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Nos. 12-16995 & 12-16998 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 Hawai i, Defendant-Appellant, and
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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII Dist. Ct. No. CV 11-00734 ACK-KSC

JUDGE: The Honorable Alan C. Kay, U.S. District Judge, District of Hawaii

DEFENDANT-APPELLANT GOVERNOR NEIL S. ABERCROMBIES RESPONSE TO HAWAII FAMILY FORUMS MOTION TO DISMISS APPEAL NO. 12-16998 OR AMEND THE BRIEFING SCHEDULE 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.Nakatsuji @ hawaii. gov Attorneys for Defendant-Appellant Neil S. Abercrombie, Governor, State of Hawaii 3711 6743

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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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TABLE OF CONTENTS I. II. BACKGROUND ARGUMENT A. The Governor has Standing to Appeal the District Courts Decision Even if the Governor Did Not Have Standing Himself, the Governor Can Continue to Participate in this Consolidated Case as an Appellant Because the Plaintiffs Clearly Have Standing CONCLUSION .1 4

B.

17 19

III.

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TABLE OF AUTHORITIES Cases Camreta v. Greene, 131 S.Ct. 2020 (2011) 8-9, 11, 14, 17 17 9 9, 18, 19 9, 12 5,6 17
9

City ofSouth Lake Tahoe v. California Tahoe Regl Planning Agency, 625 F.2d 231 (9th Cir. 1980) Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326 (1980) Diamond v. Charles, 476 U.S. 54 (1986) Hollingsworth v. Perry, 133 S.Ct. 2652 (2013) INSv. Chadha, 462U.S.919(1983) Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003)
Perry v. Brown,

671 F.3d 1052 (9th Cir. 2012) United States v. Windsor, 133 S.Ct. 2675 (2013) Will v. Michigan Dep t ofState Police, 491 U.S. 58 (1989) Federal Constitution and Statutes Defense of Marriage Act (DOMA) U.S. Const., Art. III U.S. Const., Fourth Amendment U.S. Const., Fourteenth Amendment ii

4, 5, 6, 7, 8, 12, 13, 14, 15, 16-17 10

5 5, 6, 9, 11, 13, 14, 16

14 2

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State Constitution and Statutes Haw. Const., Art. I, Sec. 23 Haw. Const., Art. V, Sec. 5 Haw. Const., Art. V, Sec. 6 Haw. Rev. Stat. 572-1 1, 2 10 6 1, 2, 5

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DEFENDANT-APPELLANT GOVERNOR NEIL S. ABERCROMBIES RESPONSE TO HAWAII FAMILY FORUMS MOTION TO DISMISS APPEAL NO. 12-16998 OR AMEND THE BRIEFING SCHEDULE Defendant-Appellant NEIL S. ABERCROMBIE, Governor, State of Hawaii (the Governor) hereby responds to Intervenor-Defendant-Appellee HAWAII FAMILY FORUMs (HFFs) Motion to Dismiss Appeal No. 12-16998 or Amend the Briefing Schedule that was filed on October 11, 2013. The Governor strongly opposes HFFs request to dismiss the Governors appeal in No. 12-16998 for the reasons set forth below. As for HFFs request that, if their motion to dismiss is denied, the Governor should then be permitted to file only an opening brief as an appellant would and not also an answering brief as an appellee would, the Governor does not object. If the court decides to grant HFFs motion and dismisses No. 12-16998, the Governor takes no position on HFFs request that the Governor be required to file his brief in No. 12-1 6995 before HFF and Defendant-Appellee LORETTA J. FUDDY, Director of Health, State of Hawaii, file their answering briefs in No. 12-16995. I. BACKGROUND. Plaintiffs-Appellants NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY (Plaintiffs) filed a lawsuit challenging the constitutionality of Hawaii Revised Statutes (HRS) 572-1 (which bans same-sex marriage) and Article I, Section 23 of the Hawaii Constitution (which gives the Legislature the

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power to restrict marriage to opposite-sex couples) on the grounds that they violate the Equal Protection Clause and the Due Process Clause of the United States Constitution. Doc. 6.1 Named as Defendants in the lawsuit were Governor NEIL S. ABERCROMBIE (the Governor) and the State Director of Health, LORETTA J. FUDDY (Director FUDDY). Doc. 6. The Governor agreed with Plaintiffs that HRS

