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Nos. 12-16995 & 12-16998 TN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plamtiffs-Appellants, vs. NEIL S. ABERCROMBIE, Governor, State of Hawaii, Defendant-Appellant, and
(caption continued on next page)

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII Dist. Ct. No. CV 11-00734 ACK-KSC

____________________________________

JUDGE: The Honorable Alan C. Kay, U:S. District Judge, District of Hawaii

DEFENDANT-APPELLANT GOVERNOR NEIL S. ABERCROMBIES MOTION FOR VACATUR, RESPONSE TO NINTH CIRCUIT ORDER DATED NOVEMBER 26,2013, AND MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR VACATUR DECLARATION OF GIRARI) D. LAU AN]) EXHIBITS A CERTIFICATE OF SERVICE GIRARDD.LAU ROBERT T. NAKATSUJI Deputy Attorneys General 425 Queen Street Honolulu, Hawaii 96813. Telephone: (808) 586-1360 Facsimile: (808) 586-1237 Girard.D.Lau~hawaii.gov Robert.T.Nakatsuj i~hawaii.gov 3711 6743
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Attorneys for Defendant-Appellant Neil S. Abercrombie, Governor, State of Hawaii

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LORETTA J. FUDDY, Director of Health, State of Hawaii, Defendant-Appellee, and HAWAII FAMILY FORUM, Intervenor Defendant-Appellee.

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DEFENDANT-APPELLM~T GOVERNOR NEIL S. ABERCROMBIES MOTION FOR VACATUR, RESPONSE TO NiNTh CIRCUIT ORDER DATED NOVEMBER 26,2013, AND MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR VACATUR The Governor believes the enactment of Act 1 (Second Special Session, 2013)
--

legalizing same-sex marriage

--

likely does presently moot the Governors

and plaintiffs appeals of the District Courts ruling upholding the constitutional validity of Haw. Rev. Stat. (HRS)

572-is ban on same-sex marriage. See j~g

Cabin Republicans v. United States, 658 F.3d 1162, 1166 (9th Cir. 2011) (per curiam) (a case is moot when the challenged statute is repealed, expires, or is amended to remove the challenged language; when a statutory repeal or amendment gives a plaintiff everything [it] hoped to achieve by its lawsuit, the controversy is moot). In light of this present mootness, the Governor joins in, and supports, plaintiffs motion seeking vacatur of District Judge Kays 1) Order Granting HFFs Motion for Summary Judgment and Defendant Fuddys Motion for Summary Judgment
...,

filed August 8, 2012, and 2) Judgment in a Civil Case,

filed August 8, 2012. The Governor also hereby himself moves for vacatur of the same order and judgment. Equitable principles support vacatur of a lower court ruling where the appellant, that challenges the ruling below, loses its ability to appeal because of mootness. As the Ninth Circuit ruled in Log Cabin, 658 F.3d at 1167-68:

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The established practice when a civil suit becomes moot on appeal is to vacate the district courts judgment and remand for dismissal of the complaint. See United States v. Munsingwear, Inc., 340 U.S. 36, 39 [] (1950). Vacatur ensures that those who have been prevented from obtaining the review to which they are entitled [are] not treated as if there had been a review. Id. It prevent[s] an unreviewable decision from spawning any legal consequences, so that no party is harmed by what [the Supreme Court has] called a preliminary adjudication.
...

The Supreme Court in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994), explained that a party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment. The Supreme Court, however, has placed some limits on vacatur, where the party seeking relief from the judgment below caused the mootness by voluntary action. at 24. Because

plaintiffs here, however, certainly did not cause the mooting event (the passage of Act 1) Act 1
--

the Hawaii legislature being independently responsible for enactment of

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plaintiffs are surely entitled to vacatur of Judge Kays order and judgment.

