Disappeared News

by Larry Geller

Six days before their appeal was to be heard by the 9th Circuit Court of Appeals, on June 9, 2011, Hawaii’s Campaign Spending Commission filed a motion to voluntarily dismiss the appeal (Jimmy Yamada, Russell Stewart, and A-1 A-Lectrician, Inc.). The motion was granted, and the oral arguments were removed from the court calendar for June 15, 2011.

In the wake of the Supreme Court’s Citizens United decision, Hawaii plaintiffs Jimmy Yamada and Russell Stewart filed a challenge to the constitutionality of several Hawaii campaign spending laws. On Thursday October 7, 2010, Judge Seabrook granted an injunction in part, reasoning that the government has no valid constitutional interest in regulating the contributions that plaintiffs want to make to the Aloha Family Alliance – Political Action Committee.

Specifically, Seabright held that there is no legitimate government interest in restricting contributions to organizations that engage only in independent spending, as the Aloha Family Alliance PAC does. He declined to declare the entire law unconstitutional at the preliminary injunction stage.

The state subsequently appealed Seabright’s decision to the 9th Circuit Court of appeals, which was to hear oral arguments in Honolulu on June 15, 2011.

There is more to the story, though, raising questions about the state’s handling of this case.

In earlier articles we described the deputy AG’s interrogation of plaintiffs in Honolulu District Court on matters seemingly removed from the main thrust of the case while plaintiff’s attorney Randy Elf and Judge Seabright worked out what would become the court’s order:

The heart of the hearing took place at about 11:00 a.m. in a spirited back-and-forth between Judge Seabright and attorney Elf. It was clear that Seabright had studied related cases from other circuits as well as Citizens United, the Supreme Court case that blew the lid off of corporate campaign contributions. During the discussion Elf demonstrated a command of the core issues that was impressive, and which helped Seabright to clarify his own understanding.

Attorney Aina spent much of her time questioning the two plaintiffs as witnesses, including a detailed session with plaintiff Yamada questioning his authority to act for A-1. She questioned Yamada’s position as CEO and his authority to act for its board of directors, both of which did not appear to be supported by the available copy of the company bylaws. It also became clear that A-1 the corporation does not distinguish itself from A-1 the political action committee—they share the same checking account, for example.

While the issues explored by Aina were no doubt important, it resembled a game of miniature golf off on the side while the pros played through.

On June 9, a decision was filed in the same 9th Circuit in the Thalheimer v. City of San Diego case, also on the issue of campaign spending and very worth studying. The Court ordered the parties to be prepared to discuss that case. Perhaps the state read the handwriting on the wall, though Thalheimer, like Hawaii’s case, also depends on  Long Beach Area Chamber of Commerce v. City of Long Beach. That 2010 case alone might have suggested that the Hawaii appeal would not succeed.

From a declaration filed on June 9, at the point when the state was about to give up its appeal, it appears it was still operating from the sidelines:

4. On June 9, 2011, at 4:58 p.m., I sent an e-mail to James Hochberg and
Randy Elf, counsel from Indiana. Mr. Elf is currently scheduled to
represent the Plaintiffs at oral argument on June 15, 2011.

5. The e-mail outlined the Defendants-Appellants’ intent to immediately
move to withdraw our appeal and inquired if they would object. The
e-mail requested that they respond immediately, given the need to promptly
inform this Court that Appellants no longer wish to pursue their appeal.

6. By 5:30 p.m. on June 9, 2011, I had received no return call from Mr.
Hochberg, and no return e-mail from Mr. Hochberg or Mr. Elf.

Let’s see… they sent their email at 4:58 p.m. and didn’t get an answer by 5:30 p.m, which is only 32 minutes later. Maybe the attorneys were doing something else other than staring at their computer screens at that moment. Did the AG’s office try to call them to see if they were there?  The state then moved the court to voluntarily dismiss its appeal and order the parties to bear their own costs on an appeal.

The court did just that (see the order here).

Given the high costs of preparing for any legal action, it is unlikely that this is the last word on attorneys fees. Plaintiffs have already asked the court to reimburse attorneys fees. We should be asking why the appeal was filed in the first place, because we taxpayers have to foot the bill.

As to Hawaii’s campaign spending law, it is unlikely we’ve heard the last on that front either.

Permalink posted by Larry @ 6/13/2011 10:50:00 AM