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Judicial Watch • Akina v Hawaii oral decision 17134

Akina v Hawaii oral decision 17134

Akina v Hawaii oral decision 17134

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Date Created:October 25, 2015

Date Uploaded to the Library:November 05, 2015

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Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT HAWAII
KELI AKINA, KEALII
MAKEKAU, JOSEPH KENT,
YOSHIMASA SEAN MITSUI,
PEDRO KANA GAPERO, and
MELISSA LEINA ALA MONIZ,
Plaintiffs,
vs.
THE STATE HAWAII;
GOVERNOR DAVID IGE,
his official capacity;
ROBERT LINDSEY, JR.,
Chairperson, Board
Trustees, Office
Hawaiian Affairs, his
official capacity; COLETTE MACHADO, PETER APO,
HAUNANI APOLIONA, ROWENA
M.N. AKANA, JOHN
WAIHE IV, CARMEN HULU
LINDSEY, DAN AHUNA,
LEINA ALA AHU ISA,
Trustees, Office
Hawaiian Affairs, their
official capacities;
KAMANA OPONO CRABBE, Chief
Executive Officer, Office Hawaiian Affairs, his
official capacity; JOHN
WAIHE III, Chairman,
Native Hawaiian Roll
Commission, his official
capacity; ALEHU ANTHONY,
LEI KIHOI, ROBIN DANNER,
MAHEALANI WENDT,
Commissioners, Native
Hawaiian Roll Commission, their official
capacities; CLYDE
NAMU Executive Director,
Native Hawaiian Roll
Commission, his official
capacity; THE AKAMAI
CIVIL NO. 15-00322JMS-BMK
Honolulu, Hawaii
October 23, 2015
10:36 a.m.
ORAL RULING [47]
PLAINTIFFS MOTION FOR
PRELIMINARY INJUNCTION
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
FOUNDATION; and THE
AUPUNI FOUNDATION; and DOE
DEFENDANTS 1-50,
Defendants.
TRANSCRIPT PROCEEDINGS
BEFORE THE HONORABLE MICHAEL SEABRIGHT,
UNITED STATES DISTRICT JUDGE
APPEARANCES:
For the Plaintiffs: CHRISTOPHER COATES, ESQ.
(Participating phone)
Law Office Christopher Coates
934 Compass Point
Charleston, South Carolina 29412
For Defendants Nai
Aupuni and The Akamai
Foundation:
WILLIAM MEHEULA, ESQ.
Sullivan Meheula Lee
745 Fort Street, Suite 800
Honolulu, Hawai 96813
For Defendant Nai
Aupuni:
DAVID MINKIN, ESQ.
McCorriston Miller Mukai MacKinnon
Five Waterfront Plaza, 4th Floor
500 Ala Moana Boulevard
Honolulu, Hawai 96813
MICHAEL LILLY, ESQ.
Ning Lilly Jones
707 Richards Street, Suite 700
Honolulu, Hawaii 96813
ROBERT POPPER, ESQ.
(Participating phone)
CHRIS FEDELI, ESQ.
(Participating phone)
ERIC LEE, ESQ.
(Participating phone)
Judicial Watch, Inc.
425 Third Street,
Washington, 20024
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
APPEARANCES (Contd.):
For Defendant Office Hawaiian Affairs:
KANNON SHANMUGAM, ESQ.
(Participating phone)
ELLEN OBERWETTER, ESQ.
(Participating phone)
Williams Connolly LLP
725 Twelfth Street, N.W.
Washington, D.C. 20005
For the State
Defendants:
ROBERT NAKATSUJI, ESQ.
Deputy Attorneys General
Department the Attorney
General, State Hawai
425 Queen Street
Honolulu, Hawai 96813
Also Present, for
Amicus U.S. Department Interior:
SAM HIRSCH, ESQ.
(Participating phone)
Principal Deputy Assistant Attorney
General
Environment and Natural Resources
Division
U.S. Department Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
Also Present, for
Proposed IntervenorDefendants Samuel
Kealoha, Jr., Virgil Day, Josiah
Hoohuli, Patrick
Kahawaiolaa and Melvin
Hoomanawanui:
WALTER SCHOETTLE, ESQ.
Walter Schoettle, Law Corp.
1088 Bishop Street, Suite 1304
P.O. Box 596
Honolulu, Hawaii 96809-0596
ROBERT KLEIN, ESQ.
