Case 1:11-cv-00790-JMS-KSC Document 1 Filed 12/28/11 Page 1 of 7 PageID #: 1
Rf INAL

SHAWN A. LUIZ 6855 Attorney at Law 1132 Bishop Street Suite 1520 Honolulu, Hawaii 96813 Telephone: (808) 538-0500 Facsimile: (808) 538-0600 attorneyLuiz@msn.com

FILED INTHE UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII

at~\\\CIO'O;1tC< an2d

8~P11 ~
_" (kin. M,

SUE OEI1IA, > ERK . ~

Attorney for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

JMS KS( EMMANUEL TEMPLE, THE HOUSE) CIVIL Nd}'IV 11 00790

OF PRAISE; CARL E. HARRIS;

)

LIGHTHOUSE OUTREACH CENTER)

ASSEMBLY OF GOD; JOE HUNKIN, )

JR.

)

)

Plaintiffs, ) COMPLAINT FOR

) DECLARATORY AND

vs.

) INJUNCTIVE RELIEF;

) SUMMONS

NEIL ABERCROMBIE, in his official )

capacity as Governor of the State of )

Hawaii; LORETTA J. FUDDY, in her )

official capacity as Director of Health of )

the State of Hawaii; STATE OF

)

HAWAII,

)

)

)

Defendants.

)

)

--------------------------)

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:11-cv-00790-JMS-KSC Document 1 Filed 12/28/11 Page 2 of 7 PageID #: 2
NOW COMES the Plaintiffs, EMMANUEL TEMPLE, THE HOUSE OF PRAISE, CARL E. HARRIS, LIGHTHOUSE OUTREACH CENTER ASSEMBLY OF GOD; and JOE HUNKIN, JR. by and through their attorney, Shawn A. Luiz, Esq., and complaining of the Defendants, and alleges and says:
NATURE OF CLAIMS 1. This is a civil action for declaratory and injunctive relief and attorney fees and costs. Plaintiffs bring this action under the Civil Rights Act of 1871, 42
U.S.C. § 1983, the 1st, 5th and 14th Amendments to the U.S. Constitution to correct
and remedy unlawful infringement of Plaintiffs' federal constitutional rights as citizens of the United States of America. The Hawaii State statute, Act 1, is unconstitutional in its present form. The STATE OF HAWAII, through its agents is attempting to infringe and interfere with the Plaintiffs' federal constitutional rights by enacting a state statute infringing on said rights. Alternatively, the statute has an adverse impact infringing and interfering with the Plaintiffs' federal constitutional rights by enacting a state statute infringing and interfering with said rights.
2. Plaintiffs seek a declaration from this court that the Defendants' acts, as more particularly set forth in this complaint, violates their rights under the foregoing constitutional provisions.
2

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3. Plaintiffs further seek a permanent injunction, ordering the Defendants to cease and desist from continuing in the foregoing violations of law.
PARTIES 4. Plaintiff EMMANUEL TEMPLE, THE HOUSE OF PRAISE is a Domestic Nonprofit Corporation whose purpose is to advance and promote the worship of God; to engage in and promote the study of the Holy Scriptures; and to advance the gospel of Jesus Christ. Plaintiff, CARL E. HARRIS at all times relevant to the matters alleged here, is a Bishop and Pastor of Emmanuel Temple, House of Praise and is a resident of Honolulu, Hawaii. Plaintiff LIGHTHOUSE OUTREACH CENTER ASSEMBLY OF GOD is a Domestic Nonprofit Corporation whose purpose is for religious purposes to worship the Lord, Sunday school, outreach program, day care, men & women ministry assoc.; JOE HUNKIN, JR. is a Pastor of Lighthouse Outreach Center Assembly of God and is a resident of Honolulu, Hawaii. 5. Defendants are the State of Hawaii as the principal and employer of its agents and employees; Defendant NEIL ABERCROMBIE in his official capacity as Governor of the State of Hawaii; As Governor of the State of Hawaii, Defendant NEIL ABERCROMBIE is the final decision maker who signed into law Act 1. Defendants at all times pertinent hereto, were and are located in the District of Hawaii. As a final decision maker, Governor ABERCROMBIE is ultimately
3

Case 1:11-cv-00790-JMS-KSC Document 1 Filed 12/28/11 Page 4 of 7 PageID #: 4
responsible for ensuring compliance with all applicable federal statutory laws, including but not limited to, the First Amendment, Due Process Clause to the Fifth Amendment of the United States Constitution, made applicable upon the states by the Fourteenth Amendment and other federal law referenced above.
6. LORETTA J. FUDDY is sued in her official capacity as Director of Health of the State of Hawaii. As a final decision maker, Director Fuddy is ultimately responsible for ensuring compliance with all applicable federal statutory laws, including but not limited to, the First Amendment, Due Process Clause to the Fifth Amendment of the United States Constitution, made applicable upon the states by the Fourteenth Amendment and other federal law referenced above.
7. At all times relevant hereto, the Defendants, and each of them, were operating under color of law, custom and usage of the State of Hawaii. Each of the Defendants is responsible, and liable, jointly and severally, for the events herein alleged, or in omitting to do those acts as legally required, in that individually and/or collectively, they have caused Plaintiffs a serious deprivation of their rights and serious injury. Each Defendant has acted throughout as an agent for each and all other Defendants.
JURISDICTION AND VENUE 8. This Court has jurisdiction of the federal claims asserted here pursuant to 28 U.S.C. § 1331; 28 U.S.C. § 1343; and 42 U.S.C. § 1983.
4