572-1 was unconstitutional.2

Doc. 27-5. However, Director FUDDY, after consultation with the Governor, decided to defend the statute. Doc. 27-5. Moreover, HRS

572-1 has continued

to be enforced by executive officials during the pendency of this case. Doc. 27-5. Subsequently, an activist group, HAWAII FAMILY FORUM (HFF), intervened as a defendant in order to further defend the statute. Doc. 15. HFF and Director FUDDY filed Motions for Summary Judgment defending the statute and seeking dismissal of the lawsuit. Doc. 63, 67. Plaintiffs filed a Motion for Summary Judgment asserting that HRS

572-1 was unconstitutional.

Doc. 65. The Governor filed a Countermotion for Partial Summary Judgment seeking application of strict or heightened scrutiny, Doc. 92, and also argued against HRS

572-is constitutionality.

These citations are to the document number in the CM/ECF system.


2

However, the Governor did not agree that Article I, Section 23 of the Hawaii

Constitution was unconstitutional because it does not require the Legislature to ban same-sex marriage.
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On August 8, 2012, Senior District Court Judge ALAN C. KAY issued his decision granting HFFs and Director FUDDYs motions and denying Plaintiffs and the Governors motions. Doc. 117. Judgment was entered on August 8, 2012. Doc. 118. On September 7, 2012, Plaintiffs filed a Notice of Appeal, and their case was docketed as appeal No. 12-16995. Doc. 121. Also on September 7, 2012, the Governor filed a Notice of Appeal, and his case was docketed as appeal No. 1216998. Doc. 123. On October 22, 2012, the Governor filed a Motion to Consolidate Appeal Nos. 12-16995 & 12-16998. DktEntry 14; DktEntry 16.~ The Motion was granted on October 29, 2012. DktEntry 15; DktEntry 17. After several stays and extensions, the deadline for the Plaintiffs and the Governors opening briefs in both No. 12-16995 and 12-16998 was set for October 18, 2013. DktEntry 34, 34-1, 34-2; DktEntry 36-1, 36-2. The Governors opening brief deadline has not been affirmatively changed from October 18, 2013 in No. 12-16998. (However, Plaintiffs subsequently requested an extension of their

~ These citations are to the docket entries in the two Ninth Circuit cases. The first citation is to the docket entry in No. 12-16995 and the second citation is to the docket entry in 12-16998.

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deadline, which was granted to them in No. 12-16995, to November 22, 2013. DktEntry 37; DktEntry 39)4 On October 11, 2013, only 7 days before the Governors opening brief was due, HFF filed its Motion to Dismiss Appeal No. 12-16998 or Amend the Briefing Schedule. DktEntry 38; DktEntry 40. HFF seeks, among other things, to dismiss No. 12-16998. However, even HFF agrees that if this court were to dismiss No. 12-16998, the Governor would be entitled to file an answering brief in No. 121 6995, Plaintiffs appeal. Therefore, this motion is not so much about whether the Governor can participate in this case but rather whether the Governor can participate as an appellant, or only as an appellee. II. ARGUMENT. A. The Governor has Standing to Appeal the District Courts Decision.

HFF argues that the Governors appeal, No. 12-16998, should be dismissed because he lacks standing to appeal. Motion, at 7-11. There is no merit to HFFs claim. The U.S. Supreme Court addressed the same issue in United States v. Windsor, 133 S.Ct. 2675 (2013). In Windsor, President Obama instructed the ~ This consolidated case (Nos. 12-16995 and 12-16998) is also aligned with Sevcik v. Sandoval, No. 12-17688, in that the cases will be assigned to the same merits panel. DktEntry 25; DktEntry 27. In addition, amici curiae can file amicus briefs in all three cases. DktEntry 26; DktEntry 28. However, Nos. 12-16995 and 12-16998 are not otherwise formally consolidated with Sevcik.

