ROBERT K. MATSUMOTO #1330345 Queen Street, Suite 701Honolulu, Hawaii 96813Telephone: (808) 585-7244

And

JOHN R. DWYER, JR. #1445Dwyer SchraffMeyer & Green1800 Pioneer Plaza900 Fort Street MallHonolulu, Hawaii 96813Telephone: (808) 534-4444

Attorneys for PlaintiffsREPRESENTATIVE BOB McDERMOTT,GARRET HASHIMOTO, WILLIAM E.K.KUMIA, DAVID LANGDON

REPRESENTATIVE BOBMcDERMOTT, GARRETHASHIMOTO, WILLIAM E.K.KUMIA, DAVID LANGDON,

GOVERNOR NEIL ABERCROMBIE,SENATOR DONNA MERCADO KIM,REPRESENTATIVE JOSEPH SOUKI,SENATOR CLAYTON HEE,REPRESENTATIVE KARL RHOADS,

Defendants.

) C1VILNO. 13-1-2899-1OKKS)

1S1;:

LLLJ

2ii3fl3V 13 FIf3: :31

PLAINTiFFS’ SUPPLEMENTALMEMORANDUM OF LAW IN SUPPORT OFITS MOTION FOR TEMPORARYRESTRAIMNG ORDER AGAINSTDEFENDANTS; DECLARATION OF JOSEPHBRICE MOORE, JR.; DECLARATION OFJOHN R. DWYER, JR. (ATTACHING THEDECLARATION OF EVA ANDRADE ANDTHE DECLARATION OF MICHAEL W.PERRY AS EXHIBITS A and B,RESPECTIVELY); CERTIFICATE OFSERVICE

Hearing Date: November 14, 2013 (Thursday)Hearing Time: 8:15 a.m.The Honorable Karl K. Sakamoto

No Trial Date Has Been Set

A. ;Pj

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

Plaintiffs,

vs.

)))))))))))))))

292834.1

PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF ITSMOTION FOR TEMPORARY RESTRAINING ORDER AGAINST DEFENDANTS

COME NOW Plaintiffs BOB McDERMOTT, in his capacity as a member of the State ofHawaii of Representatives and not in his individual capacity, GARRET HASHIMOTO,WILLIAM E.K. KUMIA and DAVID LANGDON (collectively the “Plaintiffs”), by and throughtheir attorneys, the law firms ofRobert K. Matsumoto and Dwyer SchraffMeyer & Green, andrespectfully submits this Supplemental Memorandum in Support of Its Motion for TemporaryRestraining Order Against Defendants.

I. INTRODUCTION.

Because this is the third time these Plaintiffs have been before the Court on this issue, toavoid the drudgery of repeating the background, some of the discussion regarding the standardrequirements of injunctions, as well as many of the arguments, Declarations, and Exhibits set forthin prior Memoranda, they will not be repeated here; however, they are incorporated herein by thisreference. Conversely, this Memorandum will address the issues raised by the State ofHawaii(the “State”) in its previous Memorandum in Opposition, and a number of other issues.

The goal of this Supplemental Memorandum is to demonstrate to the Court (i) that theOctober 14, 2013 Opinion Letter to Senator Les Ihara from the Attorney General for the State ofHawaii (Op. No. 13-1) misinterprets Article I, Section 23 of the Constitution ofHawaii; and thatmisinterpretation has raised a justiciable and actual controversy, (ii) that this matter is one of GreatPublic Importance and Interest; and (iii) that the federal justiciability standards that require ashowing of a justiciable controversy, ripeness, and standing are not applicable in Hawaii inDeclaratory Judgment actions.

However, in spite of the fact that the federal justiciability standards ought not be barriers tojudicial review here, the Plaintiffs have standing. In addition, this Memorandum will also showthat Plaintiffs have a likelihood of success on the merits, whether or not the “sliding scale”analysis is used.

II. ARGUMENT.

A. Actual Controversy.

On October 13, 2013, the Attorney General (the “AG”) issued his Opinion (“Op.No. 13-1”) to State Senator Les Ihara, Jr. In Op. No. 13-1, the AG reviewed the history and

—1—292834.1

litigation involving Section 572-1, HRS, analyzed the proposed Constitutional Amendment, anddetermined the meaning and intent (see pg. 6 of Op. No. 13-1) behind the proposed Amendment,Article I, Section 23 of the Hawaii Constitution (the “Amendment”). While a number of the AG’sconclusions and advice to the Legislature (in Op. No. 13-1) regarding the Legislature’s

Constitutional “power” to define marriage in Hawaii granted by the Amendment are wrong anddirectly inconsistent with the Constitution’s mandate, three of those opinions will be addressedhere.

At Pages 5 and 7 of Op. No. 13-1, the AG concludes that based on his analysis ofArticle I, Section 23 (the “Amendment”):

(i) the Legislature was given the power to restrict marriages toheterosexual couples, “should it choose to do so”; (ii) theAmendment does not bar the Legislature from considering a bill thatwould allow same-sex marriage, and (iii) that it will not necessary tofurther amend the Constitution if the Legislature desires to enactlegislation to allow same sex marriages.