See Chemical Producers and Distributors, Assn v. Helliker, 463 F.3d 871, 879 (9th 2006) (even a party who lobbied legislature for mooting legislation is not precluded from seeking vacatur because [l]obbying Congress or a state legislature cannot be viewed as causing subsequent legislation for purposes of the vacatur inquiry. Attributing the actions of a legislature to third parties rather than to the

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legislature itself is of dubious legitimacy, and the cases uniformly decline to do so.). The Governor himself is independently entitled to vacatur because he, too, like plaintiffs, cannot control the independent actions of the legislature. Chemical Producers, 463 F.3d at 879 (Even where new legislation moots the executive branchs appeal of an adverse judgment, the new legislation is not attributed to the executive branch.). If the legislature did not pass the bill, the bill would not have become law no matter how much the Governor wanted the bill to pass. The Governor, too, therefore, did not cause the mootness by voluntary action (rather, the legislature did) so as to preclude him from seeking vacatur of Judge Kays

Although the Governor called the special session, making passage of the bill

possible, actual passage of the bill by the legislature is plainly ~ in his control. By analogy, even if every legislator voting in favor of a bill (which passes) submitted an affidavit stating that absent the lobbying effort of X, he or she would have voted against that bill, thereby proving that the lobbyist was a but-for cause of the legislations passage, Chemical Producers would still conclude that the lobbyist cannot be viewed as causing subsequent legislation for purposes of the vacatur inquiry. Ich And that makes sense because the ultimate responsibility for the bills passage rests in the hands of the legislature. Analogously, then, the Governors calling the special session does not make him the cause of the legislation for purposes of the vacatur doctrine; only the legislature could actually pass the bill. The Governors signing of the bill also does not make him the cause of the bills passage for purposes of the vacatur inquiry. First, as noted above, if the legislature did not itself pass the bill, there would have been no bill for the Governor to sign. Second, even if the Governor had declined to sign the same-sex marriage bill, as long as he did not veto it, the bill would have become law without his signature. Haw. Const. Article III, Section 16.
3

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order and judgment. The Governor thus not oniy supports and joins plaintiffs motion for vacatur, but also seeks vacatur as a movant. Ultimately, however, it is unnecessary to resolve the issue of the Governors independent entitlement to vacatur, because plaintiffs are certainly entitled to vacatur, as already discussed. Vacatur is appropriate to eliminate the now unappealable District Court rulings, and preclude any possibility of their having preclusive res judicata or collateral estoppel effect.2 Accordingly, the Governor agrees his and plaintiffs appeals are likely presently moot. The Governor asserts that as a result of his and plaintiffs appeals being moot, this Court should vacate Judge Kays order and judgment under the vacatur doctrine, pursuant to plaintiffs and/or the Governors motions for vacatur. If and only if vacatur is granted, the Governor agrees that dismissal of his and plaintiffs appeals is warranted. The Governor does ~ agree to dismissal of his and plaintiffs appeals prior to vacatur being entered,3 or if no vacatur is entered.

The Governor, however, does not concede the existence or extent of any

preclusive effect of Judge Kays rulings in all or certain circumstances. ~ This is to preclude any possibility of a court ruling that vacatur is not appropriate after an appeal has been dismissed. ~ Bancorp, 513 U.S. at 22-23 (noting that Munsingwear denied vacatur to United States because the United States should have asked the Court of Appeals to vacate the District Courts decision before the appeal was dismissed.).

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If, and after. this Court vacates Judge Kays order and judgment, the Governor has no objection to his and plaintiffs appeals being subsequently dismissed.4 If this Court, however, does not vacate Judge Kays order and judgment, then the Governor opposes dismissal of his and plaintiffs appeals. It would not be fair for the Governor or the plaintiffs to be stuck with any potential preclusive effect of Judge Kays order and judgment, without the ability to appeal from them.5 In the event, however, this Court does ~ vacate Judge Kays order and judgment, ~p4 at the same time also insists on dismissing the Governors appeal over our objections
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a scenario we vigorously object to

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then the Governor asks

in the alternative that any such dismissal of his appeal at least be a conditional one. That is, the dismissal be conditioned on the following: if any lawsuit in any court (now-existing, or occurring in the future) were to finally be resolved in such a manner as to invalidate Act ls allowance of same-sex marriage, the Governors appeal would automatically be revived or reinstated, and could proceed ahead.

41n order to preclude any possibility that the Governors agreeing to dismissal of his appeal (on mootness grounds) could be deemed to preclude vacatur, cf U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 26(1994), quoting Karcher v. May, 484 U.S. 72, 83 (1987) (we denied [vacatur], noting that [t]he controversy ended when the losing party .declined to pursue its appeal), the Governor does not agree to voluntary dismissal of his appeal, unless, and only after, Judge Kays order and judgment are vacated.
. .

See footnote 2, supra.

