ST

ROBERT K. MATSUMOTO #1330 345 Queen Street, Suite 701 Honolulu, HI 96813 Telephone: (808) 585-7244 And JOHN R. DWYER, JR. #1445 Dwyer Schraff Meyer & Green 1800 Pioneer Plaza 900 Fort Street Mall Honolulu, Hawaii 96813 Telephone: (808) 534-4444 Attorneys for Plaintiffs REPRESENTATIVE BOB McDERMOTT, GARRET HASHIMOTO, WILLIAM E.K. KUMIA, DAVID LANGDON

6
k.

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII REPRESENTATIVE BOB McDERMOTT, GARRET HASHIMOTO, WILLIAM E.K. KUMIA, DAVID LANGDON, Plaintiffs, vs. GOVERNOR NEIL ABERCROMBIE, SENATOR DONNA MERCADO KIM, REPRESENTATIVE JOSEPH SOIJKI, SENATOR CLAYTON HEE, REPRESENTATIVE KARL RHOADS, Defendants.

) ) ) ) ) ) ) )

CIVIL NO. 13-1-2899-10 KKS PLAINTIFFS REPLY MEMORANDUM IN SUPPORT OF THEIR FIRST AMENDED MOTION FOR TEMPORARY RESTRAINING ORDER; EXHIBITS A THROUGH C; CERTIFICATE OF SERVICE

) Hearing Date: November 7, 2013 (Thursday) ) Hearing Time: 8:30 a.m. ) The Honorable Karl K. Sakamoto

) ) ) ) )

PLAINTIFFS REPLY MEMORANDUM IN SUPPORT OF THEIR FIRST AMENDED MOTION FOR TEMPORARY RESTRAINING ORDER COME NOW Plaintiffs REPRESENTATIVE BOB McDERMOTT, in his capacity as a member of the State of Hawaii of Representatives and not in his individual capacity, GARRET IIASHIMOTO, WILLIAM E.K. KUMIA and DAVID LANGDON (collectively the Plaintiffs), by and through their attorneys, the law firms of Robert K. Matsumoto and Dwyer Schraff Meyer & Green, and hereby submit their Reply Memorandum In Support of Their Motion for Temporary Restraining Order. I. INTRODUCTION. At the outset of this Reply Memorandum it is important to recognize that Defendants apparently believe the Plaintiffs have filed this action to prevent the Hawaii State Legislature from considering a legislative bill. Even a cursory review of the First Amended Complaint would show that such a belief is categorically wrong; although such a goal would have been proper. 5cc, Muneer Awad v. Paul Ziriax (Agency Head, Oklahoma State Board ofElections), 670 F.3d 1111
10 ( th

Cir. 2012).

Given the arguments of the Defendants, it is also appropriate to note that the Hawaii Legislature has formally made findings that the people of Hawaii have chosen to Preserve the tradition of marriage as a unique social institution based upon the committed union of one man to one woman. Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1080 (D.Hawaii 2012) The Jackson court went on to determine that in light of the Constitutional Amendment in 1998 (Article I, Section 23), that Section 572-1, Hawaii Revised Statutes, as amended (HRS), must be given full force and effect. Id., at 1080.

In any event, we are not involved with a civil rights issue here, because every Hawaii citizen has an equal right to marry; but simply put, a citizen cannot marry someone of the same-sex any more than that citizen can marry more than one person of the opposite-sex. To be clear, the Plaintiffs recognize that certain activists have argued that same-sex couples have the identical love and conimitment to each other as heterosexual couples, and thus should therefore be treated equally and receive equal benefits. That argument is fatally flawed. The fact is that society has provided certain economic benefits, status, and other incentives to heterosexual marriages, because heterosexual marriages have encouraged the stability of and have provided benefits to our society for the purpose of birthing, and the support and the raising of children, who will become the next generation of citizens, NOT because that heterosexual couple maintains a love and commitment to each other. That is to say, even though love and commitment are fundamental to a strong heterosexual marriage, love and commitment have NOT been the basis society has provided incentives and a special status, as a matter of public policy, to traditional heterosexual marriages. Rather, the basis for those incentives and status is the long recognized irreplaceable contributions that heterosexual marriages have made to our society, social order, and personal health and welfare. Society has recognized that only a heterosexual marriage can provide the means and resources to birth and raise children to become responsible citizens. Finally, in determining the applicability of a Temporary Restraining Order, Hawaii courts apply a sliding scale analysis. If the balance harm or hardships that will be suffered by the Plaintiffs tip decidedly to the Plaintiffs, the Plaintiffs are not required to show as robust a likelihood of success on the merits as Plaintiffs 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). As will be explained below, the issuance of a single marriage license to a same-sex couple will 2

