. 238

CUTIE, cetacasideachaanhehsepiedesabeamadsamiiamemenmnmenanel 13

Socialist Workers Party v. Washington, 765 F.2d

1417 (9th Cir. 1985), prob. juris. noted, 106 S.

Ce, Va CIEE sciihancesdaeedenishibnlsemmetananconmieateemmasie 16

Weinstein v. Bradford, 423 U.S. 147 (1975) (per cur-

PD. scndacsissenedantndatndnansecssdennsendinsiaennbinamesesamanunes 14

CONSTITUTIONAL PROVISIONS:

United States Constitution, First Amendment ....... 12,15

United States Constitution, Fourteenth

pS TE AMEN OORT SORT DT OOO 15

STATUTES:

En oer Ns EP 13

BB UK. TEC CODED ccccccnccccsessscssserscnconcccescssenee 2,5

Table of Authorities Continued

Page

Be Tee FF ee 13

SB US, § SRGRED GROG cccccinsccsessesnssiseisesctsintnenin 1,2

The Admission Act, Pub. L. No. 86-3, 73 Stat. 4

CRED —caneseceucnnussnnebeddbabeuuacinsensaneipalinniaianats 2

The Three-Judge Court Act of 1976, Pub. L. No.

94-381, 90 Stat. 1119 (1976) .................00...... 2

Hawaii Rev. Stat. § 11-2 (1976) ........cccccccccccceeeeees 4

Hawaii Rev. Stat. § 11-117(b) (Supp. 1984) _......... 4

Hawaii Rev. Stat. § 11-118 (Supp. 1984) ............... 8, 11

Act ——_ 7, 1955, ch. 225, 1955 Hawaii Sess. L. :

Act of June 5, 1959, ch. 261, 1959 Hawaii Sess. L.

TT © scecacccecccescsencsssenicnsstaensdieuaianaaeeneaa 2

ORDINANCES:

City and County of Honolulu Charter § 3-105(b)

(1959), reprinted in Rev. L. Hawaii Appendix

S at UO6 Game. BGG dncncimnnecienan 3, 4

City and County of Honolulu Charter § 3-107 (1959),

reprinted in Rev. L. Hawaii Appendix 8 at 995

Gent. BED ccinicimeeee 3

City and County of Honolulu Charter § 12-113 (1959),

reprinted in Rev. L. Hawaii Appendix 8 at 1023

Goa. TOG cccesensssserssescsieeainiaen 3

City and County of Honolulu Charter § 11-102 (1972),

reprinied in Rev. Stat. ch. 70 App. (Supp.

BERG) ccancencoccscnssnnnsenecvationnsinienanielaiiannaeaaanaal 3

City and County of Honolulu Charter § 11-103 (1972),

reprinted in Rev. Stat. ch. 70 App. (Supp.

BUG) —_cacersccceccsnnsenscaveneciunesihensinenseeaneeanee

Court RULFs:

ee 8 a 15

Bam. Ce. FR. BRAG ccccessssscscsmsssiiscsnaneeeenae 1

_ ~~ ~~-~—~S~S=<C‘

Table of Authorities Continued

Page

Gis as, ED ctrteniniainesennainnietsonteveniienmiinnaneni 2

Hawaii R. App. P. 40 (1984) ..........cccccc0e. cecsee 5,9,18,15

LEGISLATIVE HISTORY:

Hawaii Sen. Standing Comm. Rep. No. 696-55, re-

printed in 1955 Hawaii Sen. J. 660 .............. 2

MISCELLANEOUS AUTHORITIES:

Honolulu Star Bulletin & Advertiser (Sept. 29,

ED compmtieenieittnietitetenitemmintitennnitccenmeenntncnie | 6

State of Hawaii Data Book (1985) ....................... 6

State of Hawaii, Results of Votes Cast:

