Transcript of judge loo decision_9-15-14

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Pursuant to HRS 606.13, Permission to Copy Denied

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IN THE CIRCUIT COURT OF THE SECOND CIRCUIT

STATE OF HAWAII

_____________________________

Alfonso Taal, et al.,

Plaintiffs,

vs.

Danny Mateo, et al.,

Defendants.________________________________

)))))))))))

CIVIL NO: 14-1-0506(1)

TRANSCRIPT OF PROCEEDINGS

had before the Honorable Rhonda I.L. Loo, Circuit Court

Judge presiding, on Monday, September 15, 2014. Motion to

Dissolve; Motion to Intervene; Motion to Consolidate.

APPEARANCES:

Robert H. Thomas, Esq. Attorney for Plaintiffs

Caleb Rowe, Esq. Attorney for DefendantDeputy Corporation Counsel Danny MateoCounty of Maui

Michael C. Carroll, Esq. Attorney for Intervenor

Valerie Kunimoto, Esq. Attorney for DefendantDeputy Attorney General Scott NagoState of Hawaii

REPORTED BY: Cammie GillettRegistered Professional ReporterHawaii Certified Shorthand Reporter #438

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MONDAY, SEPTEMBER 15, 2014

* * *

THE CLERK: All rise. Courtroom Number One is

reconvened. Judge Rhonda I.L. Loo presiding. Please be

seated.

Calling Civil Number 14-1-0506, Alfonso Taal versus

Danny Mateo, et al., for one, Defendant County of Maui's motion

to dissolve or, in the alternative, to modify order granting

plaintiff's motion for temporary restraining order; and, two,

applicants/movants Alika Atay, Laurin Pang, Mark Sheehan,

Bonnie Marsh, Leiohu Ryder and SHAKA movement's motion to

intervene and consolidate.

THE COURT: Okay. Good afternoon. Appearances,

please.

MR. THOMAS: Good afternoon, Your Honor. Robert Thomas

for the plaintiffs.

THE COURT: Okay. Good afternoon.

MR. ROWE: Good afternoon. Deputy Corporation Council

Caleb Rowe on behalf of Defendant Dennis Mateo.


MR. CARROLL: Good afternoon, Your Honor. Michael

Carroll and Sharon Lim appearing on behalf of the intervenors.


MS. KUNIMOTO: Good afternoon, Your Honor. Valerie

Kunimoto, Deputy Attorney General, representing Scott Nago, the

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Chief Elections Officer.


I'd like to start with the second motion, regarding the

intervention and consolidation.

Mr. Carroll.

MR. CARROLL: Yes, Your Honor.

Your Honor, I represent the group of the petitioners

that submitted this ballot initiative. We have a similar

lawsuit that's pending in this courtroom that involves the same

overlapping issues. We believe we're a necessary party. We

believe we have a significant interest in the outcome of this

case. And we believe that consolidation of these two matters

makes sense in the judicial sense, as they involve the same

ballot, the same facts, the same issues. So we would ask that

we be permitted to intervene, and that the two matters be

consolidated. Thank you.

THE COURT: Okay. Thank you.

Mr. Rowe, any objection?

MR. ROWE: We have no objection, Your Honor.

THE COURT: Mr. Thomas.

MR. THOMAS: Well, I don't think we have an objection.

But I do want to point out, make it clear on the record that we

haven't had a chance to look over the moving papers. I

literally got them on the way out the door. They were dropped

off this morning as I was heading out to the airport. So I'm

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at a bit of a loss. I think I understand what the issues must

be. I think at this point, we'll take a no position on the

motion.

We'd be pointing out that there are some

inconsistencies, I think, where they say they're aligned with

us on some issues. Because I assume they're intervening as

plaintiffs because it seems like everybody has a problem with

the way that the ballot title or the way that the ballot

language currently is. And there's some inconsistencies in a

quick glance that I wasn't quite clear about, where they

suggest that -- or they argue that they believe the ballot

title couldn't be clearer, and yet they're challenging the

ballot title, from what we can tell.