cause immediate and irreparable damage that will be virtually impossible to correct; while there will be little or no damage to the Defendants if Defendants require same-sex couples to wait a short period until there is a full hearing on this matter.
II. ARGUMENT. A. STANDING.

The complexities of standing and ripeness standards are considered to be barriers to justice, and when a court considers removing those barriers, the emphasis is placed on the needs ofjustice. E. Diamond Head Ass n v. Zoning Bd. ofAppeals, 52 Haw. 518 (1971). More specifically, those justiciability standards are simply not applicable in declaratory judgment actions involving matters of great importance. Brownster v. Yoshina, 84 Haw. 179 (1997). Thus, those standards are not applicable and are not barriers in this case. However, in spite of their inapplicability they will be addressed below, since Defendants have raised them. The Defendants Opposition Memorandum argues that none of the Plaintiffs have the requisite standing, and that the issue is not ripe for adjudication. That is simply not the case. ($ the Declaration and Supplemental Declarations of Plaintiffs submitted herein.) In a typical civil lawsuit there is a generic three-prong test that Courts consider in determining whether a plaintiff has the requisite interest to invoke a courts jurisdiction. Defendants Opposition Memorandum (at page 10) has correctly described that three-prong test, which is applicable in those generic cases. However, that analysis is neither adequate nor appropriate, and it is not a barrier here. As pointed out in Plaintiffs First Amended Motion for Temporary Restraining Order, and as evidenced by the continuing and on-going Legislative hearings, because this matter is one of very significant public importance. Thus, the standing of these Plaintiffs should be viewed from the same perspective as standing in cases involving matters that raise substantial 3

public interest such as environmental well-being concerns or native Hawaiian rights.

$, Life of

the Land v. Land Use Commission, 63 Haw. 166 (1981). In fact, the Hawaii Supreme Court has often stated, standing barriers should not bar cases of public interest under our jurisdiction. More specifically federal justiciability standards are inapplicable in state court declaratory judgment actions involving matters of great public importance. Bush v. Watson, 81 Haw. 474 at 479 (1996), quoting Aged Hawaiians v. Hawaiian Homes Commission, 78 Haw. 192 (1995). The Bush case went on to establish that the touchstone of our laws Standing requirement in cases involving significant public interest is the needs ofjustice. Bush, supra. In Plaintiff McDermott s situation, his Declaration indicates that he is far more than an individual legislator who is challenging the constitutionality of a law as was argued by Defendants. Plaintiff McDermott states that if the current Legislators interpret Article I, Section 23 as allowing them to proceed with the Marriage Equality Bill, then the Legislature must have convinced Hawaii citizens to vote for the Constitutional Amendment in November 1998 by outright and gross misrepresentations. Plaintiff McDermotts Declaration indicates that during the 1997 Session, he understood that the Legislature had chosen to give the people of Hawaii the right to decide if the existing Hawaii law (Section 572-1, HRS), (which effectively defined marriage in Hawaii as being a contract between a man and a woman), should be validated by an Amendment to the Hawaii Constitution. Plaintiff McDermotts understanding was well founded, because the Notice of Hearing of January 21, 1997 for H. B. No. 117 stated that the AGENDA item (being considered) Proposes a constitutional amendment to provide that the laws which limit marriage to one man and one woman do not violate the Hawaii State Constitution. (See, attached Exhibit A.) Further, the legislative Conference Committee Reports state that the purpose of

