Hamamoto et al v. Abercrombie et al

Filing 75

ORDER (1) GRANTING DEFENDANTS' MOTIONS TO DISMISS COMPLAINT; (2) GRANTING PLAINTIFFS' MOTION TO DISMISS COUNTERCLAIM; AND (3) DENYING DEFENDANT BRIAN EVANS' MOTION FOR SANCTIONS. ~ the Court GRANTS both the State Defen dants' Motion to Dismiss and Senator Brian Schatz's Motion to Dismiss. Plaintiffs' Motion to Dismiss the Counterclaim filed by Brian Evans is GRANTED, and Evans Motion for Sanctions is DENIED. The Clerk of Court is directed to close this case. 31 34 47 63 64 . Signed by JUDGE DERRICK K. WATSON on 2/23/2015. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

CIVIL NO. 14-00491 DKW-BMK

EUGENE HAMAMOTO and JOHN P.
ROCO,

ORDER (1) GRANTING
DEFENDANTS’ MOTIONS TO
DISMISS COMPLAINT; (2)
GRANTING PLAINTIFFS’ MOTION
TO DISMISS COUNTERCLAIM;
AND (3) DENYING DEFENDANT
BRIAN EVANS’ MOTION FOR
SANCTIONS

Plaintiffs,
vs.
DAVID Y. IGE, in his official capacity
as Governor of the State of Hawaii,
DEMOCRATIC PARTY OF HAWAII,
BRIAN SCHATZ, SCOTT T. NAGO,
in his official capacity as the Chief
Election Officer of the State of Hawaii,
JOY ALLISON, CAMPBELL
CAVASSO, BRIAN EVANS, HARRY
J. FRIEL, JR., COLLEEN WAKAKO
HANABUSA, MICHAEL KOKOSKI,
EDDIE PIRKOWSKI and ARTURO
PACHECO REYES,
Defendants.

ORDER (1) GRANTING DEFENDANTS’ MOTIONS TO DISMISS
COMPLAINT; (2) GRANTING PLAINTIFFS’ MOTION TO DISMISS
COUNTERCLAIM; AND (3) DENYING DEFENDANT
BRIAN EVANS’ MOTION FOR SANCTIONS

1

INTRODUCTION
Hamamoto and Roco challenge the temporary appointment and subsequent
special election to fill the United States Senate seat vacated by the death of Senator
Daniel K. Inouye in December 2012. They allege that the State of Hawaii violated
the Seventeenth Amendment to the United States Constitution because: (1) the
Governor did not issue a “writ of election”; and (2) Haw. Rev. Stat. (“HRS”) § 171, the provision governing temporary appointments for U.S. Senators,
impermissibly delegates a segment of the selection process to a political party.
Because the November 2014 special election has passed, this case is moot, and the
Court is without subject matter jurisdiction to hear the dispute. Accordingly, both
the State Defendants’ Motion to Dismiss and Senator Brian Schatz’s Motion to
Dismiss are GRANTED. Plaintiffs’ Motion to Dismiss the Counterclaim filed by
Brian Evans is also GRANTED, and Evans’ Motion for Sanctions is DENIED.
BACKGROUND
The Seventeenth Amendment proclaims:
The Senate of the United States shall be composed of two
Senators from each State, elected by the people thereof, for six
years; and each Senator shall have one vote. The electors in
each State shall have the qualifications requisite for electors of
the most numerous branch of the State legislatures.