Because Plaintiffs believe that the AG’s Opinion failed to recognize the existenceand continuing legal effect of Section 572-1, HRS, and abrogates and ignores the meaning andintent of the Constitutional Amendment and effectively nullifies the overwhelming Vote ofHawaii’s citizens in 1998 (69.3% voted “Yes” and only 28.7% voted “No”), the Plaintiffsrespectfully disagree with his interpretation. Plaintiffs believe all political power rests with thePeople and that the right of the citizens to vote should be counted as a fundamental right that isentitled to strict protections by the Court. They believe that the Voters intended to limit the Powerof the Legislature on this issue, and that the Amendment does just that. Under Hawaii law, aconflicting interpretation of a party’s rights under the law is considered to be an actual controversy.Shadowens v. Hawaii Housing Authority, 53 Haw. 213 (1971).

The State argues that Plaintiffs are seeking an “Advisory Opinion”; but thatargument is merely “make-weight”. An Advisory Opinion adjudicates nothing and binds no one;while a Declaratory Judgment is a binding adjudication. Cincinnati Metropolitan HousingAuthority v. Cincinnati District Council No. 5], 22 Ohio App. 2d 39 (1969). Here, Plaintiffs areseeking a binding determination as to the meaning of the Amendment.

B. Matters of Great Public Importance.

The matter before the Court involves an Opinion (Op. No. 13-1) of the AG that wasissued to support a significant change to a traditional, important, and valued cultural norm; a norm

-2-292834.1

that involves mores that have benefitted the health and welfare of our society for many, many

generations. However, when dealing with a matter of Great Public Importance, Plaintiffs

recognize that such a characterization is a question that is within the sole determination and the

province of the Court.

Frankly, it is difficult to see how the State could even argue (and it has chosen not

to do so) that this is not a matter of Great Public Importance. Given (i) the size and emotions of

the “Let The People Vote”, (ii) the recent activities of the People at the Capitol, (iii) the fact that

over 5,000 People signed up to testify before the Legislature (with nearly 90% testifying that

Hawaii’s cultural tradition of marriage should be preserved), and (iv) the longest legislative

Hearing in the history ofHawaii, this situation may be the penultimate example of a matter of

Great Public Importance, and it crosses all racial, gender and age categories. It is respectfully

suggested that for these reasons the State has not contested this issue. The Court is dealing with a

matter of Great Public Importance.

C. Justiciable Barriers.

Once the Court determines that this Declaratory Judgment action involves a matter

of Great Public Importance, this Court will no longer be bound by the standard federal justiciable

barriers or standards (Actual Controversy, Ripeness, and Standing). The law across the country

supports the proposition that in matters of Great Public Importance, courts will eliminate or relax

the justiciability standards. S, Waskakie County v. Herschler, 606 P.2d 310 (Wyo. 1980).Hawaii follows that law as the Hawaii Supreme Court has made it abundantly clear that:

Federal justiciability standards are inapplicable in state courtdeclaratory judgment actions involving matters of greatimportance. Bronster v. Yoshina, 84 Haw. 179 (1997); seealso, Bush v. Watson, 81 Haw. 474 at 479 (1996), quotingAged Hawaiians v. Hawaiian Homes Commission, 78 Haw.192 (1995). [Emphasis supplied.]

In fact, the Bronster court went even further to clarify the rule in Hawaii and held that the “needs

ofjustice” is the ultimate “touchstone”. Id.

Professor Anderson, who wrote the treatise on declaratory judgment matters,

explains that justiciability standards, including Actual Controversy and Standing in matters that

involve Great Public Importance are treated with great liberality, and that courts seem to assume

that they simply possess the inherent power to grant Declaratory Judgment regarding matters of

Great Public Importance. 1 Anderson, Declaratory Judgments, Section 63, p. 126.

-3-292834.1

P. Likelihood Of Success On The Merits.

On this issue, Hawaii courts use a “sliding scale”, and they balance the harm to the

Plaintiffs if this Court refuses to grant relief to them, against the harm to the State this Court

grants relief to Plaintiffs. Because that balance of harm decidedly tips in favor of the Plaintiffs

(whose harm will be immediate and irreparable), the Plaintiffs ought not be required to show as

robust a “likelihood of success” on the merits as they would otherwise be required to show.

Arakaki v. Cayetano, 198 F.Supp.2d 1165 (D.Hawaii 2002); Jou v. Chang, 350 F.Supp.2d

(D.Hawaii 2004).

However, even though that “sliding scale” analysis benefits Plaintiffs, it is likely

that Plaintiffs will succeed on the merits, because in simple terms, the Plaintiffs are only asking

this Court to provide a binding interpretation of the meaning of the 1998 Amendment, that rejects

the interpretation set forth in Op. No. 13-1. Plaintiffs believe that they can do so. That belief is

justified by the history of the Amendment that was designed to validate Section 572-1, HRS and

end the litigation, if the Voters voted “Yes”.

