Case: 12-16995 Case: 12-16998

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Nos. 12-16995 and 12-16998 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NATASHA N. JACKSON, et al., 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. On appeal from the United States District Court for the District of Hawaii Case No. CV 11-00734 ACK-KSC The Honorable Alan C. Kay Hawaii Family Forums Motion to Dismiss Appeal No. 12-16998 or Amend the Briefing Schedule Byron J. Babione James A. Campbell Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 (t); (480) 444-0028 (f) bbabione@alliancedefendingfreedom.org jcampbell@alliancedefendingfreedom.org David Austin R. Nimocks Alliance Defending Freedom 801 G Street NW, Suite 509 Washington, DC 20001 (202) 393-8690 (t); (480) 444-0028 (f) animocks@alliancedefendingfreedom.org James Hochberg 745 Fort Street Mall, Suite 1201 Honolulu, HI 96813 (808) 534-1514 (t); (808) 538-3075 (f) jim@jameshochberglaw.com

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Pursuant to Federal Rule of Appellate Procedure 27 and Ninth Circuit Rule 27-1, Hawaii Family Forum (HFF) respectfully moves for an order dismissing Hawaii Governor Neil S. Abercrombies appeal (Appeal No. 12-16998). If the Court denies this request, HFF requests an order permitting the Governor to file briefs only as an appellant in his appeal (Appeal No. 12-16998) and not as an appellee in Plaintiffs appeal (Appeal No. 12-16995). HFF notes that under Circuit Rule 27-11(a)(1), a motion to dismiss such as this stay[s] the schedule for record preparation and briefing pending the Courts disposition of the motion. The Court should dismiss the Governors appeal because he was not aggrieved by the district courts rulings and thus lacks standing to appeal. The Governor is a defendant, and the district court dismissed Plaintiffs claims against him. Although that might not have been his personally preferred outcome, he cannot establish that the appealed rulings harm any legally cognizable interest of his. If the Court dismisses the Governors appeal, HFF asks that the Court establish a briefing schedule that requires the Governor to file his answering brief in Plaintiffs appeal (Appeal No. 12-16995) before HFF and Defendant-Appellee Hawaii Health Director Loretta J. Fuddy file their respective briefs. This will aid the Court by allowing HFF and Director Fuddy, both of whom will argue in defense of the challenged marriage laws, to respond to the Governors assertions that Hawaiis marriage statute is unconstitutional.

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Alternatively, if the Court declines to dismiss the Governors appeal, HFF asks that the Governor not be permitted to act as both an appellant (as he is designated in his appeal, No. 12-16998) and an appellee (as he is designated in Plaintiffs appeal, No. 12-16995) in two appeals that raise identical issues. HFF thus requests an order establishing that the Governor may file only an opening and reply brief as an appellant would and not an answering brief as an appellee would. HFFs attorneys have notified counsel for all parties of their intent to file this motion. Counsel for Defendant Loretta J. Fuddy indicated that Director Fuddy takes no position on this motion. Counsel for Plaintiffs indicated that Plaintiffs oppose the request to dismiss the Governors appeal and take no position on the other relief sought in this motion. Counsel for Governor Abercrombie indicated that the Governor opposes the request to dismiss his appeal. The Governor also indicated that if the Court dismisses his appeal, he takes no position with respect to HFFs request that the Governor be required to file his answering brief before HFF and Director Fuddy file their answering briefs. And the Governor indicated that if the Court declines to dismiss his appeal, he agrees that he will file only a single opening brief in the consolidated appeals and will not file an answering brief in the consolidated appeals. Even though the Governor has agreed not to file an answering brief, HFF (out of an abundance of caution) still requests that if the