2

When vacancies happen in the representation of any State in the
Senate, the executive authority of such State shall issue writs of
election to fill such vacancies: Provided, That the legislature of
any State may empower the executive thereof to make
temporary appointments until the people fill the vacancies by
election as the legislature may direct.
This amendment shall not be so construed as to affect the
election or term of any Senator chosen before it becomes valid
as part of the Constitution.
U.S. Const. amend. XVII.
HRS § 17-1 governs the filling of vacancies for the United States Senate:
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; provided that the vacancy
occurs not later than 4:30 p.m. on the sixtieth day prior to the
primary for nominating candidates to be voted for at the
election; otherwise at the state general election next following.
The chief election officer shall issue a proclamation designating
the election for filling the vacancy. 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. The
appointee shall be a resident of the State. If the prior incumbent
was not a member of any political party, the governor shall
appoint a person who is not and has not been, for at least six
months immediately prior to the appointment, a member of any
political party. All candidates for the unexpired term shall be
nominated and elected in accordance with this title.
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HRS § 17-1.
On December 17, 2012, during the second year of his ninth term, Senator
Inouye died. On December 26, 2012, pursuant to HRS § 17-1, the Democratic
Party of Hawai‘i submitted a list of three prospective appointees to then-Governor
Neil Abercrombie. Later that same day, selecting from among those on the
Democratic Party’s list, Governor Abercrombie appointed now-Senator Schatz to
temporarily fill the vacancy. Complaint ¶¶ 39-41. On May 11, 2014, Defendant
Scott T. Nago, Chief Election Officer, and the State of Hawaii Office of Elections,
published in the Honolulu Star-Advertiser a proclamation stating in part that –
a vacancy election shall be held in conjunction with the Primary
Election to be held on Saturday, August 9, 2014, and the
General Election to be held on Tuesday, November 4, 2014,
between the hours of 7:00 a.m. and 6:00 p.m. throughout the
State of Hawaii for the purpose of nominating and/or electing a
Senator to serve in the Congress of the United States.
Complaint ¶ 1; Ex. 1 (5/11/14 Proclamation).
Senator Schatz won the August 9, 2014 Democratic Primary election. See
Schatz Ex. 1 (Primary Election Results). He then won the special vacancy election
held during the November 4, 2012 General Election. See Schatz Ex. 2 (General
Election Results). On November 24, 2014, Governor Abercrombie and Nago
executed a Certificate of Election for Unexpired Term, certifying that Senator
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Schatz was “duly chosen by the qualified electors of the State of Hawaii a Senator
for the unexpired term ending at noon on the 3rd day of January, 2017, to fill the
vacancy in the representation from said State in the Senate of the United States
caused by the death of Daniel K. Inouye.” See Schatz Ex. 3 (11/24/14 Certificate
of Election for Unexpired Term). On December 2, 2014, Senator Schatz was
sworn in to fill the remainder of Senator Inouye’s ninth term.
On October 30, 2014, less than a week prior to the special vacancy election
and General Election, Hamamoto and Roco filed the instant Complaint. The
Complaint alleges that the December 26, 2012 appointment of Senator Schatz and
the November 4, 2014 special election are the result of unconstitutional
procedures. Hamamoto is “a citizen, registered voter, [and] resident of the State of
Hawaii,” who “brings this action to enforce his rights as a voter to participate in
the direct election of his United States Senator[.]” Complaint ¶ 8. Roco is “a
citizen, registered voter, and resident of the State of Hawaii,” who “filed
nomination papers with the State of Hawaii Office of Elections (SHOE) as a
Republican for the office of United States Senator. He brings this action to enforce
his rights as a candidate for the United States Senate.” Complaint ¶ 9.
In their complaint, Hamamoto and Roco seek an order from this Court:

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(1) declaring the election being conducted by Defendant Nago
and the State of Hawaii Office of Elections in relation to the
permanent filling of the vacancy is unconstitutional under the
Seventeenth Amendment because the election is not pursuant to
a writ of election issued by the Governor; (2) declaring HRS
§ 17-1 unconstitutional and not validly “empower[ing] the
Governor under the Seventeenth Amendment to “make
temporary appointment until the people fill” the vacancy caused
by Senator Inouye’s death; (3) declaring that Defendant Schatz
has not been validly appointed to temporarily fill the vacancy
resulting from Senator Inouye’s death and enjoining him from
acting in and removing him from the office of United States
Senator unless and until he is elected in a special general
election pursuant to a writ of election issued by the Governor to
fill the remainder of Senator Inouye’s term, (4) declaring that
the constitutional flaws in HRS § 17-1 with regard to temporary
appointments are unseverable from the part of the statute
delaying the election to permanently fill the vacancy to “the
following state general election,” thereby making the electiontiming provision in HRS § 17-1 void, (5) mandating Defendant
Abercrombie to immediately comply with the Seventeenth
Amendment by issuing a writ of election for the holding of a
special general election to fill the vacancy at the earliest
practicable date; and (6) declaring that the candidate elected at
the special general election to fill the vacancy shall take office
immediately upon the candidate’s election and qualification.
Complaint ¶ 7.
Defendants move to dismiss the complaint for lack of subject matter
jurisdiction and failure to state a claim. In opposition to the motions, Plaintiffs
withdraw their request to set aside the results of the November 2014 election.
“However, Plaintiffs still seek declaratory relief to rectify the unconstitutional