Plaintiffs are not requesting a determination of the meaning of language in a

contract (where the “intent” of the contracting parties would be at issue); and they are not

requesting an interpretation of a statute (where legislative “intent” would be at issue). Rather, the

Plaintiffs are requesting a binding determination of the meaning of the Constitutional Amendment

that was voted on and ratified by the Voters in 1998. Consequently, the “intent” of the Legislature

is irrelevant (and is NOT at issue here) to determine the meaning of that 1998 Constitutional

Amendment. However, common sense and case law indicates that the interpretation of a

constitutional provision should turn on the intention of the citizens as “determined by the language

used and the surrounding circumstances”, and that mere grammatical construction ought not

control the interpretation. Groves v. Slaughter, 40 U.S. 449 (S.Ct. 1841); Illinois Cent. R. Co. v.

Ihlenberg, 75 F. 873 (C.A. 6 1896). So the intent of the Voters is at issue.

Plaintiffs believe that the AG’ s interpretation of the Amendment is fundamentally

flawed and incorrect; however Plaintiffs recognize that his interpretation is being relied on and is

being followed by the Legislative and Executive Branches. For example, the AG states that the

Legislature:

Possesses the authority [power] to limit marriages tothe opposite-sex couples by statute, should it choose

-4-292834.1

to do so. (See pg. 5 of Op. No. 13-1) [Emphasissupplied by the AG.]

Based on that language, it is apparent that the AG had concluded that the

Legislature chose NOT to do so. The flaw in that legal reasoning is obvious because it ignores the

history and the underlying reason the Amendment was proposed by the Legislature in the first

instance and then ratified by the Voters. To be clear, the Legislature had already chosen “to do

so”, because Section 572-1, HRS, was and still is the law ofHawaii. That law restricts marriages

in Hawaii to heterosexual couples gfly. Obviously, when the Amendment was put on the Ballot

and ratified by the Voters, no one in Hawaii expected that the Legislature would need to pass

Section 572-1, HRS, again. Rather, when the Amendment was ratified by the Voters, they

obviously intended that it would simply validate Section 572-1, HRS, and that it would end the

litigation that had been explained in the “Ballot Information Flyer”, which had been filed by

same-sex couples. In fact, the Supreme Court dismissed that litigation as “moot” shortly after the

Amendment was ratified.

To determine the “intent” of the Voters in 1998 may appear to be difficult, but in

fact, it is rather simple. Prior to that November 1998 election, many voters were probably

unaware of the litigation that had been filed by several same-sex couples to Constitutionally

invalidate Section 572-1, HRS, so that Hawaii would be required to give marriage licenses to

same-sex couples. However, as the November 1998 General Election approached, the State and a

number of different private television and radio stations and other organizations began a process of

educating the Voters regarding the proposed Constitutional Amendment. A review of the Ballot

Information Flyer that was provided to the Voters, and particularly the explanations of the Ballot

sent to all Hawaii Voters by the State prior to the General Election, will show what the Voters

understood, and it will provide the Court with the basis to determine the “intent” of the Voters.

For example, a “Ballot Information Flyer” was sent to all registered Voters by the

State’s “Office of Elections”, and it explained:

1. The existing Hawaii law (Section 572-1, HRS), whichrestricted the issuance ofmarriage licenses to heterosexualcouples;

2. That three same-sex couples had filed a lawsuit to have thatlaw, declared unconstitutional (Baehr v. Lewin);

-5-292834.1

3. That the Hawaii Supreme Court had determined that Section572-1, HRS, was constitutionally discriminatory and shouldproceed to trial;

4. That the ultimate decision in that litigation was still pending;

5. That a “Yes” vote on the Ballot meant that the Legislaturehad the “power to reserve marriage to opposite-sex couples21111”; and

6. That a “No” vote meant that the Constitution would not beamended, and that would allow the Court to make thedetermination on the definition ofmarriage, and that theBaehr litigation would continue.

Consequently, when more than 2/3rds of Hawaii Voters voted “Yes”, their obvious

intent was to validate the existing Hawaii Law (Section 572-1, HRS), by constitutionally

empowering the Legislature to reserve marriages in Hawaii to opposite-sex couples ONLY. Again,

the Voters could not have rationally intended or expected that the Legislature would have to

“re-pass” Section 572-1, HRS, to maintain the traditional and cultural definition ofmarriage.

That “Ballot Information Flyer” was not only mailed to all registered Voters in

Hawaii, it was published in the Honolulu Advertiser Newspaper once a week for the four (4)

consecutive weeks prior to the November 3, 1998 General Election.

However as noted previously, the State’s publication of its “Ballot Information

Flyer” was not the only educational information provided to Voters. A number of organizations

also provided that educational information about the proposed Amendment to the Voters.