So if we could clear that up, I would greatly

appreciate that as to what their position actually is with

respect to the words that are currently on the ballot, the

three genetically engineered organisms, and whether they're

challenging that or whether the statement that it could not be

clearer is their position with respect to that.

THE COURT: Mr. Carroll.

MR. CARROLL: Your Honor, we are not challenging the

title of the document, we are challenging provisions in the

text. And we believe it could be clearer. And we filed a

motion for preliminary injunction, and hopefully to obtain that

relief.

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MR. THOMAS: And I think that contradicts their

statements in their motions for TRO, and whatnot, that they

want to reform the ballot title. So it sounds like they are

actually challenging the ballot title because they want to add

some words to it like we do. So maybe that's a fight we need

to have in the course of this, as opposed to during the course

of preliminary issues or procedure. But I just wanted to make

that -- forgive me again if I'm operating at a little bit of a

loss, but that's how we view it.

THE COURT: Do you want me to give you a short recess

so you can review the motion that they filed?

MR. THOMAS: If it's your standard intervention

motion -- I mean, this, to us, seems like one where we're not

going to object too strongly because they are, after all, the

committee that proposed the underlying ballot, let's say, or

the underlying proposed initiative. So I don't think that's

necessary. We won't take up any more of the Court's time than

is necessary.

THE COURT: And, I'm sorry, Ms. Kunimoto. Did you have

a petition?

MS. KUNIMOTO: We also haven't received the moving

papers, but we take no position on it, Your Honor. Your Honor,

but when there's, I guess, changes to the text of the ballot

initiative, we get a little bit more --

THE COURT: If there are changes.

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MS. KUNIMOTO: If there are proposed, then we're a

little bit more concerned because of the time it's going to

take to translate the material. And I'm sure Your Honor is

well aware of that.

THE COURT: Okay. Anything else on this, Mr. Carroll?

MR. CARROLL: No, Your Honor.

THE COURT: All right. So the Court's inclined to go

ahead and grant the motion to intervene. I'm a little

concerned about the motion to consolidate, but I'd like to get

through the motion to dissolve, and then I can answer further

questions regarding whether I'm going to actually consolidate

the matters for Wednesday. Okay? But for intervention is not

a problem, you can argue today on the County's motion to

dissolve.

And I'll start, Mr. Rowe, on your motion, please.

MR. ROWE: Thank you, Your Honor. We believe that our

motion pretty much spoke for itself. I just wanted to make

some comments in reference to the plaintiff's memorandum in

opposition to our motion.

First, they cited a lot of case law that's completely

irrelevant to this. There's a whole section where he quotes a

lot of cases from Oregon. Well, the Oregon cases were all

determined under a statute which specifically provides what's

supposed to be included in a ballot title. We have no such

provisions in Hawaii. The only guidance that is given is in

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the Kahalekai case, which they also refer to, and that refers

to ballot language as a whole.

Several of their other cases that they cite, they do

deal with the ballot questions, but they look at it in terms of

biased. They don't look at it in terms of substance or whether

or not there's sufficient information in it. The one that they

cite where they were overturned, it was found there was bias.

And they haven't claimed any bias in our ballot title.

And further on that note, the case law that the

plaintiffs have cited, they all really deal with the issue of

language as a whole, all the language that's on the ballot

regarding the measure. They don't specify the title versus a

question. The purpose of the ballot title is so voters can go

through and identify which question it is. They then can look

at the summary. And that's where they get their information

from. They have two separate purposes. And when the Courts,

in both Kahalekai and 30 voters, which are cited by plaintiff,

when they refer it, they look at the ballot language as a

whole; they don't specify one or the other.

And, you know, finally, we gave kind of some examples

of what's being done in the State, what's being done on other

ballot measures here in Maui, just kind of regarding what is

done with ballot titles in this state. And I actually think

that the case cited most prominently by the plaintiffs,

Kahalekai is probably the most damning to their argument on

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this point. In Kahalekai, the Court reviewed several proposed

amendments to the State constitution, as was Appendix B to that

decision. They actually had copies of what was put before

voters of what the ballot questions were. The Court reviewed

them, and looking at them as a whole, found that they were

adequate as far as their language. Some were invalidated for

improper notice, but that's not relevant here.