H. B. No. 117 was to provide the people of Hawaii with the opportunity to amend the Hawaii Constitution so that the ruling in Baer v. Lewin would be mooted, and that in Hawaii Section 572-1 (which reserved marriage to couples of the opposite sex) would be validated. attached Exhibit B.) Plaintiff McDermott s Declaration did not stop there, because he stated that the States formal Ballot Information Flyer (See, attached Exhibit C), which was sent by the State of Hawaii to all of Hawaiis voting citizens (and published in the newspaper), expressly explained that the proposed Amendment would give the Legislature jy the power to reserve marriage to opposite-sex couples, a task the Legislature had already performed; thus validating the Legislatures prior action. That Ballot Information Flyer should be considered in the Courts determination, because it not only explained to all Hawaii voters that the Baer litigation had been filed by same-sex couples to invalidate Section 572-1, HRS, it also went on to effectively advise the people of Hawaii that a Yes vote would end that litigation, and that Section 572-1, HRS, which defined marriages in Hawaii as being between a man and a woman would be valid. In any event, based on the statements made in the Legislative documents and the Ballot Information Flyer circulated by the State to the Hawaii voting public, Plaintiff McDermott gave dozens of speeches explaining the proposed Amendment, and advisedhe public that a Yes vote would allow the Constitution to be amended, so that the prior law (Section 572-1, HRS) enacted by the Legislature (that reserved marriage to heterosexual couples only) would be Constitutionally established and would be valid. Thus, unless Declaratory and Temporary Injunctive Relief is granted to maintain the status quo pending a full hearing, he will suffer irreparable damages to his reputation and to his electability as a legislator, which is his livelihood, because his actions

($,

and speeches prior to the 1998 vote will have been and will be deemed by the electorate to be misleading and untruthful. The standing of Plaintiffs Hashimoto, Kumia, and Langdon, and their concrete injuries are set forth in their Declarations; and clearly they will be personally and adversely affected and damaged. The fact is, they are much more than simply concerned citizens who object on policy grounds. Further, their names ought not be stricken from this case, because the operative Complaint is the First Amended Complaint that was filed herein on November 1, 2013. As noted above, while the Standing issue or barrier is not applicable in this case, the Standing of the Plaintiffs should be viewed from the perspective that this case involves a great public interest and a very significant cultural and societal impact. Thus, the needs ofjustice must be the touchstone, not complex barriers to justice. B. RIPENESS. It has been noted above that the complex standard or barrier of ripeness is applicable in this action. However, this issue is ripe, it is suitable for judicial resolution, and withholding review by the Court will cause Plaintiffs immediate and irreparable damage. Abbot Labs v. Gardner, 387 U.S. 136 (1967), and Sierra Club v. Yuetter, 911 F.2d 1405 Cir. 1990). Those damages will be irreparable, because if a single marriage license is issued to a same-sex couple, that ministerial act will immediately trigger due process and equal protection arguments in the event the State ever sought to take the alleged vested rights away or to deny other same-sex couples marriage licenses. Conversely, withholding marriage licenses until a full hearing on the merits will not result in any similar damage. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal., 2010.)
, ,

(l t 0 h

Perry v.

The controversy before this Court is sufficiently concrete to warrant the intervention by the Plaintiffs, because they will suffer direct and immediate hardships that entail more than just a possible financial loss.

$, Office ofHawaiian Affairs v. Housing and

Community Development Corp. ofHawaii, 121 Hawaii 324 (2009). Unfortunately, this controversy has ripened by the very nature and substance of the on-going proceedings that started with: (1) The Governor initially called a five (5) day Special Session, with the clear intention that the Bill would pass quietly and swiftly; (2) The Senate cut-off testimony, and ignored the thousands of Hawaii citizens who wished to testify; (3) The House limited the testimony of each Hawaii citizen to only two (2) minutes; and (4) Then scheduled a second reading of the Bill for 6:00 p.m. on November 5, 2013, even though it had been passed out of Committee.