For example in the month leading up to the 1998 General Election K}ION2 TV (the

“Station”) attempted to educate and fairly explain the Ballot Information Flyer that the Voters

were given. The Station’s News Director, Executive Producer, and its principal news anchor met

to discuss how best to present the ballot issues to its viewers. In making the decision on how to

summarize the proposed Amendment, the Station referred to the State’s Ballot Information Flyer.

Based on that “Ballot Information Flyer”, the Station decided that to be absolutely clear, it would

advise the viewing public that a “Yes” vote meant that the Legislature would have the power to

reserve marriage in Hawaii to one man and one woman “ONLY”. And to clarify further, the

Station decided to explain that if the viewer wanted

MARRIAGE IN HAWAII TO BE LIMITED TO ONE MANAND WOMAN ONLY. YOU SHOULD VOTE “YES” ONTHE AMENDMENT AND IF YOU WANT MARRIAGE TO

-6-292834.1

MEAN SOMETHING ELSE, VOTE “NO”. [Emphasisadded.]

Joe Moore was the sole news anchor for KHON2 TV and he presented that

information on the Station’s 5:30 p.m., 6:00 p.m., and 10:00 p.m. newscasts Monday through

Friday leading up to the November 1998 General Election. Therefore, any Voter who was a

viewer of Joe Moore’s newscasts during that period understood that a “Yes” vote would give the

Legislature a very specific power — the power to restrict marriage to heterosexual couples ONLY;

and that would effectively validate Section 572-1, HRS. See, Declaration of Joseph Brice Moore,

Jr. attached.

A second example involves KSSK Radio and the most listened-to morning radio

program in Hawaii. Every weekday morning, Michael W. Perry takes calls from 5:00 a.m. to

10:00 a.m. Prior to the 1998 General Election he received numerous calls from the listeners

regarding Question #2 on the Ballot Information Flyer provided to all Voters by the State.

Because of that Ballot Information Flyer, in Mr. Perry’s discussions with callers, he would explain

that a “Yes” vote would approve the Amendment and

1. End the “legal wrangling” involved with the “same-sex marriage” issue;

2. End and trump the Court battles; and

3. Put this persistent issue “behind them once and for all”.

(See, Declaration ofMichael W. Perry attached hereto.)

Another example of an organization that attempted to educate Hawaii Voters before

the 1998 General Election is that Hawaii Family Forum (the “Forum”). To educate the voting

public with regard to what it called a very important Ballot question, the Forum raised

approximately $140,000.00, and it used those funds to create television and radio Voter education

messages so Hawaii Voters would understand the significance of the Ballot and the proposed

Constitutional Amendment. The Forum’s televised educational messages encouraged all Hawaii

citizens to register and to vote, and not to leave the definition ofmarriage for someone else to

decide. These educational messages explained that a “Yes” vote would support the existing

definition ofmarriage set forth in Section 572-1, HRS, as being a relationship between a man and

a woman; while a “No” vote or a blank vote would allow the definition of marriage to be redefined

by the courts to include marriage between same-sex couples.

-7-292834.1

Consequently, the Forum’s messages (similar to the State’s Ballot Information

Flyer) told the Voters they had a choice: to validate the existing Hawaii law and the traditional

definition of marriage, OR to allow the Court to invalidate Hawaii law and redefine marriage to

include a relation between a same-sex couple. ($, Declaration of Eva Andrade and copies ofRadio Spots attached.)

Consequently, in determining the intent of the Voters, the Court will find that the

Voters in Hawaii were

1. Told by the State that a “Yes” vote would give the Legislators the Power to

restrict marriage in Hawaii to heterosexual couples ONLY, and that it would end the Baehr v.

Lewin lawsuit that was “still pending;

2. Told by the number one news anchor on the most watched television station

in Hawaii (three times each weekday evening before the 1998 General Election) that if the viewers

voted “Yes”, marriage in Hawaii would be “Limited to one man and woman ONLY”; and

3. Told by the host of the most listened-to morning radio program in Hawaii

that a “Yes” vote would mean that the definition of marriage in Hawaii would remain as the

traditional relationship between a man and a woman, and that this persistent issue would be put

behind the listeners “once and for all”.

Of course it is very significant that Joe Moore and Michael W. Perry would tell

their thousands and thousands of viewers/listeners that a “Yes” vote on the Amendment would

mean that marriage in Hawaii would continue to be a relationship between a man and woman

ONLY, and that they could put this persistent issue behind them “once and for all”. But when one

thinks about what these two well known and highly visible figures told their viewers/listeners,

there is an inescapable conclusion that after they had reviewed the State’s own “Ballot Information

Flyer”, they simply explained to the voting public their understanding of the Amendment that was

being proposed by the Legislators. Consequently, this Court should be able to determine the intent

of the 69.3% of the Voters who voted “Yes”. While the Legislature may have had the Power to

prohibit marriage in other ways, the Voters ofHawaii only gave the Legislature the very specific

and limited Power: to reserve marriage to opposite-sex couples — and the State’s “Ballot

Information Flyer” advised that that was the ONLY power given to the Legislature by the

Constitutional Amendment.

