Supplemental memorandum in support of mc dermott lawsuit

1S
1;:

ROBERT K. MATSUMOTO #1330
345 Queen Street, Suite 701
Honolulu, Hawaii 96813
Telephone: (808) 585-7244

LLLJ

2ii3fl3V 13 FIf3: :31

And

A.

;Pj

JOHN R. DWYER, JR. #1445
Dwyer Schraff Meyer & Green
1800 Pioneer Plaza
900 Fort Street Mall
Telephone: (808) 534-4444
Attorneys for Plaintiffs
REPRESENTATIVE BOB McDERMOTT,
GARRET HASHIMOTO, WILLIAM E.K.
KUMIA, DAVID LANGDON
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 SOUKI,
SENATOR CLAYTON HEE,
REPRESENTATIVE KARL RHOADS,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

C1VILNO. 13-1-2899-1OKKS
PLAINTiFFS’ SUPPLEMENTAL
MEMORANDUM OF LAW IN SUPPORT OF
ITS MOTION FOR TEMPORARY
RESTRAIMNG ORDER AGAINST
DEFENDANTS; DECLARATION OF JOSEPH
BRICE MOORE, JR.; DECLARATION OF
JOHN R. DWYER, JR. (ATTACHING THE
DECLARATION OF EVA ANDRADE AND
THE DECLARATION OF MICHAEL W.
PERRY AS EXHIBITS A and B,
RESPECTIVELY); CERTIFICATE OF
SERVICE
Hearing Date: November 14, 2013 (Thursday)
Hearing Time: 8:15 a.m.
The Honorable Karl K. Sakamoto
No Trial Date Has Been Set

292834.1

PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF ITS
MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST DEFENDANTS
COME NOW Plaintiffs BOB McDERMOTT, in his capacity as a member of the State of
Hawaii of Representatives and not in his individual capacity, GARRET HASHIMOTO,
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
respectfully submits this Supplemental Memorandum in Support of Its Motion for Temporary
Restraining Order Against Defendants.
I.

INTRODUCTION.
Because this is the third time these Plaintiffs have been before the Court on this issue, to

avoid the drudgery of repeating the background, some of the discussion regarding the standard
requirements of injunctions, as well as many of the arguments, Declarations, and Exhibits set forth
in prior Memoranda, they will not be repeated here; however, they are incorporated herein by this
reference. Conversely, this Memorandum will address the issues raised by the State of Hawaii
(the “State”) in its previous Memorandum in Opposition, and a number of other issues.
The goal of this Supplemental Memorandum is to demonstrate to the Court (i) that the
October 14, 2013 Opinion Letter to Senator Les Ihara from the Attorney General for the State of
Hawaii (Op. No. 13-1) misinterprets Article I, Section 23 of the Constitution of Hawaii; and that
misinterpretation has raised a justiciable and actual controversy, (ii) that this matter is one of Great
Public Importance and Interest; and (iii) that the federal justiciability standards that require a
showing of a justiciable controversy, ripeness, and standing are not applicable in Hawaii in
Declaratory Judgment actions.
However, in spite of the fact that the federal justiciability standards ought not be barriers to
judicial review here, the Plaintiffs have standing. In addition, this Memorandum will also show
that Plaintiffs have a likelihood of success on the merits, whether or not the “sliding scale”
analysis is used.
II.

ARGUMENT.
A.

Actual Controversy.
On October 13, 2013, the Attorney General (the “AG”) issued his Opinion (“Op.

No. 13-1”) to State Senator Les Ihara, Jr. In Op. No. 13-1, the AG reviewed the history and
—1—
292834.1