McCorriston Miller Mukai MacKinnon
Five Waterfront Plaza, 4th Floor
500 Ala Moana Boulevard
Honolulu, Hawai 96813
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
Official Court
Reporter:
Cynthia Fazio, RMR, CRR
United States District Court
P.O. Box 50131
Honolulu, Hawaii 96850
Proceedings recorded machine shorthand, transcript produced
with computer-aided transcription (CAT).
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
FRIDAY, OCTOBER 23, 2015,
THE CLERK:
10:36 A.M.
Civil Number 15-322JMS-BMK, Kelii Akina, al., versus the State Hawaii, al.
This case has been called for oral ruling the
Motion for Preliminary Injunction.
Counsel, please make your appearances for the record.
MR. POPPER:
This Robert Popper for plaintiffs and
with are Chris Fedeli and Eric Lee.
THE COURT:
All right.
Yes.
MR. COATES:
THE COURT:
All right.
MR. LILLY:
Good morning, Your Honor.
This Chris Coates for the plaintiffs.
Yes, good morning.
Michael Lilly
for plaintiffs.
THE COURT:
All right.
MR. MEHEULA:
Good morning, Your Honor.
and David Minkin for Nai Aupuni.
Bill Meheula
And also here for The
Akamai Foundation.
THE COURT:
All right.
MR. KLEIN:
Good morning, Your Honor.
Robert Klein
representing OHA and the OHA defendants.
MR. NAKATSUJI:
Good morning, Your Honor.
Deputy
Attorney General Robert Nakatsuji behalf the State
defendants.
THE COURT:
Yes.
MR. SHANMUGAM:
All right.
And this Kannon Shanmugam and Ellen
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
OIberwetter Washington for the OHA defendants.
THE COURT:
MR. HIRSCH:
All right.
Anybody else there?
Sam Hirsch Department Justice for
amicus U.S. Department the Interior.
THE COURT:
All right.
And did give permission
for Mr. Hirsch appear phone well since invited the
amicus brief.
Okay.
Yes, please seated.
All right.
Let start off first thanking the
parties for their cooperation this matter and providing
top-notch briefing.
everyone has put and the time everyone has put both
sides this complex matter. very much appreciate the effort
Now, want start explaining why providing oral ruling today and what will follow next. all know, the election slated begin
November 1st.
August 13th and the Motion for Preliminary Injunction, the
motion were here today discuss, was filed August 28,
leaving only months between the filing the motion and the
start the election the following:
The lawsuit this matter was filed
One, get the briefing these complex issues fully
completed.
Two, give sufficient time study these
matters.
but some testimony.
Three, hold hearing, including albeit not much
And then four, for consider all
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
that and reach conclusion.
nature the issues before me, the time has been somewhat
short and have had expedite the matter move forward
that whatever the ruling, would sufficiently advance the election not overly disruptive. short, given the complex
And now prepared rule and believe the
interest justice announce decision now, far
advance the election possible.
today.
And thats why were here oral pronouncement today intended summary more comprehensive written order follow.
impending election and the heightened public interest this
case, intent today provide overview, say, with written order follow. appeal taken from ruling, aid the
appellate process.
written order filed soon can. given the
The written order intended,
And will work diligently get the
And have done some research and this process
oral ruling followed written order has been tested, and
cases discussing the rule can found Inland Bulk Transfer,
332 F.3d 1007, Sixth Circuit, 2003.
All right. thats the framework under which were
working today.
Now, defendant Nai Aupuni conducting election Native Hawaiian delegates proposed convention Native
Hawaiians discuss, and perhaps organize, Native
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
Hawaiian governing entity.
announced and voting, said, run during the month
November.
Injunction essentially seeking halt the election.
read all the briefings numerous times, heard the arguments and
the evidence and now prepared rule.
Delegate candidates have been
Plaintiffs have filed Motion for Preliminary have
The voters and delegates this election are based Roll qualified Native Hawaiians set forth Act 195 the 2011 Hawaii Session Laws amended. qualified
Native Hawaiian defined Act 195 individual, age older, who certifies that they are, one, descendent
the aboriginal peoples who, prior 1778, occupied and
exercised sovereignty the Hawaiian islands, the area that
now constitute the State Hawaii, and two, have maintained significant cultural, social civic connection the
Native Hawaiian community and wishes participate the
organization the Native Hawaiian governing entity.
And through registration process, the Native
Hawaiian Roll Commission asked required prospective
registrants the Roll make three declarations follows:
Declaration One: affirm the unrelinquished
sovereignty the Native Hawaiian people, and intent
participate the process self-governance.
Declaration Two: have significant cultural,
social civic connection the Native Hawaiian community.
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And Declaration Three: Native Hawaiian, and
describes what that entails.
