9th Circuit Arguments In Nai Aupuni/OHA Case: Mooted On Appeal, Or Likely To Recur?

by Robert Thomas, InverseCondemnation, June 17, 2016

The oral argument heard this morning in the  "Nai Aupuni" cases (Akina v. Hawaii, No. 15-17134, and No. 15-17453) by a panel of the Ninth Circuit (Chief Judge Thomas, and Judges Callahan and Murguia, riding circuit in Honolulu), was a study in contrasts.

On one side, representing the plaintiffs-appellants, was a lawyer from Washington D.C.'s Judicial Watch, who argued against the case being rendered moot on appeal by the machinations of the main defendant, Nai Aupuni, which in response to the U.S. Supreme Court earlier ordering it to halt the putatively private election to choose delegates to a native Hawaiian convention to frame a constitution, called off the election and dissolved. This, he argued, was a mere litigation strategy, and the "cognizable danger of a recurrent violation" remains, even though this defendant doesn't legally exist any more. Having been busted by the Supreme Court, Nai Aupuni has adopted its actions to purposefully make the appeal moot. Appearing to understand that he was up against a skeptical court, his argument allowed careful listeners to see the analogy to Jim Crow southern governments (without ever expressly making that connection), which, when confronted by civil rights plaintiffs and adverse court injunctions, changed their behavior and tried to alter the ground rules. The appeal wasn't moot, he argued, because the Office of Hawaiian Affairs -- the main problem, in his view -- could simply fund another putatively private organization and conduct another unconstitutional election by proxy.

On the other side, OHA also hired outside help, SCOTUS litigator and potential future federal judge Kannon Shanmugan, also from D.C., whose arguments, coupled with his smoothly efficient delivery (he delivers arguments in complete sentences with nary an "um" or an "ah"), are going to be difficult for the plaintiffs-appellants to overcome. Beginning his arguments by reminding the panel who he was, and what firm he's with (which could be important in circles such as these), he coolly set out why there was really no "there" left for the court to do anything about, and how the plaintiffs could always try again should there ever be. 

Chief Judge Thomas seemed inclined to agree, and his few questions mostly reflected his concern that there wasn't anything left to enjoin, at least on a preliminary injunction as the plaintiffs request, or by the appeals court. He noted that the district court could consider a permanent injunction request by the plaintiffs, so they are not foreclosed from a remedy. Judge Murguia for her part asked few questions, but those which she posed seemed to indicate agreement with Judge Thomas, and a skepticism that the court of appeals could do much against an entity that does not exist any more.

In our view, if the plaintiffs/appellants are going to win here, it would most likely be up to Judge Callahan -- who asked the most questions by far, and who seemed to probe Mr. Shanmugan's arguments more deeply than her fellow judges -- to come up with an opinion that will take her colleagues past the fact that the main player and event (Nai Aupuni and the now-cancelled election) are defunct, and bring another panel member along with her. In our view, that's going to be a tough hurdle to overcome.

Other counsel argued, all of them local to Hawaii -- a deputy attorney general for the State of Hawaii, counsel for Nai Aupuni, and the lawyer for five Native Hawaiians who want to intervene and restrict voting even further than Nai Aupuni did by limiting it to those, like them, with a higher blood quantum -- but the questions directed at them were of similar character to the two main combatants.

So now we wait.