litigation involving Section 572-1, HRS, analyzed the proposed Constitutional Amendment, and
determined the meaning and intent (see pg. 6 of Op. No. 13-1) behind the proposed Amendment,
Article I, Section 23 of the Hawaii Constitution (the “Amendment”). While a number of the AG’s
conclusions and advice to the Legislature (in Op. No. 13-1) regarding the Legislature’s
Constitutional “power” to define marriage in Hawaii granted by the Amendment are wrong and
directly inconsistent with the Constitution’s mandate, three of those opinions will be addressed
here.
At Pages 5 and 7 of Op. No. 13-1, the AG concludes that based on his analysis of
Article I, Section 23 (the “Amendment”):
(i) the Legislature was given the power to restrict marriages to
heterosexual couples, “should it choose to do so”; (ii) the
Amendment does not bar the Legislature from considering a bill that
would allow same-sex marriage, and (iii) that it will not necessary to
further amend the Constitution if the Legislature desires to enact
legislation to allow same sex marriages.
Because Plaintiffs believe that the AG’s Opinion failed to recognize the existence
and continuing legal effect of Section 572-1, HRS, and abrogates and ignores the meaning and
intent of the Constitutional Amendment and effectively nullifies the overwhelming Vote of
Hawaii’s citizens in 1998 (69.3% voted “Yes” and only 28.7% voted “No”), the Plaintiffs
respectfully disagree with his interpretation. Plaintiffs believe all political power rests with the
People and that the right of the citizens to vote should be counted as a fundamental right that is
entitled to strict protections by the Court. They believe that the Voters intended to limit the Power
of the Legislature on this issue, and that the Amendment does just that. Under Hawaii law, a
conflicting interpretation of a party’s rights under the law is considered to be an actual controversy.
Shadowens v. Hawaii Housing Authority, 53 Haw. 213 (1971).
The State argues that Plaintiffs are seeking an “Advisory Opinion”; but that
argument is merely “make-weight”. An Advisory Opinion adjudicates nothing and binds no one;
while a Declaratory Judgment is a binding adjudication. Cincinnati Metropolitan Housing
Authority v. Cincinnati District Council No. 5], 22 Ohio App. 2d 39 (1969). Here, Plaintiffs are
seeking a binding determination as to the meaning of the Amendment.
B.

Matters of Great Public Importance.

The matter before the Court involves an Opinion (Op. No. 13-1) of the AG that was
issued to support a significant change to a traditional, important, and valued cultural norm; a norm

292834.1

-2-

that involves mores that have benefitted the health and welfare of our society for many, many
generations. However, when dealing with a matter of Great Public Importance, Plaintiffs
recognize that such a characterization is a question that is within the sole determination and the
province of the Court.
Frankly, it is difficult to see how the State could even argue (and it has chosen not
to do so) that this is not a matter of Great Public Importance. Given (i) the size and emotions of
the “Let The People Vote”, (ii) the recent activities of the People at the Capitol, (iii) the fact that
over 5,000 People signed up to testify before the Legislature (with nearly 90% testifying that
Hawaii’s cultural tradition of marriage should be preserved), and (iv) the longest legislative
Hearing in the history of Hawaii, this situation may be the penultimate example of a matter of
Great Public Importance, and it crosses all racial, gender and age categories. It is respectfully
suggested that for these reasons the State has not contested this issue. The Court is dealing with a
matter of Great Public Importance.
C.

Justiciable Barriers.
Once the Court determines that this Declaratory Judgment action involves a matter

of Great Public Importance, this Court will no longer be bound by the standard federal justiciable
barriers or standards (Actual Controversy, Ripeness, and Standing). The law across the country
supports the proposition that in matters of Great Public Importance, courts will eliminate or relax
the justiciability standards.

S, Waskakie County v. Herschler, 606 P.2d 310 (Wyo. 1980).

Hawaii follows that law as the Hawaii Supreme Court has made it abundantly clear that:
Federal justiciability standards are inapplicable in state court
declaratory judgment actions involving matters of great
importance. Bronster v. Yoshina, 84 Haw. 179 (1997); see
also, Bush v. Watson, 81 Haw. 474 at 479 (1996), quoting
Aged Hawaiians v. Hawaiian Homes Commission, 78 Haw.
192 (1995). [Emphasis supplied.]
In fact, the Bronster court went even further to clarify the rule in Hawaii and held that the “needs
ofjustice” is the ultimate “touchstone”. Id.
Professor Anderson, who wrote the treatise on declaratory judgment matters,
explains that justiciability standards, including Actual Controversy and Standing in matters that
involve Great Public Importance are treated with great liberality, and that courts seem to assume
that they simply possess the inherent power to grant Declaratory Judgment regarding matters of
Great Public Importance. 1 Anderson, Declaratory Judgments, Section 63, p. 126.
-3292834.1

P.