-8-292834.1

D. The State Should Be Estopped From Contradicting Its Ballot Information Flyer.

(“Bait and Switch”)

Equitable estoppel is a well established legal doctrine that prevents a person from

contradicting a statement or information provided by that person, when a second person has

reasonably relied on that statement or information. In essence, equitable estoppel is recognized by

the courts as a way to prevent injustice when the second person relied on the statement or

information. 3 John Pomeroy, A Treatise On Equity Jurisprudence § 804 (5th ed. 1941).

Courts have often been reluctant to estop state governments on the same terms as

civil litigants, and may require proof of additional elements such as a finding that the gravity of

the harm to the Plaintiffs who are seeking estoppel outweighs the public interest. $, Heckler v.Community Health Sen’s., 467 F.2d 985 (9th Cir. 1973). However, it is now firmly settled that

when all of the traditional elements of estoppel have been established, its application will not be

denied merely because it is being asserted against the government, and it has been applied here in

Hawaii against the State. Filipo v. Chang, 62 Hawaii 626 (1980); In Re: Estate ofLeithan, 725

A.2d 1116 (Pa. Commn. Ct. 1999); Welfare v. UEC, Inc., 397 A.2d 779 (Pa., 1979). In the case at

bar, protecting the Plaintiffs’ interests will simultaneously protect and safeguard the interests of

the Voters, who relied on the “Ballot Information Flyer” provided by the State. Conversely, if the

State is allowed to contradict the information it gave to the Voters, Plaintiffs will be injured (just

like their neighbors), because of the State’s “Bait and Switch”; in addition Plaintiffs will

immediately suffer their individual and personal damages (see Plaintiffs’ Declarations). They, just

like all of the Voters, relied on and followed the explanations in the “Ballot Information Flyer”.

Thus, all will suffer immediate and irreparable harm, because the State will be effectively

“nullifying” their votes.

This Court may wish to consider whether it has power to estop the State from

changing its position and contradicting its “Ballot Information Flyer”. It does. Supra, Filipo. But

in making that analysis the Court should understand that the State is arguing that even though the

“Ballot Information Flyer” used the word “ONLY” when defining marriage as a heterosexual

relationship, the Ballot did not include that word (i.e., “ONLY”). That is the “Bait and Switch”,

and it ought not be condoned. Thus, public policy favors a limited judicial intrusion here, because

otherwise (i) this Court would be allowing the State to (unfairly) contradict the position it took and

the information it provided that induced the Voters in the 1998 Election; and because (ii) when

-9-292834.1

this Court exercises this limited power, the State will only be required to “Let The People Vote”

(IF the Legislature chooses to do so). Thus, by using that limited power the Court will be

(a) protecting the people, (b) meeting any test involving the balancing of public vs. private

interests (Moser v. United States, 341 U.S. 41(1951), and (c) will not be interfering with the

Executive or Legislative prerogatives of those political branches or offend the doctrine of

separation of powers. Again to be clear, this Declaratory Relief action only seeks a determination

as to the legal and binding interpretation of the Constitutional Amendment (Article I, Section 23)voted on and approved overwhelmingly (69.3%) by the Voters ofHawaii.

Thus, this Court should invoke the Doctrine of Equitable Estoppel against theGovernment to prevent the State of Hawaii from contradicting its Ballot Information Flyer andfollowing the AG’s erroneous Opinion No. 13-1. This Court has the power to employ EquitableEstoppel, and in doing so, this Court will protect the voting rights ofHawaii citizens, and after all,that is a fundamental public interest. See, Moser v. United States, 341 U.S. 41(1951) and Watkinsv. United States, 875 F.2d 699 (9th Cir. 1989)(en banc).

III. CONCLUSION.

All political power of this State is inherent in the People and rests with the People. Article

I, Section 1, Hawaii Constitution. This matter is one of Great Public Importance; so this Courtshould accept its inherent power to protect the vast majority of the people of Hawaii by adoptingtheir understanding and intention in voting “Yes” for the Constitutional Amendment of Article I,Section 23.

Dated: Honolulu, Hawaii, November 13, 2013.

ROBEWt K. MAT$IJMOTOJOHNR. DWYE1, J.Attorneys for PlaintiffsREPRESENTATIVE BOB McDERMOTT,GARRET HASHIMOTO, WILLIAM E.K.KUMIA, DAVID LANGDON

-10-292834.1

ROBERT K. MATSUMOTO #1330345 Queen Street, Suite 701Honolulu, HI 96813Telephone: (808) 585-7244

And

JOHN R. DWYER, JR. #1445Dwyer SchraffMeyer & Green1800 Pioneer Plaza900 Fort Street MallHonolulu, Hawaii 96813Telephone: (808) 534-4444

Attorneys for PlaintiffsREPRESENTATIVE BOB McDERMOTT,GARRET HASHIMOTO, WILLIAM E.K.KUMIA, DAVID LANGDON

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

REPRESENTATIVE BOB ) CIVIL NO. 13-1-2899-10 KKSMcDERMOTT, GARRET )HASHIMOTO, WILLIAM E.K. ) DECLARATION OF JOSEPH BRICEKUMIA, DAVID LANGDON, ) MOORE, JR.

