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Nos. 12-16995 & 12-16998

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATASHA N. JACKSON, JANIN KLEID and GARY BRADLEY,

Plaintiffs-Appellants,

v.

NEIL S. ABERCROMBIE, Governor, State of Hawaii,Defendant-Appellant,

and

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

and

HAWAII FAMILY FORUM,

Intervenor-Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII,

Case No. CV 11-00734 ACK-KSC (Hon. Alan C. Kay).

PLAINTIFFS-APPELLANTS NATASHA N. JACKSON,

JANIN KLEID AND GARY BRADLEY'S UNOPPOSED MOTION:

(1) TO FURTHER EXTEND TIME TO FILE THEIR OPENING BRIEF;

AND (2) TO RESET DEFENDANTS-APPELLEES' DEADLINE TO FILE

ANSWERING BRIEFS TO THE GOVERNOR'S OPENING BRIEF

John J. D'AmatoJ. Thomas Maloney, Jr.D'Amato & Maloney, LLP

900 Fort Street Mall, Suite 1680Honolulu, HI 96813(808) 546-5200; (808) 546-5203 FAXE-MAIL: [email protected]

[email protected]

Paul AlstonClyde J. WadsworthAlston Hunt Floyd & Ing

1001 Bishop Street, Suite 1800Honolulu, HI 96813(808) 524-1800; (808) 524-4591 FAXE-MAIL: [email protected]

[email protected]

Attorneys for Plaintiffs-Appellants

NATASHA N. JACKSON, JANIN KLEID and GARY BRADLEY

Case: 12-16995 11/11/2013 ID: 8857701 DktEntry: 113-1 Page: 1 of 9 (1 of

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PLAINTIFFS-APPELLANTS NATASHA N. JACKSON,JANIN KLEID AND GARY BRADLEY'S UNOPPOSED MOTION:

(1) TO FURTHER EXTEND TIME TO FILE THEIR OPENING BRIEF;AND (2) TO RESET DEFENDANTS-APPELLEES' DEADLINE TO FILE

ANSWERING BRIEFS TO THE GOVERNOR'S OPENING BRIEF

Plaintiffs-Appellants NATASHA N. JACKSON, JANIN KLEID

and GARY BRADLEY (collectively, "Plaintiffs-Appellants") respectfully move

this Court, pursuant to Rule 27 of the Federal Rules of Appellate Procedure and

Rule 31-2.2(b) of the Rules of the Ninth Circuit Court of Appeals: (1) to extend

by 30 days the time for Plaintiffs-Appellants to file their Opening Brief; and

(2) to reset the deadline for Defendant-Appellee Loretta J. Fuddy ("Director

Fuddy") and Intervenor-Defendant-Appellee Hawaii Family Forum ("HFF") to

file their Answering Briefs in response to Defendant-Appellant Neil S.

Abercrombie's ("Governor Abercrombie") previously filed Opening Brief to the

date that their Answering Briefs in response to Plaintiffs-Appellants' Opening

Brief will be due. Currently, Plaintiffs-Appellants' Opening Brief must be filed

by November 22, 2013. For the reasons more fully described below and in the

attached Declaration, Plaintiffs-Appellants ask the Court to extend the time to

file their Opening Brief by 30 days to December 22, 2013.

None of the parties opposes Plaintiffs-Appellants' motion. HFF's

position of non-opposition is without prejudice to its currently pending motions

to dismiss Governor Abercrombie's appeal and to strike his Opening Brief.

In summary, during the past two weeks, the Hawai`i Senate and


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House passed similar versions of a bill providing marriage equity to same-sex

couples. The Hawai`i Senate is expected on Tuesday, November 12, 2013 to

agree to the House version of the bill, and Governor Abercrombie is expected to

sign the bill into law shortly thereafter. By its terms, the new law will take

effect on December 2, 2013. Barring any action that would alter the law's

effectiveness, the current appeal will likely be rendered moot. Accordingly,

Plaintiffs-Appellants seek the requested extension to preserve the resources of

the parties and the Court.

