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Akina v. Hawaii

United States District Court, D. Hawaii

October 29, 2015

KELII AKINA, et al., Plaintiffs,
v.
THE STATE OF HAWAII, et al., Defendants

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          For Keli'i Akina, Kealii Makekau, Joseph Kent, Yoshimasa Sean Mitsui, Pedro Kana'e Gapero, Melissa Leina'ala Moniz, Plaintiffs: Chris Fedeli, Lauren M. Burke, Robert D. Popper, LEAD ATTORNEYS, PRO HAC VICE, Judicial Watch, Inc., Washington, DC; H. Christopher Coates, LEAD ATTORNEY, PRO HAC VICE, Law Office of H. Christopher Coates, Charleston, SC; Michael A. Lilly, LEAD ATTORNEY, Ning Lilly & Jones, Honolulu, Hi.

         For Virgil E. Day, Samuel L. Kealoha, Jr., Josiah L. Hoohuli, Patrick L. Kahawaiolaa, Melvin Hoomanawanui, Petitioners: Walter R. Schoettle, Honolulu, HI.

         For The State of Hawaii, Governor David Y. Ige, in his official capacity, John D. Waihe'e, III, Chairman, Native Hawaiian Roll Commission, in his official Capacity, Na'alehu Anthony, Commissioners, Native Hawaiian Roll Commission, in their official capacities, Lei Kihoi, Commissioners, Native Hawaiian Roll Commission, in their official capacities, Robin Danner, Commissioners, Native Hawaiian Roll Commission, in their official capacities, Mahealani Wendt, Commissioners, Native Hawaiian Roll Commission, in their official capacities, Clyde W. Namu'o, Executive Director, Native Hawaiian Roll Commission, in his official capacity, Defendants: Donna H. Kalama, LEAD ATTORNEY, State of Hawaii, Major Litigation Unit, Honolulu, HI; Girard D. Lau, Office of the Attorney General-Hawaii, Honolulu, HI; Robert T. Nakatsuji, Department of the Attorney General-State of Hawaii, Honolulu, HI.

         For Robert K. Lindsey, Jr., Chairperson, Board of Trustees, Office of Hawaiian Affairs, in his official capacity, Colette Y. Machado, Trustees, Office of Hawaiian Affairs, in their official capacities, Peter Apo, Trustees, Office of Hawaiian Affairs, in their official capacities, Haunani Apoliona, Trustees, Office of Hawaiian Affairs, in their official capacities, Rowena M.N. Akana, Trustees, Office of Hawaiian Affairs, in their official capacities, John D. Waihe'e, IV, Trustees, Office of Hawaiian Affairs, in their official capacities, Carmen Hulu Lindsey, Trustees, Office of Hawaiian Affairs, in their official capacities, Dan Ahuna, Trustees, Office of Hawaiian Affairs, in their official capacities, Leina'ala Ahu Isa, Trustees, Office of Hawaiian Affairs, in their official capacities, Kamanaopono Crabbe, Chief Executive Officer, Office of Hawaiian Affairs, in his official Capacity, Defendants: Eli Schlam, Ellen Oberwetter, Kannon K. Shanmugam, LEAD ATTORNEYS, PRO HAC VICE, Williams & Connolly LLP, Washington, DC; Robert G. Klein, LEAD ATTORNEY, McCorriston Miller Mukai MacKinnon LLP, Honolulu, HI.

         For The Akamai Foundation, Defendant: Nadine Y. Ando, LEAD ATTORNEY, Sullivan Meheula Lee LLLP, Honolulu, HI; William Meheula, LEAD ATTORNEY, Sullivan Lee Meheula, LLLP, Honolulu, HI.

         For The Na'i Aupuni Foundation, Defendant: David J. Minkin, Jessica M. Wan, Troy J.H. Andrade, LEAD ATTORNEYS, McCorriston Miller Mukai MacKinnon, Honolulu, HI; Nadine Y. Ando, LEAD ATTORNEY, Sullivan Meheula Lee LLLP, Honolulu, HI; William Meheula, LEAD ATTORNEY, Sullivan Lee Meheula, LLLP, Honolulu, HI.