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9. Declaratory and injunctive relief may be granted based upon 28 U.S.C. §§ 2201 and 2202, and Rules 54, 57, 58 and 65 of the Federal Rules of Civil Procedure.
10. The unlawful practices complained of in this complaint occurred, and the records relevant to this matter are maintained and administered, within the District of Hawaii, and venue is proper within this District pursuant to 28 U.S.C. § 1391 (b).
FACTUAL ALLEGATIONS RELATING TO ALL CLAIMS 11. On or about February 24, 2011, Governor Abercrombie signed into law Act 1. 12. Between August and November of2011, a special task force pursuant to a House Resolution was convened to implement Act 1. 13. Neither Act 1 not it's implementing regulations exempts religious institutions, churches and houses of worship, clergy, officers and members from being subject to the injunctive relief provision and/or fine provisions ofHRS 489. 14. Within the last 12 months, private individuals have already initiated complaints with the Hawaii Civil Rights Commission against churches and houses of worship for refusing to rent their facilities for same sex unions and/or marriage ceremomes.
5

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15. The Hawaii Civil Rights Commission's pending investigations (1), have a chilling effect on Plaintiffs' free exercise of religion, and (2), compel Plaintiffs' to hire legal counsel to prepare legal defenses against imminent complaints and lawsuits for a guaranteed Federal Constitutional Right.
16. The actions of the Defendants described in this Complaint constitute willful misconduct. The Defendants have acted wrongfully, oppressively, or with malice, which evidences a spirit of discrimination or criminal indifference to civil obligations.
17. The actions of the Defendants as described in this Complaint were intentional and unreasonable. Alternatively, Act 1 has a disparate impact on churches and houses of worship.
18. This is a cause of action arising at all times in accordance with 42 U.S.C § 1983 and the First; Fifth and Fourteenth Amendments to the U.S. Constitution.
19. Defendants' actions violate Plaintiffs' rights under the First Amendment; Due Process Clause of the Fifth Amendment to the United States Constitution that are made applicable to the states by the Fourteenth Amendment. These violations are actionable under 42 U.S.C. § 1983. Plaintiffs were entitled to freedom of speech, association and religious liberty; Plaintiffs are immediately subject to the imminent threat of Civil Rights Complaints upon Act 1 taking effect
6

Case 1:11-cv-00790-JMS-KSC Document 1 Filed 12/28/11 Page 7 of 7 PageID #: 7
on January 1, 2012; each of the Defendants has ratified the decisions of the other Defendants. WHEREFORE, the Plaintiffs demand judgment as follows:
(a) Declaring that the acts and practices complained of here are in violation of the Plaintiffs rights as secured by Section 1983.
(b) Preliminarily and permanently restraining and enjoining the defendants and their agents from any conduct violating the Plaintiff s rights as secured by Section 1983.
(c) For the recovery of costs and attorney fees as provided by statute. (d) For such other and further relief as the Court may deem just, fit and proper. DATED: Honolulu, Hawaii, December 28, 2011.
, S~ HAWNA' .LU~
Attorney for Plaintiffs
7

Case 1:11-cv-00790-JMS-KSC Document 1-1 Filed 12/28/11 Page 1 of 3 PageID #: 8

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

EMMANUEL TEMPLE, THE HOUSE
OF PRAISE; CARL E. HARRIS;
LIGHTHOUSE OUTREACH CENTER
ASSEMBLY OF GOD; JOE HUNKIN, JR.

CASE NUMBER: - - - - - - SUMMONS IN A CIVIL CASE

Plaintiffs,
vs.
NEIL ABERCROMBIE, in his official capacity as Governor of the State of Hawaii; LORETTA J. FUDDY, in her official capacity as Director of Health of the State of Hawaii; STATE OF HAWAII,

Defendants.

SUMMONS IN A CIVIL CASE

TO:

ALL NAMED DEFENDANTS

A lawsuit has been filed against you. Within 21 days after service of this summons upon you (exclusive of the day of service), or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Federal Rule Civil Procedure, Rule 12(a)(2) or (3)-you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff s attorney, whose name and address are:

Case 1:11-cv-00790-JMS-KSC Document 1-1 Filed 12/28/11 Page 2 of 3 PageID #: 9

SHAWN A. LUIZ

6855

Attorney at Law

1132 Bishop Street

Suite 1520

Honolulu, Hawaii 96813

Tel. (808) 538-0500

Fax (808) 538-0600

E-mail: attorneyluiz@msn.com

If you fail to respond"" judgment by default will be entered against you for the relief demanded in the laint. You must also file your answer or motion with the court.

2011

9

Case 1:11-cv-00790-JMS-KSC Document 1-1 Filed 12/28/11 Page 3 of 3 PageID #: 10

AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)
Civil Action No.

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (I))

This summons for (name ofindividual and title, ifan)~ was received by me on (date)

o I personally served the summons on the individual at (place) --------------------------------------

on (date)

; or

-------------------------------------------------

----------------

o I left the summons at the individual's residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

----------------------------------

on (date)

,and mailed a copy to the individual's last known address; or

---------------

o I served the summons on (name ofindividual)

,who is

------------------------------------------

designated by law to accept service of process on behalf of (name oforganization)

o I returned the summons unexecuted because
o Other (specify):

on (date)

; or

----------------

; or
-------------------------------------------

My fees are $

for travel and $

for services, for a total of $

0.00

I declare under penalty of petjury that this information is true.