Separately, required amendment Act 195,
the Roll also includes qualified Native Hawaiians, quote,
all individuals already registered with the State verified
Hawaiians Native Hawaiians through the Office Hawaiian
Affairs.
have affirm Declarations One Two.
And those the Roll through OHA registry not
And Tuesdays hearing the parties agreed that
approximately percent the Roll comes from OHA
registry, leaving the other percent come directly through
the Roll Commission process, the initial process.
that approximately percent those the Roll did not have make affirmation regarding sovereignty significant
connections the Native Hawaiian community.
195 requires that the Roll shall serve the basis for
eligibility participate organizing Native Hawaiian
entity, Nai Aupuni decided its own use the Roll, well consider other sources participants and delegates
its election supplement the Roll.
precluded from including others that is, non-Native
Hawaiians and those who may refuse Declarations One and Two its process, although chose its own limit its
process Roll members.
the Court found his testimony credible this regard. follows
And although Act
Nai Aupuni was not
Dr. Asam testified this matter and
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Now, plaintiffs suit alleges that the restrictions
registering for the Roll violate rights under the United States
Constitution and the Voting Rights Act 1965.
violations of, one, the Fifteenth Amendment; two, the Equal
Protection clause the Fourteenth Amendment; and three, the
First Amendment.
color state law for purposes U.S.C. Section 1983 and acting jointly with other state actors.
seeks enjoin defendants, quote, from requiring prospective
They allege
They allege that Nai Aupuni acting under
The complaint thus
applicants for any voter roll confirm Declaration One,
Declaration Two, Declaration Three, verify their
ancestry, and enjoin, quote, the use the Roll that has
been developed using these procedures, and the calling,
holding, certifying any election utilizing the Roll.
And that end, plaintiffs have moved for
preliminary injunction seeking order, quote, preventing
defendants from undertaking certain voter registration
activities and from calling holding racially exclusive
elections for Native Hawaiians explained plaintiffs
complaint, close quote.
election delegates and halt the proposed convention.
So, essence, they seek stop the
Now, let state the obvious. addressing Motion
for Preliminary Injunction, apply four-part test set forth the Supreme Court Winter versus Natural Resources Defense
Council, U.S., 2008 case, Page
And under Winter
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plaintiff must show, one, that the plaintiff likely
succeed the merits; two, that the plaintiff likely
suffer irreparable harm the absence preliminary
injunction, that absence the relief sought; three,
that the balance equities tip plaintiffs favor; and
four, that injunction the public interest.
All right.
Before get Winter and the individual
counts and individual 1983 claims, first want address
briefly standing because defendants have challenged plaintiffs
standing, least some claims.
that there standing challenge Act 195 and the proposed
election, least certainly this stage.
respect similar the case discussed Tuesday,
standing case, Davis versus Guam, 785 F.3d 1311, where the
Ninth Circuit found plaintiffs allegations injury being
excluded the basis race from Guam plebiscite vote that
could have led change Guams future political
relationship with the United States sufficient confer
standing.
All right.
All right. conclude, however,
The case this find standing. now going move the
preliminary injunction standard and the Winter test and begin
with the Fifteenth Amendment and the Voting Rights Act, looking claims Counts and
And believe that the evidence demonstrates that the
Nai Aupuni election private election and not state
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election.
demonstrated likelihood success the merits. result, these claims plaintiffs have not
And this election fundamentally different,
view, extremely fundamentally different than the elections
issue Rice versus Cayetano and Arakaki versus Hawaii, which
both found Fifteenth Amendment violations.
Supreme Court case and Arakaki Ninth Circuit case.
Obviously Rice
These opinions were based conclusion that OHA
elections are quote, state affair for, quote, public
officials for, quote, public office quote, state agency
established the state Constitution.
forth Terry versus Adams, 345 U.S. 461, the Fifteenth
Amendment precludes discrimination against voters in, quote,
elections determine public governmental policy select
public officials, not private elections determine private
affairs.
cast with respect candidates for public party office,
citing Chisom versus Roemer, 501 U.S. 380.
Not here. set
And the Voting Rights Act also applies only votes
Now, certainly, know this not state election
governed Chapter the Hawaii Revised Statutes, the
States regulatory system covering public elections. election run the Hawaii Office Elections for any
federal, state county office, nor general special
election decide any referendum, constitutional ballot
question. not public official will elected nominated;
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
matters federal, state local law will determined
through this elective process itself. what this election and how best
characterize it?
The Court concludes this preliminary
injunction stage that this election for delegates
private convention among community indigenous people for
the purposes exploring self-determination that will not and
cannot result itself any federal, state local laws
obligations.
