Case 1:12-cv-00184-JMS-RLP Document 9

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII JOSEPH KOSTICK; et al., ) ) Plaintiffs, ) ) vs. ) ) SCOTT T. NAGO, in his official ) capacity as the Chief Election Officer ) of the State of Hawaii; et al., ) ) Defendants. ) ________________________________ ) CIVIL NO. 12-00184 JMS/RLP ORDER GRANTING PLAINTIFFS REQUEST FOR A THREE-JUDGE COURT PURSUANT TO 28 U.S.C. 2284

ORDER GRANTING PLAINTIFFS REQUEST FOR A THREE-JUDGE COURT PURSUANT TO 28 U.S.C. 2284 On April 6, 2012, Plaintiffs filed a Complaint for Declaratory and Injunctive Relief, asserting that the State of Hawaiis legislative apportionment and districting plan violates the United States Constitution, the State of Hawaii Constitution, and Hawaii state law. The Complaint requests that a three-judge court be convened to hear and determine this action pursuant to 28 U.S.C. 2284(a). Section 2284(a) provides, in relevant part, that a district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of . . . the apportionment of any statewide legislative body. Despite this mandatory language, a three-judge panel need not be convened if the

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constitutional attack is insubstantial -- i.e., its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy. Goosby v. Osser, 409 U.S. 512, 518 (1973); McLucas v. De Champlain, 421 U.S. 21, 28 (1975) (describing an insubstantial claim as one obviously without merit or clearly concluded by this Courts previous decisions); Hagans v. Lavine, 415 U.S. 528, 536-38 (1974) (describing insubstantial claims as so attenuated and unsubstantial as to be absolutely devoid of merit, wholly insubstantial, obviously frivolous, and no longer open to discussion); see also Kalson v. Paterson, 542 F.3d 281, 288 (2d Cir. 2008) (applying standard to 2284); LaRouche v. Fowler, 152 F.3d 974, 981 (D.C. Cir. 1998) (same). That claims are of doubtful merit does not render them insubstantial for the purposes of convening a three-judge court. Connolly v. Pension Benefit Guar. Corp., 673 F.2d 1110, 1114 (9th Cir. 1982). On April 9, 2012, the court held a status conference to discuss the parties positions regarding Plaintiffs request for a three-judge panel. At the conference, Defendants agreed that substantial questions of constitutionality require the convening of a three-judge court. Further, from the courts preliminary review of the Complaint and relevant caselaw, the court finds that the
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constitutional claims are not insubstantial for purposes of 2284. The court therefore GRANTS Plaintiffs request for a three-judge court. Pursuant to 28 U.S.C. 2284(b)(1), the court will notify the Chief Judge of the Ninth Circuit Court of Appeals to designate two other judges, at least one of whom shall be a circuit judge, to serve as members of the three-judge court. IT IS SO ORDERED. DATED: Honolulu, Hawaii, April 10, 2012.

/s/ J. Michael Seabright _____________________________ J. Michael Seabright United States District Judge

Kostick et al. v. Nago et al., Civ. No. 12-00184 JMS/RLP, Order Granting Plaintiffs Request for a Three-Judge Court Pursuant to 28 U.S.C. 2284