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Nos. 12 16995 12 16998 01/03/2014 ID: 8924900 IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUITNATASHA N. JACKSON JANIN APPEAL FROMKLEID, and GARY BRADLEY THE UNITED STATES

DISTRICT COURT FORPlaintiffs-Appellants THE DISTRICT OF HAWAIIvs. Dist. Ct. No. CV 11-00734 ACK KSCNEIL S. ABERCROMBIE GovernorState of Hawaii,

Defendant-Appellantand JUDGE: The Honorable Alan C. Kay,aption continued on next page U.S. District JudgeDistrict of Hawaii

DEFENDANT-APPELLANT GOVERNOR NEIL S. ABERCROMBIESREPLY IN SUPPORT OF GOVERNORS MOTION FOR VACATURCERTIFICATE OF SERVICE

GIRARDD.LAU 3711ROBERT T. NAKATSUJI 6743Deputy Attorneys General425 Queen StreetHonolulu Hawaii 96813Telephone: 808) 586-1360Facsimile: 808) 586-1237Girard.D.Lau@hawaii .govRobert.T.Nakatsuji@hawaii .govAttorneys for Defendant-Appellant Neil S.Abercrombie Governor State of Hawaii

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Case: 12-16998 01/03/2014 ID: 8924900 DktEntry: 124 Page: 1 of 10

Case 12-16995 DktEntry: 122

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LORETTA J FUDDY Director ofHealth tte of awaii

DefendantAppelleend

HAWAII FAMILY FORUMIntervenorDefendant Appellee.


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Defendant-Appellant Governor Neil S. AbercrombiesReply in Support of Governors Motion for Vacatur

Pursuant to FRAP 27, Governor Neil Abercrombie files this brief reply toaddress and rebut specific arguments made by Intervenor-Appellee Hawaii FamilyForum H FF in its response to the Governors motion for vacatur.

First, HFF incorrectly characterizes appeal nos. 12-16995 and 12-16998 asnot moot. Pursuant to th is Courts own case law, the passage and enactment of Act Second Spec ial Session, 2013 presently moots these appeals. ChemicalProducers and Distributors Assn v. Helliker, 463 F.3d 871 , 875 9 th Cir. 2006 ,quoting Bunker Ltd. Partnership v. United States, 820 F.2d 308, 3119th Cir.1987 Where intervening legislation has settled a controversy involving onlyinjunctive or declara tory relief, the controversy has become moot.; Log CabinRepublicans v United States, 658 F.3d 1162, 1166 9th Cir. 2011 per cu riam acase is moot when the chal lenged sta tute is repealed, expires, or is amended toremove the challenged language.

Contrary to HFFs argument, the two frivolous law suits that challenge thevalidity of Act that are cu rrently pending in the Hawaii state and federal districtcourts, do not give rise to a live controversy . The fact that independentlitigation challenges the new enactment that satisfies the claims in the present

FRAP 27a 4 specifically au thorizes a movant which the Governor is to file areply to a response .532 8_I DOC


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action is not likely to defeat mootness Courts are not interested in predictingthe outcome or consequences of proceedings in another court nor in retaining

jurisdiction as an opportunity for collateral attack on another courts eventualjudgment 13C Wright, Miller Cooper, Federal Practice and Procedure Juris. 3533.6 rd ed. 2008); see also Miller v. Benson, 68 F.3d 163, 164-65 7th Cir.1995) Victory in the legislative forum makes judicial proceedings moot.Whatever the ou tcome [of a pending state lawsuit chal lenging the new legislation),this federal case lacks any continuing significance.).

As this Court recognized , a statutory change is generally enough to moot acase, even if the legislature possesses the power to reenac t the statute after thelaw suit is dism issed. Chem. Producers and Distributors Assn v. Helliker, 463F.3d 871, 878 9th Cir. 2006), quoting Native Viii . OfNoatak v. Blatchford, 38F.3d 1505, 1510 9th Cir. 1994). The exceptions to this general line of ho ldingsare rare and typ ica lly involve situations where it is virtu lly cert in that therepealed law will be reenacted.

Here, Act which legalizes same-sex marriage, presently moots Plaintiffsand the Governors appeals of the District Courts ruling upholding theconstitutionality of HRS 572-is former ban on same-sex marriage. Act is nottemporary leg islation there is no statutory time lim it, or other language withinthe statute, that would render the law temporary. And any contention that one of


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the present frivolous lawsuits would result in Act ls allowance of same sexmarriage being struck down is speculative at best, and by no means v irtuallycerta in .

Second because Plaintiffs civil case is moot, Plaintiffs are entitled, as amatter of law, to vacatur of the district courts decision below. The establishedpractice of the Court in dealing with a civ il case from a court in the federal systemwhich has become moot while on its way here or pending our decision on themerits is to reverse or vacate the judgment below and remand with a direction todismiss. U.S. v Munsingwear 340 U.S. 36 39 1950; NASD DisputeResolution v Judicial Council, 488 F.3d 1065 1068 9th Cir. 2007 vacatur isgenerally automatic in the Ninth Circuit when a case becomes moot on appeal,absent movant causing the mootness .