In addition, under the current briefing schedule, the requested

30-day extension, if granted, could result in Director Fuddy and HFF having to

file their Answering Briefs in response to Governor Abercrombie's Opening

Brief which was filed on October 18, 2013 before Plaintiffs-Appellants file

their Opening Brief. Hence, it would also preserve resources to reset the

deadline for Director Fuddy and HFF to file their Answering Briefs in response

to Governor Abercrombie's Opening Brief to the date that their Answering

Briefs in response to Plaintiffs-Appellants' Opening Brief will be due.1

1This case is calendared before the same merits panel as Sevcik v. Sandoval,

No. 12-17688 (Dkt. 11, No. 12-17668), but the two cases have not been formal-ly consolidated or otherwise joined for briefing purposes. Plaintiffs-Appellantshere are notseeking to alter the current briefing schedule in Sevcik.


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RELEVANT PROCEDURAL BACKGROUND

Plaintiffs-Appellants have challenged the constitutionality of

Hawai`i's exclusion of same-sex couples from marriage. In the District Court,

Plaintiffs-Appellants sought a declaration that their exclusion from marriage

denies them equal protection and due process as guaranteed by the Fourteenth

Amendment. Plaintiffs-Appellants also sought to enjoin state officials from

denying same-sex couples access to marriage.

In an Order dated August 8, 2012, the District Court, among other

things, granted Director Fuddy's motion for summary judgment, granted HFF's

motion for summary judgment, and denied Plaintiffs-Appellants and Governor

Abercrombie's motions for summary judgment. Governor Abercrombie is

aligned with Plaintiffs-Appellants in this case and similarly argued that Hawai`i

law limiting marriage to opposite-sex couples is unconstitutional.

Two appeals were noticed on September 7, 2012 (one by Plaintiffs-

Appellants and another by Governor Abercrombie) and this Court consolidated

both of the appeals on October 29, 2012.

HFF filed a motion to stay proceedings on October 10, 2012 (Dkt. 11,

No. 12-16995), and a motion to further stay proceedings on December 13, 2012

(Dkt. 23, No. 12-16995), pending the Supreme Court's disposition of Perry v.

Brown, 671 F.3d 1052 (9th Cir. 2012), vacated sub. nom. Hollingsworth v.


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Perry, 133 S. Ct. 2652 (2013),and Windsor v. United States, 699 F.3d 169 (2d

Cir. 2012), aff'd, 133 S. Ct. 2675 (2013). By Orders dated October 17, 2012

(Dkt. 15, No. 12-16995) and December 31, 2012 (Dkt. 24, No. 12-16995), this

Court granted HFF's motions and stayed this case until March 5, 2013.

On December 11, 2012, Plaintiffs-Appellants in Sevcikmoved

this Court to place that appeal on the same briefing schedule asJacksonand

requested that the cases be heard together before the same merits panel. (Dkt. 7,

No. 12-17668.) On December 13, 2012, this Court issued an Order construing

that motion "as a motion to assign appeal nos. 12-17668, 12-16995, and

12-16998 [the SevcikandJackson appeals] to the same panel that will consider

the merits of the appeals." (Dkt. 8, No. 12-17668.) On January 7, 2013, this

Court issued an Amended Order granting the motion, calendaring Sevcikbefore

the same merits panel asJackson, and staying proceedings inJacksonand

Sevcik until April 1, 2013. (Dkt. 11, No. 12-17668.)

On March 19, 2013, Appellee HFF filed a motion to further stay

proceedings inJackson and Sevcikuntil the Supreme Court issued its decisions

inHollingsworth and Windsor. (Dkt. 27, No. 12-16995.) On March 26, 2013,

this Court granted HFF's motion, stayedJacksonand Sevcikuntil July 18, 2013,

and set August 19, 2013 (among other dates) as the due date for the Opening


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Briefs, in the absence of a motion for further appropriate relief. (Dkt. No. 28,

No. 12-16995.)

On June 26, 2013, the Supreme Court issued its decisions in

Hollingsworthand Windsor.

On June 27, 2013, Plaintiffs-Appellants and Governor Abercrombie in

Jacksonand Plaintiffs-Appellants in Sevcik each filed streamlined requests for a

30-day extension of time to file their respective Opening Briefs. (Dkt. 29, 31,

No. 12-16995.) Those requests were approved and a September 18, 2013 due

date for Appellants' Opening Briefs was set. (Dkt. 30, 32, No. 12-16995.)