         For United States Department of the Interior, Amicus: Thomas A. Helper, LEAD ATTORNEY, Office of the United States Attorney, Honolulu, HI.

         For Kingdom of Hawai'i, Interested Party: Lanny Alan Sinkin, LEAD ATTORNEY, Hilo, HI.

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         ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION, DOC. NO. 47

         J. Michael Seabright, United States District Judge.

         I. INTRODUCTION

         Defendant Nai Aupuni[1] is conducting an election of Native Hawaiian delegates to a proposed convention of Native Hawaiians to discuss, and perhaps to organize, a " Native Hawaiian governing entity." Delegate candidates have been announced, and voting is to run from November 1, 2015 to November 30, 2015. Plaintiffs[2] have filed a Motion for Preliminary Injunction seeking, among other relief, to halt this election.

         The voters and delegates in this election are based on a " Roll" of " qualified Native

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Hawaiians" as set forth in Act 195, 2011 Haw. Sess. Laws, as amended (the " Native Hawaiian Roll" or " Roll" ). A " qualified Native Hawaiian" is defined as an individual, age eighteen or older, who certifies that they (1) are " a descendant of the aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands, the area that now constitutes the State of Hawaii, " Haw. Rev. Stat. (" HRS" ) § 10H-3(a)(2)(A), and (2) have " maintained a significant cultural, social, or civic connection to the Native Hawaiian community and wishes to participate in the organization of the Native Hawaiian governing entity." HRS § 10H-3(a)(2)(B).

         Through a registration process, the Native Hawaiian Roll Commission (the " commission" ) asked or required prospective registrants to the Roll to make the following three declarations:

o Declaration One. I affirm the unrelinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-governance.
o Declaration Two. I have a significant cultural, social or civic connection to the Native Hawaiian community.
o Declaration Three. I am a Native Hawaiian: a lineal descendant of the people who lived and exercised sovereignty in the Hawaiian islands prior to 1778, or a person who is eligible for the programs of the Hawaiian Homes Commission Act, 1920, or a direct lineal descendant of that person.

Doc. No. 1, Compl. ¶ 42; Doc. No. 47-9, Pls.' Ex. A. Separately, the Roll also includes as qualified Native Hawaiians " all individuals already registered with the State as verified Hawaiians or Native Hawaiians through the office of Hawaiian affairs [(" OHA" )] as demonstrated by the production of relevant [OHA] records[.]" HRS § 10H-3(a)(4). Those on the Roll through an OHA registry do not have to affirm Declarations One or Two.

         Plaintiffs filed suit on August 13, 2015, alleging that these " restrictions on registering for the Roll" violate the U.S. Constitution and the Voting Rights Act of 1965, 52 U.S.C. § 10301. Doc. No. 1, Compl. ¶ 1. As to the constitutional claims, they allege violations of (1) the Fifteenth Amendment; (2) the Equal Protection and Due Process clauses of the Fourteenth Amendment; and (3) the First Amendment. They further allege that Nai Aupuni is acting " under color of state law" for purposes of 42 U.S.C. § 1983, and is acting jointly with other state actors.[3] Id. ¶ ¶ 59, 68, 70, 72, 74. The Complaint seeks to enjoin Defendants " from requiring prospective applicants for any voter roll to confirm Declaration One, Declaration Two, or Declaration Three, or to verify their ancestry." Id. at 32, Prayer ¶ 2. The Complaint also seeks to enjoin " the use of the Roll that has been developed using these procedures, and the calling, holding, or certifying of any election utilizing the Roll." Id. ¶ 3.

         To that end, Plaintiffs have moved for a preliminary injunction, seeking an Order preventing Defendants " from undertaking certain voter registration activities and from calling or holding racially-exclusive

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elections for Native Hawaiians, as explained in Plaintiffs' Complaint." Doc. No. 47, Pls.' Mot. at 3. They seek to stop the election of delegates, and thereby halt the proposed convention.

         The court heard Plaintiffs' Motion for Preliminary Injunction on October 20, 2015, and fully considered all written and oral argument, as well as the evidence properly submitted in the record. The court issued an oral ruling on October 23, 2015, explaining much of the court's reasoning and analysis. This written ruling provides further background and explanation, but is substantively the same as the oral ruling.[4] Based on the following, Plaintiffs' Motion is DENIED.