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Department of Justice not to defend the Defense of Marriage Act (DOMA), 110 Stat. 2419, in court because he believed it was unconstitutional; however, he also decided to continue to enforce DOMA while the litigation was pending. Windsor, 133 S.Ct. at 2684. The stated rationale for this dual-track procedure (determination of unconstitutionality coupled with ongoing enforcement) was to recognize{e] the judiciary as the final arbiter of the constitutional claims raised.
Id. (emphasis added). Similarly, in the present case, the Governor took the

position that Hawaiis marriage law, HRS

572-1, was unconstitutional and

decided not to defend it (but he did allow the Director of Health to defend it). Nevertheless, the Governor allowed his Director of Health to continue to enforce the statutory ban during the pendency of the case. Doc. 27.-S. Like the President in
Windsor, the Governor seeks a final decision from thefinal arbiter of the

constitutional claims raised. In Windsor, the Supreme Court cited INS v. Chadha, 462 U.S. 919 (1983), for the proposition that:
[T]he refusal of the Executive to provide the relief sought suffices to preserve a justiciable dispute as required by Article III. In short, even

where the Government largely agree[s] with the opposing party on the merits of the controversy, there is sufficient adverseness and an adequate basis for jurisdiction in the fact that the Government
intended to enforce the challenged law against that parry. Windsor, 133 S.Ct. at 2686-87 (quoting Chadha, 462 U.S. at 940 n.12) (emphases

added). In the present case, just as in Windsor and Chadha, the Governor is still
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allowing Hawaiis marriage law to be enforced against Plaintiffs (i.e., he is refus[ing] to provide the relief sought) pending a final decision on the constitutional issues. Even though the Governor largely agrees with Plaintiffs, he is continuing to enforce the challenged law against that party absent a decision from the final arbiter of the constitutional claims. Consequently, there is sufficient adverseness and an adequate basis forjurisdiction in the Governors appeal. Moreover, in describing Chadha, Windsor explained that Article III standing was simply a requirement that the decision.
. .

have real meaning; that is, the

decisions different outcomes will cause real different results for the person or entity whose standing is being questioned. Windsor, 133 S.Ct. at 2686. Here, if the Ninth Circuit rules for the Governor in his appeal

striking down and

enjoining enforcement of the statutory ban (and that ruling is not appealed, or is affirmed on certiorari)

the Governor (through his Director of Health)5 must and

will stop enforcing the law. In contrast, if the Ninth Circuit affirms the decision below, the Governor (through his Director of Health) will continue to enforce the law. Thus, a decision in the Governors appeal will certainly have real meaning to the Governor, in terms of the actions he can and will take with respect to the law. ~ The Governor has constitutional authority to remove Director FUDDY for not following his direction. See Hawaii Constitution, Article V, Section 6.
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Furthermore, the Supreme Court noted in Windsor: [I]f the Executives agreement with a plaintiff that a law is unconstitutional is enough to preclude judicial review, then the
Supreme Court~ primary role in determining the constitutionality of a law that has inflicted real injury on a plaintiff who has brought a

justiciable legal claim would become only secondary to the Presidents. This would undermine the clear dictate of the separationof-powers principle that when an Act of Congress is alleged to conflict with the Constitution, [ut is emphatically the province and
duty of the judicial department to say what the law is. Windsor, 133 S.Ct. at 2688 (internal quotation marks omitted) (emphases added).

Therefore, the Governors desire to secure a final decision from the judiciary on the constitutionality of Hawaiis marriage law has clearly been validated by the Supreme Court. In light of the fact that the goal of securing a decision from the final arbiter of constitutional issues has been upheld, it would make little sense to prevent this case from going further on appeal. Indeed, Windsor indicates that such cases can be appealed not just to the Courts of Appeals but can also be appealed (subject to a discretionary grant of certiorari) to the Supreme Court as well, since it is the Supreme Courts primary role [to] determin[e] the constitutionality of a law[.] Allowing a decision to be appealed to the Courts of Appeals or to the Supreme Court makes additional sense when one considers the fact that District Court decisions have no precedential value. A decision of a federal district court judge is not binding precedent in either a different judicial district, the same

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judicial district, or even upon the same judge in a different case.. decisions