5

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This conditional dismissal is necessitated by the actual existence of at least two current lawsuits (one in Hawaii state court, and the other in U.S. district court in Hawaii) that have been filed claiming that the Hawaii legislature does not, and did not, have the legal authority to authorize same-sex marriage. See Exhibits A through B (complaints in the two lawsuits). Although the Governor believes these lawsuits have absolutely no merit whatsoever,6 out of an abundance of caution, the Governor asks that any dismissal of his appeal on grounds of mootness unaccompanied by vacatur at least be a conditional one only. For in the event any one of these suits (existing or future) were to succeed in invalidating Act ls allowance of same-sex marriage (however unlikely that may be), the former Hawaii ban on same-sex marriage would be revived, thereby rendering the Governors appeal no longer moot. In that case, it would be critical that the Governors appeal be revived or reinstated, so that he could proceed to appeal from Judge Kays adverse rulings (which had not been vacated). If this Court, however, vacates Judge Kays order and judgment, which is our principal and primary request discussed in the initial portions of this memorandum, then the Governor does not object to this Court entering a full

6indeed the underlying state constitutional challenge in the State court suit has been rejected, ~ Declaration of Girard D. Lau at 5, and the federal suit has also been dismissed, see id. at 6. Further proceedings and/or appeal in those cases are, of course, possible.
6

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unconditional dismissal of his and plaintiffs appeals, after Judge Kays order and judgment have been vacated. DATED: Honolulu, Hawaii, December 17, 2013. Is! Girard D. Lau GIRARD D. LAU ROBERT T. NAKATSUJI Deputy Attorneys General Attorneys for Defendant-Appellant Neil S. Abercrombie, Governor, State of Hawaii

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Nos. 12-16995 & 12-16998 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, Plaintiffs-Appellants, vs. NEIL S. ABERCROMBIE, Governor, State of Hawaii, Defendant-Appellant, and LORETTA J. FUDDY, Director of Health, State of Hawaii, Defendant-Appellee, and HAWAII FAMILY FORUM, IntervenorDefendant-Appellee. JUDGE: The Honorable Alan C. Kay, U.S. District Judge, District of Hawaii Dist. Ct. No. CV 11-00734 ACK-KSC APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

DECLARATION OF GIRARD D. LAU Pursuant to 28 U.S.C.

1746, I, Girard D. Lau, hereby declare that:

1. I am a Deputy Attorney General and counsel for Defendant-Appellant Governor Neil S. Abercrombie (Governor) in the above-entitled case.

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2. Unless otherwise stated or implied, I make this Declaration based on my personal knowledge and am competent to testify as to the matters set forth herein. 3. Attached as Exhibit A is a true and correct copy of the First Amended Complaint filed in McDermott v. Abercrombie, Civil No. 13-1-2899 (Haw. First Cir. 2013), minus the exhibits and the summons. 4. Attached as Exhibit B is a true and correct copy of the Complaint filed in Amsterdam v. Abercrombie, U.S. Dist. Ct. Civil No. 13-00649 SOM KSC (D. Haw. 2013). 5. In McDermott v. Abercrombie, our offices records reflect that on November 14, 2013, Judge Karl Sakamoto of the Hawaii Circuit Court for the First Circuit orally rejected the plaintiffs motion for a temporary restraining order and preliminary injunction. In an oral ruling issued that day from the bench, Judge Sakamoto concluded, as part of his rejectionof plaintiffs motion, that the Hawaii State Legislature has the power to pass Act 1 (providing marriage equality) and that the Act was constitutional under Hawaiis Constitution. In so ruling, Judge Sakamoto rejected the plaintiffs reading of Article I, section 23 of the Hawaii Constitution as barring same-sex marriage. The court has not yet issued a written order from these proceedings. The case has not yet concluded.

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6. In Amsterdam v. Abererombie, our offices records reflect that on November 26, 2013, Judge Susan Moliway of the U.S. District Court for the District of Hawaii dismissed the Complaint filed in Amsterdam v. Abercrombie, ruling that Amsterdam lacked standing because he fails to demonstrate that the [new law] could, in any way, be interpreted as violating section 5(f) of the Admission Act such that he could be said to have suffered an injury to his rights under section 5(f). Order, Nov. 26, 2013, Civ. No. 13-00649. The court also noted that it was unclear whether Amsterdam intended to assert other alleged violations of the federal constitution. The court allowed him until December 24, 2013 to amend his complaint. As far as I am aware, no amended complaint has yet been filed. The courts November 26, 2013 order provided that if no. amended complaint is filed by December 24, 2013, judgment will be entered in favor of the Defendants.