Stated differently, this election will not result any federal, state county officeholder and will not
result itself any change federal state laws
obligations.
Native Hawaiian governing entity, OHA correctly argues
ratified, the resulting Native Hawaiian self-governing entity
would have official legal status unless were otherwise
recognized the state federal government, close quote.
Although might result constitution
And Nai Aupuni recognizes Page its
memorandum, even the convention results the formation Native Hawaiian governing entity, that entity, quote,
itself would not alter any way how the State governed,
close quote. government will require subsequent action, for example,
formal recognition, the federal and possibly state
governments.
Nai Aupuni recognizes that any such alteration
Similarly, any alteration intergovernmental
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
structure will require subsequent federal and state legislation
and/or executive action with respect the entity.
statement absolutely true and critical understanding ultimate conclusion reference this motion.
This Page its amicus brief, the Department the
Interior observes that this case about Native Hawaiian
elections for Native Hawaiian delegates convention that
might propose constitution other governing document for
the Native Hawaiian community.
This election has nothing
with the governing the State Hawaii.
Now, plaintiffs argue that this important
election about public issues and has the potential
historic, and thus must fall under the Fifteenth Amendment.
And plaintiff relies heavily Terry versus Adams, case
previously cited, Supreme Court case invalidating elections the private Jaybird party that excluded African Americans
from primary elections that functioned essentially
nominating process for public primary elections for county
office.
that the Fifteenth Amendment, quote, includes any election
which public issues are decided public officials selected,
close quote.
context addressed the Supreme Court.
that, quote, the Jaybird primary has become integral part,
indeed the only effective part, the elective process that
Specifically, plaintiffs rely Terrys statement
But this statement must read the specific
Supreme Court stated
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determines who shall rule and govern the county, close
quote.
Americans, quote, every vestige influence, close quote, selecting public county officials.
cannot read context the statement that the Fifteenth
Amendment applies election decide, quote, public
issues apply all elections let alone this private
election.
Thus, the racist selection candidates strip African
And this Court simply short, appears that much more will need
happen under any scenario before this election leads any
public change all.
cannot alter the legal landscape its own.
The entity may recommend change, but
And further, this not public election based
Act 195 itself.
The creation Roll Native Hawaiians
does not mean its commissioners are conducting election.
Act 195, although contemplating convention Hawaiis
indigenous peoples participate the organization
Native Hawaiian governing entity, does not mandate any
election.
process.
quote, independent process for Native Hawaiians organize
themselves.
group the Native Hawaiian community, does not involve
public election all.
self-determination, not governmental acts organization. doesnt impose, direct suggest any particular
Under 10H-5, the Roll intended facilitate, internal matter self-governance most, facilitates private
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page that covers the likelihood success the merits the Fifteenth Amendment and the Voting Rights Act.
Fourteenth Amendment.
Okay. also find this preliminary
injunction stage that the plaintiff has not shown likelihood success the merits that Nai Aupunis election Act 195
itself violation plaintiffs equal protection rights
under the Fourteenth Amendment asserted Counts
and
deprivation constitutional right, plaintiffs must
Now, state cause action under Section 1983 for
demonstrate that the deprivation occurs, quote, under color
state law, close quote.
This requirement excludes from 1983s reach merely private
conduct, matter how discriminatory wrongful.
American Manufacturers Mutual Insurance case, 526 U.S. 40, four
zero.
necessarily fact-bound inquiry, the Supreme Court said
Brentwood Academy, 531 U.S. 288.
That is, there must state action.
Citing
And determining whether there state action
But, established above, Nai Aupunis election
private election. does not constitute state action and Nai
Aupuni, private entity, theres question and itself
its private entity, not state actor for much the same
reason.
test state action which requires private entity
carrying out function that traditionally the exclusive
prerogative the State.
Its election does not fit under the public function the Supreme Court said Flagg
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Brothers versus Brooks, 436 U.S. 149, the area elections,
quote, the doctrine does not reach all forms private
political activity, but encompasses only state-regulated
elections elections conducted organizations which
practice produce the uncontested choice public officials.
Nor does the election fall under joint action
test, which asks whether state officials and private parties
have acted concert effecting particular deprivation constitutional right.
The evidence simply does not suggest
joint action here although certainly Nai Aupuni obtained
significant funds through OHA grant, did with
specific autonomy clause whereby OHA agreed not directly
indirectly control affect the decisions Nai Aupuni.
All the evidence suggests that OHA has control over Nai
Aupuni, and that Nai Aupuni acting completely
independently.
said, found his testimony credible that regard.