General Election, Tuesday, November 6, 1984

CIEE §«—_ cachuhsnianodadentabctidtineiauseineniededennenes 6

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

No. 85-1425

REPUBLICAN PARTY OF HAWAII, TORAKI MATSUMOTO, AND

Rupy PACARRO,

Appellants,

PaTSy MINK, MARILYN BORNHORST, AND

RAYMOND K. Pua, City CLERK,

CiTy AND COUNTY OF HONOLULU,

Appellees

On Appeal From The Supreme Court Of Hawaii

BRIEF OF THE STATE OF HAWAII AS

AMICUS CURIAE IN SUPPORT OF

APPELLEES MINK AND BORNHORST

INTEREST OF THE AMICUS CURIAE

The State of Hawaii has an abiding interest in the

processes of local government in our Fiftieth State.

Although appellants note 28 U.S.C. § 2403(b) (1982) may be

applicable, Juris. Stmnt. at v; Sup. Ct. R. 28.4(c), the State of

Nowhere is this more true than with respect to those

chosen by the people of the largest political subdi-

vision in Hawaii, the City and County of Honolulu.’

In 1955, when Hawaii was still a Territory, the Leg-

islature took the unprecedented step of delegating to

the people of Oahu a central role in formulating ‘‘the

organic law of the city and county.”’ Hawaii Sen.

Standing Comm. Rep. No. 696-55, reprinted in 1955

Hawaii Sen. J. 660. A commission was formed to

draft a proposed charter for submission to the voters,

Act of June 7, 1955, ch. 225, 1955 Hawaii Sess. L.

200, and, on June 14, 1958, a proposed charter was

approved by the electorate. Pursuant to the terms of

the Charter Commission Act, the approved proposal

was submitted to the Legislature, and, with minor

modifications, ratified and ‘‘enacted as law.”’ Act of

June 5, 1959 Hawaii Sess. L. 233, 234. Under the

Admission Act, Pub. L. No. 86-3, 73 Stat. 4 (1959),

the charter ‘“‘continue[d] in force’? upon statehood

several months later.

Hawaii expresses its views as amicus curiae, see Sup. Ct. R.

36.4, out of concern that this case is an inappropriate one for

resolving whether the language employed by Congress in the

Three-Judge Court Act of 1976, Pub. L. No. 94-381, 90 Stat.

1119 (1976), codified in relevant part at 28 U.S.C. § 2403(b)

(1982), encompasses the charter provisions at issue here. Com-

pare Erzoznik v. City of Jacksonville, 422 U.S. 205, 207 n.2

(1975) (local law is a “‘state statute’”’ under 28 U.S.C. § 1257(2)),

with Board of Regents v. New Left Educ. Project, 404 U.S. 541,

543 (1972) (‘‘statute” under old Three-Judge Court Act “‘ ‘does

not encompass local ordinances’ ”’ (citation omitted)). Absent a

certification order, the Attorney General assumes the Court

shares this concern.

2 Oahu, where the capital, Honolulu, is located, is by far the

most densely populated of the Hawaiian Islands. See Hawai

Housing Authority v. Midkiff, 104 S. Ct. 2321, 2325 (1984).

As originally passed by the voters, and ratified by

the Legislature, the charter made no provision for

recall of elected officials. The nine elected councilmen

could be removed “for malfeasance, misfeasance, or

nonfeasance in office,’’ and only by the Supreme Court

of Hawaii sitting as a board of impeachment. City

and County of Honolulu Charter § 3-107 (1959), re-

printed in Rev. L. Hawaii Appendix 8 at 995 (Supp.

1963). If a council member were impeached and re-

moved, and more than a year remained in her term,

a special election was to be held and the voters were

to ‘‘elect a successor to fill the vacancy for the re-

mainder of the term.” Id. § 3-105(b), reprinted in

Rev. L. Hawaii Appendix 8 at 994 (Supp. 1963). The

charter provided that any such election would be

“conducted in accordance with the election laws of

the [State] insofar as applicable[.]’”’ Jd. §. 12-113, re-

printed in Rev. L. Hawaii Appendix 8 at 1023.