Date:

Server's signature

Printed name and title

Additional infonnation regarding attempted service, etc:

Server's address

"""JS 44 (ReCv. a12s/0e7) 1:11-cv-00790-JMS-KSC CDIoVcuILmeCnOt 1V-2ERFiSleHd E12E/2T8/11 Page 1 of 1 PageID #: 11

lD~(~'n~~' Tbyhe10JSca4ll4Uclievsiol cfcoove~l}GfesD\;dlr~~

ed herein neither replace nor supplement the filing and service. ofpleadings or other papers as required by law, except as provided udicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of mitiating

the civil docket sheet. (SEE INSTRU I N N

VERSE OF THE FORM.)

c. "

I. (a) PLAINTIFFS
Emmanuel Temple, the House of Praise; Carl E. Harris; Lighthouse

DEFENDANT Neil Abercrombie, in his official capacity as Gove

~~'*'~~State of

Outreach Center Assembly of God; Joe Hunkin, Jr.
(b) County of Residence of First Listed Plaintiff ...;.H...;.o'-n_o'-l...;.u....;lu"--_ _ _ _ __
(EXCEPT IN U.S. PLAINTIFF CASES)

Hawaii; Loretta J. Fuddy, in her official capacity as Director of Health of the State of Hawaii; State of Hawaii County of Residence ofFirst Listed Defendant
(IN U.S. PLAINTIFF CASES ONLy)

NOTE: IN LAND CONDEMNAnON CASES, USE THE LOCATION OF THE LAND INVOLVED.

(c) Attomey's (finn Name, Address and Tel~hone Number/ Shawn A. Luiz, 1132 Bishop St., Suite 1b20, Hono ulu, HI 96813, Tel. No. 538-0500

Attomeys (If Known)
N/A

II. BASIS OF JURISDICTION (Place an "X"in One Box Only)

o I U.S. Government
Plaintiff

l!!t 3 Federal Question
(U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

0 I 0 I Incorporated or Principal Place

0 4 04

of Business In This State

o 2 U.S. Government
Defendant

o 4 Diversity
(Indicate Citizenship of Parties in Item lll)

IV. N ATURE 0 FSUIT !Place an "X" in One Box Onlv)

CONTRACT

TORTS

o 11 0 Insurance

PERSONAL INJURY

o 120 Marine

0 310 Airp lane

o 130 Miller Act

0 315 Airplane Product

o 140 Negotiable Instrwnent

Liability

o 150 Recovery of Overpayment 0 320 Assault, Libel &

PERSONAL INJURY 0 362 Personal Iqiury -
Med. Malpractice 0 365 Personal Injury -
Product Liability

& Enforcement ofJudgment

o 151 Medicare Act

0

o 152 Recovery of Defaulted

Student Loans

0

(Excl. Veterans)

0

o 153 Recovery of Overpayment

Slander 330 Federal Employers'
Liability 340 Marine 345 Marine Product
Liability

0 368 Asbestos Personal Injury Product Liability
PERSONAL PROPERTY 0 370 Other Fraud 0 371 Truth in Lending

of Veteran's Benefits

0

o 160 Stockholders' Suits

0

o 190 Other Contract

o 195 Contract Product Liability 0

o 196 Franchise

350 Motor Vehicle 355 Motor Vehicle
Product Liability 360 Other Personal
Iqiury

0 380 Other Personal Property Damage
0 385 Property Damage Product Liability

I

REAL PROPERTY

o 210 Land Condemnation

o 220 Foreclosure

o 230 Rent Lease & Ej ectment

o 240 Torts to Land

o 245 Tort Product Liability

o 290 All Other Real Property

CIVIL RIGHTS

PRISONER PETITIONS

0 441 Voting

0 510 Motions to Vacate

0 442 Employment

Sentence

0 443 Housing!

Habeas Corpus:

Accommodations

0 530 General

0 444 Welfare

0 535 Death Penalty

0 445 Amer. wlDisabilities - 0 540 Mandamus & Other

Employment

0 550 Civil Rights

0 446 Amer. w/Disabilities - 0 555 Prison Condition

Other ~ 440 Other Civil Rights

Citizen of Another State
Citizen or Subject of a Forei n Countr

o 2 0 2 Incorporated Gild Principal Place
of Business In Another State
o 3 0 3 Foreign Nation

o5 0 5 o6 0 6

FORFEITURE/PENALTY

BANKRUPTCY

o 610 Agriculture o 620 Other Food & Drug o 625 Drug Related Seizure

o 422 Appeal 28 USC 158 o 423 Withdrawal
28 USC 157

of Property 21 USC 881
o 630 Liquor Laws o 640 RR. & Truck o 650 Airline Regs. o 660 Occupational

PROPERTY RIGHTS
o 820 Copyrights o 830 Patent o 840 Trademark

Safety/Health

0690 Other

LABOR
o 710 Fair Labor Standards
Act
o 720 LaborlMgmt. Relations o 730 LaborlMgmt.Reporting
& Disclosure Act
o 740 Railway Labor Act o 790 Other Labor Litigation o 791 Empl. Ret. Inc.
Security Act

SOCIAL SECURITY
o 861 HlA (l395ft) o 862 Black Lung (923) o 863 DIWC/DIWW (405(g» o 864 ssm Title XVI o 865 RSI (405(g»
FEDERAL TAX SUITS
o 870 Taxes (U.S. Plaintiff
or Defendant)
o 871 IRS-Third Party