         II. BACKGROUND

         A. Act 195 and the Native Hawaiian Roll

         On July 6, 2011, then-Governor Neil Abercrombie signed into law Act 195, which is codified in substantial part in HRS Chapter 10H. Act 195 begins by declaring that " [t]he Native Hawaiian people are hereby recognized as the only indigenous, aboriginal, maoli people of Hawaii." HRS § 10H-1. The purpose of Act 195 is to:

provide for and to implement the recognition of the Native Hawaiian people by means and methods that will facilitate their self-governance, including the establishment of, or the amendment to, programs, entities, and other matters pursuant to law that relate, or affect ownership, possession, or use of lands by the Native Hawaiian people, and by further promoting their culture, heritage, entitlements, health, education, and welfare.

HRS § 10H-2.

         Act 195 establishes a five-member commission, which is responsible for preparing and maintaining a roll of " qualified Native Hawaiians." HRS § 10H-3(a)(1). As summarized above, § 10H-3(a)(2) (as amended by Act 77, 2013 Haw. Sess. Laws), defines a " qualified Native Hawaiian" as

an individual whom the commission determines has satisfied the following criteria and who makes a written statement certifying that the individual:
(A) Is:
(i) An individual who is a descendant of the aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands, the

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area that now constitutes the State of Hawaii;
(ii) An individual who is one of the indigenous, native people of Hawaii and who was eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act, 1920, or a direct lineal descendant of that individual; or
(iii) An individual who meets the ancestry requirements of Kamehameha Schools or of any Hawaiian registry program of the [OHA];
(B) Has maintained a significant cultural, social, or civic connection to the Native Hawaiian community and wishes to participate in the organization of the Native Hawaiian governing entity; and
(C) Is eighteen years of age or older[.]

HRS § 10H-3(a)(2).[5] Further, the commission is responsible for:

including in the roll of qualified Native Hawaiians all individuals already registered with the State as verified Hawaiians or Native Hawaiians through the [OHA] as demonstrated by the production of relevant [OHA] records, and extending to those individuals all rights and recognitions conferred upon other members of the roll.

HRS § 10H-3(a)(4).

         Under these provisions, persons who are included on the Roll through § 10H-3(a)(4) as having " already registered with the State" through OHA do not have to certify that they have " maintained a significant cultural, social, or civic connection to the Native Hawaiian community, " nor that they " wish[] to participate in the organization of the Native Hawaiian governing entity" as set forth in § 10H-3(a)(2). And Nai Aupuni's President, Dr. James Asam, attests that:

[Nai Aupuni] understood that OHA's Hawaiian Registry process did not require attestation of the " unrelinquished sovereignty of the Native Hawaiian people", and " intent to participate in the process of self-governance" (" Declaration One" ). [Nai Aupuni] concluded, on its own, that having this alternate registration process was favorable because it provided Native Hawaiians who may take issue with Declaration One with the opportunity to participate in the [Nai Aupuni] process.

Doc. No. 79-1, Asam Decl. ¶ 19; see also Doc. No. 83-1, Kamanaopono Crabbe Decl. ¶ 11 (" [A]n OHA Database registrant may be transferred to the Roll Commission and included on the Roll without affirming the declarations required under Act 195." ). Indeed, according to the Complaint, many of these OHA-registrants were placed on the Roll without their knowledge or consent. Doc. No. 1, Compl. ¶ 35.[6]

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          At the October 20, 2015 hearing, the parties stipulated that approximately 62 percent of the Roll comes from an OHA registry, and the other 38 percent come directly through the Roll commission process. See Doc. No. 104, Tr. (Oct. 20, 2015) at 57-58. It follows that approximately 62 percent of the Roll did not have to affirm Declarations One or Two. That is, approximately 62 percent of the Roll did not have to make an affirmation regarding sovereignty or significant connection to the Native Hawaiian community.[7]

         Under Act 195, the Governor of Hawaii appointed the five members of the commission selected " from nominations submitted by qualified Native Hawaiians and qualified Native Hawaiian membership organizations, " where " a qualified Native Hawaiian membership organization includes an organization that, on [July 6, 2011], has been in existence for at least ten years, and whose purpose has been and is the betterment of the conditions of the Native Hawaiian people." HRS § 10H-3(b). The commission is funded by OHA, Act 195 § 4, and is placed " within the [OHA] for administrative purposes only." HRS § 10H-3(a).