Plaintiffs have not met their burden demonstrate otherwise.
Dr. Asam testified that, Asam.
And just the fact that OHA had grant funds
through The Akamai Foundation does not make this public
election. Tuesday that public funding red herring.
certainly true given cases such Blum versus Y-A-R-E-T-S-K-Y,
Yaretsky, 457 U.S. 911, and San Francisco Arts Athletics,
Inc., 483 U.S. 522, which explain that the government may
Indeed, plaintiffs correctly admitted the hearing
And this
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subsidize private entities without assuming constitutional
responsibility for their actions.
Rendell-Baker the Supreme Court found relevant state action private school even where public funds accounted for over percent its budget.
So, for example,
The Ninth Circuit has stated, quote, state action may found if, though only if, there such close nexus
between the State and the challenged action that seemingly
private behavior may fairly treated that the State
itself.
Villegas, V-I-L-L-E-G-A-S, versus Gilroy Garlic
Festival, 541 F.3d 950.
must begin focusing the specific conduct which the
plaintiff complains.
Learning Center, 590 F.3d 806, 2010 case.
Circuit says, entity may state actor for some purposes
but not for others.
And addressing that nexus, the inquiry
Caviness versus Horizon Community
And so, the Ninth
And there such close nexus here between the
State and this particular election that would make public
election. OHA grant was not for the purpose public
election.
And even OHA certainly considered state
actor after Rice desires agrees with some Nai
Aupunis choices makes conducting the election
delegates and holding convention, the Supreme Court has held
that action taken private entities with the mere approval acquiescence the State not state action.
And thats
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Sullivan, 526 U.S. Page 52.
Likewise, although Act 195 itself and the Roll
Commissions action creating the Roll, certainly constitute
state action, this does not mean such action equal
protection violation.
argument that the Roll itself simply list people with
Native Hawaiian ancestry who may may not have declared that
they have civic connection the Hawaiian community
believe unrelinquished sovereignty.
The Court finds merit the defendants
The Roll essentially classification, and the Supreme Court noted Nordlinger
versus Hahn, 505 U.S. Page 10, the equal protection clause
does not forbid classifications.
unequal treatment.
complain about.
and Roll does not actually treat persons differently.
Nothing Act 195 calls for vote.
contemplates encourages convention, simply calls for
chance for certain Native Hawaiians independently organize
themselves without involvement from the State.
Instead, directed the use the Roll that plaintiffs
But Act 195s creation the Roll Commission
And even did not intend this long when first
started out. have ways go.
The Court also finds some merit defendants
argument that Brentwood Academy allows for type exception consideration for unique circumstances where that action
raises some countervailing reason against attributing activity
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page the government.
purpose meant facilitate self-governance the
organizing the States indigenous people independently and
amongst themselves.
occur among Native Hawaiians that is, countervailing
reason against attributing activity the government.
And Act 195 unique law its stated definition then, such organizing must
Further, find some force the argument that
forcing Nai Aupuni associate with non-Hawaiians its
convention would implicate Nai Aupunis own First Amendment
rights association, citing Single Moms, Inc. versus Montana
Power, 331 F.3d 743.
countervailing reason under Brentwood.
All right.
That and itself can now want turn the secondary
arguments that have been made.
think recognition that there may appeal the Ninth
Circuit and make the record full can based
views will cover this.
state actor, what happens under the Fourteenth Amendment. dont need so, but this assumes Nai Aupuni
And the Court addresses the defendants secondary
arguments.
actor and that Act 195s Roll otherwise implicates equal
protection under 1983, under Morton versus Mancari unequal
treatment would only need rationally related some
legitimate governmental purpose.
First, that is, assuming Nai Aupuni state recognize that this secondary analysis may not
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necessary, said, given ruling already.
its important reach some these secondary questions
help explain, said, ultimate conclusion.
But think
And this regard, even without Native Hawaiians
being formally classified tribe, defendants have made
strong argument that Morton versus Mancari can justify
congressional action support Native Hawaiians indigenous
people.
another step required before Morton can apply state laws.
That is, before such federal power would allow state treat
Native Hawaiians differently under rationally related test.
And this, view, much more difficult question.
But discussed some length the hearing,
Washington versus Confederated Bands and Tribes
Yakima Indian Nation, Supreme Court case, reasons that
state has power federal law explicitly gives state
authority.
actions issue this case, creation the Roll and
facilitating Native Hawaiian self-governance, are encompassed
within existing grants federal authority.
this time, the Supreme Court stated Rice, reach this
difficult terrain.