At the general election of November 7, 1972, the

citizens of Honolulu amended the charter to provide

for removal of council members by recall by the elec-

torate as well as by impeachment. Charter of the City

and County of Honolulu § 11-102, reprinted in Ha-

waii Rev. Stat. ch. 70 App. (Supp. 1974), recodified

at revised Charter of the City and County of Honolulu

§ 12-102 (1983 ed.), reprinted in App. to Juris. Stmnt.

35. The 1972 charter revisions also provided that “‘[njo

person who has been removed from his elected office

[by recall or impeachment] shall be eligible for election

or appointment to any office of the city within two

years after his removal[.]’’ Charter of the City and

County of Honolulu § 11-103, reprinted in Hawaii

Rev. Stat. ch. 70 App. (Supp. 1974), recodified at

Revised Charter of the City and County of Honolulu

§ 12-103 (1983 ed.), reprinted in App. to Juris. Stmnt.

35. The original 1959 provisions for the filling of va-

cancies created by impeachment were also made ap-

plicable to vacancies created by recall. Revised

Charter of the City and County of Honolulu § 3-

105(b), reprinted in App. to Juris. Stmnt. 34.

Under Hawaii law, state officials play critical roles

in the recall process. Under Hawaii Rev. Stat. § 11-

2 (1976), the Lieutenant Governor is designated the

State’s ‘‘chief election officer’? and is charged with

the duty of supervising elections at the state or county

level. The Supreme Court of Hawaii may exercise its

original jurisdiction to rule on the outcome of a close

recall vote. See Republican Party of Hawaii v. Waihee,

709 P.2d 980, 981 (Hawaii 1985). The court may also

issue mandamus relief to compel an election officer

to order a disqualified candidate’s name ‘“‘stricken

from the ballot’? under Hawaii Rev. Stat. § 11-117(b)

(Supp. 1984). See Mink v. Pua, 711 P.2d 723, 724

(Hawaii 1985).

Because the instant appeal seeks to invalidate the

procedure for recall and succession adopted by the

voters of the City and County of Honolulu pursuant

to a charter process authorized by State law, as well

as vital decisions of the Supreme Court of Hawaii

implementing the recall process, the State of Hawaii

has a compelling interest in this case.

OPINION BELOW

The opinion of the Supreme Court of Hawaii, Mink

v. Pua, No. 10998, is reported at 711 P.2d 723 (Ha-

waii 1985).

JURISDICTION

The judgment appealed from was entered Novem-

ber 26, 1985, see Order Granting Writ of Mandamus,

Mink v. Pua, No.10998 (Hawaii Nov. 26, 1985), App.

to Juris. Stmnt. 16. Notice of appeal was filed No-

vember 27, 1985. App. to Juris. Stmnt. 19. Although

jurisdiction in this Court is alleged to have been con-

ferred by 28 U.S.C. § 1257(2) (1982), Juris. Stmnt.

8, the Court may lack jurisdiction by virtue of the

filing, within the time allowed by Hawaii R. App. P.

40 (1984) for a motion for reconsideration, of a “‘Mo-

tion for Clarification of Decision’? on November 27,

1985, and the lack of a new notice of appeal. See

F.C.C. v. League of Women Voters, 104 S. Ct. 3106,

3114 n.10 (1984); F.T.C. v. Minneapolis-Honeywell Co.,

344 U.S. 206, 211-12 (1952); infra p. 8.

STATEMENT OF THE CASE

On October 5, 1985, George Akahane, Toraki Mat-

sumoto, and Rudy Pacarro, three members of the

Honolulu city council, were recalled from office pur-

suant to the provisions of the Charter of the City

and County of Honolulu. Before their election as

Democrats in 1982, the three recalled councilmen had

pledged in writing to uphold the principles of the

Democratic Party of Hawaii. Perhaps sensing change

’ The written pledge filed by each of the councilmen with the

office of the city clerk stated:

a , certify that I will qualify under the law for

the office which I am seeking. I further certify that I, the

candidate named herein, am a member of the Democrat

Party, that I believe in the principles and policies of the

in the political winds, however,‘ the three councilmen

in the spring of 1985 formally switched their party

affiliation to the Republican Party. It is conceded that

the former Democrats’ decisions to break their pledge

of party loyalty precipitated their recall.