26 USC 7609

IMMIGRATION
o 462 Naturalization Application o 463 Habeas Corpus -

Alien Detainee
o 465 Otller hnmigration

Actions

OTHER STATUTES
0 400 State Reapportionment 0 410 Antitrust 0 430 Banks and Banking 0 450 Commerce 0 460 Deportation 0 470 Racketeer Influenced and
Corrupt Organizations 0 480 Consumer Credit 0 490 Cable/Sat TV 0 810 Selective Service 0 850 Securities/Commodities/
Exchange 0 875 Customer Challenge
12 USC 3410 0 890 Other Statutory Actions 0 891 Agricultural Acts 0 892 Economic Stabil ization Act 0 893 Enviromnental Matters 0 894 Energy Allocation Act 0 895 Freedom ofInfonnation
Act 0 900Appeal of Fee Determination
Under Equal Access to Justice 0 950 Constitutionality of State Statutes

V. ORIGIN
~ I Original
Proceeding

(Place an "X" in One Box Only)

o 2 Removed from

0 3 Remanded from

State COUlt

Appellate COUlt

o 4 Reinstated or 0 Reopened

5

Transf~n'~d ~'om anoth~1 dlstnct

0 6 Multidistrict
Litigation

s eCI

Appeal to District

o 7

Judge from Magistrate

Jud ment

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
VI. CAUSE OF ACTION ~42~U""S""C~S~e..c"."tio7n.:...1.:..:9"",,8,,,,3_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _- - - - -

Brief description of cause:

VII. REQUESTED IN COMPLAINT:

State enact Act 1 which violates Plaintiffs' ri hts under First Fifth and Fourteenth Amendments to U.S. Const.

n CHECK IF THIS IS A CLASS ;\~TION

DEMAN~ $ /

CHECK YES only if demanded in complaint:

UNDER F.R.C.P. 23

tv//.}

IV ~

JURY DEMAND:

0 Yes Q'fNo

VIII. RELATED CASE(S)

IF ANY fl//ft

(See instructions):

JUDGE

DOCKET NUMBER

DATE 12-/2£/1/

ORNEY OF RECORD

FOR OFFICE USE ONLY

-------- RECEIPT #

AMOUNT ------------- APPLYING IFP

JUDGE

- - - - - - - MAG. JUDGE

 
 Case 1:11-cv-00790-JMS-KSC Document 21-1 Filed 07/27/12 Page 1 of 18 PageID #: 143

DAVID M. LOUIE 2162 Attorney General of Hawaii

CARON M. INAGAKI 3835

JOHN F. MOLAY

4994

Deputy Attorneys General

Department of the Attorney

General, State of Hawaii

425 Queen Street

Honolulu, Hawaii 96813

Telephone: (808) 586-1494

Facsimile: (808) 586-1369

E-Mail: John.F.Molay@hawaii.gov

Attorneys for Defendants NEIL ABERCROMBIE, LORETTA J. FUDDY, and STATE OF HAWAII

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

EMMANUEL TEMPLE, THE HOUSE OF PRAISE; CARL E. HARRIS; LIGHTHOUSE OUTREACH CENTER ASSEMBLY OF GOD; JOE HUNKI, JR.

CIVIL NO. 11-00790 JMS-KSC
MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

Plaintiffs,

(FRCivP, Rules 12(b)(1)(6))

vs.

NEIL ABERCROMBIE, in his official capacity as Governor of the State of Hawaii; LORETTA J. FUDDY, in her official capacity as Director of Health of the State of Hawaii; STATE OF HAWAII,

Defendants.

i

Case 1:11-cv-00790-JMS-KSC Document 21-1 Filed 07/27/12 Page 2 of 18 PageID #: 144

TABLE OF CONTENTS SECTION 1. Question Presented 2. Review of Plaintiffs’ Complaint 3. Standard for Determining a Motion to Dismiss for Lack of
Subject Matter Jurisdiction 4. This Court Lacks Subject Matter Jurisdiction 5. This Case is Not Ripe for Adjudication 6. Conclusion

PAGE 1 2
5 6 10 13

i

Case 1:11-cv-00790-JMS-KSC Document 21-1 Filed 07/27/12 Page 3 of 18 PageID #: 145

TABLE OF AUTHORITIES
CASES
Abbott Labs v. Gardner, 387 U.S. 136, 149 (1967)
Armstrong World Indus., Inc. v. Adams, 961 F.2d 405 (3rd Cir. 1992)
Awad v. Zirax, 670 F.3d 1111 (10th Cir. 2012)
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979)
City of Kansas City, Mo. V. Yarco Co., Inc., 625 F.3d 1038 (8th Cir. 2010)
Federation of African American Contractors v. City of Oakland, 96 F.3d 1204 (9th Cir. 1996)
Florida Audubon Society v. Bentsen, 94 F.3d 658 (D.C. Cir 1996)
Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548 (9th Cir. 2003)
Lee v. Oregon, 107 F.3d 1382 (9th Cir. 1997)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
McInnis-Misenor v. Maine Med. Ctr., 319 F.3d 63 (1st Cir. 2003)
New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495 (10th Cir. 1995)

PAGE(S) 13 11 9, 10, 13 13 7 6 6 7, 12 8 7 12 10, 12

ii

Case 1:11-cv-00790-JMS-KSC Document 21-1 Filed 07/27/12 Page 4 of 18 PageID #: 146