So the Hawaii Supreme Court has already reviewed nearly

identical language and upheld it. I will just give you some

examples. This is on Appendix B of that opinion.

Question Number 2, independent grand jury counsel.

Question Number 4, open primary election. Question 8,

reapportionment procedures. Question 17, public health and

welfare. Question 19, Board of Education. Question 21,

university board of regents. 24, Land Management Agricultural

Land. 27, Department of Hawaiian Homelands. Question 30, Code

of Ethics. And Question 34, technical and style changes.

So the Court -- the Supreme Court has already looked at

the issue of ballot titles. And instead of focusing just on

the titles, they looked at the language as a whole. If they

had felt that, in fact, the language -- the title was supposed

to stand on their own, they didn't mention it. And they

specifically reviewed earlier constitutional amendments and

said that those titles were sufficient when taken in the

context. So the Court's in the State of Hawaii, nor any

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statute, ever make that differentiation that they want to make

that the title standing by itself needs to be completely clear

and needs to tell people exactly what it says and what they

want to vote on.

And further, I just wanted to say that the evidence

that the plaintiffs are relying on is what they call evidence

that only the ballot title is considered by the voters; a lot

of times, they only consider that when they're looking at the

ballot. That's completely irrelevant. The Court in Kahalekai

specifically said that the voters themselves have a duty to

educate them on the substance of ballot measures, and that that

duty is non delegable.

They also went on to say that they cannot and should

not look into the motivations of why Hawaii voters vote a

certain way; all that matters is that they were given

sufficient information on the ballot. In Kahalekai, the Court

upheld that it didn't matter if it's easier to vote yes or no

on a proposed amendment, because courts should not consider

voter motives in their way of voting. If voters voted one way

simply because it was easier, that was not the Court's

discretion.

Similarly here, if the voters vote one way because they

only read the ballot title, that is not for the Court to judge.

The Court only needs to look at whether there was enough

information on the ballot for voters to make an educated vote.

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And our argument is that here they did when that ballot title

is taken in connection with everything else.

And just as kind of a side note. The Court in

Kahalekai mentioned there was a lot of press given to these

constitutional amendments when it was discussing the

responsibilities of voters to educate themselves. We're in an

extremely similar situation. Both sides are putting out a lot

of information. And in the information being put out there, it

specifically says vote yes or vote no. If they are against the

initiative, their advertisements specifically say vote no on

that initiative. If they're in favor, the advertisement

specifically says vote yes. So that should clear up -- their

argument is they can look at it and not know which way to go.

Well, there's another form of education by inundation of the

airwaves with all this stuff.

So really, our only issue is we were supposed to assure

that voters have information that's unbiased and that does not

mislead the voters, and the voters at the very least have the

responsibility to read the very next sentence on the paper,

which includes the ballot question which will clear up any

questions that they might have.

Another ground that they mention is the issue of

timeliness. In their memorandum in opposition, they said that

it appears that we stipulate that there's no legislative

history. We, by no means, are stipulating that. Just for the

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purpose of our motion, we did not go into legislative history.

So I just want to put on the record that we're not stipulating

the lack of it.

Plaintiffs first argument regards the use of semicolons

versus periods and their use interchangeably. They say on page

14, that the phrase following the semicolon is related to the

phrase preceding it. That's all that a semicolon means.

Well, under plaintiff's interpretation, the two phrases

would have nothing to do with one another. The first sentence

of 11-6 (1) would deal with Council action. The second phrase

would deal with the placement of the initiative on the ballot.

These are two different topics if you go by the way that the

plaintiffs would have you interpret them. If they're read the

way that the County does, that the period is meant to relate

back to Council action, then they are completely related to one

another.