I declare under penalty of perjury that the foregoing is true and correct. Executed in Honolulu, Hawaii, on December 17, 2013.

Is! Girard D. Lau GIRARD D. LAU Attorney for Defendant-Appellant Governor Neil S. Abererombie

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ROBERT K. MATSTJMOTO #1330 345 Queen Street, Suite 701 Honolulu, HI 96813 Telephone: (808) 585-7244 And JOHN R. DWYER, JR. #1445 Dwyer Schraff Meyer & Green 1800 Pioneer Plaza 900 Fort Street Mall Honolulu, Hawaii 96813 Telephone: (808) 534-4444 Attorneys for Plaintiffs REPRESENTATIVE BOB McDERMOTT, GARRET HASHIMOTO, WILLIAM E.K. KUMIA, DAVID LANGDON

FiRs1C11~:.Cf~.Ir C01j~:T S1A HA~AI~

2q13 NOV I AH. 8:23

H. CHING CLERK~

IN THE CIRCUIT COURT OF THE FIRST CIRCUrr STATE OF HAWAII

) ) ) ) ) Plaintiffs, ) ) vs. ) ) GOVERNOR NEIL ABERCROMBIE, ) SENATOR DONNA MERCADO KIM, ) REPRESENTATIVE JOSEPH SOUKI, ) SENATOR CLAYTON JIBE, ) REPRESENTATIVE KARL RHOADS, ) ) Defendants. )
REPRESENTATIVE BOB McDERMOTT, GARRET HASHIMOTO, WILLIAM E.K. KUMIA, DAVID LANGDON,

CiVIL NO. 13-1-2899-10 KKS FIRST AMENDED COMPLAINT; EXHIBITS A-B; SUMMONS

correct capy ~t the

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~ do ~ereb~ certify that this Is a full, true aM lie in this office.

Cler~tircuit Courr)dst Cireut Exhibit A - Page 1

L1~ VL~

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FIRST AMENDED COMPLAINT COMES NOW PLAINTII~FS above named, through their attorneys, Robert K. Matswnoto and John R. Dwyer, Jr., and hereby files their claims against Defendants above named. 1. Plaintiff Representative BOB McDERMOTT, is a resident of the City and County

of Honolulu, State of Hawaii, and is the duly elected representative of District 40, House of Representatives) State of Hawaii; Plaintiff GARRET HASHIMOTO, is a resident ofthe City and County of Honolulu, State of Hawaii; Plaintiff WILLIAM E.K. KUMIA, is a resident of the City and County of Honolulu, State of Hawaii; and Plaintiff DAVID LANGDON, is a resident of the City and County of Honolulu, State of Hawaii (hereinafter collectively the Plaintiffs). 2. Defendant Governor Neil Abercrombie, hereinafter Governor Abercrombie, is

a resident of the City and County of Honolulu and is the duly elected governor of the State of Hawaii. 3. Defendant Senator Donna Mercado Kim, hereinafter Senator Kim, is a resident

of the City and County of Honolulu, is the duly elected senator from Senate District 14 and the president of Senate of the State of Hawaii. 4. Defendant Representative Joseph Souki, hereinafter Speaker Souki is a resident

of the island and County of Maui, is the duly elected representative of District 8 of the State House of Representatives and the Speaker of the House of Representatives of the State of Hawaii. 5. Defendant Senator Clayton Flee, hereinafter Senator Hee is a resident of the

City and County of Honolulu, State of Hawaii and is the duly elected senator of Senate District 23.

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6.

Defendant Karl Rhoads, hereinafier Representative Rhodes, is a resident of the

City and County of Honolulu, State of Hawaii, and is the duly elected representative of House District 29. 7. All of the Defendants are being sued in their capacities as duly elected officials of

the State of Hawaii and not as individuals. 8. Plaintiff McDermott brings this action in his official capacity as a member of the

State of Hawaii House of Representatives and not in his individual capacity. 9. Both Plaintiffs and Defendants are bound by Section I of the Hawaii State

