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Nos. 12-16995 12-16998TN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUITNATASHA N. JACKSON, JANIN APPEAL FROMKLEID, and GARY BRADLEY, THE UNITED STATESDISTRICT COURT FORPlamtiffs-Appellants, THE DISTRICT OF HAWAII

vs. Dist. Ct. No. CV 11-00734 CK KSCNEIL S. ABERCROMBIE, Governor,State of Hawaii,Defendant-Appellant,

and JUDGE: The Honorable Alan C. Kay,caption continued on nextpage) U:S. District Judge,____________________________________ District ofHawaiiDEFENDANT-APPELLANT GOVERNOR NEIL S. ABERCROMBIESMOTION FOR VACATUR, RESPONSE TO NINTH CIRCUITORDER DATED NOVEMBER 26,2013, AND MEMORANDUMIN SUPPORT OF PLAINTIFFS MOTION FOR VACATURDECLARATION OF GIRARI D. LAU AN] EXHIBITS A B

CERTIFICATE OF SERVICEGIRARDD.LAU 3711ROBERT T. N K TSUJI 6743Deputy Attorneys General425 Queen StreetHonolulu, Hawaii 96813.Telephone: 808) 586-1360Facsimile: 808) 586-1237Girard.D.Lau~hawaii.govRobert.T.Nakatsuj i~hawaii.govAttorneys for Defendant-Appellant Neil S.Abercrombie, Governor, State ofHawaii

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LORETTA J. FUDDY, Director ofHealth, State of Hawaii,Defendant-Appellee,

andHAWAII FAMILY FORUM,

IntervenorDefendant-Appellee.

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DEFENDANT-APPELLM~T GOVERNORNEIL S. ABERCROMBIESMOTION FOR VACATUR, RESPONSE TO NiNTh CIRCUITORDER DATED NOVEMBER 26,2013, AND MEMORANDUMIN SUPPORT OF PLAINTIFFS MOTION FOR VACATURThe Governor believes the enactment of ct Second Special Session,

2013) legalizing same-sex marriage likely does presently moot the Governorsand plaintiffs appeals of the District Courts ruling upholding the constitutionalvalidity of Haw. Rev. Stat. HRS) 572-is ban on same-sex marriage. See j~gCabin Republicans v. United States, 658 F.3d 1162, 1166 9th Cir. 2011) percuriam) a case is moot when the challenged statute is repealed, expires, or isamended to remove the challenged language; when a statutory repeal oramendment gives a plaintiff everything [it] hoped to achieve by its lawsuit, thecontroversy is moot). In light of this present mootness, the Governor joins in, andsupports, plaintiffs motion seeking vacatur of District Judge Kays 1 OrderGranting HFFs Motion for Summary Judgment and Defendant Fuddys Motion forSummary 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 thesame order and judgment.

Equitable principles support vacatur of a lower court ruling where theappellant, that challenges the ruling below, loses its ability to appeal because ofmootness. 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 tovacate the district courts judgment and remand for dismissal of thecomplaint. See United States v. Munsingwear, Inc., 340 U.S. 36, 39 []1950). Vacatur ensures that those who have been prevented fromobtaining the review to which they are entitled [are] not treated as if therehad been a review. Id. It prevent[s] an unreviewable decision fromspawning any legal consequences, so that no party is harmed by what [theSupreme 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 fromthe judgment below caused the mootness by voluntary action. at 24. Becauseplaintiffs here, however, certainly did not cause the mooting event the passage of ct1 the Hawaii legislature being independently responsible for enactment of ct 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 9th2006) even a party who lobbied legislature for mooting legislation is notprecluded from seeking vacatur because [l]obbying Congress or a state legislaturecannot be viewed as causing subsequent legislation for purposes of the vacaturinquiry. 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 doso.).