Renne v. Geary, 501 U.S. 312 (1991)
Restigouche, Inc. v. City of Jupiter, 59 F.3d 1208 (11th Cir. 1995)
S. Jackson & Son, Inc., v. Coffee, Sugar & Cocoa Exch. Inc., 24 F.3d 427 (2nd Cir. 1994)
Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004)
San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121 (9th Cir. 1996)
Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134 (9th Cir. 2000)
Thornhill Publishing Co. v. General Telephone & Electronics. Corp.,
594 F.2d 730 (9th Cir. 1979)
Utah Ass’n of Counties v. Bush, 455 F.3d 1094 (10th Cir. 2006)
White v. Lee, 227 F.3d 1214 (9th Cir. 2000)
Whitmore v. Arkansas, 495 U.S. 149 (1990)
OTHER AUTHORITY
42 U.S.C. § 1983
FRCivP, Rule 12(b) (1)
HRS § 489-2

11 10 6 6 7 11, 12
5, 6 7 5 7 PAGE(S) 1 5 8

iii

Case 1:11-cv-00790-JMS-KSC Document 21-1 Filed 07/27/12 Page 5 of 18 PageID #: 147
MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS 1. Question Presented
The question presented in Defendants’ Motion is: Should this Court dismiss this action? This Court should answer that question in the affirmative because:
• Plaintiffs lack standing; and • This case is not ripe for adjudication. 2. Review of Plaintiffs’ Complaint
The Complaint, filed on December 28, 2011 sets forth that the Plaintiffs are Carl E. Harris who is the Bishop and Pastor of Plaintiff Emmanuel Temple, a corporation. The other Plaintiffs are Joe Hunkin, Jr., the Pastor of Plaintiff Lighthouse Outreach Center Assembly of God, a corporation. The action is not pled as a class action.
The Defendants are Neil Abercrombie, the Governor of the State of Hawaii, Loretta J. Fuddy, Director of the State of Hawaii Department of Health, and the State of Hawaii itself.
The action is being brought pursuant to 42 U.S.C. § 1983 based on Plaintiffs’ belief that the provisions of Chapter 572B, Hawaii Revised Statutes violates Plaintiffs’ federal civil rights pursuant to the First, Fifth and Fourteenth Amendments.
1

Case 1:11-cv-00790-JMS-KSC Document 21-1 Filed 07/27/12 Page 6 of 18 PageID #: 148
According to the Complaint, the provisions of Chapter 352 went into effect on February 24, 2011.1 Chapter 352B does not contain any provisions which exempt religious institutions from the provisions of Chapter 489, Hawaii Revised Statutes2. Within the last 12 months private individuals have lodged complaints with the Hawaii Civil Rights Commission against religious institutions for refusing to rent their facilities for same sex unions.3
The Complaint does not state that any persons that are considering entering into same-sex civil unions have sought to rent Plaintiffs’ facilities or that any investigation of the Hawaii Civil Rights Commission has been directed toward them.
Plaintiffs also had filed a Motion for a Temporary Restraining Order and Preliminary Injunction contemporaneously with their Complaint, which this Court denied on December 30, 2011. Their Motion requested this Court issue a Temporary Restraining Order requiring that Defendants cannot implement the provisions of Chapter 572B, Hawaii Revised Statutes until a trial on the merits of Plaintiffs’ claim that the provisions of Chapter 352B violate their federal civil
1 Defendants note that the allegations in the Complaint have been superceded by events that have occurred since its filing. Those events are discussed below. 2 This Chapter generally prohibits discrimination in public accommodation, based on, inter alia, sexual orientation. 3 Defendants are not repeating Plaintiffs’ legal conclusions, only the facts pled in the Complaint.
2

Case 1:11-cv-00790-JMS-KSC Document 21-1 Filed 07/27/12 Page 7 of 18 PageID #: 149
rights . In support of that Motion, Plaintiffs offered the following evidence by way of declaration of Carl E. Harris:
He is the Bishop and Pastor of Emmanuel Temple, a domestic nonprofit corporation and a religious institution. He does not believe that same Chapter 352B, same-sex marriages and civil unions conform with the teachings of Jesus Christ. In Hawaii, and other states, same sex couples have attempted to rent the premises of religious institutions for the purpose of conducting civil unions and receptions. He is aware that the Hawaii Civil Rights Commission accepted a complaint from a same sex couple who attempted to rent the premises of a religious institution for the purpose of performing a same sex marriage.4 This complaint is still pending.
This Declaration does not state the following: • That any person has sought to rent any of Plaintiffs’ premises for the
purpose of conducting ceremonies to solemnize a civil union (HRS 357B-4(a)) or for a reception to commemorate the solemnization of a civil union; • That any person has been refused the right to rent any of Plaintiffs’ premises for purposes Plaintiffs find objectionable;
4 Defendants note that same sex marriages are still illegal in Hawaii, and remain so even after implementation of civil unions.
3