)Plaintiffs, )

)vs. )

)GOVERNORNEIL ABERCROMBIE, )SENATOR DONNA MERCADO KIM, )REPRESENTATIVE JOSEPH SOUKI, )SENATOR CLAYTON HEE, )REPRESENTATIVE KARL RElOADS, )

)Defendants. )

DECLARATION OF JOSEPH BRICE MOORE, JR.

1. I am better known as Joe Moore and am the Senior News Anchorman for

KHON2 TV. If asked, I could and would testify with regard to the truth of the statements made

herein

2. I have been the solo news anchor for KHON2 TV (the “Station”) News on its

5:30 p.m., 6:00 p.m., and 10:00p.m. newscasts Monday through Friday since 1980.

3. Prior to the 1998 Elections, the Station’s news department leaders (i.e., the News

Director, Executive Producer and me) reviewed and discussed how best to present the ballot

issues to our viewers.

4. In the month leading up to the elections, the State sent out a Ballot Information

Flyer to all Hawaii voters explaining the Ballot sheet, and we referred to that Ballot Information

Flyer to determine how we would summarize the proposed Constitutional Amendments.

5. Question Number 2 on the ballot dealt with the issue ofmarriage in Hawaii, and

the State explained that the Amendment would give the legislature the POWER TO RESERVE

MARRIAGE TO OPPOSITE SEX COUPLES.

6. The State further explained that a “YES” vote on the ballot would give the

legislature the power to reserve marriage to opposite sex couples ONLY.

7. The Station’s newsroom leaders decided that in addition to presenting the

Amendment in that manner, we would also state in the Station’s newscasts, in order to be

absolutely clear, that Question Number 2 meant:

SHOULD THE LEGISLATURE BE GIVEN THE POWERTO RESERVE MARRIAGE IN HAWAII TO ONE MANAND ONE WOMAN ONLY?

-2-

8. To clarify even further, we stated:

IF YOU WANT MARRIAGE IN HAWAII TO BELIMITED TO ONE MAN AND WOMAN ONLY, YOUSHOULD VOTE “YES” ON THE AMENDMENT, ANDIF YOU WANT MARRIAGE TO MEAN SOMETHINGELSE, VOTE “NO”.

9. For a month leading up to the 1998 elections, and on Election night, when

presenting the results of the voting, I and other members of the Station’s news team used those

descriptions when referring to the Constitutional Amendment Regarding Marriage.

I declare under penalty of law that the foregoing is true and correct to the best ofmy

personal knowledge.

Executed in Honolulu, Hawaii, A1c tvikei- I .). Di

c21hLe.J9PH BRICE MOORE, JR.

-3-

ROBERT K. MATSUMOTO #1330345 Queen Street, Suite 701Honolulu, HI 96813Telephone: (808) 585-7244

And

JOHN R. DWYER, JR. #1445Dwyer SchraffMeyer & Green1800 Pioneer Plaza900 Fort Street MallHonolulu, Hawaii 96813Telephone: (808) 534-4444

Attorneys for PlaintiffsREPRESENTATIVE BOB McDERMOTT,GARRET HASHIMOTO, WILLIAM E.K.KUMIA, DAVID LANGDON

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

REPRESENTATIVE BOB ) CIVIL NO. 13-1-2899-10 KKSMcDERMOTT, GARRET )HASHIMOTO, WILLIAM E.K. ) DECLARATION OF JOHN R. DWYER, JR.;KUMIA, DAVID LANGDON, ) EXHIBITS A and B

)Plaintiffs, )

)vs. )

)GOVERNOR NEIL ABERCROMBIE, )SENATOR DONNA MERCADO KIM, )REPRESENTATIVE JOSEPH SOUKI, )SENATOR CLAYTON HEE, )REPRESENTATIVE KARL RHOADS, )

)Defendants. )

DECLARATION OF JOHN R. DWYER, JR.

1. I am one of the attorneys for Plaintiffs and am licensed to practice law in all

Courts in the State ofHawaii. If asked, I could and would testify with regard to the truth of the

statements made herein

2. Attached hereto as Exhibit A is a true and correct copy of the DECLARATION

OF EVA ANDRADE; EXHIBITS 1 and 2. Upon receipt of the Ms. Andrade’s Declaration

bearing her original signature, Declarant will file the Declaration with the Court.

3. Attached hereto as Exhibit B is a true and correct copy of the DECLARATION

OF MICHAEL W. PERRY. Upon receipt of the Mr. Perry’s Declaration bearing his original

signature, Declarant will file the Declaration with the Court.

I declare under penalty of law that the foregoing is true and correct to the best ofmy

personal knowledge.

Executed in Honolulu, Hawaii, November 13, 2013.