Because of the two-year ban on a recalled council

member’s holding any city office, the city clerk, Ray-

mond Pua, in performing his duties under the election

laws, refused to include the names of the recalled

council members on the ballot for the special election

called by the city council to fill the vacancies created

by the recall election. In a pending federal action,

Matsumoto v. Pua, No. 85-0950 (D. Hawaii filed Au-

gust 12, 1985), Akahane, Matsumoto, and Pacarro

moved for preliminary relief declaring section 12-

103’s two-year ban, on which Pua relied, was un-

constitutional.

The District Court, sitting en banc, denied prelim-

inary relief, suggesting the recalled councilmen lacked

said Party, and that, if elected, I will, to the best of my

ability, seek to carry out the provisions and pledges of the

political platform of said Party, and will abide by said Par-

ty’s rules and regulations.

Honolulu Star Bulletin & Advertiser at E2, col. 1-2 (Sept. 29,

1985).

‘In the 1984 Presidential election returns for the City and

County of Honolulu, President Reagan captured 56 percent of

the popular vote, far exceeding his percentage in each of the

other three counties of Hawaii. State of Hawaii Data Book 251

(1985). The Republican candidate for mayor received 52 percent

of the vote, id. at 250, while the Republican candidate for county

prosecutor received 73 percent of the vote, see State of Hawaii,

Results of Votes Cast: General Election, Tuesday, November 6,

1984 at 27.5 (1985).

standing to challenge the two-year ban because (1)

‘“fujnder any test, a prohibition against a recalled of-

fice holder standing for election to fill the vacancy

created by his recall would not violate any provision

of the United States Constitution[,]’’ Decision and Or-

der at 3, Matsumoto v. Pua, No. 85-0950 (D. Hawaii

Oct. 15, 1985); (2) a state court might hold the ousted

members ineligible to run in the special election even

if the two-year ban were repealed, id. at 4; and (8)

the defeated councilmen had limited their claim “‘to

the alleged right to be candidates to succeed them-

selves,” id. at 5.

On October 28, 1985, the Ninth Circuit reversed.

Matsumoto v. Pua, 775 F.2d 13893 (9th Cir. 1985).

The court resolved the standing issue by noting Pua

acted solely on the basis of the two year ban, and

had ‘‘expressed no view as to whether any other pro-

vision of the charter would ban such participation.”’

Id. at 1396. The court -also rejected the District

Court’s construction of the claims below, finding

claims that the two-year ban would prohibit the re-

called members from running not only in the special

election, but also in the 1986 general elections, pre-

sented a ripe controversy. Refusing to address ‘“‘the

constitutionality of a limited ban against recalled of-

fice holders running to fill the vacancies created by

their own recall,’”’ id. at 1897, the court found the

ex-councilmen would likely prevail on their attack on

a two-year ban, and ordered relief accordingly, 2d.

at 1397-98.

On November 20, 1985, two Democratic council

members, Patsy Mink and Marilyn Bornhorst, com-

menced proceedings in the Supreme Court of Hawaii

to resolve the issue left open by the Ninth Circuit by

es

mandamus relief holding Matsumoto and Pacarro

‘ineligible to fill by special election the unexpired

portions of terms from which they were recalled.”’

Emergency Petition for Writ of Mandamus at 2, Mink

v. Pua, No. 10998 (Hawaii Nov. 20, 1985). Mink and

Bornhorst also moved for ex parte relief, but that

motion was denied, Order Denying Motion for a Tem-

porary Restraining Order, Mink v. Pua, No. 10998

(Hawaii Nov. 20, 1985), and the court set the case

for expedited briefing and argument. Order For Is-

suance of Summons, Mink v. Pua, No. 10998 (Hawaii

Nov. 20, 1985). Respondents below, (Matsumoto, Pa-

carro, and Pua) were all duly served with notice of

the hearing by 9:22 a.m. on November 21, and, on

November 25, 1986, the Republican Party of Hawaii

was permitted to intervene, Order Granting Motion

to Intervene, Mink v. Pua, No. 10998 (Hawaii Nov.