On August 20, 2013, Plaintiffs-Appellants and Governor

Abercrombie filed a motion for a 30-day extension of time to October 18,

2013 to file the Opening Briefs inJacksonand Sevcik, based on their belief

that a special session of the Hawai`i Legislature would likely be called in

early September 2013 to address the issue of marriage equity. (Dkt. 33,

No. 12-16995.) On August 21, 2013, this Court granted the motion inJackson

and set October 18, 2013 as the due date for Appellants' Opening Briefs.

(Dkt. 34, No. 12-16995.) Plaintiffs-Appellants in Sevciksubsequently moved

for the same extension, which was also granted. (Dkt. 17, 18, No. 12-17668.)

On September 9, 2013, Governor Abercrombie called the Hawai`i

Legislature into special session beginning October 28, 2013 to address the issue


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of marriage equity and, accordingly, on September 19, 2013, Plaintiffs-

Appellants moved to extend the time to file their Opening Brief by 35 days

to November 22, 2013. (Dkt. 35, No. 12-16995.) On September 26, 2013, this

Court granted the motion and set November 22, 2013 as the due date for

Plaintiffs-Appellants' Opening Brief. (Dkt. 37, No. 12-16995.)

ARGUMENT AND REQUEST FOR RELIEF

The Hawaiì Senate and House, on October 30 and November 8,

2013, respectively, passed similar versions of a bill providing marriage equity to

same-sex couples. (See Declaration of Clyde J. Wadsworth 10.a and Exs. A

and B.) The Hawaiì Senate is expected to agree to the House version of the bill

on Tuesday, November 12, 2013, and Governor Abercrombie is expected to sign

the bill into law shortly thereafter. (Wadsworth Decl. Ex. B.) By its terms, the

new law will take effect on December 2, 2013. (Id.) Barring any action that

would alter the law's effectiveness, the current appeal inJackson will likely be

rendered moot.

In their prior motions, Plaintiffs-Appellants sought a 30-day and

then a 35-day extension of time to file their Opening Brief based on their belief

that a special session of the Hawaiì Legislature would be called to address the

issue of marriage equity. (Dkt. 33, Ex. A; Dkt. 35, Ex. A.) Now that that has

occurred and a marriage equity bill with an early December effective date is


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expected to be signed into law the reasons for the prior extension apply with

equal force to this request.

Plaintiffs-Appellants seek the right to marry. After the new

marriage equity bill is signed into law, barring any action that would alter its

effectiveness, the current appealwill likely be rendered moot. (See Wadsworth

Decl. 10.b.) Plaintiffs-Appellants seek the requested 30-day extension to

ensure that the new law is signed and becomes effective, thereby preserving

the resources of the parties and the Court with respect to this appeal. (See

Wadsworth Decl. 10.c.)

In addition, under the current briefing schedule, the requested

30-day extension, if granted, could result in Director Fuddy and HFF having to

file their Answering Briefs in response to Governor Abercrombie's Opening

Brief which was filed on October 18, 2013 before Plaintiffs-Appellants file

their Opening Brief. If the Court grants the requested extension, it would

further preserve resources by resetting the deadline for Director Fuddy and HFF

to file their Answering Briefs in response to Governor Abercrombie's Opening

Brief to the date that their Answering Briefs in response to Plaintiffs-

Appellants' Opening Brief will be due.

COUNSEL'S POSITIONS

On November 8, 2013, Plaintiffs-Appellants communicated via


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e-mail with all other counsel in this case about their: (1) requested 30-day

extension of time to file their Opening Brief; and (2) proposal that Director

Fuddy and HFF's deadline to file their Answering Briefs to Governor

Abercrombie's Opening Brief be reset to the date that their Answering Briefs

to Plaintiffs-Appellants' Opening Brief will be due.

Governor Abercrombie, Director Fuddy and HFF each stated that

they do not oppose the requested 30-day extension and the proposal to reset the

Answering Brief deadline. HFF further stated that it maintains its motion to

dismiss the Governor's appeal and motion to strike his Opening Brief.