6

nature of Hawaii’s election law, which has resulted . . . in an ongoing deprivation
and abridgment of Plaintiffs’ right to elect their Senators[.]” Mem. in Opp. to State
Motion at 3; see also Pls.’ Notice of Voluntary Dismissal, Dkt. No. 56, ¶ 6
(“Plaintiffs expressly rescind[] their request for a new election, recognizing that
upsetting the results of the November [2014] election would not serve the interests
of democracy[.]”); id. ¶ 10 (“Plaintiffs seek only declaratory relief striking down
Hawaii’s procedures for filling Senate vacancies because they violate the
Seventeenth Amendment.”).
Plaintiffs voluntarily dismissed all Defendants except Governor David Ige
and Nago, in their official capacities, Senator Schatz, the Democratic Party of
Hawaii, and Brian Evans.1 Evans filed a Counterclaim for malicious prosecution
and a Motion for Sanctions. Plaintiffs seek dismissal of Evans’ Counterclaim and
denial of his request for sanctions.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) authorizes the Court to dismiss
claims over which it lacks proper subject matter jurisdiction. “[U]nlike a Rule
12(b)(6) motion, in a Rule 12(b)(1) motion, the district court is not confined to the

1

Evans filed an Answer and Counterclaim on December 1, 2014.

7

four corners of the complaint—it may consider facts and need not assume the
truthfulness of the complaint[,]” and the existence of disputed material facts will
not preclude the court from evaluating the existence of subject matter jurisdiction.
Americopters, LLC v. Fed. Aviation Admin., 441 F.3d 726, 732 n.4 (9th Cir. 2006);
see also Ass’n of Am. Med. Colleges v. United States, 217 F.3d 770, 778 (9th Cir
.2000).
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss for
failure to state a claim upon which relief can be granted. Pursuant to Ashcroft v.
Iqbal, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
555 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554,
570 (2007)). “[T]he tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Id. Accordingly,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Factual
allegations that only permit the court to infer “the mere possibility of misconduct”
8

do not constitute a short and plain statement of the claim showing that the pleader
is entitled to relief as required by Rule 8(a)(2). Id. at 679.
Under Rule 12(b)(6), review is generally limited to the contents of the
complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001);
Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). Documents whose
contents are alleged in a complaint and whose authenticity are not questioned by
any party may also be considered on a Rule 12(b)(6) motion to dismiss. See
Branch v. Tunnell, 14 F.3d 449, 453–54 (9th Cir. 1994), overruled on other
grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).
DISCUSSION
The Court first addresses Defendants’ motions to dismiss, before turning to
the motions relating to Evans’ Counterclaim and request for sanctions. Because
this action is moot, the Court does not reach Defendants’ alternative arguments,
including standing and the political question doctrine, nor does the Court express
an opinion on the merits of the claims.
I.

Defendants’ Motions to Dismiss Are Granted On Mootness Grounds
A.

This Case Is Moot
“Mootness can be characterized as the doctrine of standing set
in a time frame: The requisite personal interest that must exist
at the commencement of the litigation (standing) must continue
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throughout its existence (mootness).” Cook Inlet Treaty Tribes
v. Shalala, 166 F.3d 986, 989 (9th Cir. 1999) (internal quotation
marks omitted). Mootness is a jurisdictional issue, and “federal
courts have no jurisdiction to hear a case that is moot, that is,
where no actual or live controversy exists.” Id. “If there is no
longer a possibility that an appellant can obtain relief for his
claim, that claim is moot and must be dismissed for lack of
jurisdiction.” Ruvalcaba v. City of L.A., 167 F.3d 514, 521 (9th
Cir. 1999).
Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003).
An action becomes moot when the issues presented are no longer live or the
parties lack a legally cognizable interest in the outcome. Murphy v. Hunt, 455 U.S.
478 (1982). When this happens, the action fails to contain a “case or controversy”
under Article III of the United States Constitution. See In re Burrell, 415 F.3d 994,
998 (9th Cir. 2005) (citation omitted); U.S. Const. art. 3, § 2. “The mootness
doctrine ‘requires that an actual, ongoing controversy exist at all stages of federal
court proceedings.’” Leigh v. Salazar, 677 F.3d 892, 896 (9th Cir. 2012).
The test for mootness of a claim for declaratory relief is “whether the facts
alleged, under all the circumstances, show that there is a substantial controversy,
between parties having adverse legal interests, of sufficient immediacy and reality
to warrant the issuance of a declaratory judgment.” Biodiversity Legal Found. v.
Badgley, 309 F.3d 1166, 1174-75 (9th Cir. 2002) (quoting Super Tire Eng’g Co. v.
McCorkle, 416 U.S. 115, 122 (1974)). Accordingly, the Court must inquire
10