Likelihood Of Success On The Merits.
On this issue, Hawaii courts use a “sliding scale”, and they balance the harm to the

Plaintiffs if this Court refuses to grant relief to them, against the harm to the State

this Court

grants relief to Plaintiffs. Because that balance of harm decidedly tips in favor of the Plaintiffs
(whose harm will be immediate and irreparable), the Plaintiffs ought not be required to show as
robust a “likelihood of success” on the merits as they 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).
However, even though that “sliding scale” analysis benefits Plaintiffs, it is likely
that Plaintiffs will succeed on the merits, because in simple terms, the Plaintiffs are only asking
this Court to provide a binding interpretation of the meaning of the 1998 Amendment, that rejects
the interpretation set forth in Op. No. 13-1. Plaintiffs believe that they can do so. That belief is
justified by the history of the Amendment that was designed to validate Section 572-1, HRS and
end the litigation, if the Voters voted “Yes”.
Plaintiffs are not requesting a determination of the meaning of language in a
contract (where the “intent” of the contracting parties would be at issue); and they are not
requesting an interpretation of a statute (where legislative “intent” would be at issue). Rather, the
Plaintiffs are requesting a binding determination of the meaning of the Constitutional Amendment
that was voted on and ratified by the Voters in 1998. Consequently, the “intent” of the Legislature
is irrelevant (and is NOT at issue here) to determine the meaning of that 1998 Constitutional
Amendment. However, common sense and case law indicates that the interpretation of a
constitutional provision should turn on the intention of the citizens as “determined by the language
used and the surrounding circumstances”, and that mere grammatical construction ought not
control the interpretation. Groves v. Slaughter, 40 U.S. 449 (S.Ct. 1841); Illinois Cent. R. Co. v.
Ihlenberg, 75 F. 873 (C.A. 6 1896). So the intent of the Voters is at issue.
Plaintiffs believe that the AG’ s interpretation of the Amendment is fundamentally
flawed and incorrect; however Plaintiffs recognize that his interpretation is being relied on and is
being followed by the Legislative and Executive Branches. For example, the AG states that the
Legislature:
Possesses the authority [power] to limit marriages to
the opposite-sex couples by statute, should it choose

-4292834.1

to do so. (See pg. 5 of Op. No. 13-1) [Emphasis
supplied by the AG.]
Based on that language, it is apparent that the AG had concluded that the
Legislature chose NOT to do so. The flaw in that legal reasoning is obvious because it ignores the
history and the underlying reason the Amendment was proposed by the Legislature in the first
instance and then ratified by the Voters. To be clear, the Legislature had already chosen “to do
so”, because Section 572-1, HRS, was and still is the law of Hawaii. That law restricts marriages
in Hawaii to heterosexual couples gfly. Obviously, when the Amendment was put on the Ballot
and ratified by the Voters, no one in Hawaii expected that the Legislature would need to pass
Section 572-1, HRS, again. Rather, when the Amendment was ratified by the Voters, they
obviously intended that it would simply validate Section 572-1, HRS, and that it would end the
litigation that had been explained in the “Ballot Information Flyer”, which had been filed by
same-sex couples. In fact, the Supreme Court dismissed that litigation as “moot” shortly after the
Amendment was ratified.
To determine the “intent” of the Voters in 1998 may appear to be difficult, but in
fact, it is rather simple. Prior to that November 1998 election, many voters were probably
unaware of the litigation that had been filed by several same-sex couples to Constitutionally
invalidate Section 572-1, HRS, so that Hawaii would be required to give marriage licenses to
same-sex couples. However, as the November 1998 General Election approached, the State and a
number of different private television and radio stations and other organizations began a process of
educating the Voters regarding the proposed Constitutional Amendment. A review of the Ballot
Information Flyer that was provided to the Voters, and particularly the explanations of the Ballot
sent to all Hawaii Voters by the State prior to the General Election, will show what the Voters
understood, and it will provide the Court with the basis to determine the “intent” of the Voters.
For example, a “Ballot Information Flyer” was sent to all registered Voters by the
State’s “Office of Elections”, and it explained:
1.

The existing Hawaii law (Section 572-1, HRS), which
restricted the issuance of marriage licenses to heterosexual
couples;

2.

That three same-sex couples had filed a lawsuit to have that
law, declared unconstitutional (Baehr v. Lewin);

-5292834.1

3.

That the Hawaii Supreme Court had determined that Section
572-1, HRS, was constitutionally discriminatory and should
proceed to trial;

4.

That the ultimate decision in that litigation was still pending;

5.

That a “Yes” vote on the Ballot meant that the Legislature
had the “power to reserve marriage to opposite-sex couples
21111”; and

6.

That a “No” vote meant that the Constitution would not be
amended, and that would allow the Court to make the
determination on the definition of marriage, and that the
Baehr litigation would continue.