CONCLUSION

For these reasons, this Court should: (1) extend by 30 days the time

for Plaintiffs-Appellants to file their Opening Brief; and (2) reset, as requested,

the deadline for Director Fuddy and HFF to file their Answering Briefs in

response to Governor Abercrombie's Opening Brief.

Dated: Honolulu, Hawai`i, November 11, 2013.

/s/ Clyde J. WadsworthPAUL ALSTON

CLYDE J. WADSWORTHJOHN J. D'AMATOJ. THOMAS MALONEY, JR.

Attorneys for Plaintiffs-AppellantsNATASHA N. JACKSON, JANIN KLEIDand GARY BRADLEY


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Nos. 12-16995 & 12-16998

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

NATASHA N. JACKSON, JANIN KLEID and GARY BRADLEY,Plaintiffs-Appellants,

v.

NEIL S. ABERCROMBIE, Governor, State of Hawaii,Defendant-Appellant,

and

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

and

HAWAII FAMILY FORUM,Intervenor-Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF HAWAII,

Case No. CV 11-00734 ACK-KSC (Hon. Alan C. Kay).

DECLARATION OF CLYDE J. WADSWORTH

Pursuant to Ninth Circuit Rule 31-2.2(b), I, Clyde J. Wadsworth,

declare that:

1. I am an attorney with the law firm of Alston Hunt Floyd &Ing, co-counsel for Plaintiffs-Appellants NATASHA N. JACKSON, JANIN

KLEID and GARY BRADLEY (collectively, "Plaintiffs-Appellants") in this

matter.

2. Unless otherwise stated, I make this Declaration based on mypersonal knowledge and am competent to testify as to the matters set forth

herein.


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3. I make this Declaration in support of Plaintiffs-Appellants'Unopposed Motion: (1) to Further Extend Time to file Their Opening Brief; and

(2) to Reset Defendants-Appellees' Deadline to File Answering Briefs to the

Governor's Opening Brief.

4. Currently, Plaintiffs-Appellants' Opening Brief in this case isdue on November 22, 2013.

5. The Opening Briefs were first due on December 17, 2012.As set forth in the accompanying Motion, this case and Sevcikwere subsequently

stayed until April 1, 2013. On March 26, 2013, the Court further stayed this

case and Sevcikuntil July 18, 2013, and set August 19, 2013, as the due date for

the Opening Briefs, in the absence of a motion for further appropriate relief.

6. On June 27, 2013, Plaintiffs-Appellants and Defendant-Appellant Abercrombie ("Governor Abercrombie") inJacksonand Plaintiffs-

Appellants in Sevcik filed streamlined requests for a 30-day extension of time to

file their respective Opening Briefs. Those requests were approved and a

September 18, 2013 due date for Appellants' Opening Briefs was set.

7. On August 20, 2013, Plaintiffs-Appellants and GovernorAbercrombie filed a motion for a 30-day extension of time to October 18,

2013 based on their belief that a special session of the Hawai`i Legislature

would likely be called in early September 2013 to address the issue of marriage


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equity. On August 21, 2013, this Court granted the motion inJackson and

set October 18, 2013 as the due date for Appellants' Opening Briefs.

Plaintiffs-Appellants in Sevciksubsequently moved for the same extension,

which was also granted.

8. On September 9, 2013, Governor Abercrombie called theHawai`i Legislature into special session beginning October 28, 2013 to address

the issue of marriage equity and, accordingly, on September 19, 2013,

Plaintiffs-Appellants moved to extend the time to file their Opening Brief by 35

days to November 22, 2013. On September 26, 2013, this Court granted the

motion and set November 22, 2013 as the due date for Plaintiffs-Appellants'

Opening Brief.

9. Plaintiffs-Appellants now ask the Court to extend by thirtydays the time for Appellants to file their Opening Brief to December 22, 2013.

