Case: 12-16998 Case 12-16995

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Nos. 12-16995 & 12-16998

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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 (caption continued on next page) 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

DEFENDANT-APPELLANT GOVERNOR NEIL S. ABERCROMBIES REPLY IN SUPPORT OF GOVERNORS MOTION FOR VACATUR 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

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-Appellant Governor Neil S. Abercrombies Reply in Support of Governors Motion for Vacatur Pursuant to FRAP 27, Governor Neil S. Abercrombie files this brief reply to address and rebut specific arguments made by Intervenor-Appellee Hawaii Family Forum (HFF) in its response to the Governors motion for vacatur. First, HFF incorrectly characterizes appeal nos. 12-16995 and 12-16998 as not moot. Pursuant to this Courts own case law, the passage and enactment of Act 1 (Second Special Session, 2013) presently moots these appeals. Chemical Producers and Distributors Assn v. Helliker, 463 F.3d 871, 875 (9th Cir. 2006), quoting Bunker Ltd. Partnership v. United States, 820 F.2d 308, 311(9th Cir. 1987) (Where intervening legislation has settled a controversy involving only injunctive or declaratory relief, the controversy has become moot.); Log 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v. United States, 658 F.3d 1162, 1166 (9th Cir. 2011) (per curiam) (a case is moot when the challenged statute is repealed, expires, or is amended to remove the challenged language). Contrary to HFFs argument, the two frivolous law suits that challenge the validity of Act 1, that are currently pending in the Hawaii state and federal district courts, do not give rise to a live controversy. The fact that independent
litigation challenges the new enactment that satisfies the claims in the present

FRAP 27(a)(4) specifically authorizes a movant (which the Governor is) to file a reply to a response.
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action is not likely to defeat mootness. Courts are not interested in predicting the outcome or consequences of proceedings in another court, nor in retaining jurisdiction as an opportunity for collateral attack on another courts eventual

judgment. 13C Wright, Miller & Cooper, Federal Practice and Procedure Juris.

3533.6 (3rd 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 outcome [of a pending state lawsuit challenging the new legislation), this federal case.
. .

lacks any continuing significance.).

As this Court recognized, a statutory change is generally enough to moot a case, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed. Chem. Producers and Distributors Assn v. Helliker, 463 F.3d 871, 878 (9th Cir. 2006), quoting Native Viii. Of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994). The exceptions to this general line of holdings are rare and typically involve situations where it is virtually certain that the repealed law will be reenacted. Here, Act 1, which legalizes same-sex marriage, presently moots Plaintiffs and the Governors appeals of the District Courts ruling upholding the constitutionality of HRS temporary legislation

572-is former ban on same-sex marriage. Act 1 is not

there is no statutory time limit, or other language within

the 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-sex marriage being struck down is speculative at best, and by no means virtually certain. Second, because Plaintiffs civil case is moot, Plaintiffs are entitled, as a matter of law, to vacatur of the district courts decision below. The established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss. U.S. v. Munsingwear, 340 U.S. 36, 39 (1950); NASD Dispute Resolution v. Judicial Council, 488 F.3d 1065, 1068 (9th Cir. 2007) (vacatur is generally 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 become moot. HFF does not dispute this. It was the Hawaii legislature, through its independent action of passing Act 1, that caused the mootness. HFF effectively concedes this point

it does not dispute the fact that Plaintiffs did not participate in

the mooting event. For that reason, this Court should itself direct vacatur, without remand for further consideration by the district court. Chemical Producers and Distributors Assn v. Helliker, 463 F.3d 871, 878
( t 9 h

Cir. 2006) (Where mootness

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was caused not by the voluntary action of the party seeking vacatur but by happenstance or the vagaries of circumstance, we direct vacatur.). HFF incorrectly argues that vacatur is not necessary because the decision below [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 the books, may carry persuasive value, and is a decision to which the Hawaii federal district court, and other federal courts, could look to and cite. Indeed, if the fact that district court decisions do not bind other courts precluded vacatur, then vacatur of district court decisions would never occur. Vacatur clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance. Dilley v. Gunn, 64 F.3d 1365, 1369 (9th Cir. 1995) (quoting Munsingwear, 340 U.S. at 40). There is simply no legal basis for HFFs insistence on Plaintiffs or the Governor pointing to any other practical hardship. HFF Response at 7 n. 1. The courts have imposed no such additional requirement on the generally automatic and established practice of vacating judgments in cases that have become moot on appeal. NASD, supra; Munsingwear, supra. 2

Moreover, not vacating would impose definite practical hardships on Plaintiffs and the Governor were the new legislation to be repealed or invalidated. In that case, opponents would claim any new suit is res judicata/collateral estoppel barred
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Third, the Governor is also entitled to independently seek vacatur. We note,

however, that because Plaintiffs are undeniably entitled to vacatur, this Court need not reach the question of whether the Governor is independently entitled to vacatur. That said, the Governor is independently entitled to vacatur. HFFs reliance on Dilley v. Gunn, 64 F.3d 1365 (9th Cir. 1995), and American Civil Liberties Union of Nev. v. Masto, 670 F.3d 1046 (9th Cir. 2012), is misplaced. HFF cites both cases for the general legal proposition that an appellants request for vacatur is subject to more exacting scrutiny when the appellant itself caused the [dismissal] by his own voluntary act. But the Governor simply did not, and
could not, by his own voluntary actions, moot the appeals. As the Governor

explained in his motion for vacatur (see page 3 & note 1), the Governor could not enact the legislation by himself; the legislature, which he has no control over, had to independently pass the bill. Moreover, the Governors signing of the bill was not necessary to the bills enactment; doing nothing would have resulted in the bills 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 suit would likely challenge the same law, i.e., the same HRS 572-1 ban challenged in this case.

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made him, for vacatur purposes, the cause of the legislations passage. 3 In any event, Plaintiffs indisputably did not cause the mooting legislation; accordingly, they are entitled to automatic vacatur by this appellate court. Chemical Producers, supra.
* * *

In sum, the caselaw is clear that this Court should immediately vacate the district courts order and judgment below, and upon doing so, enter a full and
unconditional dismissal of Plaintiffs and the Governors appeals. 4 Remand is

contrary to Ninth Circuit caselaw, and would be a waste ofjudicial resources. For the reasons discussed above, HFFs contentions that this case is not presently moot, and that vacatur is not presently warranted, are utterly without merit.

Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 121 (4th Cir. 2000), certainly does not stand for this proposition. In Valero, the Fourth Circuit simply noted, without more, that mootness was caused by the state legislatures statutory amendment, not by the actions of any of the defendants before this court, all of whom are state executive officials, none of whom is the Governor. Id. at 121. Valero does explore whether the Governors participation in the legislative process can be deemed to cause legislation to pass (and if so, under what circumstances).
In the event that this Court does not vacate the district courts order and judgment, then the Governor urges this Court to not dismiss his and Plaintiffs appeals, or, in the alternative, to enter only a conditional dismissal. That is, the Governor would ask that any dismissal unaccompanied by vacatur 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 and Plaintiffs appeal would be automatically revived or reinstated, and could proceed ahead.
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DATED: Honolulu, Hawaii, January 3, 2014.

Is! Girard D. Lau GIRARD D. LAU ROBERT T. NAKATSUJI Deputy Attorneys General Attorneys for Defendant Appellant Governor Neil S. Abercrombie

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

I hereby certify that I electronically filed the foregoing reply memorandum with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on January 3, 2014. 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, January 3, 2014.

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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