The Governor himself is independently entitled to vacatur because he, too,like plaintiffs, cannot control the independent actions of the legislature. ChemicalProducers, 463 F.3d at 879 Even where new legislation moots the executivebranchs appeal of an adverse judgment, the new legislation is not attributed to theexecutive branch.). f the legislature did not pass the bill, the bill would not havebecome law no matter how much the Governor wanted the bill to pass. TheGovernor, 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 billpossible, 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 wouldhave voted against that bill, thereby proving that the lobbyist was a but-for cause ofthe legislations passage, Chemical Producers would still conclude that the lobbyistcannot be viewed as causing subsequent legislation for purposes of the vacaturinquiry. Ich And that makes sense because the ultimate responsibility for the billspassage rests in the hands of the legislature. Analogously, then, the Governorscalling the special session does not make him the cause of the legislation forpurposes 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 thebills passage for purposes of the vacatur inquiry. First, as noted above, if thelegislature did not itself pass the bill, there would have been no bill for theGovernor to sign. Second, even if the Governor had declined to sign the same-sexmarriage bill, as long as he did not veto it, the bill would have become law withouthis signature. Haw. Const. Article III, Section 16 .

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order and judgment. The Governor thus not oniy supports and joins plaintiffsmotion for vacatur, but also seeks vacatur as a movant.

Ultimately, however, it is unnecessary to resolve the issue of the Governorsindependent entitlement to vacatur, because plaintiffs are certainly entitled tovacatur, as already discussed.

Vacatur is appropriate to eliminate the now unappealable District Courtrulings, and preclude any possibility of their having preclusive res judicata orcollateral estoppel effect.2

Accordingly, the Governor agrees his and plaintiffs appeals are likelypresently moot. The Governor asserts that as a result of his and plaintiffs appealsbeing moot, this Court should vacate Judge Kays order and judgment under thevacatur doctrine, pursuant to plaintiffs and/or the Governors motions for vacatur.f and only if vacatur is granted, the Governor agrees that dismissal of his andplaintiffs appeals is warranted. The Governor does agree to dismissal of hisand plaintiffs appeals prior to vacatur being entered,3 or if no vacatur is entered.

2 The Governor, however, does not concede the existence or extent of anypreclusive effect of Judge Kays rulings in all or certain circumstances. This is to preclude any possibility of a court ruling that vacatur is not appropriateafter an appeal has been dismissed. Bancorp, 513 U.S. at 22-23 noting thatMunsingwear denied vacatur to United States because the United States shouldhave asked the Court of Appeals to vacate the District Courts decision before theappeal was dismissed.).

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If, and after. this Court vacates Judge Kays order and judgment, the Governor hasno objection to his and plaintiffs appeals being subsequently dismissed.4

f this Court, however, does not vacate Judge Kays order and judgment,then the Governor opposes dismissal of his and plaintiffs appeals. It would not befair for the Governor or the plaintiffs to be stuck with any potential preclusiveeffect 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 andjudgment, ~p4 at the same time also insists on dismissing the Governors appealover our objections a scenario we vigorously object to then the Governor asksin the alternative that any such dismissal of his appeal at least be a conditionalone. That is, the dismissal be conditioned on the following: if any lawsuit in anycourt now-existing, or occurring in the future) were to finally be resolved in sucha manner as to invalidate Act ls allowance of same-sex marriage, the Governorsappeal would automatically be revived or reinstated, and could proceed ahead.

41n order to preclude any possibility that the Governors agreeing to dismissal ofhis 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 itsappeal), 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.

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This conditional dismissal is necessitated by the actual existence of at leasttwo 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, anddid not, have the legal authority to authorize same-sex marriage. See Exhibits Athrough B complaints in the two lawsuits). Although the Governor believesthese lawsuits have absolutely no merit whatsoever,6 out of an abundance ofcaution, the Governor asks that any dismissal of his appeal on grounds ofmootnessunaccompanied by vacatur at least be a conditional one only. For in the event anyone of these suits existing or future) were to succeed in invalidating Act lsallowance of same-sex marriage however unlikely that may be), the formerHawaii ban on same-sex marriage would be revived, thereby rendering theGovernors appeal no longer moot. In that case, it would be critical that theGovernors appeal be revived or reinstated, so that he could proceed to appeal fromJudge Kays adverse rulings which had not been vacated).

f this Court, however, vacates Judge Kays order and judgment, which isour principal and primary request discussed in the initial portions of thismemorandum, then the Governor does not object to this Court entering a full

6indeed the underlying state constitutional challenge in the State court suit hasbeen rejected, ~ Declaration of Girard D. Lau at 5, and the federal suit has alsobeen 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 andjudgment have been vacated.