Plaintiffs also argue that the County's interpretation

would render the term, "The County Clerk shall submit the

proposed ordinance to the voters in the County." They said

that term would be superfluous under our definition because the

use of "shall" requires the Clerk to do something. Well, under

our definition, the Clerk does do something. It submits the

ballot to the voters at the General Election. The Clerk

undertakes and provides the process and framework for having an

election. And under the statute, we would have that election

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with this initiative on it.

Furthermore, plaintiffs never account in their

responsive pleading their discounting of the term "at"

preceding General Election in the County Charter, nor their

apparent substitution of the term "voters" with the term "the

Office of Elections." Plaintiffs interpretation basically

rewrites the statutes so that the words must be read to have

meaning other than their plain English use.

The County's interpretation, in contrast, recognizes

the term "at" has meaning in the Charter, giving it a time

frame; it will be submitted to voters at the General Election.

Furthermore, it recognizes the term "voters of the county" to

mean just that, the voters of the county. It does not read the

term voters of the county to somehow mean the Office of

Elections.

And in addition, under plaintiff's reading, we would

have had to submit our things -- our proposed language to the

Office of Elections 90 days prior to the election. The Hawaii

Revised Statutes already provides a deadline, and that's 75

days. So they seem to think that our charter requires us to

submit it 15 days earlier. Well, nothing in our charter, nor

nothing in the Hawaii Revised Statutes says that the Office of

Elections has to do anything with that if they were served it

prior to that 75-day period. So we're -- basically, under

their interpretation, we are being mandated to do something

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with no apparent purpose whatsoever.

Finally -- well, not finally. Sorry. In addition, an

absurd result would happen if the plaintiffs interpretation

were taken at face value. Under the Charter, the Clerk is

required to publish the full language of a proposed amendment

or an initiative in the newspaper 45 days prior to submission

to the voters.

So submission to the voters under their definition

means that that would be required 45 days before we gave it to

the Office of Elections. If you do it that way, the Clerk

would be required to publish it 45 days prior to August 6th,

2014, which is when they said we needed to submit it to the

Office of Elections. That requires us to publish it on June

22nd, 2014. However, the County Council was not required to

act on the ordinance until August 15th -- August 5th. Sorry,

Your Honor. And that's mentioned specifically on their motion

for TRO on page 11.

So under plaintiff's definition, we would have to

submit -- we would have to submit the entire initiative to be

published in a newspaper 45 days before August 6th, when the

Council had until August 5th to act on it. So it would have

had to be published on June 22nd, and then there would be over

a month where the Council could simply decide to adopt it. It

would never go before the voters. It would never be on a

ballot. And we would have basically undertaken the expensive

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process of printing a long and complicated initiative in the

newspaper for absolutely no reason because the voters would

never had a crack at it.

The County's definition does not require that. The

County's definition just required that 45 days before the

General Election, we need to submit that; that's after the

Council can already decide whether or not they've acted on it;

and it does require to us to publish things needlessly that the

voters may never see.

Plaintiffs also point to Charter Section 11-6(2). And

they say that 11-6(2) is in complete harmony because it makes

sense that the deadline for the petitioner committee to

withdraw the ordinance is the same deadline for the County

Clerk to submit it to voters. It also makes complete sense

that the deadline for the petitioner's committee to withdraw

the ordinance is the same deadline for the County Council to

take final action, after which the Clerk is required under the

Charter to submit it the voters after the election. Plaintiffs

offer no reasoning why the County's reading is not also in

conformity with this later provision.

And finally, as a general note on the issue of the 90

days and the interpretation of the statute. Even if

plaintiff's reading were a plausible reading of the Charter, if

the County's interpretation is not completely unreasonable, the

County Clerk is an executive agency who is tasked with

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administering the specific provision at issue here.

As such, the Clerk's interpretation falls well under

the established rule of statutory interpretation that where an

administrative agency is charged with the responsibility of

carrying out the mandate of a statute which contains words of

broad and indefinite meaning, Court's accord persuasive weight

to administrative construction and follow the same unless the

construction is palpably erroneous. We do not only think that

our definition it not palpably erroneous, we think that it's an

obvious outcome of the reading of the Charter provision in its

entirety.

