No. 29354 (Oct. 2, 2008)
Order [pdf]
AMENDED ORDER OF THE COURT DENYING APPELLANTS' EMERGENCY MOTION FOR PRELIMINARY INJUNCTION BY LEONARD, J.
On September 22, 2008, at 10:00 a.m., Petitioners-Plaintiffs-Appellants' Emergency Motion for Preliminary Injunction Directing the City Clerk to Place Petition 53 of 2008 on the November 4, 2008 General Election Ballot (ICA Motion), filed on September 15, 2008, came on for hearing before the Intermediate Court of Appeals (ICA). Earle A. Partington, Esq., appeared on behalf of Petitioners-Plaintiffs-Appellants Stop Rail Now, a non-profit organization, Let Honolulu Vote, a non-profit organization, League of Women Voters of Honolulu, a non-profit organization, Sensible Traffic Alternatives & Resources, Inc., dba Honolulu Traffic.com, a non-profit organization, Paul de Gracia, Paul E. Smith, Robert Kessler, Warren P. Berry, Jeremy Lam, M.D., Scott R. Wilson, Dennis Callan, and Samuel Slom (collectively, Stop Rail). Don S. Kitaoka, Esq., and Diane T. Kawauchi, Esq., Deputies Corporation Counsel, appeared on behalf of Respondent-Defendant-Appellee Denise C. DeCosta, in her capacity as City Clerk of the City and County of Honolulu (City Clerk).
Upon careful review and consideration of the ICA Motion, the City Clerk's Memorandum in Opposition to the ICA Motion, Stop Rail's Written Submission dated September 19, 2008, the record in this case, applicable statutes, rules, ordinances, charter provisions and cases, and the issues raised by the parties, we resolve the ICA Motion as follows:
As explained hereinafter, based on the arguments and the record before the court, we conclude: (1) this court has appellate jurisdiction; (2) Stop Rail has made a sufficient showing on the merits of their appeal to require us to weigh the issues of irreparable harm and whether the public's interests would be furthered by the requested relief, although there are other potentially meritorious interpretations of the relevant City and County of Honolulu Charter provisions; (3) there is evidence before the court that granting the requested relief could engender unintended, serious, negative consequences for the upcoming general election, including potential disenfranchisement of absentee uniformed services voters and overseas voters, operational and logistical impact to the entire State election timetable, voter confusion, and/or jeopardy to the validity of the votes cast on the issue of rail transit in Honolulu; (4) that harm outweighs the harm that will be suffered by Stop Rail if its form of the ballot question on rail transit is not placed on this year's general election ballot, particularly since the public will have the opportunity to vote on an alternative form of the rail transit question; and (5) therefore, Stop Rail's request for a preliminary injunction is denied.