The fact is, the Governor, and apparently the majority of the legislators (in spite of overwhelming public opposition), want to pass this Bill quickly, and are in a position to waive the Rules of the Senate and the House of Representatives to accomplish that objective. Thus, this case is ripe. C. SUCCESS ON THE MERITS. Defendants argument regarding the likelihood of Plaintiffs success on the merits suggests that the Defendants have completely misunderstood this case, and they are now mischaracterizing Plaintiffs First Amended Complaint (the Complaint). Paragraph 24 of the Complaint provides that it is being brought to obtain a Declaratory Judgment under Chapter 632, HRS, Declaratory Judgments. Simply put, Plaintiffs are expressly seeking a declaration by this 7

Court that the Amendment of the Constitution, that was voted on and overwhelmingly approved by the people of Hawaii in 1998, was understood and intended by the people to Constitutionally validate the prior action of the Hawaii Legislature that reserved marriage in Hawaii to opposite-sex couples only: and that the people neither intended to nor gave the Legislature any other power. Thus, the focus of this Declaratory Relief Action must be directed to Article I, Section 23 of the Hawaii Constitution and Section 572-1, HRS; and NOT on the constitutionality of the Marriage Equality Bill that is currently being considered by the Special Session of the Hawaii State Legislature. Consequently, Defendants arguments that Plaintiffs are attempting to interfere with the legislative process is incorrect; thus their arguments with respect to Success on the Merits are inapposite and irrelevant.
III.

CONCLUSION. Because the damages to Plaintiffs will be so immediate and irreparable if a Temporary

Injunction does not issue, and the Defendants will have little or no damage, this Court should grant the injunctive relief sought pending a full hearing on this matter, because it involves substantial public interest and it goes to the very heart of the cultural and societal mores of the vast majority of Hawaiis citizens. Dated: Honolulu, Hawaii, November 6, 201

ROBERTK. M)TIUMOTO JOH)4 R. JR. Attorneys for Plintiffs REPRESENTATIVE BOB McDERMOTT, GARRET HASHIMOTO, WILLIAM E.K. KUMIA, DAVID LANGDON

Archives JUD Hearing

-

HOUSE OF REPRESENTATIVES THE NINETEENTH LEGISLATURE REGULAR SESSION OF 1997 C0MMITrEE ON JUDICIARY Rep. Terrance W. H. Tom, Chair Rep. Brian Yamarie, Vice Chair Rep. Rep. Rep. Rep. Rep. Romy Cachoia Robert Herlces Merwyn Jones Ron Menor David Pendleton

1/21/97

Rep. Ed Case Rep. Ken Hiraki Rep. Marilyn Lee Rep. Terry Yoshinaga Rep. Cynthia Thielen Rep. Paul Whalen

NOTICE OF HEARING
DATE:

Tuesday, January 21, 1997 2:00 p.m. - completIon

TIME:

PLACE: AudItorIum, State Capitol

H.BNOa117

PROPOSING A CONSTITUTIONAL AMENDMENT RELATING TO MARRIAGE. Proposes a constitutional amendment top that laws which limit marriage to one man and one woman do not violate the Hawad State Constitution. RELATING TO UNMARRIED COUPLES. Establishes the status of reciprocal beneficiaries for people who are ineligible for marriage under chapter 572. Extends certain benefits to reciprocal beneficiaries. DECISION MAKING TO FOLLOW

H.B.No.118

Because of tim. constraInts, both bills will be considered at the urn. Wile. Testifiers should combine their comments on the bills In a single written testImony. Each testifier will be called on once and if the testifier wishes to comm.nt on both bills he should do so at that tIme. If during the course of the hearing, it app.ars that tiler, will not be sufficient tim, to allow everyone to be heard, the Chairperson reserves the right to lImit the remaIning testifiers to 4 mlnut.e. PERSONS WiSHING TO TESTiFY ARE REQUESTED TO SUBMIT 3 COPIES OF THEIR TESTIMONY 24 HOURS PRIOR TO ThE HEARING TO: (1) THE COMMITTEE CHAIRS OFFICE IN ROOM 302, STATE CAPITOL; OR (2) THE CAPITOL BASEMENT PARKING LOT. TESTIMONY MAY BE FAXED TO THE HOUSE SGT.-AT-ARMS OFFICE AT: 588-6501 (OAHU) OR 1-800-535-3859 (NEIGHBOR ISLANDS). WHEN FAXING, PLEASE INDICATE TO WHOM ThE TESTIMONY IS BEING SUBMITTED, THE DATE AND TIME OF THE HEARING, AND THE REQUIRED NO. OF COPIES THAT IS NEEDED FOR SUBMITTAL LATE TESTIMONY WILL BE TAKEN AND PERSONS MAY SIGN-UP TO TESTIFY UP UNTIL 2:30 P.M. ON ThE DAY OF THE HEARING. ThOSE PERSONS WHO SUBMIT TESTIMONY 24 HOURS PRIOR TO ThE HEARING WILL AUTOMATICALLY BE PLACED ON ThE LIST OF TESTIFIERS. ALL OThERS MUST SIGN UP TO TESTIFY BEFORE THE 2:30 P.M.
,