Case 1:11-cv-00790-JMS-KSC Document 21-1 Filed 07/27/12 Page 8 of 18 PageID #: 150
• That any person has filed a complaint with the Hawaii Civil Rights Commission against any Plaintiff relating to Plaintiffs’ refusal to comply with rent any premises to persons for purposes Plaintiffs find objectionable;
• That the Hawaii Civil Rights Commission has opened up an investigation involving any Plaintiff for refusing to rent their premises to person wishing to solemnize civil unions or for a reception; or
• That any Plaintiff is required to pay any monetary damages or attorneys’ fees for refusing to rent their premises to person wishing to solemnize civil unions or for a reception. The lack of any of these facts supports Defendants’ Motion to Dismiss.5 Since the Complaint was filed, the 2012 legislative session was held. The
legislature passed H.B. No. 2569, H.D. 2, S.D. 1, C.D. 1, which was signed into law by the Governor on July 6, 2012, as noted by this Court at the status conference held on July 19, 2012. A copy of that bill is attached as Exhibit A. The Court is requested to take judicial notice of the contents of the bill. This Court had stayed this action for the purpose of providing the legislature the opportunity to create an exemption to our civil rights statutes that would be satisfactory to 5 At the July 19, 2012 status conference Plaintiffs’ counsel advised the Court that his clients’ status had not changed since the filing of the Complaint. Defendants ask this Court to consider that to be a judicial admission, and that the statements contained in the Declaration of Carl E. Harris are still valid.
4

Case 1:11-cv-00790-JMS-KSC Document 21-1 Filed 07/27/12 Page 9 of 18 PageID #: 151
Plaintiffs. Although there was an exemption created by the legislature (Ex. A at 34), Plaintiffs’ counsel advised this Court that his clients did not consider the exemption to be sufficient, and they wished to proceed with the action. This Motion to Dismiss followed. 3. Standard for Determining a Motion to Dismiss for Lack of
Subject Matter Jurisdiction Issues of standing are analyzed under Rule 12(b) (1) of the Federal Rules of Civil Procedure, as they go to the court’s subject matter jurisdiction. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (stating that standing pertains to a federal court’s subject matter jurisdiction). Rule 12(b) (1) of the Federal Rules of Civil Procedure provides: “Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction.” A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b) (1) may either attack the allegations of the complaint as insufficient to confer upon the court subject matter jurisdiction, or attack the existence of subject matter jurisdiction in fact. Thornhill Publishing Co. v. General Telephone & Electronics. Corp., 594 F.2d 730, 733 (9th Cir. 1979). When the motion to dismiss attacks the allegations of the complaint as insufficient to confer subject matter jurisdiction, it is a facial challenge requiring all allegations of material fact to be taken as true and construed in the light most
5

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favorable to the nonmoving party. Federation of African American Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). However, when the motion to dismiss is a factual attack on subject matter jurisdiction, no presumptive truthfulness attaches to the plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the existence of subject matter jurisdiction in fact. Thornhill, 594 F.2d at 733. Unlike a Rule 12(b)(6) motion, the court need not confine its evaluation to the face of the pleadings, but may review and accept any evidence, such as affidavits, or it may hold an evidentiary hearing. Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004). Defendants are making a factual attack on subject matter jurisdiction and hereby refer to evidence outside of the Complaint to support their assertion that these Plaintiffs should not be allowed to proceed with this action. 4. This Court Lacks Subject Matter Jurisdiction
The judicial power of the United States extends to specified cases and controversies. U.S. Const., art III. § 2. Because Article III is a limit on judicial power, a federal court will not have subject matter jurisdiction over an action absent the requisite case or controversy. S. Jackson & Son, Inc., v. Coffee, Sugar & Cocoa Exch. Inc., 24 F.3d 427, 431 (2nd Cir. 1994). Standing addresses who may bring suit. Florida Audubon Society v. Bentsen, 94 F.3d 658, 663 (D.C. Cir 1996) (plaintiff must show it is “proper” party). Standing is determined at the time
6

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of filing suit. Utah Ass’n of Counties v. Bush, 455 F.3d 1094, 1099-1101 (10th Cir. 2006) (injury must exist at time complaint is filed).
To have standing, a plaintiff must show he suffered an injury-in-fact and the injury must have affected him in a personal and individual way. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992) At an “irreducible minimum,” the party who invokes the court’s authority must show he or she has personally suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant. See City of Kansas City, Mo. V. Yarco Co., Inc., 625 F.3d 1038, 1040 (8th Cir. 2010) (city did not have standing to sue allegedly discriminating landlord under Fair Housing Act because city did not allege any injury to itself).
An injury that is merely conjectural, speculative or hypothetical will not satisfy the injury-in-fact component of standing. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). See San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996) (mere possibility of criminal sanctions does not satisfy injuryin-fact requirement); Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 555 (9th Cir. 2003) (religious nonprofit corporation lacked standing to challenge professional fundraising provisions of local ordinance as violating First Amendment right to hear speech or be solicited because allegations raised only mere possibility of future injury).
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The intensity of the litigant’s interest or motivation or the fervor of his or her advocacy is not a substitute for a showing of injury. See Lee v. Oregon, 107 F.3d 1382 (9th Cir. 1997) (nursing home owners and administrators did not have standing to challenge physician-assisted suicide law on ground they might be forced to participate in suicide in violation of their religious beliefs; plaintiffs’ injuries were not concrete and particularized because law did not impose penalties on those that refused to implement it).
Mr. Harris asserts that he, and presumably the other Plaintiffs, are at “risk” should they decide to violate the law because they believe that civil unions run counter to the teachings of Jesus Christ. He is asking this Court to declare that the newly-amended civil unions bill is unconstitutional because the exemption that was written into the law was not broad enough to protect the Plaintiffs’ First Amendment rights.
It is unclear what standards they believe the Court should use in deciding this hypothetical question. The law, as it currently exists, does create an exemption for churches to refuse to conduct civil unions so long as the church property is not operated as a for profit business and is not determined to be a place of public accommodation, as defined in HRS § 489-2. This Court is being asked to make this determination without any facts to work with. There are numerous circumstances under which the Plaintiffs could refuse to conduct civil unions
8