25, 1985).

Following argument on November 26, the Supreme

Court of Hawaii ordered Matsumoto and Pacarro dis-

qualified from running in the special election sched-

uled for November 30, 1985, and required Pua to

“take appropriate action with respect to said dis-

qualifications.”’ Order Granting Writ of Mandamus,

Mink v. Pua, No. 10998 (Nov. 26, 1985). Appellants

here filed their notice of appeal on November 27,

1985, at 4:21 p.m. Minutes later Pua moved for “‘clar-

ification’’ of the court’s November 26 decision, in part

because the court had overlooked Hawaii Rev. Stat.

§ 11-118 (Supp. 1984), which entitled the Republican

Party to name substitute candidates. Motion for Clar-

ification at 3, Mink v. Pua, No. 10988 (Hawaii Nov.

27, 1985). Simultaneously, appellants requested Jus-

i

tice Rehnquist, as Circuit Justice, to stay the court’s

November 26 order.

Although urged to let the election go forward, after

argument on November 29 the court moved the elec-

tion to December 28. Order on Motion for Clarifi-

cation, Mink v. Pua, No. 10998 (Hawaii Nov. 29,

1985). That same day, Justice Rehnquist denied the

application for stay, Republican Party of Hawaii v.

Mink, 106 S.Ct. 422 (1985), noting that a construction

of the city charter ‘“‘which prevents Matsumoto and

Paccaro from appearing on the ballot’’ was not

“clearly unconstitutional.’”’ Jd. On December 4, 1985,

the Supreme Court of Hawaii filed an opinion ex-

plaining its November 26 order. Mink v. Pua, 711

P.2d 723 (Hawaii 1985). Appellants neither filed a

new notice of appeal, nor moved for reconsideration

under Hawaii R. App. P. 40 (1984).

ARGUMENT

This appeal should be dismissed. First, appellants’

points of error do not present any substantial federal

question. Second, and just as important, appellants’

claims are riddled with procedural defects.

I. The Appeal Presents No Substantial Federal Ques-

tion.

It is well settled that the states ‘‘have a legitimate

interest in ensuring that governmental processes are

not disrupted by vacancies and have wide latitude in

devising a method to fill those vacancies promptly.”

Lynch v. Illinois State Board of Elections, 682 F.2d

93, 97 (7th Cir. 1982) (citing Rodriguez v. Popular

Democratic Party, 457 U.S. 1 (1982)). As the Supreme

Court of Hawaii noted, permitting a recalled member

10

to run in the special election required by law within

sixty days of recall would risk delaying ad infinitum

the process of filling a vacancy since a recalled mem-

ber could be re-elected by a plurality only to be re-

called again by a majority “several times during the

second and third years of a councilman’s four-year

term.’ Mink v. Pua, 711 P.2d at 726. In the words

of the United States District Court, ‘‘{uJnder any test,

a prohibition against a recalled office holder standing

for election to fill the vacancy created by his recall

would not violate any provision of the United States

Constitution[,]’’ Decision and Order at 3, Matsumoto

v. Pua, No. 85-0950 (D. Hawaii Oct. 15, 1985), rev’d

on other grounds, 775 F.2d 1393 (9th Cir. 1985).

Indeed, eight members of this Court have explicitly

endorsed the view that the states may enact ‘‘re-

strictions on candidate eligibility that serve legitimate

state goals which are unrelated to First Amendment

values.’” Anderson v. Celebrezze, 460 U.S. 780, 789

n.9 (1983) (Stevens, J., joined by Burger, C.J., Bren-

nan, Marshall, and Blackmun, JJ.) (citing Clements v.