DEADLINE. IN ThE INTEREST OF FAIRNESS TO ALL TESTIFIERS NO ONE WILL BE ALLOWED TO TESTIFY UNLESS THEIR NAME APPEARS ON ThE TESTIFIERS LIST BY THE 2:30 P.M. DEADLINE. THE LIST OF TESTIFIERS WiLL BE POSTED AT ThE HEARING ROOM PRIOR TO THE HEARING. IT IS THE RESPONSIBIUTY OF EACH TESTIFIER TO CHECK THE LIST PRIOR To 2:30 P.M. TO ENSURE THAT THEIR NAME IS ON THE LIST.
IT IS ALSO REQUESTED THAT ThE COPIES BE ON ONE SIDE OF AN 8.1,2a X 1 1 SHEET. FOR FURTHER INFORMATION, PLEASE CALL THE JUDICIARY COMMITTEE CLERK AT 586-8490. IF YOU REQUIRE SPECIAL ASSISTANCE OR AUXILIARY AIDS AND/OR SERVICES TO PARTICIPATE IN THE PUBLIC HEARING PROCESS OF THE STATE HOUSE (I.E., SIGN LANGUAGE INTERPRETER, WHEELCHAIR ACCESSIBILITY, OR PARKING DESIGNATED FOR THE DISABLED), PLEASE CONTACT THE COMMITTEE CLERK 24 HOURS PRIOR TO THE HEARING SO ARRANGEMENTS CAN BE MADE.

Rep. Terrance W.H. Tom Chafr

NOTICS JUfl 0hI21I7

HO U S B .10 U R N A L a seat in ks he or er. The :ts It by

CONFERENCE COMMITItE REPORTS 1039

coNFERENCE COMMFETEE REPORTS

CooL Corn. Rep. I a. 11.3. No. 117

The purpose of the bill Ii to provide the people of Hawai i with the opportunity to amend the Hawaii State Constitution to expressly state that the Legislature has the power to constItutIonally reserve marriage to couples of the opposha sex, thereby addressing the ruling In Beth v. Lewin on that Issu.. Your Committee has amended both the purpose clause of the bill and the language of the proposed amendment to more clearly fulfill these purposes and Intentions. Your Committee on Conthrence Is In accord with the intent and recommends that It pass Final Reading in the form attache and purpose of H. B. No. 117, SD 1, as amended herein, d hereto as Wfl. No. 117, SD 1, CD 1. Representatives Tom, Cachola, Herkes, Yamane end Whale n, Managers on the pitt of the House.

>

so will

tpter 21. in any r in any witness

Senators Chumbley, Matsunaga, McCartney and Metcal f, Managers on the part of the Senate.