DATED: Honolulu, Hawaii, December 17, 2013.Is Girard D. LauGIRARD D. LAUROBERT T. N K TSUJIDeputy Attorneys GeneralAttorneys for Defendant-AppellantNeil S. Abercrombie, Governor,State ofHawaii

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Nos. 12-16995 12-16998IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUITNATASHA N. JACKSON, J NIN APPEAL FROMKLEID, and G RY BRADLEY, THE UNITED STATESDISTRICT COURT FORPlaintiffs-Appellants, THE DISTRICT OF HAWAII

vs. Dist. Ct. No. CV 11-00734 ACK-KSCNEIL S. ABERCROMBIE, Governor,State of Hawaii,

Defendant-Appellant,andLORETTA J. FUDDY, Director ofHealth, State of Hawaii,

Defendant-Appellee,and

HAWAII FAMILY FORUM, JUDGE: The Honorable Alan C. Kay,Intervenor- U.S. District Judge,Defendant-Appellee. District ofHawaii

DECL R TION OF GIRARD D. LAUPursuant 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 onmy personal knowledge and am competent to testify as to the matters set forthherein.

3. Attached as Exhibit A is a true and correct copy of the FirstAmended Complaint filed in McDermott v. Abercrombie, Civil No. 13-1-2899Haw. First Cir. 2013), minus the exhibits and the summons.

4. Attached as Exhibit B is a true and correct copy of the Complaintfiled in Amsterdam v. Abercrombie, U.S. Dist. Ct. Civil No. 13-00649 SOMKSC D . Haw. 2013).

5. In McDermott v. Abercrombie, our offices records reflect that onNovember 14, 2013, Judge Karl Sakamoto of the Hawaii Circuit Court for theFirst Circuit orally rejected the plaintiffs motion for a temporary restrainingorder and preliminary injunction. In an oral ruling issued that day from thebench, Judge Sakamoto concluded, as part of his rejectionof plaintiffs motion,that the Hawaii State Legislature has the power to pass Act providingmarriage equality) and that the Act was constitutional under HawaiisConstitution. In so ruling, Judge Sakamoto rejected the plaintiffs reading ofArticle 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 casehas not yet concluded.

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6. In Amsterdam v. Abererombie, our offices records reflect that onNovember 26, 2013, Judge Susan Moliway of the U.S. District Court for theDistrict ofHawaii 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 theAdmission ctsuch that he could be said to have suffered an injury to his rightsunder section 5 f). Order, Nov. 26, 2013, Civ. No. 13-00649. The court alsonoted that it was unclear whether Amsterdam intended to assert other allegedviolations 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 yetbeen filed. The courts November 26, 2013 order provided that if no. amendedcomplaint is filed by December 24, 2013, judgment will be entered in favor of theDefendants.

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

Is Girard D. LauGIRARD D. LAUAttorney for Defendant-AppellantGovernor Neil S. Abererombie

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FiRs1C11~:.Cf~.Ir C01j~:TROBERT K. MATSTJMOTO 1330 S1A HA~AI~345 Queen Street, Suite 70 1Honolulu, HI 96813 2q13 NOV I AH 8:23Telephone: 808) 585-7244And H. CHINGCLERK~JOHN R. DWYER, JR. 1445Dwyer SchraffMeyer Green1800 Pioneer Plaza900 Fort Street MallHonolulu, Hawaii 96813Telephone: 808) 534-4444Attorneys for PlaintiffsREPRESENTATIVE BOB McDERMOTT,GARRET HASHIMOTO, WILLIAM E.K.KUMIA, VI LANGDON

IN THE CIRCUIT COURT OF THE FIRST CIRCUrrSTATE OF HAWAII

REPRESENTATIVE BOB CiVIL NO. 13-1-2899-10 KKSMcDERMOTT, GARRET HASHIMOTO, WILLIAM E.K. FIRST AMENDED COMPLAINT; EXHIBITSKUMIA, DAVID LANGDON, A-B; SUMMONSPlaintiffs,

vs . GOVERNOR NEIL ABERCROMBIE, SENATOR DONNA MERCADO KIM, REPRESENTATIVE JOSEPH SOUKI, SENATOR CLAYTON JIBE, REPRESENTATIVE KARL RHOADS,

Defendants.