Finally, their arguments regarding the balance of harm.

When they talk about the balance of harm, plaintiffs ignore the

harm that would be caused to the voters should the TRO be kept

in place, and further should an injunction be issued. Under

our Charter, the voters of Maui have the ability to enact laws

where the County Council has failed to do so. Twenty percent

of the voters who cast ballots in the 2012 election, one of the

opportunities is to vote on this initiative during the 2014

election cycle. Plaintiffs seeks to take away the right of

these 20 percent of voters who want to exercise their

democratic rights and actively engage in the democratic process

due to some nonexistent harm.

Furthermore, continuing this TRO and allowing for a

preliminary injunction creates an extremely dangerous

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precedence. Allowing plaintiffs to maintain this injunction

sends a message that if a party has any problem with ballot

language, regardless how trivial it is, they can completely

halt an electoral process by filing a motion such as this. It

also tells people if they oppose a measure in general, not just

the language, they can keep it off the ballot simply by raising

an issue, any issue, regardless of its merit.

Here, the plaintiff's issues with our language is

incredibly minimal. They want the language included in the

title of the ballot, which is already in the very first

sentence of the question. The language that they want is in

there, it's just not where they want it. Giving minor

grievances like this the opportunity to disrupt the electoral

process is dangerous, and it gives opponents of any law the

opportunity to thwart the will of the people over basically

nothing. We can't accommodate everybody who has an opinion on

the language. We are forced to do our job.

The plaintiffs mention that both sides were unhappy

with our language. Our position is that if two sides who have

a definite interest in it, if they're both unhappy with it,

that probably means they did something right.

Finally, in their memorandum in opposition, plaintiffs

don't even mention our proposed modification. We propose that

instead of an all-out ban offer processing, it just be a ban on

giving the information -- the ballot, as is, with this

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information to the voters.

The plaintiff's harm only comes to fruition if voters

are voting -- actually go ahead and vote on it. If the Office

of Elections were allowed to proceed with the printing, they

would -- the plaintiffs would in no way being prejudiced by

that. What that would do is that would allow us to continue

processing and meet internal deadlines should we prevail on

later motions.

As I said, the only harm that comes is if these ballots

are actually submitted to the voters. Instead, our

alternative, which would be if we're not going to dissolve it,

is to modify it. That minimizes the burden placed on the

defendants and still completely protects the plaintiffs from

the irreparable harm that they're claiming. Thank you.

THE COURT: Thank you.

Mr. Carroll.

MR. CARROLL: Your Honor, real briefly. We would join

with the County's position that they haven't established

sufficient grounds for a temporary restraining order. We would

note that we've also submitted a request for preliminary

injunctive relief that's set -- that's not set for hearing.

This matter is set for hearing on Wednesday. We believe that

the appropriate thing for the Court to do is to dissolve the

TRO, and to allow the matter to be heard on Wednesday, so a

final adjudication can be heard at that point in time. Thank

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you.


Ms. Kunimoto.

MS. KUNIMOTO: We take no position on the County's

motion, Your Honor.


Mr. Thomas.

MR. THOMAS: Yeah. Just briefly, Your Honor. I will

hope that the Court has had a chance to look through the papers

that have been flying back and forth, and we're all reading on

the fly as we go. And for purposes of my argument here, I will

just try to fill in some of the high points, rather than walk

the Court through our entire briefing.

But the burden here at this point, I want to emphasize,

is somewhat of a high one because the way that the County Clerk

has pitched the relief he seeks in this motion is that he has

to be right on the merits; whereas, in order for the TRO to

continue, we only have to show that there's a substantial

likelihood that we would win on the merits.

So -- and we think that we would, for all the reasons

set forth in our brief. The fact that nobody is happy with the

language is certainly not a sign that it's good. This is not

the goldilocks school or the school of ballot drafting. The

goal here is to get it right, and make it non-deceptive or

non-misleading to the voters. It's simply because you have

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both parties or both sides claiming that it doesn't qualify for

that doesn't mean somehow that you did something right.