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Court denies its request to dismiss the Governors appeal, the Court issues an order establishing that the Governor may not file an answering brief. BACKGROUND Plaintiffs filed this suit alleging that Hawaiis laws defining marriage as the union of one man and one woman violate their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution because those laws do not allow them to marry a person of the same sex. See Am. Compl. 99, 104, ECF No. 6. Plaintiffs brought this action against Governor Abercrombie and Director Fuddy. Id. at 5-6. Director Fuddy filed an answer affirming that Hawaiis marriage laws do not violate the Constitution. See Fuddys Answer to First Am. Compl. 37, 40, ECF No. 10. The Governor, in contrast, filed an answer agreeing with Plaintiffs that Haw. Rev. Stat. 572-1, which allows opposite sex couples, but not same sex couples, to get married, violates the Due Process Clause and Equal Protection Clause of the United States Constitution. Abercrombies Answer to First Am. Compl. 1, ECF No. 9. As an active supporter of the States marriage laws, HFF moved to intervene and defend its significant protectable interest in those laws. HFFs Mot. to Intervene 1, ECF No. 15. The district court found that HFF had a right to

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intervene in this suit and allowed HFF to join the case as a party defendant. See Order Granting HFFs Mot. to Intervene 30, ECF No. 43. Soon thereafter, Plaintiffs filed a motion for summary judgment on their claim that the Hawaii marriage laws violate their equal-protection rights. Plfs. Mot. for Summ. J. 2, ECF No. 65. Plaintiffs did not file expert affidavits or declarations supporting their position. See DAmato Decl. 2-5, ECF No. 66-1. The Governor, who personally agrees with Plaintiffs challenge to Hawaiis marriage statute, did not merely refrain from moving to dismiss Plaintiffs claims; nor did he simply file a response supporting Plaintiffs arguments. Instead, soon after Plaintiffs filed their motion, the Governor (masquerading as a plaintiff) filed his own countermotion for summary judgment against his co-defendants HFF and Director Fuddy. See Abercrombies Countermot. for Summ. J. 2, ECF No. 92. In that motion, he affirmatively attacked the constitutionality of Hawaiis marriage statute, demanding that the statute be subject to heightened scrutiny, see id. at 23a standard that he claimed the law could not satisfy, see Abercrombies Mem. in Supp. of Countermot. for Summ. J. 81-85, ECF No. 92-1. The Governor thus asked the district court to invalidate the States marriage statute, relief that he surely lacks standing to request. Displaying his zeal to invalidate the law, the Governor (unlike Plaintiffs) filed four declarations from purported experts (totaling over 330 pages) to support his arguments attacking the marriage statute. See Herek

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Decl., ECF No. 93-17; Lamb Decl., ECF No. 93-23; Chauncey Decl., ECF No. 9320; Segura Decl., ECF No. 93-27. Director Fuddy and HFF, in marked contrast, filed motions for summary judgment asking the district court to dismiss all Plaintiffs claims because the challenged marriage laws comport with the Constitution. See Fuddys Mot. for Summ. J. 1-2, ECF No. 63; HFFs Mot. for Summ. J. 2-3, ECF No. 67. In response to the Governors motion, HFF also argued that the Governor lacked standing to act as a quasi-plaintiff when he attacked the marriage statute in his motion for summary judgment. See HFFs Opp. to Abercrombies Mot. for Summ. J. 39-48, ECF No. 101. Thus, HFF argued that the Governors motion should be stricken. See id. The district court granted Director Fuddys and HFFs summary-judgment motions, dismissed all Plaintiffs claims, and upheld Hawaiis marriage laws. Order Granting Mot. Summ. J. 1-7, 116, ECF No. 117. The court also concluded that it need not consider whether it has jurisdiction over [the Governors] Countermotion seeking to invalidate the marriage statute because that motion was rendered moot by . . . granting summary judgment in favor of Defendant Fuddy and HFF. Id. at 34-35. Subsequently, Plaintiffs filed a notice of appeal from the district courts judgment and summary-judgment order, see Plfs. Notice of Appeal 1-2, ECF No.

