# Amicus Curiae Brief — Republican Party v. Mink > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0343%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1986 - **Citation:** 476 U.S. 1101 ## Text 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0343%3A3. Public record. Not legal advice.