And, again, the three-part test that we're looking at

is the irreparable injury. And I did want to focus on the fact

that the Charter makes any injury by either the proponents of

the amend -- of the initiative ordinance, or by the Clerk not

irreparable. Because if this thing does not go on the 2014

ballot because it's now too late to get something right, the

Charter automatically sets it on the 2016 ballot. So the Maui

Charter, as far as we can tell, is pretty unique in that

regard.

Most charters that we looked at that have simpler type

of language simply wipe it out, saying if you didn't get the

timing right, you blew dates -- whether it's by the County

Clerk or by the petitioner's committee not starting early

enough -- too bad; you missed your deadline. But the County

Charter here that's that unique provision, saying, well, it

automatically goes on the succeeding 2016 General Election

ballot. So the people are going to have their say on this

thing no matter what the Court does. I mean, in the sense of

if takes it off the ballot at this point for 2014.

So there's really not an irreparable injury here. The

people are going to have their say. It's just a question of do

we try to get the language of the ballot title correct. And I

think the Supreme Court has made it clear that we try to do so.

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And the Kahalekai case, at best, it doesn't deal with

the issue expressly. So it doesn't come down on the side, as

the County Clerk has argued, that that means clearly that's the

way the Supreme Court would rule in this case. Because the

Court didn't address it because it was not raised whether the

titles in those questions should be considered separately or

were deceptive on their own. So we all know, as a way of

reading cases, the Court deals with the issues that are raised

before it, and everything else is dicta.

And so with respect to that issue as dictum, we think

the Court can look to those Oregon cases that we cited.

Because even those were based in statute, and as a statutory

requirement, essentially the same requirement of non-misleading

comes through from our case law. So we don't have a statute or

an ordinance that requires it like Oregon does, but we have the

common-law requirement that we try to get it right.

And the Supreme Court, I think the posture of that

case, the Kahalekai case, the procedural posture is really

distinct in that case because that was an original jurisdiction

action before the Supreme Court. It was an election contest.

So the election it taken place, then the challengers came in on

the special jurisdictional grounds that the Supreme Court has

to review election results, change the result of the election.

And so in that case, it's much different than we are here.

We're in a preelection stance, where the Court says if

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you got the time to get it right, get it right. In that case

they were looking backwards and not forward. In this case, we

have a two-year window plus to get this right. Get it before

the voters; get them to vote on it.

But the only remedy that the Supreme Court could do in

that case was to invalidate the election or not. And

literally, that's the only jurisdiction has in post-election

contests is to invalidate the results. Huge difference in the

type of relief that we're seeking here; make sure we get it

right, then we have the election versus throw the election out.

And I think that's important for the Court to look at.

I guess we're not dealing, for purposes of this, with

the restraining order -- or the motion for TRO that the

committee has brought, are we? Okay. I'll save that for when

that hearing is.

But the final thing I'd like to point out is -- that's

not in our brief or that perhaps we didn't make terribly clear

in our briefs was that this impacts both sides equally. So

rather than the fact that both sides object to it means this

language is good, we think that really reveals that there's a

problem, so that we do have a substantial likelihood of

prevailing on that issue. We think that the language of the

Charter supports our read of it with respect to the timing. I

mean, words have meaning. I don't want to get into the meaning

of semicolons, and whatnot. And we'll stand on our briefs for

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that.

But is there legislative history? We need time to

figure this out. And the nature of these types of contests

that we are, because the Supreme Court requires us to do it,

because we certainly don't want to make Mr. Nago violate

federal law, we have very narrow windows. So we're all moving

rather quickly. The TRO's purpose was to buy us as much as

time as we can just so we get the law right, we get the facts

right, we get the issues right. And apparently now, we have

everyone on board.

So I think -- we suggest that the Court keep the TRO in

place. We have a hearing -- I don't know if the defendants and

the intervenors are aware of this. But we do have the hearing

on the motion for preliminary injunction for Wednesday.

THE COURT: Wednesday.

MR. THOMAS: At 11:00, I believe. There's no harm in

keeping the TRO open until the time it's supposed to expire.