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and not be held liable for a civil rights violation, based on the exemption now in existence. Therefore, the existence of this exemption does not, it itself, violate Plaintiffs’ civil rights, simply because it is not as broad as they would like it to be. What Plaintiffs are attempting to do is use this lawsuit as a vehicle to overturn the lawful acts of the legislative and executive branches of the government of the State of Hawaii, because they have moral objections to civil unions. The lack of facts for this Court to work with illustrates the reason the case or controversy requirement exists.
Presumably, Plaintiffs will cite to Awad v. Zirax, 670 F.3d 1111 (10th Cir. 2012) for the proposition that their clients have standing (and this action is ripe). There, a Muslim Oklahoma resident brought an action against state election officials, alleging that a resolution proposing an amendment to the Oklahoma Constitution to forbid courts from considering or using international law or Sharia law violated the Establishment Clause and the Free Exercise Clause of First Amendment. The District Court granted the resident's motion for a temporary restraining order and a preliminary injunction prohibiting the election officials from certifying the election results until the court ruled on merits of his claims. The election officials appealed. The Tenth Circuit held that the resident had standing to bring Establishment Clause claim and the Establishment Clause claim was ripe for judicial review. Defendants believe that case is distinguishable from the present
9

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action. As noted by the Awad Court, the amendment targeted the plaintiff’s religion
for disfavored treatment because it is “a constitutional directive of exclusion and disfavored treatment of a particular religious legal tradition…[and the plaintiff] is facing the consequences of a statewide election approving a constitutional measure that would disfavor his religion relative to others.” Id. at 1123. No such situation is involved in the instant case. The statutes which Plaintiffs are complaining about are statutes of general applicability, and do not favor or disfavor any particular religion. The current Plaintiffs are not the target of the civil unions bill, or our civil rights statutes. Their religion is not targeted for disfavored treatment. Notably, many Christians have embraced civil unions. These particular Christians have not.
Defendants assert that because there is no case-or-controversy, this Court lacks subject matter jurisdiction. 5. This Case is Not Ripe for Adjudication
Even if the Court determines that Plaintiffs have standing, the case is not ripe for adjudication. Ripeness is an independent requirement for judicial review. New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495 (10th Cir. 1995). It asks whether the case has been brought at a point so early that it is not year clear whether a real dispute to be resolved exists between the parties. Restigouche, Inc.
10

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v. City of Jupiter, 59 F.3d 1208, 1212 (11th Cir. 1995). It is the burden of the plaintiff to allege facts demonstrating the appropriateness of invoking judicial resolution of the dispute. Renne v. Geary, 501 U.S. 312 (1991). The ripeness doctrine dictates that courts will not decide abstract issues or hypothetical facts. See Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 410 (3rd Cir. 1992) (ruling on federal constitutional matters in advance of necessity of deciding them is to be avoided).
This court’s “role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution.” Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134, 1138 (9th Cir. 2000).
Although standing is usually relaxed in First Amendment cases, “when plaintiffs seek to establish standing to challenge a law or regulation that is not presently being enforced against them, they must demonstrate ‘a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154 (9th Cir. 2000).
In evaluating the genuineness of a claimed threat of prosecution, trial courts have been instructed to look to “whether the plaintiffs have articulated a ‘concrete plan’ to violate the law in question, whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and the history
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of past prosecution or enforcement under the challenged statute.” Thomas, supra, at 1139.
Here, Plaintiffs certainly have not articulated a “concrete plan” for violating the statute. In fact, because the violation of the civil rights statute requires that other parties take specific actions, there is certainly no guarantee that these Plaintiffs will ever violate the statute. No prosecuting agency has communicated a specific warning or threat to initiate proceedings, in large part because there is no violation to act upon. Finally, there has apparently been no proceedings initiated against the Plaintiffs, or anyone else, for refusing to allow a civil union ceremony to be conducted in a church or similar property.
The critical question concerning fitness for review is whether the claim involves uncertain and contingent events that may not occur as anticipated or may not occur at all. See New Mexicans for Bill Richardson, supra (in determining fitness, central focus is whether case involves uncertain or contingent future events). A case is not ripe where the threatened injury is contingent. McInnisMisenor v. Maine Med. Ctr., 319 F.3d 63, 71-73 (1st Cir. 2003) (disabled woman sought to compel hospital to render its after-birth recovery area wheelchair accessible in anticipation of a future pregnancy).
In making a ripeness determination, courts will also examine the hardship that the parties would endure if consideration of the issue were withheld on
12

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grounds that the controversy was not ripe. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979). The threat of a civil enforcement action is not considered a hardship. See Lee v. Oregon, supra.
Normally, both criteria must be satisfied. Abbott Labs v. Gardner, 387 U.S. 136, 149 (1967). Courts are particularly vigilant when constitutional issues are at issue. See Gun Owners’ Action League, Inc. v. Swift, 284 F.3d 198 (1st Cir. 2002).
Again, Plaintiffs are expected to point to Awad, supra, for the proposition that this action is ripe. Awad is distinguishable with respect to ripeness as well. The Awad Court noted that the question presented did not involve the application of the law in a specific factual context. Id. at 1124. As noted above, there are only certain factual contexts where Plaintiffs can violate the statutes in question. In Awad the challenged action created an “immediate and concrete condemnation injury if we withhold review...” Id. at 1125. Again, there is no threat of prosecution or injury on the foreseeable horizon for the Plaintiffs in this action.
Defendants assert this action is not ripe for adjudication, and should be dismissed. 6. Conclusion
For the reasons set forth above, Defendants request this Court dismiss this action, without prejudice.
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DATED: HONOLULU, HAWAII, JULY 27, 2012 ________/s/John F. Molay__________ JOHN F. MOLAY Deputy Attorney General Attorney for Defendants NEIL ABERCROMBIE, LORETTA J. FUDDY and STATE OF HAWAII
14