         The commissioners are responsible for (1) " [p]reparing and maintaining a roll of qualified Native Hawaiians; " (2) " [c]ertifying that the individuals on the roll of qualified Native Hawaiians meet the definition of qualified Native Hawaiians; " and (3) " [r]eceiving and maintaining documents that verify ancestry; cultural, social, or civic connection to the Native Hawaiian community; and age from individuals seeking to be included in the roll of qualified Native Hawaiians." HRS § 10H-3(a).

         The commission is required to " publish notice of the certification of the qualified Native Hawaiian roll, update the roll as necessary, and publish notice of the updated roll of qualified Native Hawaiians[.]" HRS § 10H-4(a). Under the Act,

The publication of the initial and updated rolls shall serve as the basis for the eligibility of qualified Native Hawaiians whose names are listed on the rolls to participate in the organization of the Native Hawaiian governing entity.

HRS § 10H-4(b). Further,

The publication of the roll of qualified Native Hawaiians, as provided in section 10H-4, is intended to facilitate the process

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under which qualified Native Hawaiians may independently commence the organization of a convention of qualified Native Hawaiians, established for the purpose of organizing themselves.

HRS § 10H-5.[8]

         The commission " began accepting registrations for the Roll in July of 2012." Doc. No. 80-1, Clyde Namuo Decl. ¶ 3. Registration " has been closed at times in the past, but [at least as of September 30, 2015] it is presently open." Id. " Registrations can be done either online or by paper registration." Id. Further, from time to time after Act 195 was amended in 2013 to require the commission to include OHA registrants in 2013, Act 77, 2013 Haw. Sess. Laws, OHA has transmitted to the commission updated " lists of individuals registered through OHA's registries and verified by OHA as Hawaiian or Native Hawaiian." Id. ¶ 6. The website of the " Kanaiolowalu" project of the commission lists 122, 785 registered members on the Roll. See www.kanaiolowalu.org (last accessed Oct. 29, 2015).

         Before OHA began transferring names of OHA registrants to the commission, the commission issued and distributed a press release on August 7, 2013 that, among other things, provided members on OHA lists a telephone number to call if they " [do] not wish to have their names transferred" to the Roll. Doc. No. 80-1, Namuo Decl. ¶ 5. On September 20, 2013, OHA transmitted an initial list of registrants to the commission that excluded approximately 36 persons who had requested that their names be withheld from the transfer. Id. ¶ 6.

         On approximately October 10, 2013, the commission posted information on its website about removal from the Roll. It included a removal request form that could, and still can, be downloaded and sent to the commission. Id. ¶ 8. At various times in October to December of 2013, the commission also sent newsletters and emails to OHA registrants that included information on how to remove oneself from the Roll. Id. ¶ ¶ 9, 10. And from March 24, 2014 to April 4, 2014, the commission made available for public viewing (with binders in various locations, and on its website) a " pre-certified" list of individuals on the Roll. Id. ¶ 11. The purpose was, in part, to allow individuals to remove themselves if they so chose. Id. ¶ 12.

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          Similarly, " [o]n at least three separate occasions in August, September, and October 2013, OHA provided public notice of the Act 77 transfer to OHA Database registrants[.]" Doc. No. 83-1, Crabbe Decl. ¶ 12. They " were informed of their right to complete and submit a short form . . . to opt-out of the Act 77 transfer." Id. ¶ 13. On August 14, 2013, " OHA sent email notification to OHA Database registrants regarding OHA's transfer of information to the Roll Commission pursuant to Act 77, " id. ¶ 14, and that notification included information regarding such an " opt-out form." Id. OHA's chief executive, Dr. Crabbe, attests that this email was sent to an email address on file for Plaintiff Moniz. Id. When asked at the October 20, 2015 hearing about Plaintiff Gapero, Dr. Crabbe testified that he had no specific knowledge regarding Gapero, but he " [is] confident that [OHA] took the appropriate measures to inform all those who were on the [OHA] databases[.]" Doc. No. 104, Tr. (Oct. 20, 2015) at 22.