But unclear whether the specific types will not will leave that the side. then turn strict scrutiny. course Morton
would not necessary strict scrutiny test could
satisfied.
have not found.
Again, this assuming state action, something the Court discusses whether again,
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assuming Nai Aupuni involved state action whether the
strict scrutiny could met.
reach this issue think the answer yes.
recognize that strict scrutiny difficult test meet, and
that this close and complex question.
recognizes that faces unique issue, one with very long
history.
And becomes necessary certainly
But the Court also
Act 195 and the upcoming election cannot read
vacuum.
Both must read the context Hawaiian history
and the States trust relationship with Native Hawaiians.
explained Section Act 195, quote, from its inception,
the State has had special political and legal relationship
with the Native Hawaiian people and has continually enacted
legislation for the betterment their condition, close quote.
And the Department Interiors October 1st, 2015, Notice Proposed Rulemaking summarizes, the United States also has
history recognizing through many laws special
political and trust relationship with that community.
And believe the State has compelling interest
bettering the conditions its indigenous people and doing
so, providing dignity them dignity simply allowing
starting point for process and discussion
self-determination.
self-governance, set forth the Department Interiors
Notice, and other sources.
And there history attempts
But before any discussion
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government-to-government relationship with any Native
Hawaiian governing entity could even begin take place, such entity should reflect, the proposed rule says, the will the Native Hawaiian community.
The State thus has compelling interest
facilitating the organizing the indigenous Hawaiian
community, Native Hawaiian community can decide for
itself independently whether seek self-governance
self-determination, and so, what form and when.
The
question sovereignty not going away.
has compelling interest facilitating forum that might
result unified collective voice amongst Native Hawaiians.
And this not possible without limiting such self-governance
discussion Native Hawaiians themselves.
the restriction Native Hawaiians precisely tailored
meet the States compelling interest.
Interior puts Page its amicus brief, purporting
recognize the Native Hawaiian community include non-natives organizing government could mean practice that native
group could never organize itself, impairing its right
self-government. the State
Stated differently,
And the Department find the Fourteenth Amendment, equal
protection claim, plaintiffs have failed show likelihood success the merits.
Let move now the First Amendment claims.
And
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likewise find that plaintiffs have not demonstrated
likelihood success their First Amendment claims, Counts
and
the First Amendment rights were violated their First
Amendment rights were violated because conditions were placed their registration for the Roll, i.e., Declaration One,
which implicates First Amendment rights.
mixed.
participated the process without affirming Declaration Count Plaintiffs Akina and Makekau contend that
The evidence here
Defendants attest that Akina and Makekau could have
One.
And Act 195 itself, amended, requires OHA registrants included, which does not require either Declaration One Two.
wanted participate Nai Aupunis process, they could have
easily done so. certainly appears that Akina Makekau truly
But they chose not to.
But any event, the burdens that they assert only
apply they burden right vote public election. Ive already said, see this much more akin private
election.
the Roll, without affirming unrelinquished sovereignty,
deprives them the right participate Nai Aupunis
process that is, the vote for delegates, the ability run delegate and participation the convention.
the delegate election and proposed convention private
matter, not involving state action.
And
They contend that their inability register for
But again,
Now, Count has different First Amendment theory.
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The Plaintiffs Gapero and Moniz contend that their inclusion
the Roll through OHA registry violates First Amendment
right against compelled speech right not register
vote.
such claim.
Roll comes from OHA registries which, again, not require
Declaration One Two.
makes those who have made these affirmations.
plaintiffs are thus unlikely prevail claim that
They, however, are unlikely succeed the merits
Its clear that approximately percent the
Only percent the Roll has -These
inclusion the Roll implies that they have certain views.
Merely being the Roll does not compel statement
sovereignty. not voter registration list.
been compelled register vote.
establishes that they could have easily removed themselves from
the Roll early 2013 they did not want remain the
list.
Moreover, already established, the Roll itself
They cannot said have
Finally, the evidence
Indeed, the OHA defendants note, even there was First Amendment violation, the likely remedy would not
halt the planned election, would remove them from the
list.
implicate the First Amendment. short, simply being included the Roll does not that covers all the merits finding that the
plaintiffs have not proven likelihood success the
merits.
Ill briefly discuss the other prongs.
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
Plaintiffs assert very generally Page their
motion that they will suffer irreparable harm because the
illegal activities.
principle that alleged constitutional infringement will
often alone constitute irreparable harm.
They refer the right vote and the
That may true, but here find constitutional
violations.
They are not being deprived right vote public election.
violation.