[D]istrict court

unlike those from the courts of appeals

do not necessarily settle

constitutional standards{.] Camreta v. Greene, 131 S.Ct. 2020, 2033 n.7 (2011). Therefore, in order for an executive to obtain a truly final decision from a final arbiter on a constitutional issue, it is not enough to obtain a District Court decision. The executive must be able to appeal to the Courts of Appeals or the Supreme Court so that binding precedent may be established and the issue settled. HFF argues that the Governor cannot appeal this case because the District Courts judgment entered judgment in favor of the defendants, which included the Governor. Motion, at 8. First, and as explained infra at 12-13, the District Court ruled against not in favor of the Governors position that the statutory ban was

unconstitutional. Second, putting that aside, Windsor and other decisions make clear that HFFs arguments lack any merit. If the government in Windsor could seek affirmance of lower court decisions nominally against the government, then the Governor in the present case can seek reversal of a lower court decision nominally in his favor. The Governors situation is simply the flip side of the same coin. In
Camreta, judgment was entered in the petitioners favor in the District Court and

Court of Appeals, but the Supreme Court nevertheless concluded that the petitioner had standing to appeal a constitutional issue to the Supreme Court. Camreta, 131

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S.Ct. at 2027-32. See also Deposit Guaranty Nat. Bank v. Roper, 445 U.s. 326, 3 33-35 (1980) (permitting, in appropriate cases, appeal of collateral issues by a party who prevailed on the merits because the rule preventing prevailing parties from appealing is based only on federal appellate practice and not on Article III jurisdiction). Therefore, HFF is wrong and the fact that the judgment was nominally in the Governors favor does not deprive him of the right to appeal. And again, to repeat, the judgment was in reality entirely against the Governor, who asserted the statutes invalidity. HFF argues that the Governor does not have a cognizable interest or injury that would support standing to appeal in this case. HFF is wrong here too. It cannot be disputed that a State has an interest in determining the constitutionality of its own laws. Whether the defendant is the state or a state officer, the decision to assert the state s own interest in the constitutionality of its law is most commonly made by the states executive branch

the part of state government that

is usually charged with enforcing and defending state laws. Perry v. Brown, 671 F.3d 1052, 1071 (9th Cir. 2012) (emphasis added), vacated on other grounds sub
nom. Hollingsworth v. Perry, 133 5.Ct. 2652 (2013). See also Diamond v. Charles, 476 U.S. 54, 62-64 (1986) (holding that the State of Illinois

in a

challenge to its laws constitutional validity

undoubtedly would have had

standing if it had appealed). The State regulates the behavior of its citizens

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through its laws. If some of those laws are constitutionally invalid, then it creates a gap in the statutory scheme and interferes with the regulation of individual behavior. The State may then have to enact new laws depending upon which laws are invalid. Therefore, the State needs to know if its laws are constitutional or not. The Governor, who was sued in his official capacity, represents and acts on behalf of the State. Cf Will v. Michigan Dept of State Police, 491 U.S. 58, 71(1989) (suit against public official in his or her official capacity is treated as a suit against the State). Therefore, the Governor in his official capacity is the State, and as the State, has an interest in the final determination of the constitutionality of the States laws. Furthermore, the Governor is also personally injured by the District Courts decision in this case. The District Courts decision is impairing the Governor in the performance of his job. The Governor believes that Hawaiis marriage law is unconstitutional. But rather than striking it down, the District Court upheld it. If we assume for the sake of argument that the District Court erred and the law really is unconstitutional, then the District Courts erroneous decision is forcing the Governor to enforce an unconstitutional law. But the Governor is given responsibility for executing state laws by the Hawaii Constitution. See Hawaii Constitution, Article V, Section 5. Implicit in that mandate is that the Governor is supposed to execute constitutional laws, not unconstitutional ones. If, as a result

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of the District Courts decision, the Governor is enforcing a law that is actually unconstitutional, the District Courts decision is causing the Governor to fail to perform his duty. The District Courts decision is impairing the Governor in the proper performance of his job. Therefore, the Governor is being injured by the District Courts decision. See Camreta, 131 S.Ct. at 2029 (holding that an adverse constitutional ruling can cause an Article III injury by impairing a state official in the performance of his job). All of these interests and the injuries to them would be redressed if the Governor could obtain a final appellate decision from the final arbiter of the constitutional issues. The States interest official capacity

represented by the Governor in his

in determining the constitutionality of its laws would be

satisfied because there would then be a final binding determination on constitutionality. The Governors interest in properly performing his job would be satisfied in that a final appellate decision that Hawaiis marriage law is constitutional would mean that there would be no doubt that the Governor is not failing to do his job in enforcing it. Conversely, a final appellate decision overturning the District Courts decision would establish that the law is unconstitutional and allow (indeed, require) the Governor not to enforce it, thus allowing him to properly perform his job. See id. (overturning an adverse constitutional ruling on appeal would redress the injury).