10. The requested extension is necessary for the follow-ing reasons:

a. The Hawai`i Senate and House, on October 30 andNovember 8, 2013, respectively, passed similar versions of a bill providing

marriage equity to same-sex couples. Attached hereto as Exhibit "A" is a true

and correct copy of an article entitled "State Senate passes gay marriage bill,

sending it to the House," published by the Honolulu Star-Advertiser on


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October 30, 2013. Attached hereto as Exhibit "B" is a true and correct copy of

an article entitled "Senate will accept House version," published by the

Honolulu Star-Advertiser on November 10, 2013.

b. Plaintiffs-Appellants seek the right to marry. After thenew marriage equity bill is signed into law, barring any action that would alter

its effectiveness, the current appealwill likely be rendered moot.

c. Plaintiffs-Appellants seek the requested 30-dayextension to ensure that the new law is signed and becomes effective, thereby

preserving the resources of the parties and the Court with respect to this appeal.

11. Plaintiffs-Appellants have exercised diligence with respectto their Opening Brief and in filing this motion as soon as it was deemed

necessary. Plaintiffs-Appellants' Opening Brief will be filed within the time

requested.

12. On November 8, 2013, I communicated via e-mail with allother counsel in this case about Plaintiff-Appellants': (1) requested 30-day

extension of time to file their Opening Brief; and (2) proposal that Director

Fuddy and HFF's deadline to file their Answering Briefs to Governor

Abercrombie's Opening Brief be reset to the date that their Answering Briefs to

Plaintiffs-Appellants' Opening Brief will be due. Governor Abercrombie,

Director Fuddy and HFF each stated that they do not oppose the requested


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30-day extension and the proposal to reset the Answering Brief deadline as

requested. HFF further stated that it maintains its motion to dismiss the

Governor's appeal and motion to strike his Opening Brief.

13. The court reporter is not in default with regard to anydesignated transcripts.

I declare under penalty of perjury that the foregoing is true

and correct. Executed in Honolulu, Hawai i, on November 11, 2013.

/s/ Clyde J. WadsworthCLYDE J. WADSWORTH


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ttp://www.staradvertiser.com/news/breaking/229943741.html

Page 1 of 2 Nov 11, 2013 06:31:06PM

State Senate passes gay marriage bill, sending i t to the House -

Hawaii News - Honolulu Star-Advertiser StarAdvertiser.co

State Senate passes gay marriage bil l, sending it to the House

By Star-Advertiser

& Associated Press

POSTED: LAST UPDATED:11:40 a.m. HST, Oct 30, 2013 01:31 a.m. HST, Oct 31, 2013

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The state Senate voted overwhelmingly Wednesday to approve a gay marriage bill, shifting the focus of

the debate to the state House, where the vote could be closer. The Senate vote was 20 to 4.

Sen. Clayton Hee, the chairman of the Senate Judiciary and Labor Committee, framed the vote in the

historical context of interracial marriage and Hawaii's decision to legalize abortion.

"This is a defining moment in all of our careers and we should embrace it," Hee told his colleagues.

Senate Minority Leader Sam Slom, the lone Republican in the Senate, said there was no urgency to hold

a special session on gay marriage. He said the issue does not compare to previous special sessions on

the Hawaii Superferry or the response to the Sept. 11, 2001 terrorist attacks.

Slom, who believes the public should decide the issue through a constitutional amendment, said the vote

is not historic. "Hysteric it may be," he said.

If the House amends the bill, as it likely, it would have to come back before the Senate for review before

moving to Gov. Neil Abercrombie for his signature.

A joint House committee hearing scheduled for Thursday was expected to keep lawmakers working whi

trick-or-treaters celebrate Halloween.

House Majority Leader Scott Saiki says it's likely the chamber will amend the bill to change religiousexemptions. The Senate bill currently exempts ministers and other clergy from having to perform gay

wedding ceremonies, but not for-profit businesses.

"The House committees recognize that there is still a lot of public concern about the scope of the

exemptions," Saiki said.

The Halloween joint hearing between the House judiciary and finance committees is expected to last unt

midnight, then carry over to Friday if there are still people wanting to testify.

Because of the high public interest, the committees waived a 24-hour deadline on submitting testimony,EXHIBIT A


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ttp://www.staradvertiser.com/news/breaking/229943741.html

Page 2 of 2 Nov 11, 2013 06:31:06PM

promising to accept testimony before and during the hearing.