There showing First Amendment
And the harm this point view
speculative. Winter explains that preliminary injunction
will not issued simply prevent the possibility some
remote future injury.
irreparable harm.
Plaintiffs have not demonstrated the balancing equities, plaintiffs must
demonstrate that the balancing equities tips their favor.
Defendants argue the plaintiffs waited too long bring suit.
But given the timing the election, would have been
difficult for plaintiffs have sued earlier and challenge election when was not scheduled. and itself affect the equities. the timing doesnt
But the plaintiffs have failed sorry, the
plaintiffs have not demonstrated have failed demonstrate
the equities tip their favor.
participate private election.
Makekau could have easily participated, even without making
They have right
Plaintiffs Akina and
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
Declarations One and Two.
Hawaiians register OHAs Hawaiian Registry.
indicates that they could have participated they wanted to,
even registration occurred after suit was filed.
And they both qualify Native
The evidence
And Plaintiffs Gapero and Moniz could have easily
removed, and presumably may still so, themselves from the
Roll. the other hand, enjoining private election
process that has already begun, with candidates for delegate
having registered, and notice the vote having gone out and
the voting occur soon, would disrupt this effort
organize.
Finally, plaintiffs have not demonstrated that the
public interest would served preliminary injunction.
Plaintiffs are not likely deprived any constitutional
rights. 100,000 people who are this voter list and may want
participate this process self-determination.
Now, honestly, almost done. pause, pause, not for long, but pause because
Granting injunction would now potentially affect
want make clear particularly, think the lawyers all
understand that, but for those who are here who dont
understand the legal process, what not deciding today,
want make that clear today well.
the limit and scope this order. want emphasize
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page tasked only with determining whether plaintiffs
have met their Winter burden obtain injunction.
Its
extraordinary remedy never awarded matter right. not assessing the process itself. not
deciding whether this specific election will lead entity
that reflects the will the Native Hawaiian community
whether fair and inclusive such that the United States
may then begin negotiate government-to-government
basis, set forth the Department Interiors Notice.
Nor deciding whether any potential actions under Act 195 the Notice, such encouraging Native Hawaiian
self-governance, negotiating engaging
government-to-government basis with recognized Native
Hawaiian government, reflects public policy that wise.
Thats not place.
Department Interior even has the power facilitate the
reestablishment government-to-government relationship with
the Native Hawaiian people.
addressing the legal considerations underlying the specific
challenged actions, and consider whether plaintiffs have
demonstrated that the proposed election and challenged aspects Act 195 are likely unconstitutional that the
process stops now. not even deciding whether the
Thats not before me. only
So, for those reasons the Court denying the Motion
for Preliminary Injunction. say, will put out more
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
detailed order.
Its little hard understand how something
can get more detailed than that, but will contain little
bit more than that did.
say, soon possible.
All right.
MR. SCHOETTLE:
MR. POPPER:
plaintiffs.
Okay?
And hope that,
Anything else before recess?
Your Honor, may have minutes?
Your Honor, this Robert Popper for the had couple brief matters.
THE COURT:
All right.
little trouble hearing you.
Mr. Popper, having
bit appreciate it.
MR. POPPER:
THE COURT:
our volume little here.
MR. POPPER: you could speak little this better, Your Honor?
Thats little better.
Okay. can also turn ahead.
The first that plaintiffs are
seriously considering and fact would say planning
appeal. all needed have that happen, and for stating that
written order will issue shortly.
And thank the Court for ruling quickly, think was wondering perhaps whether just possibility
the Court might certify the transcript the oral order just
issued and perhaps issue minute order well.
first thing wanted raise with the Court.
THE COURT:
Well, help understand.
What you mean certifying the transcript?
That was the Ive ruled. not sure
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
what that even means.
MR. POPPER:
Well, understand it, Your Honor
were certify the transcript, then the transcript itself
would become written ruling.
THE COURT:
Well, no, thats not intent. intent put out written ruling.
appeal today from this, you believe you have
denying the motion right now, clear.
denied, Mr. Popper.
Now, you have right
The motion you believe you can appeal from that, it, thats fine. have problem with that.
What was trying point out is, there
appeal, the Ninth Circuit very well may want have the
benefit fuller written order. rule from the bench this manner, and then aid the
appellate process file more detailed written order, which
hope have done within week so.
MR. POPPER:
THE COURT:
MR. POPPER:
And the law does permit see.
Okay?
Your Honor, the second matter would
that pursuant the requirements Federal Rule Appellate
Procedure would respectfully move now for order
granting injunction pending appeal this matter
for the reasons stated our Motion for Preliminary
Injunction.