That will give us the time, at least another day and a half,

another 48 hours to flush out our arguments a little better,

now that we have everybody on board. So we think there's no

harm in keeping the TRO as it stands in place.

The last thing I would like to do as an administrative

matter. I made the mistake when I was drafting the complaint

of including -- I want to get the name right, because I --

Mr. Falconer, who's a plaintiff. I listed him as Kimo

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Falconer, and I should have listed him as James Falconer. So I

ask the Court's indulgence to make an oral motion to amend the

caption so from now on it will read James Falconer.

THE COURT: Not a problem.

MR. THOMAS: Okay. Thank you very much, Your Honor.

And that's all I have.


Mr. Rowe, you wand to respond?

MR. ROWE: Yes, Your Honor. I'll just do so really

briefly.

He refers to the Oregon statute, saying that it's

just -- it's a codification of our common-law requirements

here. That's not what the Oregon statute is. The Oregon

statute dictates directly what has to be in the ballot title

itself. Our common-law does not go into differentiation

between the two. I just wanted to make that clear.

Secondly, I still have not heard any objection or any

harm that would be caused by plaintiffs with our proposed

modification. And so with that, I'll rest.

THE COURT: Mr. Carroll.

MR. CARROLL: Your Honor, real briefly. Counsel did

make one comment that I wanted to respond to. The comment that

this matter can simply wait until the 2016 election. The

voters, 20 percent of the Maui voting electorate signed this

petition because they wanted to put it on the ballot for 2014.

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And it would be a huge prejudice or huge harm to these -- to

our voting electorate if this is not on the 2014 ballot.

We believe the Court has sufficient time and the County

has sufficient time to get it right this time around. And we

believe it should be on the 2014 ballot. And we believe that

if this matter can be heard on Wednesday, that there's

sufficient time for this matter to be addressed. And it should

be addressed within time for the 2014 election. Thank you.


Ms. Kunimoto.

MS. KUNIMOTO: Nothing. Thank you.

THE COURT: Mr. Thomas, did you want to respond to any

comments?

MR. THOMAS: No, Your Honor. Unless you have any

questions, I'd be happy to just stop at this point.

THE COURT: Okay, I appreciate it.

MR. THOMAS: Okay. Thank you. We know the Court's

busy, and we appreciate you carving out this space in your

calendar for us.

THE COURT: I appreciate everyone trying to get the

their briefs to the Court as quickly as possible. I appreciate

that very much.

All right. The Court, having had an opportunity to

review defendant's motion to dissolve the opposition, as well

as having heard the oral arguments in court this morning, the

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Court's going to go ahead and grant defendant's motion to

dissolve the order granting plaintiff's motion for temporary

restraining order.

The Court finds that the plaintiffs have failed to meet

their burden to justify injunctive relief because it is

unlikely plaintiffs could succeed on the merits. Second, the

balance of irreparable harm is in favor of the defendant. And

third, the public interest will better be served by allowing

the Maui voters to decide this important issue on November 4th,

2014.

First of all, the Court finds that the Clerk's

submission to the Chief Election Officer was not untimely, in

that the 90-day provision in the Maui County Code Section

11-6(1) refers to the minimum number of days that must pass

between the date that Council fails to enact a proposed

initiative and the date of the General Election.

Also, the Court finds that the proposed ballot title by

itself is not misleading, let alone when read in conjunction

with a valid question. Also, the Court finds that the balance

of irreparable harm favors the defendant in that an injunction

will potentially hinder the entire November 2014 election

process. And lastly, the Court finds that the public has a

strong interest in having elections that are run efficiently

and competently and without unnecessary delay.

Dealing first off with the 90-day provision in the

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County Code of Section 11-6(1), refers to the minimum number of

days that must pass between the date the Council fails to enact

a proposed initiative and the date of the General Election.

Essential to this interpretation of Section 11-6 is the

article "at" in the phrase, "The County Clerk shall submit the

proposed or referred ordinance to the voters of the County 'at'

the next General Election."