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It should be noted that in pursuing these interests, the Governor is not merely seeking vindication of his subjective beliefs. Motion, at 8. These are interests that the State and the Governor possess based on their roles in Hawaiis constitutional system. Rather than addressing simply an abstract legal issue, this case deals with the actual functioning of government in Hawaii (here, the governmental issuance of marriage licenses). Unlike the petitioners in
Hollingsworth v. Perry, 133 S.Ct. at 2668, the Governor is not merely an interested

private party but is in fact a state official trying to do his job. This case presents an even stronger argument in favor of appellate jurisdiction than Windsor. In Windsor, the position taken by both the Department of Justice and the Plaintiff prevailed in the lower courts. Here, the position taken by the Governor and Plaintiffs did not prevail in the District Court. If the Department of Justice was allowed to appeal in a case where the Departments real position actually won (though nominally a loss), certainly the Governor should be allowed to appeal in a case where his real position lost. In the present case, as is normal for an appellant, the Governor seeks reversal of the District Courts decision. In Windsor, however, the government, even though it was the petitioner, asked that the lower courts be affirmed. See Windsor, 133 S.Ct. at 2700 (Scalia, I., dissenting) (noting that the Solicitor Generals brief requested affirmance).

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Therefore, if anything, the present case is more consistent with ordinary appeals than the tougher case presented in Windsor. It is true that Windsor involved a money judgment that the government was obligated to pay to the Plaintiff, see Windsor, 133 S.Ct. at 2686, and the present case does not involve a pending money judgment. But this fact was significant in
Windsor because the lower courts judgment orders the United States to pay

money that it would not disburse but for the courts order. Id. (emphasis added). That meant that Windsors ongoing claim for funds that the United States refuses
to pay thus establishes a controversy sufficient for Article III jurisdiction. Id.

(emphasis added). In directly analogous fashion, here, Judge KAYs judgment effectively orders the Governor to continue denying marriage licenses to samesex couples, something he would not do but for the courts order. And Plaintiffs ongoing claim for a marriage license the Governor refuses to [issue] thus establishes a controversy sufficient for Article III jurisdiction. Moreover, in the present case, unlike in Windsor, the Governors position before the District Court actually lost, which obviously makes him aggrieved by the District Courts decision. In addition, the Governors performance of his responsibilities is being impaired because he may be forced to execute an unconstitutional law. These circumstances provide a sufficient stake for the Governor to appeal the present case even without a pending money judgment.

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Furthermore, although the injury to the government in Windsor happened to be an order to pay money, there is plainly no indication in Windsor, nor any reason to believe, that the injury must be an order to pay money in every case. In Camreta, the Article III injury was the effect of the lower courts decision on the petitioners performance of his job. Camreta, 131 S.Ct. at 2029. The lower courts constitutional ruling impaired the petitioners ability, as a state social worker, to perform his job investigating child abuse. Id. The Camreta Court noted: If the official regularly engages in that conduct [i.e., interviewing alleged victims of child abuse] as part of his job (as Camrta does), he suffers injury caused by the adverse constitutional ruling [that his conduct violated the Fourth Amendment]. Id. (emphases added).6 Similarly, the District Courts ruling in the present case, if erroneous, is impairing the Governors proper performance of his job. Therefore, other injuries, not just orders to pay money, can support standing as well. HFF argues that Windsor supports dismissal of the Governors appeal, quoting a portion of the Windsor decision to the effect that there is no suggestion here that it is appropriate for.
6
. .