Fashing, 457 U.S. 957 (1982) (Burger, C.J., Powell,

Rehnquist, Stevens, and O’Connor, JJ., in the ma-

jority)). Surely it is legitimate, and unrelated to First

Amendment values, for a state to provide reasonable

incentives to ensure ‘“‘a legislator will vote with due

regard to the views of his constituents.’’ Clements,

457 U.S. at 968 (plurality opinion). As Justice Stevens

aptly stated in his concurring opinion in Clements,

there is no federal interest “in requiring a State to

define the benefits and burdens of different elective

state offices in any particular manner.’’ 457 U.S. at

974.

11

Here the people of the City and County of Honolulu

have done nothing more than impose a reasonable

“burden,” id., on the office of city councilman de-

signed to ensure that the elected holder of that office

“will vote with due regard to the views of his con-

stitutents.” 457 U.S. at 968 (plurality opinion): Those

who so defy their constituents that. they are recalled

by majority vote are disabled from running in the

special election to fill the vacancy created by their

own inattention to constituents concerns. See Mink v.

Pua, 711 P.2d at 726.

No serious claim can be made that preventing the

three individuals recalled for their party switch from

running in the special election discriminated ‘‘against

those candiaates and ... against those voters whose

political preferences lie outside the existing political

parties.’”” Anderson v. Celebrezze, 460 U.S. at 794.

None of the three ex-councilmen sought to run as

independents. Rather, they wished to run as Repud-

licans.2 Even if one makes the patently absurd as-

sumption that the Republican Party, which captured

fifty-six percent of the 1984 Oahu vote for President,

fifty-two percent of the 1984 vote for mayor of Hon-

olulu, and seventy-three percent of thé 1984 vote for

Honolulu county prosecutor, “is a minor party in Ha-

waii,” Juris. Stmnt. at 4, that party, on the basis of

Pua’s post-judgment motion, was allowed ample time

to field candidates in the special election. Order for

Motion for Clarification, Mink v. Pua, No. 10998 (Ha-

> Appellant Republican Party of Hawaii acknowledged Pacar-

ro’s and Matsumoto’s Republican candidacies in demanding the

right to name alternative candidates under Hawaii Rev. Stat. §

11-118. See Memorandum in Support of Motion to Intervene at

2, Mink v. Pua, No. 10998 (Hawaii Nov. 25, 1985).

12

waii Nov. 29, 1985). Given the additional fact that

the ballot limitation here has nothing to do with “a

nationwide electoral process{,]’’ Anderson v. Cele-

brezze, 460 U.S. at 785, it is obvious no First Amend-

ment interests have been abridged. Appellants’

substantive constitutional claims* are without merit.

Il The Appeal is Riddled With Procedural Defects.

Contrary to appellants’ assertion that the claims

here are presented “‘in as pure and clean a factual

and procedural context as possible,’ Juris. Stmnt. at

23, the instant appeal suffers numerous defects.

First, the notice of appeal became a nullity when

appellee Pua moved for modification of the state

court’s November 26 order. Under this Court’s de-

cisions, the time in which appeal must be taken “‘run{s]

anew,” F.T.C. v. Minneapolis-Honeywell Co., 344 U.S.

206, 211-12 (1952), when a lower court “changes

matters of substance, or resolves a genuine ambiguity,

in a judgment previously rendered{,]’’ id. at 211. Even

the filing of a timely motion for rehearing requires

a new notice of appeal. Ohio Public Service Co. v.

Ohio ex rel. Fritz, 274 U.S. 12, 13 (1927). Here the

state court, in response to a “Motion for Clarifica-

tion”’ filed within the time for reconsideration under

* Appellants’ procedural objections, which rely on Blinkerhoff-

Faris Co. v. Hill, 281 U.S. 673 (1930), are equally groundless.

The petition for mandamus below specified the relief sought—

disqualification of Matsumoto and Pacarro—and the relief granted

did not exceed that demanded. Appellants had a full opportunity

to litigate the relief requested. That is all Brinkerhoff requires.

