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Makekau v. State

United States District Court, D. Hawaii

June 6, 2017






         Plaintiffs[1] Kealii Makekau, Joseph Kent, Yoshimasa Sean Mitsui, Pedra Kanae Gapero, and Melissa Leinaala Moniz (“Plaintiffs”) object under 28 U.S.C. § 636(b)(1) to Magistrate Judge Richard Puglisi's February 24, 2017 Findings and Recommendation to Deny Plaintiffs' Amended Motion for Attorneys' Fees and Related Non-Taxable Expenses Under L.R. Civ. 54.3” (the “February 24, 2017 Findings and Recommendation”). ECF No. 170.

         After due consideration, and being intimately familiar with the extensive proceedings in this case, the court OVERRULES Plaintiffs' Objections and ADOPTS the February 24, 2017 Findings and Recommendation. The Amended Motion for Attorneys' Fees and Non-Taxable Expenses, ECF No. 152, is DENIED.


         The court need not reiterate this case's full history and background, which is detailed in several published decisions. See Akina v. Hawaii, 141 F.Supp.3d 1106 (D. Haw. 2015) (denying motion for preliminary injunction); Akina v. Hawaii, 136 S.Ct. 581 (2015) (granting stay pending final disposition of the appeal then-pending before the Ninth Circuit) (mem.); Akina v. Hawaii, 835 F.3d 1003 (9th Cir. 2016) (affirming in part and dismissing appeal as moot in part). And the February 24, 2017 Findings and Recommendation further describes the procedural history, which this court adopts as modified as follows.

         This action arises from Native Hawaiian self-governance efforts. As part of those efforts, Defendant Na<i Aupuni was planning an election of delegates to a proposed constitutional convention to discuss, and possibly organize, a Native Hawaiian governing entity. The voters in this election were based on a “Roll” of “qualified Native Hawaiians” as set forth in Act 195, 2011 Haw. Sess. Law, as amended. Prospective registrants to the Roll were asked to make three declarations related to Native Hawaiian sovereignty, their connection to the Native Hawaiian community, and their Native Hawaiian ancestry. The delegate election was scheduled for November 1 through November 30, 2015. The elected delegates would then attend a constitutional convention to discuss forming a government and possibly to draft a constitution. Any proposed constitution would then be subject to a ratification vote by qualified Native Hawaiians listed on the Roll.

         Plaintiffs filed this suit on August 13, 2015, alleging that the restrictions on registering for the Roll, and the election process, violated the United States Constitution and the Voting Rights Act of 1965. See ECF No. 1. Plaintiffs named as Defendants the State of Hawaii; the Governor in his official capacity; the Trustees and Chair of the Office of Hawaiian Affairs, in their official capacities; the Commissioners, Chair, and Executive Director of the Native Hawaiian Roll Commission, in their official capacities; Na<i Aupuni; and the Akamai Foundation, a non-profit organization that was a party to an agreement that provided funds for Na<i Aupuni's efforts. Plaintiffs sought 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” and 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. at 32.

         Approximately two weeks after filing the Complaint, Plaintiffs moved for a preliminary injunction preventing Defendants “from undertaking certain voter registration activities and from calling or holding racially-exclusive elections for Native Hawaiians.” See ECF No. 47, Mot. at 3. This court denied Plaintiff's motion for preliminary injunction on October 23, 2015 (followed by a written order on October 29, 2015), concluding that Plaintiffs had not met their burden of demonstrating that excluding them from the election was unconstitutional or would otherwise violate federal law. ECF Nos. 103, 114. The primary basis for denying relief was a lack of state action -- the subject election was not a public election. Akina, 141 F.Supp.3d at 1126-29. Na<i Aupuni proceeded with the election of delegates by mailing ballots to certified Native Hawaiians on November 1, 2015. See ECF No. 157 at 11. The deadline to vote was November 30, 2015. Id.

         Plaintiffs appealed the court's order denying a preliminary injunction to the Ninth Circuit, and filed an “Urgent Motion for an Injunction While Appeal is Pending.” ECF Nos. 122, 173-2. The Ninth Circuit denied that motion on November 19, 2015. ECF No. 122. On November 23, 2015 -- three days before the Thanksgiving holiday -- Plaintiffs filed with the U.S. Supreme Court an Emergency Application for Injunction Pending Appellate Review. ECF No. 170-2.

         After Defendants filed an Opposition on November 25, 2015, Supreme Court Justice Anthony Kennedy issued an order on November 27, 2015 (the day after Thanksgiving) that enjoined the counting of ballots and certification of winners “pending further order” of the court. See Akina v. Hawaii, 2015 WL 7691943 (Nov. 27, 2015). This was three days before voting in the delegate election was to end. On December 2, 2015, a five-Justice majority of the Supreme Court issued an order (the “December 2, 2015 order”) which read in full:

[The] [a]pplication for injunction pending appellate review presented to Justice Kennedy and by him referred to the Court [is] granted. Respondents are enjoined from counting ballots cast in, and certifying winners of, the election described in the application, pending final disposition of the appeal by the United States Court of Appeals for the Ninth Circuit. ...

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