[e]xecutive [officials] as a matter of course to

Although the holding of Camreta is technically limited to appeals from the Court

of Appeals to the Supreme Court, see Camreta, 131 S.Ct. at 2033, the logic of Camreta is still persuasive for appeals generally. If an injury qualifies as an Article III injury for purposes of an appeal to the Supreme Court, there is no reason why it would not qualify as an Article III injury for purposes of an appeal to the Court of Appeals as well. In fact, the Supreme Courts concern in Camreta appears to apply more to the Courts prudential considerations than the requirements of Article III standing.
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challenge statutes in the judicial forum rather than making the case to [the legislative branch] for their amendment or repeal. Motion, at 11. However, the

full quotation from Windsor is as follows:


[TJhe difficulty the Executive faces should be acknowledged. When the Executive makes a principled determination that a statute is unconstitutional, itfaces a difficult choice. Still, there is no

suggestion here that it is appropriate for the Executive as a matter of course to challenge statutes in the judicial forum rather than making the case to Congress for their amendment or repeal. The integrity of the political process would be at risk if difficult constitutional issues were simply referred to the Court as a routine exercise. But this case is not routine.
Windsor, 133 S.Ct. at 2689 (emphases added). Although the Supreme Court

cautioned against routinely challenging statutes in court rather than acting legislatively, the Court acknowledged the difficulty of the executives choice and allowed the executive to do so in Windsor itself, saying that the case was not
routine. The present case is also not routine, as it addresses the same primary

issue as in Windsor (the validity of governments not recognizing same-sex marriage) and has the same potential to impact the lives of hundreds of thousands of couples and their children, the Governor faced the same difficult choice as the President in Windsor, and the approach the Governor took (asserting unconstitutionality but still enforcing the challenged law) was the same approach taken by the President in Windsor. Consequently, like Windsor, the present case j~ not routine either.

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Moreover, the portion of Windsor that HFF references was discussing prudential concerns, not Article III concerns. And Windsor immediately stated, after noting the case was not routine, that furthermore, the capable defense of the law by BLAG ensures that these prudential issues do not cloud the merits question, which is one of immediate importance to the.
. .

Government and to hundreds of

thousands of persons. Windsor, 133 S.Ct. at 2689. Similarly, HFFs and Director FUDDYs capable defense of the ban eliminates any prudential concerns too, and the merits question in the Governors appeal is also one of immediate importance to the Government and to hundreds of thousands of persons.
Windsor thus plainly does not support the Governors dismissal in the

present case. The true import of Windsor is that where the government continues to enforce the law during the pendency of the case, the executive may seek a final judicial determination of the constitutionality of a law, whether or not it agrees with the lower court rulings, and may argue the laws unconstitutionality in agreement with the plaintiffs position. Id. at 2686-8 8. Although the parties may line up in unusual ways in these kinds of cases, formal requirements (such as which party won below) are secondary to the governments legitimate goal of seeking a final judicial determination of the constitutionality of a governments law, which determination will impact the governments ultimate behavior. Id. at

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2688. The present case is entirely consistent with these principles. Consequently,
Windsor very strongly supports appellate jurisdiction in the present case.7

B.

Even if the Governor Did Not Have Standing Himself, the Governor Can Continue to Participate in this Consolidated Case as an Appellant Because the Plaintiffs Clearly Have Standing.

Even if this court decides that the Governor did not have standing to appeal

contrary to everything argued above

there is clearly a sufficient case or

controversy based on Plaintiffs standing. There is no question that Plaintiffs suffered a sufficient injury to support appellate jurisdiction since they have been deprived of their ability to obtain marriage licenses by Hawaiis marriage law. Plaintiffs also clearly lost before the District Court. Since Plaintiffs undoubtedly have standing, the Governor can participate in this case by piggybacking on Plaintiffs standing.

~ To the extent one might read City of South Lake Tahoe v. Cal~fornia Tahoe
Regional Planning Agency, 625 F.2d 231(9th Cir. 1980), to suggest otherwise, that cases underlying theory or reasoning has been undercut by Camreta and Windsor in such a way that the cases are clearly irreconcilable. Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). Under the logic of Tahoe, the United States (or the U.S. Attorney General) in Windsor would

arguably not have had standing to appeal, or seek certiorari, in an effort to have its own law struck down. Yet Windsor clearly upheld standing for the United States to appeal, and seek certiorari, in order to do just that have its own law struck down. Similarly, Camreta makes clear that a government official has standing to appeal a ruling impacting his ability to do his job, which conflicts with Tahoes suggestion that a government officials desire to do his job a certain way does not confer standing.