“whether a judgment will clarify and settle the legal relations at issue and whether
it will afford relief from the uncertainty and controversy giving rise to the
proceedings.” Natural Res. Defense Council, Inc. v. EPA, 966 F.2d 1292, 1299
(9th Cir. 1992). In order to obtain declaratory relief, a plaintiff must show “a very
significant possibility of future harm; it is insufficient . . . to demonstrate only past
injury.” San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir.
1996).
Thus, in order to satisfy the Article III “case or controversy” requirement,
the dispute must not only be “definite and concrete” and “real and substantial,” but
also resolvable by “specific relief through a decree of a conclusive character, as
distinguished from an opinion advising what the law would be upon a hypothetical
state of facts.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007)
(citation omitted).
Plaintiffs cannot dispute that the passage of the 2014 election has mooted
their pre-election claims, resulting in their abandonment of any request to overturn
the Governor’s temporary appointment or the election results, or to otherwise
unseat Senator Schatz. Instead, they attempt to recast their Complaint in the name
of democracy, seeking what they characterize as limited declaratory relief.

11

Plaintiffs challenge, in essence, the next time HRS § 17-1 is invoked. What
they seek, however, amounts to an advisory ruling that HRS § 17-1 is
unconstitutional based on the incumbent political party’s role in sending a short list
to the Governor for a U.S. Senate vacancy appointment, and the amount of time
between such an appointment and a special election. Plaintiffs seek this ruling in a
factual vacuum. Senator Schatz has already been appointed, elected, and sworn in
to the remainder of Senator Inouye’s ninth term. There are no allegations relating
to specific future vacancies, appointments, elections, or government conduct—only
speculation and conjecture. Article III prohibits this Court from granting
declaratory relief where “changes in the circumstances that prevailed at the
beginning of litigation have forestalled any occasion for meaningful relief.” West
v. Sec’y of the Dep’t of Transp., 206 F.3d 920, 925 n.4 (9th Cir. 2000). The
declaratory judgment requested by Plaintiffs requires an advisory opinion, which
the Court is constitutionally prohibited from issuing. F.C.C. v. Pacifica
Foundation, 438 U.S. 726, 735 (1978).
B.

The “Capable of Repetition, Yet Evading Review” Exception Does
Not Apply

Courts recognize an exception to the mootness doctrine, where a case
presents an issue that is “capable of repetition, yet evading review.” Weinstein v.

12

Bradford, 423 U.S. 147, 149 (1975) (citation omitted). Plaintiffs rely on the
application of this exception, without which they acknowledge this action cannot
proceed. See Pls.’ Mem. in Opp. to State Motion at 3-7. To fit within the
exception, a case must contain the following two elements: “(1) the challenged
action was in its duration too short to be fully litigated prior to its cessation or
expiration, and (2) there was a reasonable expectation that the same complaining
party would be subjected to the same action again.” Weinstein, 423 U.S. at 149
(citing Sosna v. Iowa, 419 U.S. 393 (1975)). Neither element is present here.
1.

Duration of Challenged Action

Ninth Circuit law mandates the “capable of repetition, yet evading review”
exception to be applied “sparingly, and only in ‘exceptional situations.’”
Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 836 (9th Cir.
2014)(citation omitted).
Controversies that are not of “inherently limited duration” do
not create “exceptional situations” justifying the rule’s
application, because, even if a particular controversy evades
review, there is no risk that future repetitions of the controversy
will necessarily evade review as well. As we have explained,
“[t]he exception was designed to apply to situations where the
type of injury involved inherently precludes judicial review, not
to situations where . . . [review is precluded as a] practical
matter.” Bunker, 820 F.2d at 311.
Id. at 837 (brackets in original). To be certain 13