Consequently, when more than 2/3rds of Hawaii Voters voted “Yes”, their obvious
intent was to validate the existing Hawaii Law (Section 572-1, HRS), by constitutionally
empowering the Legislature to reserve marriages in Hawaii to opposite-sex couples ONLY. Again,
the Voters could not have rationally intended or expected that the Legislature would have to
“re-pass” Section 572-1, HRS, to maintain the traditional and cultural definition of marriage.
That “Ballot Information Flyer” was not only mailed to all registered Voters in
Hawaii, it was published in the Honolulu Advertiser Newspaper once a week for the four (4)
consecutive weeks prior to the November 3, 1998 General Election.
However as noted previously, the State’s publication of its “Ballot Information
Flyer” was not the only educational information provided to Voters. A number of organizations
also provided that educational information about the proposed Amendment to the Voters.
For example in the month leading up to the 1998 General Election K}ION2 TV (the
“Station”) attempted to educate and fairly explain the Ballot Information Flyer that the Voters
were given. The Station’s News Director, Executive Producer, and its principal news anchor met
to discuss how best to present the ballot issues to its viewers. In making the decision on how to
summarize the proposed Amendment, the Station referred to the State’s Ballot Information Flyer.
Based on that “Ballot Information Flyer”, the Station decided that to be absolutely clear, it would
advise the viewing public that a “Yes” vote meant that the Legislature would have the power to
reserve marriage in Hawaii to one man and one woman “ONLY”. And to clarify further, the
Station decided to explain that if the viewer wanted
MARRIAGE IN HAWAII TO BE LIMITED TO ONE MAN
AND WOMAN ONLY. YOU SHOULD VOTE “YES” ON
THE AMENDMENT AND IF YOU WANT MARRIAGE TO

-6292834.1

MEAN SOMETHING ELSE, VOTE “NO”. [Emphasis
added.]
Joe Moore was the sole news anchor for KHON2 TV and he presented that
information on the Station’s 5:30 p.m., 6:00 p.m., and 10:00 p.m. newscasts Monday through
Friday leading up to the November 1998 General Election. Therefore, any Voter who was a
viewer of Joe Moore’s newscasts during that period understood that a “Yes” vote would give the
Legislature a very specific power

—

the power to restrict marriage to heterosexual couples ONLY;

and that would effectively validate Section 572-1, HRS. See, Declaration of Joseph Brice Moore,
Jr. attached.
A second example involves KSSK Radio and the most listened-to morning radio
program in Hawaii. Every weekday morning, Michael W. Perry takes calls from 5:00 a.m. to
10:00 a.m. Prior to the 1998 General Election he received numerous calls from the listeners
regarding Question #2 on the Ballot Information Flyer provided to all Voters by the State.
Because of that Ballot Information Flyer, in Mr. Perry’s discussions with callers, he would explain
that a “Yes” vote would approve the Amendment and
1.

End the “legal wrangling” involved with the “same-sex marriage” issue;

2.

End and trump the Court battles; and

3.

Put this persistent issue “behind them once and for all”.

(See, Declaration of Michael W. Perry attached hereto.)
Another example of an organization that attempted to educate Hawaii Voters before
the 1998 General Election is that Hawaii Family Forum (the “Forum”). To educate the voting
public with regard to what it called a very important Ballot question, the Forum raised
approximately $140,000.00, and it used those funds to create television and radio Voter education
messages so Hawaii Voters would understand the significance of the Ballot and the proposed
Constitutional Amendment. The Forum’s televised educational messages encouraged all Hawaii
citizens to register and to vote, and not to leave the definition of marriage for someone else to
decide. These educational messages explained that a “Yes” vote would support the existing
definition of marriage set forth in Section 572-1, HRS, as being a relationship between a man and
a woman; while a “No” vote or a blank vote would allow the definition of marriage to be redefined
by the courts to include marriage between same-sex couples.

-7292834.1

Consequently, the Forum’s messages (similar to the State’s Ballot Information
Flyer) told the Voters they had a choice: to validate the existing Hawaii law and the traditional
definition of marriage, OR to allow the Court to invalidate Hawaii law and redefine marriage to
include a relation between a same-sex couple.

($, Declaration of Eva Andrade and copies of

Radio Spots attached.)
Consequently, in determining the intent of the Voters, the Court will find that the
Voters in Hawaii were
1.

Told by the State that a “Yes” vote would give the Legislators the Power to

restrict marriage in Hawaii to heterosexual couples ONLY, and that it would end the Baehr v.
Lewin lawsuit that was “still pending;
2.

