United States District Court, D. Hawaii
ORDER OVERRULING OBJECTIONS, AND ADOPTING FINDINGS
AND AND RECOMMENDATION TO DENY PLAINTIFFS' AMENDED MOTION
FOR ATTORNEYS' FEES AND RELATED NON-TAXABLE
MICHEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
Plaintiffs 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.
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
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.
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.
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.
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.
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.
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.