CoaL Cote. Rep. 2 a. 11.3. No. 118

The purpose of this bill is to establish the status of reciprocal beneficiaries and provide certain state govern mental benefits to those with such status. The bill represents a commitment to the provision of barred by law ftom marriage. Your Committee agrees substantially similar government rights to those couples who are that, while the traditional concept of marriage should be reserved as per current law, permanent commitments which bear die same burdens and share the same aspirations as legally married couples should, as a matter of fundamental fairnes s, be afforde d the econom benefit ic provid s ed by the State of Hawaii to married couples. Among the benefits extended to reciprocal beneficiaries which are substantially equivalent to those extended to spouse are: s (1) Survivorship rights Including Inheritance, workers compensation survivorship benefits, state employees retirement beneficiary benefits; (2) Health related benefits Including hospital visitati on, private and public employee prepeid medical Insuran ce benefits, auto insurance coverage, mental health commi tment approvals and notifications, family and funeral leave: (3) Benefits and obligations relating to jointly held proper ty: tenancy In the entirety, disaster relief loans, and public lands leases; d In the (4) Legal standing relating to wrongful death, victim s rlgjits, and domestic violence family status; and (5) MIscellaneous benefits such as University of Hawai i facilities use, anatomical gIfts, and government vehicle emergency use. Upon further consideration and agreement, this measu re was amended by: (1) Deleting section 423425, HawaIi Revised Statute s, which relates to partnership property; (2) Inserting language which explicitly prohibits other than limited interpretations; (3) Providing for a sunset of state and county prepaid heekh Insurance provisIons (June 30, 1999); (4) RequIring a closed claim study by the Audito r two years after the effective date of the Act; (5) Deleting those provisions relating to personal Income tax; (6) DeletIng the durational residency requirement; i govern (7) ClarifyIng that the marriage of a reciprocal benefic iary terminates reciprocal beneficiary rights: (8) ChangIng the effective date to July 1, 1997; and (9) Making technical, nonsubstantive amendments. Your Committee on Conference Is In accord with the intent and purpose of H.B. No. 118, liD 1, SD herein, and recommends that It pass Final Readin 1, as amended g in the form attached hereto as H.B, No. 118, HD 1, SD 1, CD 1.

sport the, will not

Clerk all iminees.

:e of the endmeflt Rules of

.hled.

Representatives Torn, Cachola, Herkes, Yamane and Thiele n. Managers on the part of the House.

H 0USE
ills

3 0 U RN A I.

STANDING COMMITrEE REPORTS

STANDING WIbUIffiTEB REPORTS SCRap. I Judidary on H.B. No. 117

of the State of Hawaii to The purpose of this bill is to propose an amendment to Article I, sectIon 5 of the Constitution define or regulate marriage, the that doctrines legal and decrees, orders, rules, laws, regulations, statutes, c1ariIi that section or any other section of the parties to marriage, or the benefits of marriage shall not be deemed in violation of that union of only one man and one the to relationship marriage the of limitation of a virtue by Constitution Hawaii State woman. es of the Hawaii Catholic Testimony In support of the measure was received by your Committee from representativ citizens. private and organizations other numerous and Today Conference, Hawaiis Future of the Hawaii Civil Testimony in opposition to the measure was received by your Committee from representatives Rights Commission, the Glee Foundation and numerous other organizations and private citizens. order to firmly state the Your Committee finds that in 1994 thIs Legislature adopted Act 217 relating to marriage In union of one man and one Legislatures view that marriage in the State of Hawaii Is reserved exclusively for the lawful woman. Act 217 was necessary becaus, the Hawaii Supreme Court In Bath v. Milk. incorrectly Interpreted existing gtnm law, the basis of sex against both statutory and constitutional, when It held that Hawaiis marriage laws discriminated on same-sex couples. our State Conetitudon Since that time the judIcIal branch of government hu continued to assert an interpretation of of our Constitution. framers which Ii both unpredented in judicial history and dearly contradictory to hi Intent of the authors of our Hawaii Your Committee finds that no serious claim can be made that the voters of this state or the the State to Issue Constitution intended that the prohibition of sex discrimination in our Constitution was a mandate to marriage licenses to couples of the seine sex. violence to the will of Your Committee finds that when in interpretation of the Constitution of the State of Hawaii does the voters who adopted It, it is necessary and proper to submit the matter to the voters for resolution. Is an expression of their The citizens of the State of Hawaii are the ultimate constitutional authority. The Constitution will, not the will of any branch of government. couples end whether or Your Committee finds that the issues of whether or not to Issue marriage licenses to same sex of the same sex are to couples couples married to reserved been have which obligations and benefits extend the to not If ratified, confirm will, Constitution our to amendment proposed that this and legislature, the of properly the province the Courts. not and Legislature the remain with that thei. policy issues

