Transcript of judge loo decision_9-15-14

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Pursuant to HRS 606.13, Permission to Copy Denied
1
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 Defendant
Deputy Corporation Counsel Danny Mateo
County of Maui
Michael C. Carroll, Esq. Attorney for Intervenor
Valerie Kunimoto, Esq. Attorney for Defendant
Deputy Attorney General Scott Nago
State of Hawaii
REPORTED BY: Cammie Gillett
Registered Professional Reporter
Hawaii 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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