-2-

ROBERT K. MATSUMOTO #1330345 Queen Street, Suite 701Honolulu, HI 96813Telephone: (808) 585-7244

And

JOHN R. DWYER, JR. #1445Dwyer SchraffMeyer & Green1800 Pioneer Plaza900 Fort Street MallHonolulu, Hawaii 96813Telephone: (808) 534-4444

Attorneys for PlaintiffsREPRESENTATIVE BOB McDERMOTT,GARRET HASHIMOTO, WILLIAM E.K.KUMIA, DAVID LANGDON

IN THE CIRCUIT COURT OF THE FiRST CIRCUIT

STATE OF HAWAII

REPRESENTATIVE BOB ) CIVIL NO. 13-1-2899-10 KKSMcDERMOTT, GARRET )HASHIMOTO, WILLIAM E.K. ) DECLARATION OF EVA ANDRADEKUMIA, DAVID LANGDON, )

)Plaintiffs, )

)vs. )

)GOVERNOR NEIL ABERCROMBIE, )SENATOR DONNA MERCADO KIM, )REPRESENTATIVE JOSEPH SOUKI, )SENATOR CLAYTON HEE, )REPRESENTATIVE KARL RHOADS, )

)Defendants. )

292827.1

EXHIBIT A

DECLARATION OF EVA ANDRADE

1. I am the Executive Director of Hawaii Family Forum (the “Forum”). If asked, I

could and would testify with regard to the truth of the statements made herein.

2. I was a resident ofHawaii and voted in the November 3, 1998 General Election

that involved the proposed Constitutional Amendment now known as Article I, Section 23 of the

Constitution of the State of Hawaii.

3. To make this Declaration, I have reviewed the pertinent files of the Forum

relating to the Forum’s educational efforts and campaign regarding the same-sex marriage issue

leading up to the General Election.

4. The Forum was able to raise a total of $140,000.00 to run radio and television ads

so that it could provide information to the Hawaii public to identify and understand the Ballot

question regarding the proposed Constitutional Amendment dealing with marriage in Hawaii.

5. None of the ads developed by the Forum advocated a “Yes” vote. Rather, the

Forum’s ads explained the meaning of a “Yes” or “No” vote without urging or advising the

viewer/listener to vote one way or the other, — and the information was based on the Ballot

Information Flyer sent to all registered voters by the State “Office of Elections”.

6. The Forum’s television ads were educational messages that essentially

encouraged the viewer to register and to vote, and to not leave the definition ofmarriage issue

for someone else to decide. These educational messages explained that a “Yes” vote would

support the existing definition ofmarriage (in Section 572-1, HRS) as being between a man and

a woman, while a “No” vote or a blank vote would allow the definition ofmarriage to be

redefined to include marriages between same-sex couples.

292827.1-2-

7. A Complaint was filed with the Campaign Spending Commission against the

Forum by an attorney who represented same-sex couples seeking marriage license; but the

Complaint was ultimately dismissed in early September 1998.

8. Consequently beginning on August 24, 1998 and continuing to the General

Election in November 1998, the Forum ran its educational ads on radio and television (and that

included approximately 116 television spots each week). I have attached two of the Forum’s

radio ads, both ofwhich educate and alert the listener that a “Yes” vote supported the definition

ofmarriage as being between one man and one woman, while a “No” vote would redefine

marriage and legalize same-sex marriages.

I declare under penalty of law that the foregoing is hue and correct to the best ofmy

personal knowledge.

Executed in Honolulu, Hawaii, ////2/,3

EVA ANDRADE

292S27.1-3-

Radio Spot #1

When you go to the voting booth on November 3rd, along with.selectizlg the candidates ofyour choice, you will be asked to vote on some very important ballot issues. Among themwill, be the question: .

“Shall the Constitution of the State of Hawaii be amended .to specifythat the legislatureshall have the right to reserve marriage to opposite-sex couple?”

If you vote “Y]S” your votewillhelp support the definition of marriage as a unionbetween one man and one woman.

If you vote,. UNOI or if you leave your ballot blank, your vote will help re4efine thedefinition ofmarriage to Include homosexual couples by allowing the Hawaii SupremeCourt to legalize same-sexmarriage.

Don’t leave this important community decision to others to determine for you. Do yourpart. Please register to vote and vote on November 3.

This message paid for by Hawaii Family Forum.

Radio spot #2

On November 3, you will be asked to vote on a very importaitt issue regarding thedefinition of marriage.

The question you will be asked is whether or not the constitution should be amencle to• allow the legislature to reserve marriage for opposite sex couples.

if you’re like me, you maywonder - what does that mean?

Voting yes means your vote will support the definition ofmarriage as a union between aman and a woman.

Votingno or leaving the question blankmeans your vote will support redefining’marriage to include homosexual couple&

Don’t leave this important cammunity decision to others to determine for you. Thedecision is up to each of us.

Please do your part. Register to vote and vote on November 3.