For a controversy to be “too short to be fully litigated prior to
cessation or expiration,” it must be of “inherently limited
duration.” Doe, 697 F.3d at 1240 (emphasis added). This is so
because the “capable of repetition, yet evading review”
exception is concerned not with particular lawsuits, but with
classes of cases that, absent an exception, would always evade
judicial review. Id. at 1240-41; see also Bunker Ltd. P’ship v.
United States (In re Bunker Ltd. P’ship), 820 F.2d 308, 311 (9th
Cir. 1987) (“[t]he exception was designed to apply to situations
where the type of injury involved inherently precludes judicial
review”); 13C Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedures: Jurisdiction and Related Matters §
3533.8.2 (3d ed.2013) (collecting cases).
Id.
In Protectmarriage.com, political committees that supported the passage of
California’s Proposition 8 sought an exemption from future campaign contribution
reporting requirements on the basis that the committees might support future
campaigns opposing same sex marriage and that the State’s disclosure
requirements might deter potential contributions to such future efforts. The Ninth
Circuit held that the “capable of repetition, yet evading review” exception did not
apply because there was no “inherent limit” on the duration of the controversy.
Protectmarriage.com further explained that a “court order temporarily excusing
Appellants from the [state statute’s] reporting deadline or enjoining the state from
publicly disclosing Appellants’ filings could have permitted the parties to fully

14

litigate this case on the merits. Appellants simply failed to obtain such an order.”
Id. at 837.
The same is true here. In this case, the Governor’s temporary Senate
vacancy appointment occurred on December 26, 2012, followed on May 14, 2014
by Nago’s issuance of the proclamation announcing the election for a permanent
replacement. Plaintiffs, however, waited until October 30, 2014 to file their
Complaint, a matter of days prior to the November 4, 2014 General Election, and
at no time did they seek or have they sought preliminary injunctive relief.2 The
long gap in time between the purported initial injury inflicted by the December 26,
2012 vacancy appointment and the Complaint filed nearly two years later
prevented the Court from ruling on the issues well before they became moot. The
facts of this case, in other words, depict a scenario that defies an “evading review”
determination. See id. at 837 (“If Appellants were to bring a similar action in the
future, their claims would not, by their nature, again evade review, because a
different litigation strategy could maintain a live controversy until the action’s final
resolution”).

2

At oral argument, the reason offered by Plaintiffs for the substantial delay in filing suit was their
difficulty in finding counsel and the high cost of litigation.

15

Moreover, “a party may not profit from the ‘capable of repetition, yet
evading review’ exception . . . where through his own failure to seek and obtain
[prompt relief] he has prevented [an] appellate court from reviewing the trial
court’s decision.” Id. (citations omitted; brackets in original); see also
Headwaters, Inc. v. Bureau of Land Mgmt., 893 F.2d 1012, 1016 (9th Cir. 1990)
(holding that a party may not invoke the “capable of repetition, yet evading
review” exception where its failure to obtain prompt relief has prevented judicial
review); Bunker, 820 F.2d at 311 (“The exception was designed to apply to
situations where the type of injury involved inherently precludes judicial review,
not to situations where the failure of parties to take certain actions has precluded
review as a practical matter.”).
While Plaintiffs are undoubtedly correct that litigating their claims now,
without the time pressure of an actual appointment and election, would be more
convenient for all concerned, mootness cannot take a back seat to expediency. The
absence of a fact pattern in which HRS § 17-1 was employed, or even of evidence
that the current version of HRS § 17-1 is what would be used by the state if and
when confronted with any future Senate vacancy, is precisely why federal courts
do not issue advisory opinions. Thomas v. Anchorage Equal Rights Comm’n, 220
F.3d 1134, 1138 (9th Cir. 2000) (“Our role is neither to issue advisory opinions nor
16