Constitution which states, All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people. All government is founded on this authority. 10. On or about August, 2013, Governor Abercrombie called for a special session of

the legislature of the State of Hawaii to consider and to act upon a marriage equity, i.e. a same sex marriage bill. 11. Plaintiffs are informed and believe and upon such information and belief allege

notwithstanding the non-concurrence of both Senator Kim and Speaker Souki, Governor Abercrombie unilaterally set the start date for the special session for the week of the October 28, 2013, which special session was expected to last no more than five (5) days. 12. Plaintiffs are informed and believe, and upon such information and belief allege

that the truncated special session was called to favor a selected few over the rights of the general populace of Hawaii. 13. On or about October 24, 2013, there was a public announcement made to the

general public announcing the start date and time for public testimony to be heard before the

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Senate Judiciary and Labor committee headed by Senator Hee with a description of the proposed bill, Senate Bill #1, together with instructions on how to submit written testimony. A true copy of Senate Bill 1 is attached hereto as Exhibit A and by reference is made a part hereof. 14. The instructions also noted that the deadline for submitting written testimony was

24 hours prior to start of the hearing and date and time before the Senate Judiciary and Labor committee, which commenced at 10:30 a.m., October 28, 2013. 15. Article 1, section 23 of the Hawaii State Constitution states, The legislature shall

have the power to reserve marriage to opposite sex-couples, hereinafter Opposite Sex Marriage Amendment. 16. Said Opposite Sex Marriage Amendment was proposed by the Hawaii Legislature

to the people ofHawaii, who overwhelmingly voted by a greater than 2/3 majority to approve the Amendment by way of a Referendum, which constitutionally validated the Hawaii Statute (Section 572-1 HRS) that permitted marriages between a man and a woman only. 17. In explaining the purpose and the meaning of the referendum and the effects of a

favorable vote, the State legislature succinctly stated what the meaning of a Yes vote for the referendum meant, i.e. a Yes vote would add a new provision to the Constitution that would give the Legislature the power to reserve marriage to opposite sex couples only. A true copy of the State legislatures statement is attached hereto as Exhibit B and by reference is made a part hereof. 18. As a member of the State House of Representatives at that time in 1998, Plaintiff

McDermott voted in favor of H.B. No. 117, C.D. 1, which would allow the people of Hawaii to decide for themselves whether to allow same sex marriages or to limit marriages to opposite sex couples only.

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19.

Plaintiff McDermott participated in meetings, caucuses, discussions and debates

and concluded that if the people of Hawaii voted in favor of the said referendum, which ultimately led to Article I, section 23, marriage in Hawaii would be limited to opposite sex couples only and that another constitutional amendment would be required to allow same sex couples to marry. 20. Plaintiffs are informed and believe and upon such information and belief allege

that case law provides that the intention of a Constitutional provision should be determined by the language used together with the surrounding circumstances. 21. Further Plaintiffs are informed and believe and upon such information and belief

allege that because of the Opposite Sex Marriage Amendment and the understanding of the voters that approved that Constitutional Amendment, if there is a further need to amend Article I, Section 23, before any same sex marriage bills such as SB #1 can be enacted, that the State legislature has no direct Constitutional right or statutory authority, to enact any same sex marriage laws. 22. As a member of the House Judiciary committee and as a voting member at large,

Plaintiff McDermott has been asked to review, consider and vote in the House Judiciary committee on said SB#1 and in the House of Representatives at large. 23. By reason of the meaning language of the Opposite Sex Marriage Amendment

and Plaintiffs position on the Opposite Sex Couple Amendment, a controversy exists and further, there is the danger of immediate and irreparable harm if a single marriage license is issued to a same-sex couple, a determination must be made on (i) the scope and breadth of the Opposite Sex Couple Amendment, and (ii) whether the State Legislature has the right to enact any laws which would allow same sex couples the right to marry notwithstanding the restrictions

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of marriage as determined by the said Opposite Sex Couple Amendment and the vote of the people of Hawaii establishing such an Amendment. 24. This action is brought pursuant to Chapter 632, Declaratory Judgments, Hawaii

Revised Statutes, and Plaintiffs are entitled to injunctive pursuant to Rules 7(b) and 65(b) of the Hawaii Rules of Civil Procedure.