Plaintiffs have taken absolutely no action that caused this case to becomemoot. HFF does not dispute this. It was the Hawaii legislature through itsindependent ac tion of passing Act that caused the mootness. HFF effectivelyconcedes this point it does not dispu te the fact that Plaintiffs did not participate inthe mooting event. For that reason, this Court should itself direct vacatur, withoutremand for further consideration by the district court. Chemical Producers andDistributors Assn v Helliker, 463 F.3d 871 878 Cir. 2006 Where mootness


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was caused not by the voluntary action of the party seeking vacatur but byhappenstance or the vagaries of circumstance, we direct vacatur. .

HFF incorrectly argues that vacatur is not necessary because the decisionbelow [does not] pose any adverse impact on the appellees or the public interest.Response at 6. But the district courts decision below has legal consequences.Even though the district courts decision does not bind any court it is still on thebooks, may carry persuasive value and is a decision to which the Hawaii federaldistrict court, and other federal courts, could look to and cite. Indeed, if the factthat district court decisions do not bind other courts precluded vacatur then vacaturof district court decisions would never occur. Vacatur clears the path for futurerelitigation of the issues between the parties and eliminates a judgment review ofwhich was prevented through happenstance. Dilley v. Gunn 64 F.3d 1365, 13699 th Cir. 1995 quoting Munsingwear 340 U.S. at 40 .

There is simply no legal basis for HFFs insistence on Plaintiffs or theGovernor pointing to any other practical hardship. HFF Response at 7 n. Thecourts have imposed no such additional requirement on the generally automaticand established practice of vacating judgments in cases that have become mooton appeal. NASD, supra; Munsingwear supra.

2 Moreover, no t vacating would impose definite practical hardships on Plaintiffsand the Governor were the new legislation to be repealed or invalidated. In thatcase, opponents would claim any new suit is res judicata/collateral estoppel barred4


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Third the Governor is also entitled to independently seek vacatur. We notehowever that because Plaintiffs are undeniably entitled to vacatur, this Court neednot reach the question of whether the Governor is independently entitled tovacatur That said, the Governor is independently entitled to vacatur. HFFsreliance on Dilley v. Gunn, 64 F 3d 1365 9th Cir. 1995), and American CivilLiberties Union of Nev. v. Masto, 670 F 3d 1046 9th Cir. 2012), is misplacedHFF cites both cases for the general legal proposition that an appellants request forvacatur is subject to more exacting scrutiny when the appellant itself caused the[dismissal] by his own voluntary act. But the Governor simply did not andcould not by his own voluntary actions, moot the appeals. As the Governorexplained in his motion for vacatur see page note 1), the Governor could notenact the legislation by himself; the legislature which he has no control over, hadto independently pass the bill. Moreover the Governors signing of the bill wasnot necessary to the bills enactment; doing nothing would have resulted in thebills enactment without his signature. Haw. Const. Art. III, Sect. 16.

HFF cites no case that suggests the Governors role in the special session

by the district courts unvacated ruling Contrary to HFFs assertion, any new suitwould likely challenge the same law, i .e ., the same HRS 572-1 ban challenged inthis case.


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made him, for vacatur purposes the cause of the legis lations passage. In anyevent, laintiffs indisputably did not cause the mooting legislation; accord inglythey are entitled to automatic vacatur by this appellate cour t. Chemical Producerssupra.

In sum the caselaw is clear that this o urt should immediately vacate thedistrict courts order and judgment below, and upon doing so enter a full andunconditional dismissal of Plaintiffs and the Governors appeals. Remand iscontrary to Ninth Circuit caselaw, and would be a waste of judicial resources. Forthe reasons discussed above, HFFs con ten tions that this case is not presently moot,and that vacatur is not presen tly warranted, are utterly without merit.

Valero Terrestrial Corp. v Paige, 211 F.3d 112 121 4th Cir. 2000, certainlydoes not stand for this proposition . In Valero, the Fourth Circuit simply noted,without more, that mootness was caused by the state legislatures statutoryamendment, not by the actions of any of the defendants before this court, all ofwhom are state executive offic ials , none ofwhom is the Governor . Id at 121Valero does explore whether the Governors participation in the legislativeprocess can be deemed to cause legislation to pass and so under whatcircumstances.In the event that this Court does not vacate the district courts order and judgmentthen the Governor urges this Court to not dismiss his and Plaintiffs appeals, or inthe al ternative, to enter only a conditional dismissal That is the Governor wouldask that any dismissa l unaccompanied by vacatur be conditioned on the following:if any lawsuit in any court now-ex ist ing, or occurring in the future were to final lybe resolved in such a manner as to invalidate Act ls allowance of same-sexmarriage the Governors and Plaintiffs appeal would be automatically revived orreinstated and could proceed ahead.


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DATED: Honolulu Hawaii January 3 2014.Is Girard D. LauGIR RD D. L UROBERT T. N K TSUJIDeputy ttorneysGeneral ttorneysfo r Defendant ppellantGovernorNeil S. bercrombie

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Ninth Circuit Case Nos 2 6995 2 6998CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing replymemorandum with the Clerk of the Court fo r the United States Court of Appealsfor the Ninth Circuit by using the appellate CM/ECF system on January 3, 2014.

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, January 3, 2014.Is Girard D. LauGIRARD D. LAU

ROBERT T. NAKATSUJIDeputy Attorneys GeneralAttorneys fo r Defendant AppellantNeil S. Abercrombie GovernorState of Hawaii

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