II

to this report, your As affirmed by the record of votes of the members of your Committee on Judiciary that is attached Reading and be Second It that pass recommends 117 and H.B. No. of purpose and Intent with the accord Committee is In Third Reading. for placed on the calendar Signed by all members of the Committee. (Representative Case voted no.) SCRap. 2 JudicIary cc ILB. 11

married The purpose of this bill is to create a structure to make certain rights and benefits presently available only to couples avallable to couples comprised of Individuals who are ieg.iiy prohibited from marrying one another.
Testimony in support of the measure was received by your Committee from several members of the public. Testimony in opposition to the measure was received by your Committee from a number of private citizens.

from Your Committee finds that there are many couples comprised of Individuals who are are prohibited by law other as marrying, yet who nonetheless maintain such a close relationship with each other that they wish to designate each beneficiary of a number of benefits presently available only to married couples
lack Your Committee finds that when Illness, death, or financial hardship strikes one party In a relationship, the parties the protections that long-established legal doctrInes afford married couples under the the same circumstances, for Your Committee finds that It is appropriate to address the concerns of those couples by creating a legal structure reciprocal beneficiaries.
V

Because this structure Is not available to those couples who can legally marry It does not threaten to undernufle marriage between couples of the opposite sex.
Your Committee believes that this measure, in providing for the right to hospital visitation and the right to make health right care decisions for the other party, the right to hold property as tenants by the entireties, inheritance rights, and the to sue for wrongful death, will be of substantial benefit to many people In our community.
VVV

VV:;