Id. at 681. To credit the procedural claims, even if factually

true, this Court would have to hold state courts constitutionally

disabled from disposing a case on a ground not raised by the

parties. But see Engle v. Isaac, 456 U.S. 107, 135 n.44 (1982).

ee

13

Hawaii R. App. P. 40 (1984), materially altered the

rights of appellant Republican Party of Hawaii to field

candidates in the special election. Cf. F.C.C. v. League

of Women Voters, 104 S. Ct. 3106, 3114 n.10 (1984)

(appeal is timely if postjudgment motion is directed

to a “wholly collateral issue’’). The “policy that stat-

utes authorizing appeals [to this Court] are to be

strictly construed,’ Silkwood v. Kerr-McGee Corp.,

464 U.S. 238, 247 & n.10 (1984), requires dismissal

of the appeal.’

Second, insofar as state law would require any

council vacancy occurring this late in the term to be

filled by appointment, not by special election, see Or-

der on Motion for Clarification, Mink v. Pua, No.

10998 (Hawaii Nov. 29, 1985),* no effective remedy

could be given, even if this Court enjoyed the power,

but see Mills v. Green, 159 U.S. 651 (1895), to void

the election that ultimately occurred on December 28,

1985. Even appellants thus recognize that to escape

the conclusion that this case “‘is classically ‘moot{,]’ ”’

Iron Arrow Honor Society v. Heckler, 464 U.S. 67,

71 (1984) (per curiam), they must shoehorn their

’ Thus, even if the Court would apply the old rule for appeals

under 28 U.S.C. § 1291, see Griggs v. Provident Consumer Dis-

count Co., 459 U.S. 56, 59 (1982) (per curiam), to cases under

the exception to this policy, 28 U.S.C. § 1252 (1982), dismissal

would still be warranted. F.C.C. v. League of Women Voters,

104 S. Ct. 3106 (1984), however, suggests a premature notice

filed even in a § 1252 case would be rendered void by filing of

a timely motion for amendment of judgment on a “non-collat-

eral”’ issue. See id. at 3114 n.10. If this is so, dismissal is

required a fortiori. See Silkwood, 464 U.S. at 247-48 & n.10.

*That appointment would be made by the remaining council

majority, see App. to Juris. Stmnt. 33, which is controlled by

the Democratic Party, Juris. Stmnt. 5.

14

claims into the exception for cases “‘ ‘capable of rep-

etition, yet evading review/,]’”’’ Juris. Stmnt. at 22

(citation omitted).

Appellants cannot accomplish this feat. This Court

has repeatedly held that to come within the exception

“there must be a ‘reasonable expectation’ or a ‘dem-

onstrated probability’ that the same controversy will

recur involving the same complaining party.”’ Murphy

v. Hunt, 455 U.S. 478, 482 (1982) (per curiam) (quot-

ing Weinstein v. Bradford, 423 U.S. 147, 149 (1975)

(per curiam)). A “mere physical or theoretical pos-

sibility. [of repetition,]’’ id. is not sufficient. In order

for the ‘“‘same controversy”’ to be repeated, appellants

must make the farfetched assumption that Pacarro

and Matsumoto will again run in a general election,

will win again, will again switch parties, and will

again be recalled.’ Even if proving mootness is

appellees’ burden, Firefighters v. Stotts, 104 S. Ct.

2576, 2583 (1984), that burden has been carried. For

switching parties in the middle of a term, Matsumoto

and Pacarro were ousted from office. “It is not likely

tha the parties to this dispute will forget this lesson.”’

Jefferson v. Abrams, 747 F.2d 94, 97 (2d Cir. 1984).

There is ‘“‘no reason to believe,” Murphy, 455 U.S.

at 458, that “the questions before the Court are cer-

tain to be central to future proceedings{.]’’ National

Ass’n of Greeting Card Publishers v. United States

Postal Serv., 462 U.S. 810, 820 n.14 (1983).