Told by the number one news anchor on the most watched television station

in Hawaii (three times each weekday evening before the 1998 General Election) that if the viewers
voted “Yes”, marriage in Hawaii would be “Limited to one man and woman ONLY”; and
3.

Told by the host of the most listened-to morning radio program in Hawaii

that a “Yes” vote would mean that the definition of marriage in Hawaii would remain as the
traditional relationship between a man and a woman, and that this persistent issue would be put
behind the listeners “once and for all”.
Of course it is very significant that Joe Moore and Michael W. Perry would tell
their thousands and thousands of viewers/listeners that a “Yes” vote on the Amendment would
mean that marriage in Hawaii would continue to be a relationship between a man and woman
ONLY, and that they could put this persistent issue behind them “once and for all”. But when one
thinks about what these two well known and highly visible figures told their viewers/listeners,
there is an inescapable conclusion that after they had reviewed the State’s own “Ballot Information
Flyer”, they simply explained to the voting public their understanding of the Amendment that was
being proposed by the Legislators. Consequently, this Court should be able to determine the intent
of the 69.3% of the Voters who voted “Yes”. While the Legislature may have had the Power to
prohibit marriage in other ways, the Voters of Hawaii only gave the Legislature the very specific
and limited Power: to reserve marriage to opposite-sex couples

—

and the State’s “Ballot

Information Flyer” advised that that was the ONLY power given to the Legislature by the
Constitutional Amendment.

-8292834.1

D.

The State Should Be Estopped From Contradicting Its Ballot Information Flyer.
(“Bait and Switch”)
Equitable estoppel is a well established legal doctrine that prevents a person from

contradicting a statement or information provided by that person, when a second person has
reasonably relied on that statement or information. In essence, equitable estoppel is recognized by
the courts as a way to prevent injustice when the second person relied on the statement or
information. 3 John Pomeroy, A Treatise On Equity Jurisprudence

th
5
(
ed. 1941).
§ 804

Courts have often been reluctant to estop state governments on the same terms as
civil litigants, and may require proof of additional elements such as a finding that the gravity of
the harm to the Plaintiffs who are seeking estoppel outweighs the public interest. $, Heckler v.
Community Health Sen’s., 467 F.2d 985

th
9
(

Cir. 1973). However, it is now firmly settled that

when all of the traditional elements of estoppel have been established, its application will not be
denied merely because it is being asserted against the government, and it has been applied here in
Hawaii against the State. Filipo v. Chang, 62 Hawaii 626 (1980); In Re: Estate ofLeithan, 725
A.2d 1116 (Pa. Commn. Ct. 1999); Welfare v. UEC, Inc., 397 A.2d 779 (Pa., 1979). In the case at
bar, protecting the Plaintiffs’ interests will simultaneously protect and safeguard the interests of
the Voters, who relied on the “Ballot Information Flyer” provided by the State. Conversely, if the
State is allowed to contradict the information it gave to the Voters, Plaintiffs will be injured (just
like their neighbors), because of the State’s “Bait and Switch”; in addition Plaintiffs will
immediately suffer their individual and personal damages (see Plaintiffs’ Declarations). They, just
like all of the Voters, relied on and followed the explanations in the “Ballot Information Flyer”.
Thus, all will suffer immediate and irreparable harm, because the State will be effectively
“nullifying” their votes.
This Court may wish to consider whether it has power to estop the State from
changing its position and contradicting its “Ballot Information Flyer”. It does. Supra, Filipo. But
in making that analysis the Court should understand that the State is arguing that even though the
“Ballot Information Flyer” used the word “ONLY” when defining marriage as a heterosexual
relationship, the Ballot did not include that word (i.e., “ONLY”). That is the “Bait and Switch”,
and it ought not be condoned. Thus, public policy favors a limited judicial intrusion here, because
otherwise (i) this Court would be allowing the State to (unfairly) contradict the position it took and
the information it provided that induced the Voters in the 1998 Election; and because (ii) when
-9292834.1

this Court exercises this limited power, the State will only be required to “Let The People Vote”
(IF the Legislature chooses to do so). Thus, by using that limited power the Court will be
(a) protecting the people, (b) meeting any test involving the balancing of public vs. private
interests (Moser v. United States, 341 U.S. 41(1951), and (c) will not be interfering with the
Executive or Legislative prerogatives of those political branches or offend the doctrine of
separation of powers. Again to be clear, this Declaratory Relief action only seeks a determination
as to the legal and binding interpretation of the Constitutional Amendment (Article I, Section 23)
voted on and approved overwhelmingly (69.3%) by the Voters of Hawaii.
Thus, this Court should invoke the Doctrine of Equitable Estoppel against the
Government to prevent the State of Hawaii from contradicting its Ballot Information Flyer and
following the AG’s erroneous Opinion No. 13-1. This Court has the power to employ Equitable
Estoppel, and in doing so, this Court will protect the voting rights of Hawaii citizens, and after all,
that is a fundamental public interest. See, Moser v. United States, 341 U.S. 41(1951) and Watkins
v. United States, 875 F.2d 699
III.

th
9
(

Cir. 1989)(en banc).