ITTEEREPORTS SENATE JOURNAL- STANDING COMM are statutorily adjusted do not compound interest. Hence, the Committee also finds that the method by which these retirants pensions is based on their original pension. The pensioners bonus receive to entitled statutorily are they that bonus annual pensioners bonus. contained in this measure would be provided in addition to the statutory ensure that its retirants are adequately provided for given the Your Committee believes that it is incumbent upon the State to g the current fiscal crisis the State faces, your Committee tandin unders However, community. ed their to service they have provid years, rather than four. Your Committee has amended the two for program bonus pensioners the believes it more prudent to extend bill to reflect this concern. your Committee on Human Resources that is attached to this report, As affirmed by the record of votes of the members of your that it pass Second Reading recommends and herein, amended as 202, No. of S.B. purpose Committee is in accord with the intent and to the Committee on Ways and Means, in the form attached hereto as S.B. No.202, S.D. I, and be referred Signed by the Co-Chairmen on behalf of the Committee. Ayes, 6. Noes, none. Excused, 1 (Levitt). SCRep, 10 (Majority) Judiciary on H.D. No. 117 propose an amendment to Article 1, section 5, of the Constitution The purpose of this bill, as received by your Committee, was to rules, orders, decrees, and legal doctrines that define or regulate of the State of Hawaii to clarify that statutes, regulations, laws, not be deemed in violation of this section or any other section of the marriage, the panics to marriage, or the benefits of marriage shall the union of only one man and one woman. Constitution by virtue of a limitation of the rnsrnage relationship to debated in public forums through the legislative process for Your Committee finds that the issue of same sex marriage haa been ns of the various members of our community have been opinio of four years now. Your Committee further finds that the wide-range issue still divides our community. Thus, in what is a significant this unfortunately and, years, four those during expressed repeatedly ittee is embracing the House of Representatives proposal to shift from the Senate position of the Eighteenth Legislature, this Comm that would place legal restrictions upon nias age. amendment l constitutiona a on vote to the people for opportunity an provide in H.B. No. ill as received. First, the proposed amendment However, your Committee finds that there are fundamental flaws Constitution. Your Committee notes that this clause in our our of Clause tion Protec Equal s and Proces Due the alter would against because of race, religion, sex or ancestry. Therefore, Constitution ensures that none of our citizens will be discriminated our States promise and commitment to civil rights. condition to inappropriate and unwise it is that finds Committee your etation of and administrative determinations regarding our of Second, the proposed amendment, by conditioning judicial interpr government is one of three co-equal branches, and this balance Our Powers. of Separation le of the princip violates Constitution element of our democracy that this delicate balance wiU fundamental a it is well, nation and State our of people the served powers has believes that this Separation of Powers principle should not be ultimately reflect the best of our people. Therefore, your Committee violated. governmental benefits and privileges to some of our Third, the proposed amendment will have the effect of denying subatantial not condone nor perpetuate any form of unwarranted should legislature the that believes Committee Your sex. of basis the citizens on in committed, caring relationships that the majority are not discrimination upon any of our citizens, simply because they are involved recognize. yet prepared to and substituting therefor the provisions of S.B. 1800. Accordingly, your Committee has amended the bill by deleting its substance by: 117 No. H.B. in defects the cure to intended is language The Senate draft sly empowering the State to regulate marriage, including (I) Proposing an amendment to Article 1X of the Constitution expres ion will have the effect of constitutionally validating provis This sex. opposite the of ge couples to marria of the limitation challenge. It also does not in any way violate the interpretative against them protect and law current in limitations existing and doctrine; of powers separation te sex upon the passage of laws ensuring that no (2) Conditioning any reservation of marriage to couples of the opposi It is your Committees intention that this proviso reservation. the from results sex of the basis on rights of civil deprivation from marriage be provided all substantial governnient effectively require (hat similarly situated couples who are prohibited their withholding. Your Committee fends that such a supports interest l governmenta substantial ge a unless marria benefits of permitting the protection of relevant substantial proviso will ensure equality in the application of our laws while interests. governmental and community Judiciary that is attached to this report, your Committee As affirmed by the record of votes of the members of your Committee on recommends that it pass Second Reading in the form and herein, amended as 117, No. H.B. of is in accord with the intent and purpose Reading. Third for calendar the on placed and be attached hereto as }LB. No. 117, S.D. I, Signed by the Co-Chairmen on behalf of the Committee. Ayes. 4. Noes, 2 (Bunda, Sakarnoto). Excused, 1 (Anderson). SCRep. 11 (MajorIty) Judiciary on H.B. No. 118 sh the status of reciprocal beneficiaries and The purpose of H.B. No. 118, H.D. 1, is received by your Committee, is to establi status. such provide limited governmental benefits to those with forums through the legislative process for Your Committee finds that the issue of same sex marriage has been debated in public various members of our community have been the of opinions of wide-range that the four years now. Your Committee further fends community. Thus, your Committee our divides still issue this nately unfortu and, repeatedly expressed during those four years, the position taken by the House of from ing change hearten a is 1, H.D. 118, No. believes it important to acknowledge that H.B. 928

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IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII

) CIVIL NO. 13-1-2899-10 KKS ) ) ) CERTIFICATE OF SERVICE ) ) Plaintiffs, ) ) vs. ) ) GOVERNOR NEIL ABERCROMBIE, ) SENATOR DONNA MERCADO KIM, ) REPRESENTATIVE JOSEPH SOUKI, ) SENATOR CLAYTON HEE, ) REPRESENTATIVE KARL R}{OADS, ) ) Defendants. )
CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing PLAINTIFFS REPLY MEMORANDUM IN SUPPORT OF THEIR FIRST AMENDED MOTION FOR TEMPORARY RESTRAINING ORDER; EXHIBITS A THROUGH C; CERTIFICATE OF SERVICE was duly served upon the following by hand delivery on November 6, 2013. David M. Louie, Esq. Caron M. Inagaki, Esq. John F. Molay, Esq. Deirdre Marie-Iha, Esq. Department of the Attorney General 425 Queen Street Honolulu, Hawaii 96813 Attorneys for Defendants

REPRESENTATIVE BOB McDERMOTT, GARRET HASHIMOTO, WILLIAM E.K. KUMIA, DAVID LANGDON,

Dated: Honolulu, Hawaii, November 6, 2013.

N\ 1\

ROBER. MATUTO JOHN R. DWYE1, J. Attornys for Plaintiffs REPRESENTATIVE BOB McDERMOTT, GARRET HASHIMOTO, WILLIAM E.K. KUMIA, DAVID LANGDON

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