~ do ~ereb~ certify that th is Is full, true aMcorrect capy ~t the lie in this office.L1~ V ~Cler~tircuit Courr dst Cireut292741.1

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FIRST AMENDED COMPLAINTCOMES NOW PLAINTII~FS above named, through their attorneys, Robert K.

Matswnoto and John R. Dwyer, Jr., and hereby files their claims against Defendants abovenamed.

1. PlaintiffRepresentative BOB McDERMOTT, is a resident of the City and Countyof Honolulu, State ofHawaii, and is the duly elected representative ofDistrict 40, House ofRepresentatives) State ofHawaii; PlaintiffGARRET HASHIMOTO, is a resident of the City andCounty ofHonolulu, State ofHawaii; PlaintiffWILLIAM E.K. KUMIA, is a resident of the Cityand County ofHonolulu, State ofHawaii; and Plaintiff VI LANGDON, is a resident of theCity an d County ofHonolulu, State ofHawaii hereinafter collectively the Plaintiffs).

2. Defendant Governor Neil Abercrombie, hereinafter Governor Abercrombie, isa resident of the City and County ofHonolulu and is the duly elected governor of the State ofHawaii.

3. Defendant Senator Donna Mercado Kim, hereinafter Senator Kim, is a residentof the City and County ofHonolulu, is the duly elected senator from Senate District 14 and thepresident of Senate of the State ofHawaii.

4. Defendant Representative Joseph Souki, hereinafter Speaker Souki is a residentof the island and County ofMaui, is the duly elected representative ofDistrict 8 of the StateHouse ofRepresentatives and the Speaker of the House ofRepresentatives of the State ofHawaii.

5. Defendant Senator Clayton Flee, hereinafter Senator Hee is a resident of theCity and County ofHonolulu, State ofHawaii and is the duly elected senator of Senate District23.

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6. Defendant Karl Rhoads, hereinafier Representative Rhodes, is a resident of theCity and County of Honolulu, State ofHawaii, and is the duly elected representative ofHouseDistrict 29.

7. All of the Defendants are being sued in their capacities as duly elected officials ofthe State of Hawaii and not as individuals.

8. PlaintiffMcDermott brings this action in his official capacity as a member of theState ofHawaii House ofRepresentatives and not in his individual capacity.

9. Both Plaintiffs and Defendants are bound by Section I of the Hawaii StateConstitution which states, All political power of this State is inherent in the people and theresponsibility for the exercise thereof rests with the people. All government is founded on thisauthority.

10 . On or about August, 2013, Governor Abercrombie called for a special session ofthe legislature of the State ofHawaii to consider and to act upon a marriage equity, i.e. asame sex marriage bill.

11 . Plaintiffs are informed and believe and upon such information and belief allegenotwithstanding the non-concurrence of both Senator Kim and Speaker Souki, GovernorAbercrombie unilaterally se t 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 allegethat the truncated special session was called to favor a selected few over the rights of the generalpopulace ofHawaii.

13 . On or about October 24, 2013, there was a public announcement made to thegeneral 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 proposedbill, Senate Bill 1, together with instructions on how to submit written testimony. A true copyof 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 was24 hours prior to start of the hearing an d date and time before the Senate Judiciary and Laborcommittee, which commenced at 10:30 a.m., October 28, 2013.

15. Article 1, section 23 of the Hawaii State Constitution states, The legislature shallhave the power to reserve marriage to opposite sex-couples, hereinafter Opposite Sex MarriageAmendment.