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In Diamond v. Charles, 476

U:S. 54 (1986), the Supreme Court addressed an

attempt by Dr. Diamond, an intervenor-defendant opposed to abortion (who supported the challenged laws restricting abortion), to pursue an appeal regarding the constitutionality of the abortion restrictions, which had been invalidated in the lower court. Id. at 57-61. The State of Illinois declined to appeal and there were no other appellants in the case. Id. at 61. The Supreme Court dismissed the appeal because Dr. Diamond did not himself have standing to appeal. Id. at 71. However, the Court noted that had the State appealed, it would have undoubtedly had standing, and Dr. Diamond, too, would have been entitled to seek review by piggyback[ing] onto the States standing. Id. at 64. In the present case, appellate jurisdiction over the Governors appeal exists because, at the very least, Plaintiffs have standing. Unlike the State of Illinois in Diamond, the Plaintiffs filed a notice of appeal and are the appellants in their own appeal (No. 12-16995). (Both Plaintiffs appeal (No. 12-16995) and the Governors appeal (No. 12-16998) have been consolidated into a single case.) Therefore, the Governor was entitled to seek review by piggybacking onto plaintiffs standing to appeal. Consequently, the Governor can seek review in this case by appealing whether or not he would individually have standing to appeal by himself.8

8lndeed, it makes more sense for the Governor to participate in this case as an appellant since his position is essentially the same as that of Plaintiffs.
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We emphasize, however, that if this Court rejects this Diamond piggybacking argument, the Governors appeal should not be dismissed for the reasons given in the prior sections, establishing the Governors clearcut independent standing to appeal. Unlike Dr. Diamond, the Governor has a direct personal stake in the outcome of this case, both as an official capacity representative of the State whose laws constitutionality is at issue and as the Governor whose proper performance of his duties hinges on the laws constitutionality. III. CONCLUSION. For these reasons, the court should not dismiss No. 12-16998. The Governor has standing to appeal the District Courts ruling in his own right, for all the reasons given supra at 4-17. Even if this court were to decide that the Governor does not have independent standing to appeal by himself~ the Governor may piggyback his appeal onto the appeal of Plaintiffs, who have undoubted standing to appeal. Therefore, HFFs motion to dismiss should simply be denied, and the consolidated case should be allowed to proceed. As for HFFs request that, if their motion to dismiss is denied, the Governor should then be permitted to file only an opening brief and a reply brief as an appellant would and not also an answering brief as an appellee would, the Governor does not object. HFF is apparently concerned that the Governor might

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file both an opening brief and an answering brief. The Governor never had any intention of filing both an opening brief and an answering brief in this consolidated case. If the court decides to grant HFFs motion and dismisses No. 12-16998, the Governor takes no position on HFFs request that the Governor be required to file his brief in No. 12-1 6995 before HFF and Director FUDDY file their answering briefs. However, if this Court dismisses the Governors appeal, it should treat the Opening Brief the Governor filed on October 18, 2003 as his appellee s principal brief in No. 12-16995. The Governor, after all, is aligned with Plaintiffs, attacking the District Court ruling, and thus his filing an Opening Brief makes sense. That treatment would also accomplish HFFs goal of being able to respond in its Answering Brief to the Governors brief. DATED: Honolulu, Hawaii, October 21, 2013. s/ Robert. T. Nakatsuji GIRARD D. LAU ROBERT T. NAKATSUJI Deputy Attorneys General Attorneys for Defendant-Appellant Neil S. Abercrombie, Governor, State of Hawaii

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Ninth Circuit Case Nos. 12-16995 & 12-16998 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 October 21, 2013. I certify that all participants in the case are registered CMIECF users and that service will be accomplished by the appellate CMIECF system. DATED: Honolulu, Hawaii, October 21, 2013. s/ Robert T. Nakatsuji GIRARD D. LAU ROBERT T. NAKATSUJI Deputy Attorneys General Attorneys for Defendant-Appellant Neil S. Abercrombie, Governor, State of Hawaii

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