* This position and Justice Padgett’s analysis of the reasons

for the ineligibility of recalled council members for the special

election, Mink v. Pua, 711 P.2d at 726, are thus consistent. To

the extent the factual predicates for a justiciable controvesy are

at all present, however, Justice Padgett’s view of the merits is

even more compelling.

15

Third, appellants failed to raise many if not all of

their constitutional claims in the state court, not-

withstanding that a motion for reconsideration under

Hawaii R. App. P. 40 provided an avenue for doing

so."° As was noted recently, ‘“‘the longstanding rule

that this Court will not consider such claims creates,

at the least, a weighty presumption against review([,]’’

Heath v. Alabama, 106 S. Ct. 438, 437 (1985). Because

failure to raise claims by means of a Rule 40 motion

bars further litigation in state court, Robinson v. An-

yoshi, 65 Hawaii 641, 662, 658 P.2d 287, 302-03

(1982), the claims raised for the first time in this

Court have been forfeited, Orr v. Orr, 440 U.S. 268,

275 n.4 (1979)

Finally, whether the state court’s decision is pre-

clusive in proceedings in the federal courts is simply

not cognizable on this appeal, at least as long as this

Rule 40, Hawaii R. App. P. (1984), provides, in pertinent

part:

Rule 40. Motion for Reconsideration.

(a) Time. A motion for reconsideration may be filed by a

party only within 10 days after the filing of the opinion or

ruling unless by special leave additional time is granted

during such period by a judge or justice of the appellate

court involved.

Although Matsumoto and Pacarro asserted granting the writ

below “would violate the First and Fourteenth amendments of

the U.S. Constitution{,]’”” Memorandum in Support of Motion to

Dismiss Emergency Petition 3, Mink v. Pua, No. 10998 (Hawaii

Nov. 25, 1985), and the state court did rule on that issue, the

points raised by the first three ‘Questions Presented’’ of the

Jurisdictional Statement, which, absent plain error, are the only

points at issue here, Sup. Ct. R. 15.1(a), are all addressed to

the reasoning of the state court’s December 4 opinion. None of

these issues were raised in state court.

16

Court’s appellate jurisdiction is limited to the ‘‘con-

troversies’’ presented by the case actually on appeal.

Flast v. Cohen, 392 U.S. 88, 96 (1968); see Colorado

v. Nunez, 465 U.S. 324, 329 (1984) (Stevens, J., dis-

senting).!

CONCLUSION

Although it may be wise for this Court ‘‘to flesh

out its holding in Anderson v. Celebrezze, 460 U.S.

780 (1983),” Juris. Stmnt. 24, of all the cases on the

Court’s appellate docket, see, e.g., Socialist Workers

Party v. Washington, 765 F.2d 1417 (9th Cir. 1985),

prob. juris. noted, 106 S. Ct. 783 (1986), this one is

not the proper vehicle for doing so. The federal ques-

tions presented are wholly insubstantial, and the

appeal is beset by numerous procedural defects. For

these reasons, the State of Hawaii urges that the

appeal be dismissed.

1 Although a state court’s failure to give preciusive effect to

a federal court decision is cognizable in this Court, cf. Parsons

Steel, Inc. v. First Alabama Bank, 106 S. Ct. 768, 773 (1986)

(review by certiorari only), any preclusion claim preserved for

review, see supra note, is meritless. Given the Ninth Circuit’s

explicit refusal to rule on the issue decided by the Supreme

Court of Hawaii, the predicates for upsetting the judgment here

on the basis of Matsumoto v. Pua, 775 F.2d 1393 (9th Cir. 1985),

do not exist. See generally Migra v. Warren City School Dist.,

465 U.S. 75, 77 n.1 (1984).

17

Respectfully submitted,

JAMES H. DANNENBERG

First Deputy

Attorney General

Counsel of Record

CORINNE K.A. WATANABE

Attorney General

State of Hawaii

STEVEN 8S. MICHAELS

Deputy Attorney General

State of Hawaii

State Capitol

Honolulu, Hawaii 96813

(808) 548-4740

Counsel for the

State of Hawai