WHEREFORE, Plaintiffs pray as follows: 1. That the Court declare that Article I, Section 23 of the Hawaii State Constitution

made Section 572-1 HRS constitutionally valid and reserves marriage to opposite sex couples only; and further that an amendment to the Hawaii Constitution is necessary for the State Legislature to enact any laws which would allow same sex couples to marry in the State of Hawaii. 2. That the Court declare any bill or act which allows same sex marriage in Hawaii

to be declared null and void until another State constitutional amendment is voted upon by the people of Hawaii which would allow same sex couples to marry in the State of Hawaii. 3. That the Court declare that injunctive relief is appropriate because of the

possibility and existence of immediate and irreparable injury. 4. That the Court award Plaintiffs their reasonable attorneys fees and costs.

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5. premises.

That the Court grant such other relief as it deems just and equitable in the

DATED: Honolulu, Hawaii, October 3

2013

MA JOH~*R. DWYE~ Attorneys for Plaintiffs REPRESENTATWE BOB McDERMOTT, GARRET HASH1MOTO, WILLIAM E.K. KUMIA, DAVID LANGDON

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Case 1:~-~-

~c~4~SC Document 1 Piled 11/25/13 Page 1 f 4

PagelD #: 1

C. Kaul Jochanan Amsterdam 1425 Pensacola St., # 12 Honolulu, HawaII 96822 808-450-1166 ~Jialohal~yahoo.com ProSe

1~r~t!STA~VES n~s~
n~S~FRrcT OF HAWAII

NOV 25 2013

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF;HAWAII C. Kaui )ochanan Amsterdam 1415 Pensacola St., # 12 Honolulu, Hawaii 96822 Native Hawaiian, Beneficiary CIVILNO. Plaintiff

CV13 ~O6499c.M

VS.

Governor Neil Abercrombie, Individually and Governor of the State of Hawaii, Senator and Individually Clayton Hee, Representative and Individually Joseph Souki, Senator and Indiv idually Donna Mercado Kim, and Representa tive and Individually Karl Rhoads. State Capitol 415 S. Beretania St. Honolulu, Hawaii 96813 Defendants

)~ ) )

PLAINTIFFS MOTION FOR JUDGEMENT TO ENJOIN SENATE BILL 1, HRS, CHAPTER 572, EQUAL RIGHTS, ACT RELATING TO TO INDIVIDUALS OF THE SAME SEX, 11/13, 2013; HAW~AII MARRIAGE ~Y~U~PY AC)1~ ~O13 COMPLAINT; CERTIFICATE OF SERVICE; EXHIBIT: A, B
MOTI~W FOR TEMFOR.ARY INb1tJNQTION

COMPLAINT AND MOTrON. The Plaintiff, C. Kaui Jochanan Amsterdam, respectfully comes before the Honorable United States District Court for the District of Hawaii and requests an order for judgement on the Motion as presented herein the Plaintiffs Complaint to enjoin the LAW OR ACT RELATING TO INDIVIDUALS OF

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Case 1:13-cv-00649-SOM-KSC Document 1 Filed 11/25/13 Page 2 of 4

PagelD #: 2

OF THE SAME SEX, 11/13/2013, FROM SENATE BILL 1, HRS, CHAPTER 572, EQUAL RIGHTS. BASIS OF lAW The applicable Rule of Law of this case and Motion to stop or enjoin this Law or Act is that of a Breach of Trust of the State of Hawaii through the Defendants, who are the Governor and Legislative Officers who originated and voted for and advanced the Bill made into Law. The Hawaii Admission Act Of 1959 placed a fiduciary responsibility on the State of Hawaii and its representative as previously included. The Defendants as Fiduciaries have been in violation of their duty as Representatives of the State as equity requires. According to Trust Law, a breach need not be intentional or malicious. The majority of Native Hawaiians or Kanaka MaolI who testified at hearings regarding SB 1 were against it and requested that their cultural and spiritual values and beliefs, which conform to the Motto of the State of Hawaii that the life of the land is perpetuated in righteousness/ Ua Mau Ka Ea 0 Ka Ama I Ka Pono, which were established during the time of a King and Queen of The Kingdom of Hawaii, and which contributed to the basis for not accepting SB 1, be respected and maintained. Additionally, the majority of non-Hawaiian testifiers and, indeed, overall testifiers had similar or the same values, which didnt support SB 1 and support traditional values as expressed in traditional marriage. Even though the Supreme Court of the United States upheld the right of testifiers who didnt support SB 1, the Legislators, lead by the Defendants, rejected the majoritys position and requests and voted for the Bill. Such total disregard and dismissal of Native Hawaiian moral and cultural values of righteousness, beliefs, religion, and history is a Breach of Trust, discriminatory, and violation of Native Hawaiian Human and Civil Rights as provided by the First and Fouteenth Amendments to the US Consititutiori and the Hawaii Admission Act of 1959. DAMAGE AND INJURY The injurious and damaging results of such violations are presented in the Plaintiffs injunction 2 Exhibit B - Page 2