to declare rights in hypothetical cases, but to adjudicate live cases or controversies
consistent with the powers granted the judiciary in Article III of the
Constitution.”); id. at 1141 (declining to reach merits of constitutional challenge to
state law “in the absence of any identifiable tenants and with no concrete factual
scenario that demonstrates how the laws, as applied, infringe their constitutional
rights. This case is a classic one for invoking the maxim that we do not decide
‘constitutional questions in a vacuum.’”) (quoting American-Arab AntiDiscrimination Comm’n v. Thornburgh, 970 F.2d 501, 511 (9th Cir. 1992)).
The out-of-circuit cases relied upon by Plaintiffs do not transform the instant
dispute into one of inherently limited duration. The facts in those cases are
markedly different. For example, in Jackson v. Ogilvie, 426 F.2d 1333, 1334 (7th
Cir. 1970), and Judge v. Quinn, 612 F.3d 537, 544 (7th Cir. 2010), the state had
not called any election at all. Here, there was an election, which Plaintiffs failed to
timely challenge, beyond filing their Complaint on the eve of the General Election.
Indeed, Plaintiffs participated in the very election proclaimed by the Office of
Elections in May 2014. See, e.g., Schatz Ex. 1 (showing election results, including
Plaintiff Roco’s August 2014 Republican Primary loss). This is not a case in
which the duration of time between the vacancy, proclamation, and election is one
of inherently limited duration – in fact, the duration would very likely be different
17

in each instance of a vacancy. See Jackson, 426 F.2d at 1334-35 (U.S. House of
Representatives vacancy created on August 13, 1969, with no election called at the
time of the appellate court’s May 6, 1970 order remanding to district court in
advance of November 3, 1970 general election); Judge, 612 F.3d at 541-42 (twoyear period between commencement of U.S. Senate vacancy and general election
date, from November 16, 2008 until November 2, 2010).3 In other words, this is
not the type of case involving election laws that would inherently take more time
to resolve than the election cycle permits. Cf. Moore v. Ogilvie, 394 U.S. 814, 816
(1969); Porter v. Jones, 319 F.3d 483, 490 (9th Cir. 2003) (“Election cases often
fall within this exception, because the inherently brief duration of an election is
almost invariably too short to enable full litigation on the merits.”). Courts are
clear that the “capable of repetition, yet evading review” exception “is concerned
not with particular lawsuits, but with classes of cases that, absent an exception,

3

In Judge, mootness was not an issue because the appellate court concluded that there was still
time for the Governor to order an election:
There is still time for the governor to issue a writ of election that will call
for an election on the date established by Illinois law and that will make it
clear to the voters that they are selecting a replacement for Senator
Obama. The district court can easily reach and resolve the merits of this
request before any of the harm that the plaintiffs forecast comes to pass.
Moreover, circumstances change: Governor Quinn might issue a writ of
election tomorrow, or next week.
Judge, 612 F.3d at 557.

18

would always evade judicial review.” Protectmarriage.com, 752 F.3d at 836. This
is not such a case. See id. (“These actions are not of ‘inherently limited duration,’
because the challenged conduct might never occur.”).
Plaintiffs’ inability to obtain the relief sought here is not due to any inherent
limitation in this kind of dispute. Instead, it is due to their own delay in seeking
relief. Accordingly, Plaintiffs fail to establish the application of the first element
of the “evading review” exception.
2.

No Reasonable Expectation That Plaintiffs Will
Be Subject To The Same Challenged Activity

As to the second element of the exception, “plaintiffs have the burden of
showing that there is a reasonable expectation that they will once again be
subjected to the challenged activity.” Lee v. Schmidt-Wenzel, 766 F.2d 1387, 1390
(9th Cir. 1985). “Speculative contingencies afford no basis for finding the
existence of a continuing controversy between the litigants,” and “when the chance
of repetition is remote and speculative, there is no jurisdiction.” Id.
The “capable of repetition, yet evading review” exception is inapplicable in
this case because there is insufficient evidence demonstrating that any actions
challenged by Plaintiffs can reasonably be expected to be repeated. Plaintiffs may
be correct that another Senate vacancy will occur in Hawaii during their lifetimes.