A Senate committee hearing on Monday packed a rotating crowd through a 200-seat basement

auditorium, with speakers getting as much as two minutes each to make their case. Even more people

watched the hearings unfold on monitors in the Capitol rotunda, and the hearing was carried live on pub

access television and the websites of TV news outlets.

------

For the Senate same-sex marriage vote breakdown, check out the Star-Advertiser's "Political Radar" blo

at .http://bit.ly/16n6bSV

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The state Capitol was at full capacity Wednesday as

House lawmakers considered the gay-marriage bill.

People on both sides of the debate gathered in the Capitol

rotunda chanting their positions on the measure into the

early evening.

Senate will accept House version - Hawaii News -

Honolulu Star-Advertiser StarAdvertiser.com

Senate will accept House version

Hawaii and Illinois are poised to be the 15th and 16th states to allow gay couples to wed

By Derrick DePledge

POSTED: 01:30 a.m. HST, Nov 10, 2013

LAST UPDATED: 02:29 a.m. HST, Nov 10, 2013

The state Senate on Tuesday will agree to the

state House's version of a same-sex marriage

bill and send it to Gov. Neil Abercrombie for hissignature.

Sen. Clayton Hee (D, Heeia-Laie-Waialua),

chairman of the Senate Judiciary and Labor

Committee, said Saturday that he would

recommend that the Senate accept the

House's changes to the bill, which expanded a

religious exemption to protect religious

freedom.

Abercrombie is expected to sign the bill intolaw shortly after he receives it from the Senate. If Abercrombie signs the bill before Nov. 20,

Hawaii would be the 15th state plus the District of Columbia to allow gay and lesbian

couples to marry.

Gov. Pat Quinn of Illinois has announced that he would sign a same-sex marriage bill into

law at a ceremony in Chicago on Nov. 20.

"There are very few opportunities to participate in government in decisions that define your

career, and this is one of those decisions that will define the careers of all of the members in

the Legislature," Hee told reporters at a news conference at the state Capitol with Senate

Majority Leader Brickwood Galuteria (D, Kakaako-McCully-Waikiki). "Although Hawaii wasnot the first to enact same-sex marriage, what shouldn't be lost is Hawaii was the first -- in

the Baehr v. Lewin lawsuit -- that started the same-sex marriage discussion nationally."

The state Supreme Court ruled in 1993 that denying same-sex couples marriage licenses

was a violation of equal protection under the state Constitution. The court's ruling influenced

Congress to approve the federal Defense of Marriage Act, which restricted marriage to

heterosexual couples, and prompted Hawaii voters in 1998 to approve a constitutional

Page 1 of 4Senate will accept House version - Hawaii News - Honolulu Star-Advertiser

11/11/2013http://www.staradvertiser.com/newspremium/20131110_Senate_will_accept_House_vers...

EXHIBIT B


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amendment that gave the state Legislature the power to define marriage as between a man

and a woman.

In June, the U.S. Supreme Court held that the federal Defense of Marriage Act was an

unconstitutional violation of due process and equal protection, allowing same-sex couples

who are legally married to receive federal benefits. The court left it up to the states to decide

whether to legalize gay marriage.

Abercrombie responded to the court's ruling by calling the Legislature into special session.

The House approved the bill late Friday in a 30-19 vote after overcoming procedural

maneuvers to delay action. Hee predicted that the Senate vote on Tuesday would be 21-4 if

all senators are available to vote.

Galuteria announced that security procedures for the Senate floor session on Tuesday

would be similar to Friday's House session, when advocates for and opponents of gay

marriage were separated outside the state Capitol.

Under the bill, gay couples could get married in Hawaii as soon as Dec. 2. Clergy would

have the right to refuse to perform gay weddings. Churches and other religious

organizations would be able to decline to provide goods, services and facilities for gay

weddings and celebrations if it violates religious beliefs.

Rep. Bob McDermott (R, Ewa Beach-Iroquois Point), who opposes gay marriage, sent

Abercrombie a letter on Friday stating that he would seek a temporary restraining order in

Circuit Court to prevent the state from issuing marriage licences to gay couples.