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121; and that filing commenced Appeal No. 12-16995. Later that same day, the Governor filed a notice of appeal from the same judgment and order, see Abercrombies Notice of Appeal 2, ECF No. 123; and that filing gave raise to Appeal No. 12-16998. In his notice of appeal, the Governor asked that this Court treat him as a true appellant and schedule him to file his opening brief before Director Fuddy and HFF file their answering briefs. Id. at 2 n.1 (emphasis omitted). ARGUMENT I. The Court Should Dismiss the Governors Appeal. The Court should dismiss the Governors appeal because he lacks standing to pursue it. Ordinarily, only a party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal therefrom. Deposit Guar. Natl Bank v. Roper, 445 U.S. 326, 333 (1980); Dixon v. Wallowa Cnty., 336 F.3d 1013, 1020 (9th Cir. 2003); Envtl. Prot. Info. Ctr., Inc. v. Pac. Lumber Co., 257 F.3d 1071, 1075 (9th Cir. 2001). A defendant has standing to appeal a ruling on the plaintiffs claim only if that ruling is adverse to the defendants interests. Knight v. Ala., 14 F.3d 1534, 1555 (11th Cir. 1994). Yet the Governor, who appealed from the district courts judgment and summary-judgment order dismissing Plaintiffs claims, see Abercrombies Notice of Appeal 2, ECF No. 123, cannot demonstrate that he has been aggrieved.

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The district courts judgment dismissed all Plaintiffs claims and ordered that Judgment is entered in favor of Defendants. Judgment 1, ECF No. 118. In other words, the judgment dismissed Plaintiffs claims against the Governor. It is simply inconceivable that the Governor, a defendant in this case, has somehow been aggrieved by a judgment dismissing the claims filed against him. Nor has the Governor been aggrieved by the district courts order denying his motion for summary judgment. See Abercrombies Notice of Appeal 2, ECF No. 123; Order 116, ECF No. 117. The Governor cannot show that denying his motion for summary judgment harmed any concrete legal interest of his. The Governors only interest adversely affected by that ruling is his subjective belief that the marriage statute violates constitutional principles. Such an interest is legally insufficient to create standing. See Finch v. Mississippi State Med. Assn, Inc., 585 F.2d 765, 774 (5th Cir. 1978) (The mental disposition of the Governor is all that gives him cause to complain [about the challenged state law]; were he to change his mind tomorrow and decide, rightly or wrongly, that the state statute is valid, he would no longer have any interest in the case[ because] [h]e has no personal stake in the outcome[.]); Baxley v. Rutland, 409 F. Supp. 1249, 1257 (M.D. Ala. 1976) (The subjective opinion of the Attorney General without any

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other personal stake in the outcome is too weak a base to support the concept of standing).1 Because the Governor would not have had any right to pursue this interest as a plaintiff, it necessarily follows that he cannot invoke this interest to create standing to appeal. See Knight, 14 F.3d at 1556 (refusing to find standing to appeal where the result would have allowed the defendants to pursue on appeal . . . interests that they [would] have no right to pursue as plaintiffs). Therefore, the district courts disagreement with the Governors personal views about constitutional interpretation does not afford the Governor standing to appeal. [A] party may only appeal to protect its own interests, not those of any other party. Estate of Bishop By & Through Bishop v. Bechtel Power Corp., 905 F.2d 1272, 1276 (9th Cir. 1990) (quoting Bryant v. Technical Research Co., 654 F.2d 1337, 1343 (9th Cir. 1981)); see also Knight, 14 F.3d at 1555 ([A] party may not appeal to protect the rights of others.). The most obvious application of this rule is found in cases in which an appellant seeks to assert the rights of its adversary. 15A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 3902 (2d ed.). Here, only Plaintiffs (not the Governor) can identify a

For this reason, HFF asked the district court to strike the Governors summaryjudgment motion attacking the marriage statutes constitutionality. See HFFs Opp. to Abercrombies Mot. for Summ. J. 39-48, ECF No. 101. The district court determined that it need not decide that question because the Governors motion was rendered moot by . . . granting summary judgment in favor of Defendant Fuddy and HFF. Order 34-35, ECF No. 117. 9