THE COURT:
All right.
You lost there.
Youre
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
asking for what?
MR. POPPER:
Pursuant Federal Rule Appellate
Procedure (a)(1)(C).
THE COURT:
MR. POPPER:
THE COURT:
MR. POPPER:
THE COURT:
Counsel, you have book?
8(1)(c)?
Yes.
Okay.
8(a)(1)(C).
8(a)(1)(C).
Okay.
Let pull that up. can give you one
you dont have. youre asking essentially grant your motion
for injunction through Rule that what youre asking for?
MR. POPPER:
No, Your Honor, because wouldnt
pending the outcome the district courts ruling, would
pending the outcome the appeal.
injunction.
THE COURT:
But yes, the same youre asking for order granting
the injunction while appeal pending.
MR. POPPER:
Yes, Your Honor.
THE COURT:
Does anyone wish heard that?
MR. MEHEULA:
that you just stated.
All right.
Now understand. oppose it, Your Honor, the grounds
THE COURT: you want repeat those, Mr. Meheula?
MR. KLEIN: also oppose it, Your Honor.
You would
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
essentially reversing yourself.
MR. NAKATSUJI:
Yes, Your Honor, object well.
The standard the same for this type motion.
that for the reasons youve stated, the motion should
denied.
THE COURT:
All right.
MR. SCHOETTLE:
THE COURT:
MR. SCHOETTLE: denying your
May have minutes, Your Honor? sorry?
THE COURT:
MR. SCHOETTLE: believe
May have minutes? not done talking Mr. Popper. was you asked for theres
anything else.
THE COURT:
this case. havent permitted your intervention
table. not even sure why youre sitting counsel
All right.
Mr. Popper, going deny that motion.
All right.
UNIDENTIFIED MALE: incompetent.
court.
This court incompetent.
THE COURT:
MR. SCHOETTLE:
THE COURT:
This court
Shame this
Shame.
Shame this court.
All right.
May have minute, Your Honor?
All right.
Get microphone though.
All right?
MR. SCHOETTLE:
Your Honors analysis strict
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
scrutiny precisely correct, except for one thing.
election has nothing with Native Hawaiians.
Hawaiians are defined the Constitution the State
Hawaii, theyre defined the Hawaiian Homes Commission Act,
and theyre defined 5(f) reference not less than
one-half part.
This
Native
This election does not limit voting qualifications
Native Hawaiians. includes another hundred for hundred
thousand other people.
The purpose this election not
elect governing entity for Native Hawaiians.
There already
exists governing entities that Native Hawaiians have created
for themselves, Lahui being one them.
want recognize Lahui because represents Native
Hawaiians.
$500 million OHA money that belongs Native Hawaiians
order for that organization give the rights Native
Hawaiians Hawaiian Homes and 5(f).
The State does not
The State wants organization that can give
THE COURT:
MR. SCHOETTLE:
THE COURT:
All right.
All right.
Anything else before recess?
MR. MEHEULA:
MR. POPPER:
Not from the plaintiffs, Your Honor.
THE COURT: there appeal taken, sounds
All right.
Thank you.
That state action.
Thank you, sir.
No, Your Honor.
like there will be, dont know just want
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
theres any discovery that needs had anything that
sort that could forward pending the appeal everyone
just agrees stay the case here the extent have where have remaining jurisdiction pending the appeal.
counsel can discuss that and figure out the best way
proceed.
MR. MEHEULA:
MR. KLEIN: shall, Your Honor.
THE COURT:
But maybe
Okay?
MR. MEHEULA:
THE COURT: will.
Yes.
Mr. Lilly, you understand what saying? mean theres appeal just dont know you folks
think anything should forward far discovery limited
matters that could forward pending interlocutory appeal should stay everything and see what happens.
MR. LILLY: dont think theres anything more that
needs done pending appeal.
THE COURT:
All right.
Okay.
All right.
Court recess.
All right.
Thank you.
(The proceedings concluded 11:24 a.m.,
October 23, 2015.)
Very well.
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-3, Page
COURT REPORTERS CERTIFICATE CYNTHIA FAZIO, Official Court Reporter, United
States District Court, District Hawaii, hereby certify
that pursuant U.S.C. 753 the foregoing pages
complete, true, and correct transcript the stenographically
reported proceedings held the above-entitled matter and that
the transcript page format conformance with the
regulations the Judicial Conference the United Stated.
DATED Honolulu, Hawaii, October 25, 2015.
_/s/ Cynthia Fazio
CYNTHIA FAZIO, RMR, CRR