This message paid for by Hawaii Family Forum

ROBERT K. MATSTJMOTO #1330345 Queen Street, Suite 701Honolulu, HI 96813Telephone: (808) 585-7244

And

JOHN R. DWYER, JR. #1445Dwyer SchraffMeyer & Green1800 Pioneer Plaza900 Fort Street MallHonolulu, Hawaii 96813Telephone: (808) 534-4444

Attorneys for PlaintiffsREPRESENTATIVE BOB McDERMOTT,GARRET HASHIMOTO, WILLIAM E.K.KUMIA, DAVID LANGDON

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

REPRESENTATIVE BOB ) CIVIL NO. 13-1-2899-10 KKSMcDERMOTT, GARRET )HASHIMOTO, WILLIAM E.K. ) DECLARATION OF MICHAEL W. PERRYKUMIA, DAVID LANGDON, )

)Plaintiffs, )

)vs. )

)GOVERNOR NEIL ABERCROMBIE, )SENATOR DONNA MERCADO KIM, )REPRESENTATIVE JOSEPH SOUKI, )SENATOR CLAYTON HEE, )REPRESENTATIVE KARL RHOADS, )

)Defendants. )

292840.1

EXHIBIT B

DECLARATION OF MICHAEL W. PERRY

I. I am better known as Michael W. Perry and, with Larry Price, have been co-host

of the most listened-to morning radio program in Hawaii, “Perry and Price” on KSSK Radio

since 1983. “). If asked, I could and would testify with regard to the truth of the statements made

herein.

2. In the course of our program from 5:00 a.m. to 10:00 a.m., Monday through

Friday, we take phone calls from listeners about various topics ranging from traffic reports, to

weather phenomena, to comments about pop culture and the news of the day. We also offer our

opinions on the range of topics.

3. Before the 1998 elections, although there were no formal meetings at KSSK about

the ballot issues, we did receive numerous phone calls from listeners regarding Question #2 on

the Ballot Information Flyer that was sent to all Voters by the State, and broadcast those

interactions on the air.

4. In the month leading up to the elections, the State sent out a Ballot Information

Flyer to all Hawaii Voters explaining the Ballot sheet, and we referred to that Ballot Information

Flyer to determine how we would summarize the proposed Constitutional Amendments.

5. Question #2 on the ballot dealt with the issue ofmarriage in Hawaii, and the State

explained that the Amendment would give the legislature the POWER TO RESERVE

MARRIAGE TO OPPOSITE SEX COUPLES.

6. The State further explained that a “YES” vote on the ballot would give the

legislature the power to reserve marriage to opposite-sex couples ONLY.

7. In addition to the Ballot Information Flyer, KSSK broadcast many commercials

from groups pro and con regarding the Amendment.

292840.1-2-

8. My recollection is that the listeners were glad to finally be voting on the issue.

9. In my discussions with callers I would explain that a “Yes” vote would approve

the Amendment, and that would

a. Put a definitive end to the “legal wrangling” involved with “same-sex

marriage”, so that marriage in Hawaii would remain a relationship

between a man and a woman;

b. End and trump the Court battles; and

c, Put this persistent issue “behind them once and for all”.

I declare under penalty of law that the foregoing is true and correct to the best ofmy

personal knowledge.

Executed in Honolulu, Hawaii, November 13, 20

Ahn

292840.-3-

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

REPRESENTATIVE BOB ) CIVIL NO. 13-1-2899-10 KKSMcDERMOTT, GARRET )HASHIMOTO, WILLIAM E.K. )KUMIA, DAVID LANGDON, ) CERTIFICATE OF SERVICE

))

Plaintiffs, ))

vs. ))

GOVERNOR NEIL ABERCROMBIE, )SENATOR DONNA MERCADO KIM, )REPRESENTATIVE JOSEPH SOUKI, )SENATOR CLAYTON HEE, )REPRESENTATIVE KARL RHOADS, )

)Defendants. )

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing PLAiNTIFFS’

SUPPLEMENTALMEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR

TEMPORARY RESTRAINING ORDER AGAINST DEFENDANTS; DECLARATION OF

JOSEPH BRICE MOORE, JR.; DECLARATION OF JOHN R. DWYER, JR. (ATTACHING

THE DECLARATION OF EVA ANDRADE AND THE DECLARATION OF MICHAEL W.

PERRY AS EXHIBITS A and B, RESPECTIVELY); CERTIFICATE OF SERVICE was duly

served upon the following by hand delivery on November 13, 2013.

David M. Louie, Esq.Attorney General for the State ofHawaiiDepartment of the Attorney General425 Queen StreetHonolulu, Hawaii 96813Attorney for Defendants

292834.1

Dated: Honolulu, Hawaii, November 13, 2013.

*ROBRT K. MAT&JMOTOJOffI R. DWYEJR.Attorneys for PlaintiffsREPRESENTATWE BOB McDERMOTT,GARRET HASHIMOTO, WILLIAM EK.KUMIA, DAVID LANGDON

292834.1 —2—