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legally cognizable interest that has been allegedly aggrieved by the district courts ruling. But the Governor may not appeal to assert the alleged rights of his adversary. Nor do Plaintiffs need him to do that, for Plaintiffs have filed their own appeal raising their own purported interests, and that appeal will fully decide the exact question that the Governor seeks to raise in his appealthe constitutionality of Hawaiis marriage statute. The Supreme Courts recent decision in United States v. Windsor, 133 S. Ct. 2675, 2684-89 (2013), does not undermine HFFs argument that the Court should dismiss the Governors appeal. There, the plaintiff challenged the constitutionality of Section 3 of the federal Defense of Marriage Act (DOMA), which defined marriage for federal purposes as a legal union between one man and one woman. Id. at 2683 (quoting 1 U.S.C. 7). The plaintiff sought a refund of estate taxes that she had paid to the federal government as a result of DOMA. Id. The district court in that case, unlike the district court here, ruled in the plaintiffs favor and entered judgment ordering the federal defendant to pay [her] the refund she [sought]. Id. at 2686. This order directing the [federal defendant] to pay money [was] a real and immediate economic injury to the defendant. Id. (quotation marks omitted). For that reason, the federal government had standing to file an appeal in Windsor. Id. Here, in contrast, the district court dismissed the claims against the Governor, did not order him to do anything, and did not inflict any cognizable injury on him.

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This case thus presents very different circumstances than those involved in Windsor, and the Governor (unlike the federal defendant in Windsor) does not have standing to file an appeal attacking the state marriage statute. Far from undermining HFFs argument to dismiss the Governors appeal, Windsor actually supports it. Windsor stated that there is no suggestion here that it is appropriate for . . . [e]xecutive [officials] as a matter of course to challenge statutes in the judicial forum rather than making the case to [the legislative branch] for their amendment or repeal. Id. at 2689. Notably, the Governor has recently decided to urge the Hawaii Legislature to redefine marriage, calling for a special legislative session later this month to consider amending the state marriage statute. See Exs. A & B to Wadsworth Decl. in Supp. of Appellants Mot. for Further Extension of Time to File Opening Briefs, ECF Nos. 35-3, 35-4. By turning to the Legislature, the Governor has sought to obtain his desired legal change through the appropriate channel. But by filing his appeal in this case, he has not. If the Court dismisses the Governors appeal, HFF requests a briefing schedule that requires the Governor to file his answering brief in Plaintiffs appeal (Appeal No. 12-16995) before HFF and Director Fuddy file their briefs. To this end, HFF proposes a schedule requiring Plaintiffs to file their opening brief when the Court deems appropriate, the Governor to file his answering brief 30 days after Plaintiffs brief is due, HFF and Director Fuddy to file their answering briefs 30

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days after the Governors brief is due, and Plaintiffs to file their optional reply brief 14 days after service of both HFFs and Director Fuddys answering briefs. This schedule will aid the Court by allowing HFF and Director Fuddy to respond to both the Governors and Plaintiffs arguments against Hawaiis marriage laws. II. Alternatively, the Court Should Establish That the Governor May Not File an Answering Brief. If the Court declines to dismiss the Governors appeal, HFF asks that the Governor not be permitted to act as both an appellant (as he is designated in his appeal, No. 12-16998) and an appellee (as he is designated in Plaintiffs appeal, No. 12-16995) in two appeals that raise identical issues. Therefore, HFF requests an order establishing that the Governor may file only an opening and reply brief as an appellant would and not an answering brief as an appellee would. Absent this relief, the Governors answering brief in Appeal No. 16995 will assert arguments against the marriage statute without the opportunity for either of the parties defending that statute, Director Fuddy or HFF, to respond. That does not further the ends of justice. CONCLUSION For these reasons, HFF respectfully requests that the Court dismiss the Governors appeal, Appeal No. 12-16998, or alternatively, establish that the Governor may not file an answering brief in Appeal No. 12-16995.

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Dated: October 11, 2013 Respectfully submitted, s/ Byron J. Babione Byron J. Babione James A. Campbell Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 (t); (480) 444-0028 (f) bbabione@alliancedefendingfreedom.org jcampbell@alliancedefendingfreedom.org David Austin R. Nimocks Alliance Defending Freedom 801 G Street NW, Suite 509 Washington, DC 20001 (202) 393-8690 (t); (480) 444-0028 (f) animocks@alliancedefendingfreedom.org James Hochberg 745 Fort Street Mall, Suite 1201 Honolulu, HI 96813 (808) 534-1514 (t); (808) 538-3075 (f) jim@jameshochberglaw.com Attorneys for Hawaii Family Forum

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CERTIFICATE OF SERVICE

I certify that on October 11, 2013, I filed the foregoing document with the Clerk using the Courts electronic filing system; all parties in the case will be served by CM/ECF.
s/ Byron J. Babione Byron J. Babione