16. Said Opposite Sex Marriage Amendment was proposed by the Hawaii Legislatureto the people ofHawaii, who overwhelmingly voted by a greater than 2/3 majority to approve theAmendment by way of a Referendum, which constitutionally validated the Hawaii StatuteSection 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 afavorable vote, the State legislature succinctly stated what the meaning of a Yes vote for thereferendum meant, i.e. a Yes vote would add a new provision to the Constitution that wouldgive the Legislature the power to reserve marriage to opposite sex couples only. A true copy ofthe State legislatures statement is attached hereto as Exhibit B and by reference is made a parthereof.

18 . As a member of the State House ofRepresentatives at that time in 1998, PlaintiffMcDermott voted in favor ofH.B. No. 117, C.D. 1, which would allow the people of Hawaii todecide for themselves whether to allow same sex marriages or to limit marriages to opposite sexcouples only.

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19. PlaintiffMcDermott participated in meetings, caucuses, discussions and debatesand concluded that if the people ofHawaii voted in favor of the said referendum, whichultimately led to Article I, section 23, marriage in Hawaii would be limited to opposite se xcouples only and that another constitutional amendment would be required to allow same sexcouples to marry.

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

21. Further Plaintiffs are informed and believe and upon such information and beliefallege that because of the Opposite Sex Marriage Amendment and the understanding of thevoters 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 Statelegislature ha s no direct Constitutional right or statutory authority, to enact any same sexmarriage laws.

22. As a member of the House Judiciary committee and as a voting member at large,PlaintiffMcDermott has been asked to review, consider and vote in the House Judiciarycommittee on said SB 1 and in the House ofRepresentatives at large.

23. By reason of the meaning language of the Opposite Sex Marriage Amendmentand Plaintiffs position on the Opposite Sex Couple Amendment, a controversy exists andfurther, there is the danger of immediate and irreparable harm if a single marriage license isissued to a same-sex couple, a determination must be made on i) the scope and breadth of theOpposite Sex Couple Amendment, and ii) whether the State Legislature ha s the right to enactany laws which would allow same sex couples the right to marry notwithstanding the restrictions

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ofmarriage as determined by the said Opposite Sex Couple Amendment and the vote of thepeople ofHawaii establishing such an Amendment.

24. This action is brought pursuant to Chapter 632, Declaratory Judgments, HawaiiRevised Statutes, and Plaintiffs are entitled to injunctive pursuant to Rules 7 b) and 65 b) of theHawaii Rules ofCivil 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 couplesonly; and further that an amendment to the Hawaii Constitution is necessary for the StateLegislature to enact any laws which would allow same sex couples to marry in the State ofHawaii.

2. That the Court declare any bill or act which allows same sex marriage in Hawaiito be declared null and void until another State constitutional amendment is voted upon by thepeople ofHawaii which would allow same sex couples to marry in the State ofHawaii.

3. That the Court declare that injunctive relief is appropriate because of thepossibility and existence of immediate and irreparable injury.

4. That the Court award Plaintiffs their reasonable attorneys fees and costs.

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

premises.DATED: Honolulu, Hawaii, October 3 , 2013

MAJOH~*R. DWYE~Attorneys for PlaintiffsREPRESENTATWE BOB McDERMOTT,GARRET HASH1MOTO, WILLIAM E.K.KUMIA, DAVID LANGDON

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C. Kaul Jochanan Amsterdam1425 Pensacola St., 12Honolulu, HawaII 96822808-450-1166~Jialohal~yahoo.comProSe

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF;HAWAIIC Kaui )ochanan Amsterdam1415 Pensacola St., 12Honolulu, Hawaii 96822Native Hawaiian, Beneficiary

Plaintiff

Governor Neil Abercrombie, Individually andGovernor of the State of Hawaii, Senator an dIndividually Clayton Hee, Representative andIndividually Joseph Souki, Senator and Individually Donna Mercado Kim, and Representative and Individually Karl Rhoads.State Capitol415 S. Beretania St.Honolulu, Hawaii 96813