Additionally, HRS Section 11-119(b) already requires

the County Clerk to submit the exact wording of ballot language

to the Office of Elections 75 days prior to the election. And

furthermore, the Court agrees with defendant that another

requirement within Maui County Section 11-6, that an initiative

be printed in the newspaper 45 days before submission to the

voters, if interpreted consistently with plaintiff's

construction, would lead to an absurd result.

Also, the Court finds that plaintiff is not likely to

succeed in the merits, the ballot title is not misleading;

plaintiff's assertion based upon a questionable poll that many

voters only read a ballot title before casting their vote is

immaterial. The Supreme Court has held that it's incumbent

upon members of the public to educate and familiarize

themselves with the consents and effect of laws placed on the

ballot before expressing themselves at the polls.

Case law cited by plaintiff refers to misleading ballot

language, not misleading ballots titles, although neither

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appears to be present. Here the title, "genetically engineered

organisms" is not deceptive as to what the subject of the

proposed initiative encompasses.

Additionally, after reading just the title, all voters

can easily decipher how to express their views by referencing

other materials before casting their vote. Therefore, the

language of the ballot title and the ballot question, taken

together, is sufficiently clear to identify the matter to show

its character and purpose, and thus avoid any risk of patent

and fundamental unfairness.

As far as irreparable harm, the Court finds that

plaintiffs have not met their burden of establishing the

balance of irreparable -- excuse me. Have not met their burden

of establishing the balance of irreparable harm favors the

plaintiff. All harms complained of by plaintiff are

speculative: "Might" cause a voter, "could" read the title,

"may" erroneously cast a 'no' vote. And so on and so forth.

Defendant's harms are more concrete. For example, an

injunction would directly interfere with the County's duty to

conduct an efficient and fair election without unnecessary

delay.

And lastly, far as public interest is concerned.

Although plaintiffs contend that they are obligated to file

this action in the interest of all Maui voters, the Court

believes it is in the public interest to allow Maui voters to

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express their views at the polls this November rather than wait

an additional two years, despite plaintiff's assertion that it

is a fundamental right to cast an informed, accurate, and valid

vote, and interfering with the right to cast a vote is an

irreparable injury. Plaintiffs seem to indicate a willingness

to halt the entire Maui County election process.

Although it is surely within the public interest to

ensure a fair voting process, the factual circumstances

presented do not implicate an unfair voting process under the

Maui County Carter, the Hawaii State Constitution, or the

Constitution of the United States.

That being so, the Court's granting defendant's motion

to dissolve. I'm going to ask Mr. Rowe to prepare the order on

the matter.

Mr. Carroll, I granted your motion to intervene. Based

on the Court's ruling, I suppose you want to me to deny the

motion to consolidate. Correct?

MR. CARROLL: I'm sorry, Your Honor?

THE COURT: I granted your motion to intervene.

Because of the Court's ruling on this motion to dissolve, I

suppose you no longer want me to consolidate. Correct?

Because this basically makes Wednesday's hearing moot.

And you have your own restraining order sitting on my desk

right now for your own preliminary injunctions, which I will

get to right after this hearing.

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MR. CARROLL: Okay. That's fine, Your Honor.

THE COURT: Okay. So can you prepare the order on your

motion to intervene. So granted in part, and denied in part.

MR. CARROLL: Yes, Your Honor.

THE COURT: Okay. Thank you very much, counsels.

MR. ROWE: Thank you, Your Honor.

THE CLERK: Court is adjourned.

(Proceedings concluded.)

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C E R T I F I C A T I O N

I, CAMMIE GILLETT, a Registered Professional Reporter,

Certified Shorthand Reporter for the State of Hawaii #438, do

hereby certify that the foregoing pages comprise a full, true

and correct transcript of the proceedings had in connection

with the above-entitled cause.

Dated this 16th day of September 2014.

Sgd:/ Cammie Gillett________Cammie Gillett, RPR, CSR #438

Transcript of judge loo decision_9-15-14

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Transcript of Transcript of judge loo decision_9-15-14