Case: 12-16995 12/17/2013 Case: 12-26998 Dkt Entry: 121

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Nos. 12-16995 & 12-16998 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NATASHA N. JACKSON, JANIN KLEID and GARY BRADLEY, Plaintiffs-Appellants, v. NEIL S. ABERCROMBIE, Governor, State of Hawaii, Defendant-Appellant, and LORETTA J. FUDDY, Director, Department of Health, State of Hawaii, Defendant-Appellee, and HAWAII FAMILY FORUM, Intervenor-Defendant-Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII, Case No. CV 11-00734 ACK-KSC (Hon. Alan C. Kay). PLAINTIFFS-APPELLANTS NATASHA N. JACKSON, JANIN KLEID AND GARY BRADLEY'S: (1) MOTION TO VACATE DISTRICT COURT ORDER AND JUDGMENT; AND (2) RESPONSE TO ORDER DATED NOVEMBER 26, 2013 CERTIFICATE OF SERVICE John J. D'Amato J. Thomas Maloney, Jr. D'Amato & Maloney, LLP 900 Fort Street Mall, Suite 1680 Honolulu, HI 96813 (808) 546-5200; (808) 546-5203 FAX E-MAIL: jdamato@benefitslawyers.com tmaloney@benefitslawyers.com Paul Alston Clyde J. Wadsworth Alston Hunt Floyd & Ing 1001 Bishop Street, Suite 1800 Honolulu, HI 96813 (808) 524-1800; (808) 524-4591 FAX E-MAIL: palston@ahfi.com cwadsworth@ahfi.com

Attorneys for Plaintiffs-Appellants NATASHA N. JACKSON, JANIN KLEID and GARY BRADLEY
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PLAINTIFFS-APPELLANTS NATASHA N. JACKSON, JANIN KLEID AND GARY BRADLEY'S: (1) MOTION TO VACATE DISTRICT COURT ORDER AND JUDGMENT; AND (2) RESPONSE TO ORDER DATED NOVEMBER 26, 2013 Plaintiffs-Appellants NATASHA N. JACKSON, JANIN KLEID and GARY BRADLEY (collectively, "Plaintiffs") respectfully move this Court, pursuant to Rule 27 of the Federal Rules of Appellate Procedure, to vacate the District Court's: (1) Order Granting HFF's Motion for Summary Judgment and Defendant Fuddy's Motion for Summary Judgment, Denying Plaintiff's Motion for Summary Judgment and HFF's Motion to Dismiss Defendant Abercrombie, and Denying as Moot Defendant Abercrombie's Motion for Summary Judgment, filed August 8, 2012; and (2) Judgment in a Civil Case, filed August 8, 2012 (collectively, the "Order and Judgment"). Plaintiffs also respond to this Court's Order dated November 26, 2013. In summary, Plaintiffs believe that the recent enactment of the Hawai`i Marriage Equality Act of 2013, Act 1 (S.B. 1), Laws 2013, Second Special Session (the "Marriage Equality Act") which provides same-sex couples access to marriage and which became effective on December 2, 2013 likely moots Plaintiffs' and Governor Neil S. Abercrombie's appeals.1 Vacatur is the "normal rule" in this situation because it prevents a district court decision

We say "likely" because there have been lawsuits filed challenging the validity of the Marriage Equality Act, as discussed below.

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that is currently unreviewable from spawning any legal consequences. See cases cited infra. If vacatur is granted, Plaintiffs have no objection to the subsequent dismissal of their and the Governor's appeals. Absent vacatur, Plaintiffs object to the unconditional dismissal of these appeals, as it would be inequitable for Plaintiffs and the Governor to suffer any preclusive effects of the District Court's Order and Judgment, without the ability to appeal from them. In the event the Court does not vacate the District Court's Order and Judgment, and nonetheless dismisses these appeals, then Plaintiffs request alternatively that such dismissal be conditional, as further explained below. RELEVANT PROCEDURAL BACKGROUND Plaintiffs challenged the constitutionality of Hawai`i's exclusion of same-sex couples from marriage. In the District Court, Plaintiffs sought a declaration that their exclusion from marriage denies them equal protection and due process as guaranteed by the Fourteenth Amendment. Plaintiffs also sought to enjoin state officials from denying same-sex couples access to marriage. On November 12, 2013, the Hawai`i legislature passed the Marriage Equality Act, and on November 13, 2013, the Governor signed it. By its terms, the new law took effect on December 2, 2013. Since that time, Plaintiff Bradley has married his partner.