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Case 1:13-cv-00649-SOM-KSC Document 1 Filed 11/25/13 Page 3 of 4

PagelD #: 3

and include individual and family weakening, destabilization, and erosion, subsequent further downtrends such as Native Hawaiians having the shortest lifespan, highest unemployment, highest incarceration, and lowest educational achievement, loss and weakening of parental roles, influence, and effectiveness, weakening and loss of self-identity and positive image, and a weakening of motivation, self-determination, and overall achievement. Such deficient thought and action by the Defendants toward Native Hawallans can lead to further alienation, loss of the Aloha Spirit, arid societal breakdown. Accordingly requests, the Plaintiff requests enjoiriment of this Law. Native Hawaiians in this situation should have, but have not been given priority. STANDING The Plaintiff has a right to present the Complaint, Temporary Injunction, aand Declaration. He is a descendant of a full-blooded Hawaiian, Alli, Kalakaua line, a Beneficiary of the Native HaHawaiian Trust Fund established by the Hawaii Admission Act of 1959, president of three Native Hawaiian humanitarian organizations, provider of health, cultural, and social programs for Hawaiian Kupuna, an author also on Hawaiian topics, a Hawaiian Jewish educator educated at 8 universities in the US, Europe, and the Middle East, an international Project coordinator, and leader in the Native Hawaiian, and Jewish communities. Such practical service and work, background, educational preparation, and heritage qualifies him to present this case. FEDERAL JURISDICTION As elaborated in the Hawaii Admission Act of 1959 as seen in Sec. 5(f), the US Federal Court has Jurisdiction and the Admission Act creates a federally enforceable right also enforceable under 42 U.S.C. Sec. 1983, to take action in such a case and regarding associated rights of Native Hawaiian Beneficiaries. Since Hawalians have a special relationship with the US Federal and Hawaii State governments as ex pressed in the Hawaii Admission Act of 1959, necessary and sufficient consideration, attention, 3 Exhibit B - Page 3

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Case 1:13-cv-00649-SOM-KSC Document 1 Piled 11/25/13 Page 4 of 4

PagelD #: 4

Responsibility, and justice must be given to Kanaka Maoli. Such is the basis for this Court Action. Supporting the US Federal Courts the right to intervene in this case are Title VI of the Civil Rights Act of 1964 (42 U.S.C.A. Section 2000d etseq.), Title IX of the Education Amendments of 1972, (20 U.S.C~A. Section 1681 et seq.), the Hawaiian Education Act, and violation of Section 504 of the Rehabilitation Act of 1973 (29 U.S.C.A. Section7g4), and Title Vt, Sandovai v. Hagan C.A. Ii (Ala) 1999, 197F. 3D 484. CONCLUSION Thus, the Plaintiff, C. Kaul Jochanan Amsterdam, in presenting standing, US Federal Court Jurisdiction, Basis of Law, injury and damage of the Plaintiff and Native Hawaiians, and Remedy to ask judgement in favor of the Plaintiff and Native Hawalians and to stop or enjoin the Law, Senate Bill 1, HRS, Chapter 572, Equal Rights, an Act Relating To Individuals Of The Same Sex and thereby advance Justice. Finally, the Plaintiff expresses Mahalo for the Courts consideration and acknowledges The Lord G-d.
Nav~abe~ 25, 2013 Dated: Honolulu, Hawaii,____________________________________________________

CL
Plaintiff ProSe

Exhibit B - Page 4

Case: 12-16998

12/17/2013

ID: 8905818

DktEntry: 120

Page: 24 of 31

Case 1:13-cv-00649-SOM-KSC Document 1-1 Piled 11/25/13 Page 1 of 1

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APPENDIX Exhibit A: Exhibit B: Full-Blooded Au Native Hawallan/ l(anaka Macli Mother and Mom of the Plaintiff. Birth Certificate available. Plaintiff worked with Native Hawalians throughout Islands.