CIVILNO. CV13 ~O6499c.M

PLAINTIFFS MOTION FOR JUDGEMENTTO ENJOIN SENATE BILL 1, HRS, CHAPTER572, EQUAL RIGHTS, ACT RELATING TOTO INDIVIDUALS OF THE SAME SEX,11/13, 2013; HAW~AII MARRIAGE ~Y~U~PY AC 1~ ~O 3COMPLAINT;CERTIFICATE OF SERVICE;EXHIBIT: A, BMOTI~W FOR TEMFOR.ARY INb1tJNQTION

COMPLAINT AN D MOTrON.The Plaintiff, C. Kaui Jochanan Amsterdam, respectfully comes before the Honorable United

States District Court for the District of Hawaii an d requests an order for judgement on the Motion

Case 1:~-~- ~c~4~SC Document 1 Piled 11/25/13 Page 1 f 4 PagelD : 11~r~t STA~VESn~s ~n~S~FRrcT OF HAWAII

NOV 25 2 13

VS.

~

Defendants

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 : 2OF THE SAME SEX, 11/13/2013, FROM SENATE BILL 1, HRS, CHAPTER 572, EQUAL RIGHTS.

BASIS OF lAWThe applicable Rule of Law of this case an d 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 LegislativeOfficers who originated and voted for an d advanced the Bill made into Law. The Hawaii Admission ActOf 1959 placed a fiduciary responsibility on the State of Hawaii and its representative as previouslyincluded. The Defendants as Fiduciaries have been in violation of their duty as Representatives of theState as equity requires. According to Trust Law, a breach need not be intentional or malicious. Themajority of Native Hawaiians or Kanaka MaolI who testified at hearings regarding SB 1 were againstit and requested that their cultural an d spiritual values and beliefs, which conform to the Motto ofthe State of Hawaii that the life of the land is perpetuated in righteousness/ Ua Mau Ka Ea 0 Ka Ama Ka Pono, which were established during the time of a King and Queen of The Kingdom of Hawaii, andwhich contributed to the basis for not accepting SB 1, be respected and maintained. Additionally, themajority of non-Hawaiian testifiers and, indeed, overall testifiers had similar or the same values, whichdidnt support SB 1 and support traditional values as expressed in traditional marriage. Even thoughthe Supreme Court of the United States upheld the right of testifiers who didnt support SB 1, theLegislators, 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, an d violation of Native Hawaiian Human andCivil Rights as provided by the First an d Fouteenth Amendments to the US Consititutiori and the HawaiiAdmission Act of 1959.

DAMAGE AND INJURYThe injurious and damaging results of such violations are presented in the Plaintiffs injunction

2

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Case 1:13-cv-00649-SOM-KSC Document 1 Filed 11/25/13 Page 3 of 4 PagelD : 3and include individual and family weakening, destabilization, and erosion, subsequent further down-trends such as Native Hawaiians having the shortest lifespan, highest unemployment, highestincarceration, and lowest educational achievement, loss and weakening of parental roles,influence, and effectiveness, weakening and loss of self-identity and positive image, and aweakening of motivation, self-determination, and overall achievement. Such deficient thoughtand action by the Defendants toward Native Hawallans can lead to further alienation, loss of theAloha Spirit, arid societal breakdown. Accordingly requests, the Plaintiff requests enjoirimentof this Law. Native Hawaiians in this situation should have, but have not been given priority.

STANDINGThe 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 Ha-Hawaiian Trust Fund established by the Hawaii Admission Act of 1959, president of three NativeHawaiian humanitarian organizations, provider of health, cultural, and social programs for HawaiianKupuna, an author also on Hawaiian topics, a Hawaiian Jewish educator educated at 8 universities inthe US, Europe, and the Middle East, an international Project coordinator, and leader in the NativeHawaiian, and Jewish communities. Such practical service and work, background, educationalpreparation, and heritage qualifies him to present this case.

FEDERAL JURISDICTIONAs 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 s uch 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 expressed in the Hawaii Admission Act of 1959, necessary and sufficient consideration, attention,

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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 Actof 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 RehabilitationAct of 1973 (29 U.S.C.A. Section7g4), and Title Vt, Sandovai v. Hagan C.A. Ii A la 1999, 197F. 3D 484.