CONCLUSION.
All political power of this State is inherent in the People and rests with the People. Article

I, Section 1, Hawaii Constitution. This matter is one of Great Public Importance; so this Court
should accept its inherent power to protect the vast majority of the people of Hawaii by adopting
their understanding and intention in voting “Yes” for the Constitutional Amendment of Article I,
Section 23.
Dated: Honolulu, Hawaii, November 13, 2013.

ROBEWt K. MAT$IJMOTO
JOHNR. DWYE1, J.

-10292834.1

Honolulu, HI 96813
Telephone: (808) 585-7244
And
1800 Pioneer Plaza
Telephone: (808) 534-4444

STATE OF HAWAII
REPRESENTATIVE BOB
McDERMOTT, GARRET
Plaintiffs,
vs.
REPRESENTATIVE KARL RElOADS,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL NO. 13-1-2899-10 KKS
DECLARATION OF JOSEPH BRICE
MOORE, JR.

DECLARATION OF JOSEPH BRICE MOORE, JR.
1.

I am better known as Joe Moore and am the Senior News Anchorman for

KHON2 TV. If asked, I could and would testify with regard to the truth of the statements made
herein
2.

I have been the solo news anchor for KHON2 TV (the “Station”) News on its

5:30 p.m., 6:00 p.m., and 10:00p.m. newscasts Monday through Friday since 1980.
3.

Prior to the 1998 Elections, the Station’s news department leaders (i.e., the News

Director, Executive Producer and me) reviewed and discussed how best to present the ballot
issues to our viewers.
4.

In the month leading up to the elections, the State sent out a Ballot Information

Flyer to all Hawaii voters explaining the Ballot sheet, and we referred to that Ballot Information
Flyer to determine how we would summarize the proposed Constitutional Amendments.
5.

Question Number 2 on the ballot dealt with the issue of marriage in Hawaii, and

the State explained that the Amendment would give the legislature the POWER TO RESERVE
MARRIAGE TO OPPOSITE SEX COUPLES.
6.

The State further explained that a “YES” vote on the ballot would give the

legislature the power to reserve marriage to opposite sex couples ONLY.
7.

The Station’s newsroom leaders decided that in addition to presenting the

Amendment in that manner, we would also state in the Station’s newscasts, in order to be
absolutely clear, that Question Number 2 meant:
SHOULD THE LEGISLATURE BE GIVEN THE POWER
TO RESERVE MARRIAGE IN HAWAII TO ONE MAN
AND ONE WOMAN ONLY?

-2-

8.

To clarify even further, we stated:
IF YOU WANT MARRIAGE IN HAWAII TO BE
LIMITED TO ONE MAN AND WOMAN ONLY, YOU
SHOULD VOTE “YES” ON THE AMENDMENT, AND
IF YOU WANT MARRIAGE TO MEAN SOMETHING
ELSE, VOTE “NO”.

9.

For a month leading up to the 1998 elections, and on Election night, when

presenting the results of the voting, I and other members of the Station’s news team used those
descriptions when referring to the Constitutional Amendment Regarding Marriage.
I declare under penalty of law that the foregoing is true and correct to the best of my
personal knowledge.
Executed in Honolulu, Hawaii,

A1c tvikei- I

.). Di

c21hLe.
J9PH BRICE MOORE, JR.

-3-

Honolulu, HI 96813
Telephone: (808) 585-7244
And
1800 Pioneer Plaza
Telephone: (808) 534-4444

STATE OF HAWAII
REPRESENTATIVE BOB
McDERMOTT, GARRET
Plaintiffs,
vs.
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL NO. 13-1-2899-10 KKS
DECLARATION OF JOHN R. DWYER, JR.;
EXHIBITS A and B

DECLARATION OF JOHN R. DWYER, JR.
1.

I am one of the attorneys for Plaintiffs and am licensed to practice law in all

Courts in the State of Hawaii. If asked, I could and would testify with regard to the truth of the
statements made herein
2.