Exhibit B - Page 5

Case: 12-16998

12/17/2013

ID: 8905818

DktEntry: 120

Page: 25 of 31

~zhibit S

.1.:

Exhibit B - Page 6

Case: 12-16998

12/17/2013

ID: 8905818

DktEntry: 120

Page: 26 of 31

C)

Exhibit B - Page 7

:1.

Case: 12-16998

12/17/2013

ID: 8905818

DktEntry: 120

Page: 27 of 31

Case 1:13-cv-00649-SOM-KSC Document 1-3 flIed 11/25/13 Page 1 of 4 ~ ~7i76~7?/~ 9C~?a~a~t7

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Herein are the 24 Representatives of the Representative Assem.. bly. They are presented in order of Districts. President: Samuel Lyons Kealoha Vice President: Lani Bowman

The Legislative Branch Hawaii Joseph Kaniaji Hao, Dist. #1 ____Lani Bowman, Disf. #2
.

...~...flrank DeLuz lii P1st 5 ~~Robert.thakuaJ~ne Dist. #6

~ReynoIds N. Kamakawiwoole Jr.,. ____Beck Hawaihae...Rodriquez P1st. #3 Dist. #7 _Elroy TL Osorlo DIsL#4 Oahn ..~DavidIng, Dist. #1 ____Aldeous Paalani, Dist. #2 _Chrjstjne Ualanj Brown, fist. #3 ~_Kyle JK Chock, Dist. #4 ____Lisa Mitchell, DIst, #5 _Nanj Akeo, Dist. #6 ____John H. Nabinu, Sr. fist. #7 ~Neddje G. Waimau~N,~uha Dist, #8

Exhibit B - Page 8

Case: 12-16998

12/17/2013

ID: 8905818

DktEntry: 120

Page: 28 of 31

1Case 1:13-cv-00649-SOM-KSC Document 1-3 FHed 11/25/13 Page 2 of 4 ??6 ~1i~76~r/K CV~7~T~r~7j7

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Molokal, Maui, Lanai, and Kahoolawe ____Walter Ritte, Dist. #1 ____Samuel Lyons Kealoha, Dist. #2 _Clarence K. Kainai, Sr.., Dist. #3
-

_Solomon Pilli Kahoohalahala, Dist. #4 Kehaulanjj?jljmoeaffi, Dist. #5

~Daisy M. Lind, Dist. #6

Kauai and Niihau _~Cathy Kalehua Ham Young, Dist. #1 _Mary Thronas, Dist. #2 Raymond Duvachdlle, Dist. #3

3
Exhibit B - Page 9

Case: 12-16998

12/17/2013

ID: 8905818

DktEntry: 120

Page: 29 of 31

,Case 1:13-cv-00649-SOM-KSC Document 1-3 Filed 11/25113 Page 3 of 4

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Herein are the 24 Nobles of the House of Nobles. They are presented in alphabetical order of their last names. President: Warren Perry Vice President: Clifford Hashimoto

The Legislative Branch Hawaii ____Thomas Cummins ____Patrick Hoa pill George Kaeo Oahu ____Rolland Ahuna ____William Kaae ___ElmerKKaaj ___John L. Low ___KimoK.Low Maui, Molokai, and Lanai ____William Garcia. ____Clifford flashimoto ___Samuel K. Kaai 2
Exhibit B - Page 10

_David Kahanu ____Ernest Kanehajina George Kauhane

___Rod A. Maile Ckghorn McKee _Raymond Pua ____Charles Rose

Al(oyslus) Spencer ____Michael Tancayo ____Kalani Tassjl

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Page: 30 of 31

Case 1:13-cv-00649-SOM-KSC Document 1-3 Piled 11/25/13 Page 4 of 4

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Kanai and Niihau ____Ronald Jida ____Roderick Knoa ____Warren Perry

3
Exhibit B - Page 11

Case: 12-16998

12/17/2013

ID: 8905818

DktEntry: 120

Page: 31 of 31

Ninth Circuit Case Nos. 12-16995 & 12-16998 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing motionlresponse! memorandum with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CMIECF system on December 17, 2013. I certify that all parties in the case are registered CMJECF users and that service will be accomplished by the appellate CM!ECF system. DATED: Honolulu, Hawaii, December 17, 2013. Is! Girard D. Lau GIRARD D. LAU ROBERT T. NAKATSUJI Deputy Attorneys General Attorneys for Defendant-Appellant Neil S. Abercrombie, Governor, State of Hawaii

528072_1.DOC