CONCLUSIONThus, 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 toas k judgement in favor of the Plaintiff an d 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 advanceJustice. Finally, the Plaintiff expresses Mahalo for the Courts consideration an d acknowledges TheLord G-d.

Nav~abe~ 25, 2013Dated: Honolulu, Hawaii,____________________________________________________CL

PlaintiffProSe

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Case 1:13-cv-00649-SOM-KSC Document 1-1 Piled 11/25/13 Page 1 of 1 PagelD : 5

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

Exhibit B - Page 5


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~zhibit S

.1.:

Exhibit B - Page 6


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C

:1

Exhibit B - Page 7


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Case 1:13-cv-00649-SOM-KSC Document 1-3 flIed 11/25/13 Page 1 of 4 PagelD : 8 ~7i76~7?/~ 9C~?a~a~t77~S ~gp

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 BranchHawaii

Joseph Kaniaji Hao, ...~...flrank DeLuz liiDist. 1 P1st 5____Lani Bowman, ~~Robert thakuaJ~neDisf. 2 . Dist. 6~ReynoIds N. Kamakawiwoole Jr.,. ____Beck Hawaihae...RodriquezP1st. 3 Dist. 7_Elroy TL Osorlo

DIsL 4 Oahn..~DavidIng ____Lisa Mitchell,Dist. 1 DIst, 5____Aldeous Paalani, _Nanj Akeo,Dist. 2 Dist. 6_Chrjstjne Ualanj Brown, ____John H. Nabinu, Sr.

fist. 3 fist. 7~_Kyle JK Chock, ~Neddje G. Waimau~N,~uhaDist. 4 Dist, 8

2

Exhibit B - Page 8


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1Case 1:13-cv-00649-SOM-KSC Document 1-3 FHed 11/25/13 Page 2 of 4 PagelD :9??6 ~1i~76~r/K CV~7~T~r~7j7

Molokal, Maui, Lanai, and Kahoolawe____Walter Ritte, _Solomon Pilli Kahoohalahala,Dist. 1 Dist. 4____Samuel Lyons Kealoha, Kehaulanjj?jljmoeaffi,Dist. 2 Dist. 5

_Clarence K. Kainai, Sr.., ~Daisy M. Lind,Dist. 3 Dist. 6Kauai and Niihau

_~Cathy Kalehua Ham Young,Dist. 1_Mary Thronas,Dist. 2

Raymond Duvachdlle,Dist. 3

Exhibit B - Page 9


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,Case 1:13-cv-00649-SOM-KSC Document 1-3 Filed 11/25113 ~. Page 3 of 4 PageID : 1077/Z Wt76~Th4~ ~VE~ N~t7

rn ~cztsg C7 ljcg gHerein are the 24 Nobles of the House of Nobles. Theyare presented in alphabetical order of their last names.

President: Warren Perry Vice President: Clifford Hash imotoThe Legislative Branch

Hawaii____Thomas Cummins____Patrick Hoa pill

George KaeoOahu

____Rolland Ahuna____William Kaae___ElmerKKaaj___John L. Low___KimoK.Low

Maui, Molokai,____William Garcia.____Clifford flashimoto___Samuel K. Kaai

_David Kahanu____Ernest Kanehajina

George Kauhane

___Rod A. MaileCkghorn McKee

_Raymond Pua____Charles Rose

and LanaiAl(oyslus) Spencer

____Michael Tancayo____Kalani Tassjl

2

Exhibit B - Page 10


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Ninth Circuit Case Nos. 12-16995 12-16998CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing motionlresponsememorandum with the Clerk of the Court for the United States Court of Appealsfor 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 thatservice will be accomplished by the appellate CM ECF system.

DATED: Honolulu, Hawaii, December 17 2013.Is Girard D. LauGIRARD D. LAUROBERT T. N K TSUJIDeputy Attorneys GeneralAttorneys for Defendant-Appellant

Neil S. Abercrombie, Governor,State ofHawaii


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12-16995 #118