Attached hereto as Exhibit A is a true and correct copy of the DECLARATION

OF EVA ANDRADE; EXHIBITS 1 and 2. Upon receipt of the Ms. Andrade’s Declaration
bearing her original signature, Declarant will file the Declaration with the Court.
3.

Attached hereto as Exhibit B is a true and correct copy of the DECLARATION

OF MICHAEL W. PERRY. Upon receipt of the Mr. Perry’s Declaration bearing his original
signature, Declarant will file the Declaration with the Court.
personal knowledge.
Executed in Honolulu, Hawaii, November 13, 2013.

-2-

Honolulu, HI 96813
Telephone: (808) 585-7244
And
1800 Pioneer Plaza
Telephone: (808) 534-4444

IN THE CIRCUIT COURT OF THE FiRST CIRCUIT
STATE OF HAWAII
REPRESENTATIVE BOB
McDERMOTT, GARRET
Plaintiffs,
vs.
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL NO. 13-1-2899-10 KKS
DECLARATION OF EVA ANDRADE

292827.1

EXHIBIT A

DECLARATION OF EVA ANDRADE
1.

I am the Executive Director of Hawaii Family Forum (the “Forum”). If asked, I

could and would testify with regard to the truth of the statements made herein.
2.

I was a resident of Hawaii and voted in the November 3, 1998 General Election

that involved the proposed Constitutional Amendment now known as Article I, Section 23 of the
Constitution of the State of Hawaii.
3.

To make this Declaration, I have reviewed the pertinent files of the Forum

relating to the Forum’s educational efforts and campaign regarding the same-sex marriage issue
leading up to the General Election.
4.

The Forum was able to raise a total of $140,000.00 to run radio and television ads

so that it could provide information to the Hawaii public to identify and understand the Ballot
question regarding the proposed Constitutional Amendment dealing with marriage in Hawaii.
5.

None of the ads developed by the Forum advocated a “Yes” vote. Rather, the

Forum’s ads explained the meaning of a “Yes” or “No” vote without urging or advising the
viewer/listener to vote one way or the other,

—

and the information was based on the Ballot

Information Flyer sent to all registered voters by the State “Office of Elections”.
6.

The Forum’s television ads were educational messages that essentially

encouraged the viewer to register and to vote, and to not leave the definition of marriage issue
for someone else to decide. These educational messages explained that a “Yes” vote would
support the existing definition of marriage (in Section 572-1, HRS) as being between a man and
a woman, while a “No” vote or a blank vote would allow the definition of marriage to be
redefined to include marriages between same-sex couples.

292827.1

-2-

7.

A Complaint was filed with the Campaign Spending Commission against the

Forum by an attorney who represented same-sex couples seeking marriage license; but the
Complaint was ultimately dismissed in early September 1998.
8.

Consequently beginning on August 24, 1998 and continuing to the General

Election in November 1998, the Forum ran its educational ads on radio and television (and that
included approximately 116 television spots each week). I have attached two of the Forum’s
radio ads, both of which educate and alert the listener that a “Yes” vote supported the definition
of marriage as being between one man and one woman, while a “No” vote would redefine
marriage and legalize same-sex marriages.
I declare under penalty of law that the foregoing is hue and correct to the best of my
personal knowledge.
Executed in Honolulu, Hawaii,

////2/,3

EVA ANDRADE

292S27.1

-3-

Radio Spot #1
When you go to the voting booth on November 3rd, along with.selectizlg the candidates of
your choice, you will be asked to vote on some very important ballot issues. Among them
will, be the question:
.

“Shall the Constitution of the State of Hawaii be amended .to specifythat the legislature
shall have the right to reserve marriage to opposite-sex couple?”
If you vote “Y]S” your vote will help support the definition of marriage as a union
between one man and one woman.
If you vote,. UNOI or if you leave your ballot blank, your vote will help re4efine the
definition of marriage to Include homosexual couples by allowing the Hawaii Supreme
Court to legalize same-sex marriage.
Don’t leave this important community decision to others to determine for you. Do your
part. Please register to vote and vote on November 3.
This message paid for by Hawaii Family Forum.

Radio spot #2
On November 3, you will be asked to vote on a very importaitt issue regarding the
definition of marriage.
The question you will be asked is whether or not the constitution should be amencle to
• allow the legislature to reserve marriage for opposite sex couples.
if you’re like me, you may wonder what does that mean?
-

Voting yes means your vote will support the definition of marriage as a union between a
man and a woman.
Voting no or leaving the question blank means your vote will support redefining’
marriage to include homosexual couple&
Don’t leave this important cammunity decision to others to determine for you. The
decision is up to each of us.
Please do your part. Register to vote and vote on November 3.