         B. Nai Aupuni, the Akamai Foundation, and a Grant from OHA

         As noted above, Nai Aupuni " is a Hawaii non-profit corporation that supports efforts to achieve Native Hawaiian self-determination." Doc. No. 79-1, Asam Decl. ¶ 6. It was incorporated on December 23, 2014, and was intended to be independent of OHA and the State of Hawaii. Id.; Doc. No. 79-6, Nai Aupuni Ex. 4 (By-Laws) at 1. It " is comprised of five directors who are Native Hawaiian, [and] are active in the Native Hawaiian community[.]" Doc. No. 79-1, Asam Decl. ¶ 29. The current directors are James Kuhio Asam, Pauline Nakoolani Namuo, Naomi Kealoha Ballesteros, Geraldine Abbey Miyamoto, and Selena Lehua Schuelke. Nai Aupuni was formed " to provide a process for Native Hawaiians to further self-determination and self-governance for Native Hawaiians." Id.

         OHA has a policy of supporting Native Hawaiian self-governance. Doc. No. 83-1, Crabbe Decl. ¶ 17. On October 16, 2014, the OHA Board of Trustees " realign[ed] its budget" -- consisting of trust funds under § 5(f) of the Admissions Act for its purpose of supporting the betterment of Native Hawaiians -- to " provide funds to an independent entity to formulate a democratic process through which Native Hawaiians could consider organizing, for themselves, a governing entity." Id. Nai Aupuni subsequently " requested grant funds from the OHA so that [it] may conduct its election of delegates, convention and ratification vote process." Doc. No. 79-1, Asam Decl. ¶ 14.

         " On April 27, 2015, at [Nai Aupuni's] request, " OHA, the Akamai Foundation ('Akamai') and Nai Aupuni entered into a Grant Agreement whereby OHA provided $2, 595, 000 of Native Hawaiian trust funds to Akamai as a grant for the purpose of [Nai Aupuni] conducting an election of delegates, convention and ratification vote[.]" Id.; Doc. No. 79-2, Louis F. Perez III Decl.¶ 3. " Akamai is a non-profit Internal Revenue Code (IRC) Section 501(c)(3) organization incorporated in the State of Hawaii[.]" Doc. No. 79-2, Perez Decl. ¶ 2. " Akamai's mission and work is community development." Id.

         The Grant Agreement contains the following autonomy clause:

Nai Aupuni's Autonomy. As set forth in the separate Fiscal Sponsorship Agreement, OHA hereby agrees that neither OHA nor [Akamai] will directly or indirectly control or affect the decisions of [Nai Aupuni] in the performance of the Scope of Services, and OHA agrees that [Nai Aupuni] has no obligation to consult with OHA or [Akamai] on its decisions regarding the performance of the Scope of Services. [Nai Aupuni] hereby agrees that the decisions of [Nai Aupuni] and its directors,

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paid consultants, vendors, election monitors, contractors, and attorneys regarding the performance of the Scope of Services will not be directly or indirectly controlled or affected by OHA.

Doc. No. 79-1, Asam Decl. ¶ 14. " Pursuant to the Grant Agreement, OHA is prohibited from exercising direct or indirect control over [Nai Aupuni]; provided only that [Nai Aupuni's] use of the grant does not violate OHA's fiduciary duty to allocate Native Hawaiian trust funds for the betterment of Native Hawaiians." Doc. No. 83-1, Crabbe Decl. ¶ 19. " Similarly, [Nai Aupuni] has no obligation under the Grant Agreement to consult with OHA." Id. ¶ 21. There is no evidence in the record that OHA in fact controlled or directed Nai Aupuni as to any aspect of the Grant Agreement.

         As referenced in the Grant Agreement clause, on April 27, 2015, Nai Aupuni and Akamai entered into a separate Fiscal Sponsorship Agreement. They did so " because [Nai Aupuni] does not have a 501(c)(3) exemption." Doc. No. 79-1, Asam Decl. ¶ 15; Doc. No. 79-2, Perez Decl. ¶ 4. And on May 8, 2015 " OHA, [Nai Aupuni] and Akamai entered into a Letter Agreement that addressed the timing and ...


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