19

And they may be correct that the procedures in HRS § 17-1 will operate to fill the
vacancy until an election is held resulting in a similar length of time between
temporary appointment and election as was the case here. There is no reasonable
likelihood, however, that these Plaintiffs will be subject to the same injury or
challenged action again.4 In part, that is because Plaintiffs have demonstrated no
injury to themselves that is likely to be repeated. This case is not the typical
challenge to election laws that will be enforced during each two-year or four-year
general election cycle. Cf. Schaefer v. Townsend, 215 F.3d 1031, 1033 (9th Cir.
2000) (finding challenge not moot where the state would unquestionably enforce
the U.S. House of Representatives candidate residency requirement in the next
election cycle); Rubin v. City of Santa Monica, 308 F.3d 1008, 1013 (9th Cir.
2002) (“Although the City of Santa Monica’s 2000 election has passed, Rubin’s
claims are capable of repetition because future city election overseers would deny
him the ability to use the designation ‘peace activist’ on the ballot” for a City
Council seat).
In fact, Plaintiffs’ articulated injury is difficult to parse. “Plaintiffs do not
claim that they were completely deprived of the right to vote for a Senator to fill

4

Indeed, the parties agree that Hawaii has only had two Senate vacancies in its 56-year history as
a State, one occurring in 1990 (Sen. Matsunaga) and the other in 2012 (Sen. Inouye).

20

the vacancy in question. Instead, Plaintiffs claim that the State Defendants placed
unlawful burdens on their right to vote for Hawaii’s Senator[.]” Mem. in Opp. to
Schatz Motion at 6. They “seek declaratory relief that would redress the injury
they claim in the case of future vacancies.” Id. at 9. Whatever the “unlawful
burden” they claim they will again experience on some contingent future date,
Plaintiffs’ purported injury appears to apply to all voters within the State of
Hawaii. Such a hypothetical and generalized grievance does not suffice. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992) (“[A] plaintiff raising
only a generally available grievance about government—claiming only harm to his
and every citizen’s interest in proper application of the Constitution and laws, and
seeking relief that no more directly and intangibly benefits him than it does the
public at large—does not state an Article III case or controversy.”); Lance v.
Coffman, 549 U.S. 437, 110-41 (2007) (A plaintiff must show how his or her
averred injury is peculiar and singular, distinguished from an injury shared equally
with his or her fellow citizens.).5

5

Although the Court does not reach Defendants’ standing arguments, it recognizes that the
analysis of mootness overlaps with portions of the standing inquiry, particularly with respect to
the injury analysis. See Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th
Cir. 2000) (citing United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)
(describing mootness as “the doctrine of standing set in a time frame.”)); Vasquez v. Los Angeles
County, 487 F.3d 1246, 1253 n.6 (9th Cir. 2007) (“The requisite personal interest that must exist

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In sum, Plaintiffs’ claims are moot, and the exception they rely on has no
application to the circumstances presented here. Accordingly, the Court is without
subject matter jurisdiction, and the complaint is hereby dismissed.6
II.

Plaintiffs’ Motion to Dismiss Evans’ Counterclaim Is Granted
Evans, who is proceeding pro se, filed a Counterclaim for “malicious

prosecution” against Hamamoto and Roco. They seek dismissal pursuant to Fed.
R. Civ. P. 12(b)(6).
To bring a claim of malicious prosecution, Plaintiff must allege “(1) that the
prior proceedings were terminated in the plaintiffs’ favor, (2) that the prior
proceedings were initiated without probable cause, and (3) that the prior
proceedings were initiated with malice.” Myers v. Cohen, 67 Haw. 389, 688 P.2d
1145, 1148 (1984) (involving malicious prosecution claim against attorney who
filed allegedly false complaint); see also Flowers v. Seki, 45 F. Supp. 2d 794, 802
(D. Haw. 1998) (“While Plaintiff’s claim here is a claim for malicious or wrongful

at the commencement of the litigation (standing) must continue throughout its existence
(mootness).”) (citation omitted).
6

Plaintiffs’ oral request for leave to amend is denied, as amendment would be futile. See, e.g.,
Temple v. Abercrombie, 903 F. Supp. 2d 1024, 1032 (D. Haw. 2012) (“Keeping in mind that
leave to amend is freely given under Federal Rule of Civil Procedure 15(a)(2), it would be futile
to allow an amended complaint that lacks subject matter jurisdiction.”) (citing Ahlmeyer v. Nev.
Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th Cir. 2009) (reiterating that “futility of
amendment alone can justify the denial of a motion [to amend]”)).