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Plaintiffs sought access to marriage. The Marriage Equality Act provided that access at least as a matter of state statute barring any court action that would alter the effectiveness of the new law (and for Plaintiff Bradley, the validity of his marriage). There are currently pending at least two lawsuits one in Hawai`i state court and one in the United States District Court for the District of Hawai`i claiming that the Hawai`i legislature did not have the legal authority to pass the Marriage Equality Act. (See Exhibits "A" and "B" to Defendant-Appellant Governor Neil S. Abercrombie's Motion for Vacatur (the "Governor's Motion"), filed December 17, 2013.) To date, the claims in both cases have been rejected, but there has been no final disposition of either case. (See Governor's Motion, Declaration of Girard D. Lau 5-6.) Plaintiffs believe these lawsuits have no legal merit. ARGUMENT When a case becomes moot on appeal, "the 'established practice' is to reverse or vacate the decision below with a direction to dismiss." NASD Dispute Resolution, Inc. v. Judicial council of the State of California, 488 F.3d 1065, 1068 (9th Cir. 2007) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 71, 117 S. Ct. 1055 (1997) (citing United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S. Ct. 104 (1950)). Without vacatur, the lower court's

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judgment, "which in the statutory scheme was only preliminary," would escape meaningful appellate review thanks to the "happenstance" of mootness. NASD Dispute Resolution, 488 F.3d at 1068 (quoting Munsingwear, 340 U.S. at 39). "Under the 'Munsingwear rule,' vacatur is generally 'automatic' in the Ninth Circuit when a case becomes moot on appeal." NASD Dispute Resolution, 488 F.3d at 1068 (quoting Publ. Util Comm'n v. FERC, 100 F.3d 1451, 1461 (9th Cir. 1996)) (emphasis added). See American Civil Liberties Union of Nevada v. Masto, 670 F.3d 1046, 1065 (9th Cir. 2012) (vacatur is the "normal rule" when a case is mooted; that is the "default approach" because it "prevent[s] a judgment, unreviewable because of mootness, from spawning any legal consequences") (quoting Munsingwear, 346 U.S. at 41). There is an exception to the Munsingwear rule when the "party seeking relief from the judgment below caused the mootness by voluntary action." ACLU of Nevada, 670 F.3d at 1065 (quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 24, 115 S. Ct. 386 (1994)). When new legislation moots an appeal, however, the legislation is attributed solely to the legislature for purposes of the vacatur inquiry. Chemical Producers & Distributors Assoc. v. Helliker, 463 F.3d 871, 879 (9th Cir. 2006) ("Attributing the actions of a legislature to third parties rather than to the legislature itself is of dubious legitimacy, and the cases uniformly decline to do so. . . . The

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principle that legislation is attributed to the legislature alone is inherent in our separation of powers.") Thus, here, the mooting event the enactment of the Marriage Equality Act is attributable solely to the Hawai`i legislature. As a matter of established Ninth Circuit law, mootness was not caused by any "voluntary action" of Plaintiffs. Under these circumstances, the default rule is to vacate the District Court's Order and Judgment. See Masto, 670 F.3d at 1065. Equity compels this result because Plaintiffs, through no fault of their own, have lost their ability to appeal and should not be harmed by the legal consequences (i.e., any preclusive effects) of the District Court's "'preliminary' adjudication." Log Cabin Republicans v. United States, 658 F.3d 1162, 1167-68 (9th Cir. 2011) (per curiam). Accordingly, this Court should vacate the District Court's Order and Judgment with a direction to dismiss. If vacatur is granted, Plaintiffs have no objection to the subsequent dismissal of their and the Governor's appeals. Absent vacatur, Plaintiffs object to the unconditional dismissal of these appeals, as it would be inequitable for Plaintiffs and the Governor to suffer any preclusive effects of the District Court's Order and Judgment, without the ability to appeal from them. In the event the Court does not vacate the District Court's Order and Judgment, and nonetheless dismisses these appeals, then Plaintiffs request that

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such dismissal be conditioned as follows: if any of the current lawsuits challenging the validity of the Marriage Equality Act were to be finally resolved so as to deny Plaintiffs access to marriage and/or to invalidate any existing marriage of any of the Plaintiffs, their appeal would be reinstated and permitted to go forward. In the unlikely event that one of the pending suits invalidates the Marriage Equality Act and thereby denies Plaintiffs equal access to marriage, then these appeals should be reinstated, so that Plaintiffs may vindicate their constitutional rights to equal protection and due process. CONCLUSION For these reasons, this Court should: (1) vacate the District Court's Order and Judgment with a direction to dismiss the case; and (2) subsequently dismiss these appeals. Dated: Honolulu, Hawai`i, December 17, 2013.

/s/ Clyde J. Wadsworth PAUL ALSTON CLYDE J. WADSWORTH JOHN J. D'AMATO J. THOMAS MALONEY, JR. Attorneys for Plaintiffs-Appellants NATASHA N. JACKSON, JANIN KLEID and GARY BRADLEY

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on December 17, 2013. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. Dated: Honolulu, Hawai`i, December 17, 2013.

/s/ Clyde J. Wadsworth PAUL ALSTON CLYDE J. WADSWORTH JOHN J. D'AMATO J. THOMAS MALONEY, JR. Attorneys for Plaintiffs-Appellants NATASHA N. JACKSON, JANIN KLEID and GARY BRADLEY

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