McDermott contends that the 1998 constitutional amendment that gave the Legislature the

power to define marriage as between heterosexual couples trumps any statutory change tothe law. He insists that another vote by the people is necessary to redefine marriage.

Judge Karl Sakamoto has said he would hear McDermott's challenge after the bill becomes

law.

"That's the last hope we have," McDermott said. "That's it."

Rep. Marcus Oshiro (D, Wahiawa-Whitmore-Poamoho) and other House lawmakers had

exhorted the Senate to take more time to review the House version. Late Friday, in a speech

on the House floor, Oshiro said that if the bill was not improved he would leave the special

session with a taste like someone had stuffed something "vile" down his throat.

"There is no need to rush," Oshiro said.

Some in both the House and Senate said privately that technical changes to the bill

suggested by Rep. Sharon Har (D, Kapolei-Makakilo) as "friendly amendments" had some

merit. But Oshiro and Har, who both voted against the bill, had put House leadership on the

defensive with relentless attacks against the bill and the process, moves that were

interpreted as strategic attempts to delay action.




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If the Senate were to reject the House's version, the House and Senate would have had to

go into a conference committee, which would have prolonged the debate and would have

likely jeopardized the chances a bill would pass.

Hee defended the process and the special session. The Senate held an 11-hour hearing on

the bill, while the House hearing took a record 56 hours of public testimony over five days.

"Anybody who has been around this building during the legislative session understands that

this bill would not get near the kind of focus or attention but for the special session," Hee

said.

Both Hee and Rep. Karl Rhoads (D, Chinatown-Iwilei-Kalihi), chairman of the House

Judiciary Committee, personally preferred a narrower religious exemption but agreed to an

expansion in an effort to get the legislation passed. The House also chose to remove a

section of the bill on parentage rights after hearing concerns from Native Hawaiians about

how ancestry would be recorded for the children of same-sex couples.

"I would frame it more as a reaction to what we heard in our hearings," Rhoads said of thechanges.

House lawmakers had expected that a leadership divide that still smoldered after House

Speaker Joseph Souki (D, Waihee-Waiehu-Wailuku) took over in January with a coalition of

progressive Democrats and minority Republicans would be exposed during the special

session.

McDermott and other Republicans who oppose gay marriage sought to dissolve the coalition

after failing to persuade Souki to replace Rep. Cynthia Thielen (R, Kailua-Kaneohe) on the

House Judiciary Committee. Thielen was the only Republican to vote for the bill.

While many in the Legislature anticipated that McDermott and other conservatives would

lead the charge against gay marriage, few expected that Oshiro, who lost power when the

new coalition took control, would be the agent of obstruction.

Oshiro insisted that he was motivated by improving the bill and ensuring a fair process, not

undermining House leadership.

But many House lawmakers were privately baffled by Oshiro's tactics given his history on

equal rights.

In April 2010, on the last day of the session, then-House Majority Leader Blake Oshiroproposed suspending the House rules and reviving a civil-unions bill that had been

indefinitely postponed. The bill was technically flawed -- it said it would take effect in January

2010 and had other defects -- but lawmakers wanted to pass the bill anyway in the interest

of advancing equality.

Marcus Oshiro pointed out at the time that the bill was "inartfully drafted" but he did not

stand in the way of Blake Oshiro's extraordinary maneuver.




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In February 2011, Oshiro voted again to pass a civil-unions bill that was technically flawed

and would have to be corrected by lawmakers a year later. He inserted written remarks into

the House journal outlining the potential problems with the bill's language.

"But, as imperfect this measure may be, I will not allow the perfect to be the enemy of the

good," Oshiro wrote.

Copyright (c) Honolulu Star-Advertiser




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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing 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 November 11, 2013.

I certify that all participants in the case are registered CM/ECF

users and that service will be accomplished by the CM/ECF system.

Dated: Honolulu, Hawai`i, November 11, 2013.

/s/ Clyde J. WadsworthPAUL ALSTONCLYDE J. WADSWORTH

JOHN J. D'AMATOJ. THOMAS MALONEY, JR.

Attorneys for Plaintiffs-AppellantsNATASHA N. JACKSON, JANIN KLEID

and GARY BRADLEY


Documents

12-16995 #113