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prosecution in the civil or administrative context, it is nonetheless akin to a claim
for malicious criminal prosecution, and thus, the court looks to the cases regarding
malicious prosecution for guidance.”). The allegations in the Counterclaim fail to
state such a claim.
Notably, Evans has not been “prosecuted” maliciously or otherwise. There
is no “prior proceeding.” See Fraser v. County of Maui, 855 F. Supp. 1167, 1181
(D. Haw. 1994) (citing Restatement (Second) of Torts § 654 (1977)). The
Counterclaim states simply: “Plaintiff herein files this Counter Claim and asks the
Court to award to co-Defendant Brian Evans $1,000,000 for Malicious
Prosecution. As the Plaintiffs admit in their initial Complaint, they admit that CoDefendant Evans has absolutely nothing to do with this case, and just threw his
name into this case for the hell of it.” Evans Counterclaim and Motion at 1. The
Counterclaim is without facial plausibility because Evans pleads no factual content
that allows the court to draw the reasonable inference that Plaintiffs are liable for
malicious prosecution. Accordingly, Plaintiffs’ Motion to Dismiss the
Counterclaim is GRANTED.
III.

Evans’ Motion for Sanctions Is Denied
Plaintiffs named Evans and at least seven other individuals who were

candidates for the U.S. Senate seat as Defendants in this action. Plaintiffs contend
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that they named the candidates for the sole purpose of according relief among the
existing parties under Fed. R. Civ. P. 19(a). Complaint ¶¶ 14-21. Evans’ motion
states that Plaintiffs naming him as a Defendant in this matter “is causing undue
stress, undue expense and undue duress to a named co-defendant that the
Plaintiff[s] admit[] in their very own Complaint that the co-Defendant has
absolutely nothing to do with. It cannot be tolerated, and merely dismissing the
Co-Defendant from the case is not enough.” Evans Counterclaim and Motion at 1.
According to Evans, the “Court must send the message that it is a serious entity,
and not one where games can be played at the expense of others, in this case me,
and the Honorable Court.” Id. Evans appears to seek $1,000,000 as a sanction, but
his motion does not specify the legal authority for the sanctions he seeks.
As explained by the Ninth Circuit in Fink v. Gomez:
Three primary sources of authority enable courts to sanction
parties or their lawyers for improper conduct: (1) Federal Rule
of Civil Procedure 11, which applies to signed writings filed
with the court, (2) 28 U.S.C. § 1927, which is aimed at
penalizing conduct that unreasonably and vexatiously
multiplies the proceedings, and (3) the court’s inherent power.
239 F.3d 989, 991 (9th Cir. 2001). Evans has not demonstrated that he is entitled
to sanctions under any of these authorities.

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First, Evans has not satisfied the prerequisites for sanctions under Rule
11(c)(2). Moreover, Plaintiffs’ counsel conducted a reasonable inquiry into the
existing law on the subject of Rule 19 before naming the candidates for U.S.
Senate as Defendants. There is no evidence that these candidates were named for
some improper purpose and, indeed, Plaintiffs’ counsel has been transparently
clear that no actual relief was being sought from these individual Defendants.
Second, Evans is not entitled to sanctions under 28 U.S.C. § 1927, as there is
no evidence of conduct by counsel that unreasonably and vexatiously multiplied
the proceedings.
Third, the Court finds no indication of “bad faith or conduct tantamount to
bad faith.” Price v. Lehtinen (In re Lehtinen), 564 F.3d 1052, 1061 (9th Cir.
2009). Nor does Evans demonstrate any recklessness on the part of Plaintiffs that
is “combined with an additional factor such as frivolousness, harassment, or an
improper purpose.” Fink, 239 F.3d at 994. Accordingly, Evan’s Motion for
Sanctions is DENIED.
CONCLUSION
On the basis of the foregoing, the Court GRANTS both the State
Defendants’ Motion to Dismiss and Senator Brian Schatz’s Motion to Dismiss.
Plaintiffs’ Motion to Dismiss the Counterclaim filed by Brian Evans is
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GRANTED, and Evans’ Motion for Sanctions is DENIED. The Clerk of Court is
directed to close this case.
IT IS SO ORDERED.
DATED: February 23, 2015 at Honolulu, Hawai‘i.

Eugene Hamamoto, et al. v. David Y. Ige, et al.; Civil No. 14-00491 DKW-BMK;
ORDER (1) GRANTING DEFENDANTS’ MOTIONS TO DISMISS
COMPLAINT; (2) GRANTING PLAINTIFFS’ MOTION TO DISMISS
COUNTERCLAIM; AND (3) DENYING DEFENDANT
BRIAN EVANS’ MOTION FOR SANCTIONS

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