This message paid for by Hawaii Family Forum

ROBERT K. MATSTJMOTO #1330
Honolulu, HI 96813
Telephone: (808) 585-7244
And
1800 Pioneer Plaza
Telephone: (808) 534-4444

STATE OF HAWAII
REPRESENTATIVE BOB
McDERMOTT, GARRET
Plaintiffs,
vs.
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL NO. 13-1-2899-10 KKS
DECLARATION OF MICHAEL W. PERRY

292840.1

EXHIBIT B

DECLARATION OF MICHAEL W. PERRY
I am better known as Michael W. Perry and, with Larry Price, have been co-host

I.

of the most listened-to morning radio program in Hawaii, “Perry and Price” on KSSK Radio
since 1983.

“).

If asked, I could and would testify with regard to the truth of the statements made

herein.
2.

In the course of our program from 5:00 a.m. to 10:00 a.m., Monday through

Friday, we take phone calls from listeners about various topics ranging from traffic reports, to
weather phenomena, to comments about pop culture and the news of the day. We also offer our
opinions on the range of topics.
3.

Before the 1998 elections, although there were no formal meetings at KSSK about

the ballot issues, we did receive numerous phone calls from listeners regarding Question #2 on
the Ballot Information Flyer that was sent to all Voters by the State, and broadcast those
interactions on the air.
4.

In the month leading up to the elections, the State sent out a Ballot Information

Flyer to all Hawaii Voters explaining the Ballot sheet, and we referred to that Ballot Information
Flyer to determine how we would summarize the proposed Constitutional Amendments.
5.

Question #2 on the ballot dealt with the issue of marriage in Hawaii, and the State

explained that the Amendment would give the legislature the POWER TO RESERVE
MARRIAGE TO OPPOSITE SEX COUPLES.
6.

The State further explained that a “YES” vote on the ballot would give the

legislature the power to reserve marriage to opposite-sex couples ONLY.
7.

In addition to the Ballot Information Flyer, KSSK broadcast many commercials

from groups pro and con regarding the Amendment.

292840.1

-2-

8.

My recollection is that the listeners were glad to finally be voting on the issue.

9.

In my discussions with callers I would explain that a “Yes” vote would approve

the Amendment, and that would
a.

Put a definitive end to the “legal wrangling” involved with “same-sex
marriage”, so that marriage in Hawaii would remain a relationship
between a man and a woman;

b.

End and trump the Court battles; and

c,

Put this persistent issue “behind them once and for all”.

personal knowledge.
Executed in Honolulu, Hawaii, November 13, 20

Ahn

292840.

-3-

STATE OF HAWAII
REPRESENTATIVE BOB
McDERMOTT, GARRET

Plaintiffs,
vs.
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL NO. 13-1-2899-10 KKS

CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing PLAiNTIFFS’
SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR
TEMPORARY RESTRAINING ORDER AGAINST DEFENDANTS; DECLARATION OF
JOSEPH BRICE MOORE, JR.; DECLARATION OF JOHN R. DWYER, JR. (ATTACHING
THE DECLARATION OF EVA ANDRADE AND THE DECLARATION OF MICHAEL W.
PERRY AS EXHIBITS A and B, RESPECTIVELY); CERTIFICATE OF SERVICE was duly
served upon the following by hand delivery on November 13, 2013.
David M. Louie, Esq.
Attorney General for the State of Hawaii
Department of the Attorney General
425 Queen Street
Attorney for Defendants

292834.1

Dated: Honolulu, Hawaii, November 13, 2013.

*

ROBRT K. MAT&JMOTO
JOffI R. DWYEJR.
REPRESENTATWE BOB McDERMOTT,
GARRET HASHIMOTO, WILLIAM EK.

292834.1

—2—

Supplemental memorandum in support of mc dermott lawsuit

Recommandé

Recommandé

Contenu connexe

Tendances

Tendances (19)

Similaire à Supplemental memorandum in support of mc dermott lawsuit

Similaire à Supplemental memorandum in support of mc dermott lawsuit (20)

Plus de Honolulu Civil Beat

Plus de Honolulu Civil Beat (20)

Dernier

Dernier (20)

Supplemental memorandum in support of mc dermott lawsuit