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Order Granting Plaintiffs' Request for a Three-Judge Court Pursuant to 28 U.S.C. § 2284, Kostick v. Nago, No. CV-12-00184-JMS (4-10-2012)

Order Granting Plaintiffs' Request for a Three-Judge Court Pursuant to 28 U.S.C. § 2284, Kostick v. Nago, No. CV-12-00184-JMS (4-10-2012)

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF HAWAIIJOSEPH KOSTICK; et al.,Plaintiffs,vs.SCOTT T. NAGO, in his officialcapacity as the Chief Election Officerof the State of Hawaii; et al.,Defendants.________________________________))))))))))))CIVIL NO. 12-00184 JMS/RLPORDER GRANTING PLAINTIFFS’REQUEST FOR A THREE-JUDGECOURT PURSUANT TO 28 U.S.C.§ 2284
On April 6, 2012, Plaintiffs filed a Complaint for Declaratory andInjunctive Relief, asserting that the State of Hawaii’s legislative apportionment anddistricting plan violates the United States Constitution, the State of HawaiiConstitution, and Hawaii state law. The Complaint requests that a three-judgecourt 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 theconstitutionality of . . . the apportionment of any statewide legislative body.”Despite this mandatory language, a three-judge panel need not be convened if the
Case 1:12-cv-00184-JMS-RLP Document 9 Filed 04/10/12 Page 1 of 3 PageID #: 40
constitutional attack is “insubstantial” --
., “its unsoundness so clearly resultsfrom the previous decisions of this court as to foreclose the subject and leave noroom 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. DeChamplain
, 421 U.S. 21, 28 (1975) (describing an insubstantial claim as one“obviously without merit or clearly concluded by this Court’s 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,” “whollyinsubstantial,” “obviously frivolous,” and “no longer open to discussion”);
see alsoKalson 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). “Thatclaims are of doubtful merit does not render them insubstantial for the purposes of convening a three-judge court.”
Connolly v. Pension Benefit Guar. Corp.
, 673F.2d 1110, 1114 (9th Cir. 1982).On April 9, 2012, the court held a status conference to discuss theparties’ positions regarding Plaintiffs’ request for a three-judge panel. At theconference, Defendants agreed that substantial questions of constitutionalityrequire the convening of a three-judge court. Further, from the court’s preliminaryreview of the Complaint and relevant caselaw, the court finds that the
Case 1:12-cv-00184-JMS-RLP Document 9 Filed 04/10/12 Page 2 of 3 PageID #: 41

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