 
 Case 1:11-cv-00790-JMS-KSC Document 23 Filed 08/31/12 Page 1 of 7 PageID #: 180

SHAWN A. LUIZ (6855) Attorney at Law 1132 Bishop Street Suite 1520 Honolulu, Hawaii 96813 Telephone: (808) 538 - 0500 Facsimile: (808) 538 - 0600 E-mail: attorneyluiz@msn.com

Attorney for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

EMMANUEL TEMPLE, THE HOUSE ) CIVIL NO: 11-790 JMS-KSC

OF PRAISE; CARL E. HARRIS;

)

LIGHTHOUSE OUTREACH CENTER) PLAINTIFFS' OPPOSITION TO

ASSEMBLY OF GOD; JOE HUNKIN, ) DEFENDANTS' MOTION TO

JR.

) DISMISS, FILED JULY 27, 2012;

) DECLARATION OF SHAWN A.

Plaintiffs, ) LUIZ', EXHIBIT "A'", CERTIFICATE

) OF SERVICE

vs.

)

) HEARING:

NEIL ABERCROMBIE, in his official ) DATE: October 1,2012

capacity as Governor of the State of ) TIME: 10 a.m.

Hawaii; LORETTA J. FUDDY, in her ) Judge: Honorable J. Michael Seabright

official capacity as Director of Health of )

the State of Hawaii; STATE OF

)

HAWAII,

)

)

)

Defendants.

)

-------------------------)

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS, FILED JULY 27,2012

1

Case 1:11-cv-00790-JMS-KSC Document 23 Filed 08/31/12 Page 2 of 7 PageID #: 181
Plaintiffs, EMMANUEL TEMPLE, THE HOUSE OF PRAISE, CARL E. HARRIS, LIGHTHOUSE OUTREACH CENTER ASSEMBLY OF GOD; and JOE HUNKIN, JR., oppose defendants' motion to dismiss filed July 27,2012 for the following reasons:
I. Standard of Review In evaluating a complaint pursuant to a motion to dismiss, the court must presume all factual allegations to be true and draw all reasonable inferences in favor of the non-moving party. Usher v. City ofLos Angeles, 828 F.2d 556, 561 (9th Cir. 1987); see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683,40 L. Ed. 2d 90 (1974) (the complaint must be liberally construed, giving the plaintiff the benefit of all proper inferences); Wileman Bros. & Elliott, Inc. v. Giannini, 909 F.2d 332, 334 (9th Cir. 1990). Conclusory allegations of law and unwarranted inferences, though, are insufficient to defeat a motion to dismiss. Pareto v. F.D.I.C, 139 F.3d 696,699 (9th Cir. 1998); In re VeriFone Securities Litigation, 11 F.3d 865, 868 (9th Cir. 1993) (conclusory allegations and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim); Western Mining Council v. Watt, 643 F.2d 618,624 (9th Cir. 1981), cert. denied, 454 U.S. 1031, 102 S. Ct. 567,70 L. Ed. 2d 474 (1981) (the Court does not "necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations").
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Additionally, the Court need not accept as true allegations that contradict matters properly subject to judicial notice or allegations contradicting the exhibits attached to the complaint. Sprewell v. Golden State Warriors. 266 F.3d 979, 988 (9th Cir. 2001).
Plaintiffs submitted a short and plain statement of the claim showing that the pleaders are entitled to relief. The Defendants claiming otherwise is without merit. Rule 8(a)(2) of the Federal Rules o/Civil Procedure (FRCP) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FRCP 8(a)(2). Additionally, "all pleadings shall be construed as to do substantial justice." FRCP 8(F).
All that is required is that Plaintiffs set forth enough details so as to provide Defendants and the court with a fair idea of the basis of the complaint and the legal grounds claimed for recovery. See Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462,466 (9th Cir. 1990). See also Bennett v. Schmidt, 153 F.3d 516, 518 (ih Cir. 1998) (In a racial discrimination employment case, "I was turned down for ajob because of my race" is all the complaint need to say); Mid America Title Co. v. Kirk, 991 F.2d 417,421 (7th Cir. 1993) (consistent with obligation to construe complaints liberally, the pleader is not required to identify a specific legal theory, and labeling a complaint with an incorrect theory is not fatal), cert. denied, 510 U.S. 932 (1993); Minger v. Green, 239 F.3d 793, 799 (6th Cir. 2001)
3

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(construing claim labeled as "negligent misrepresentation" which would have been barred by discretionary function doctrine as one for intentional misrepresentation which could go forward); Conley v. Gibson, 355 U.S. 41,45-6 (1957) ("a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief'.)
Accordingly, Plaintiffs set forth enough details so as to provide Defendants and the Court with a fair idea of the basis of Plaintiffs Complaint and the legal grounds claimed for recovery against Defendants, namely that the 11 th amendment does not bar prospective relief in accordance with 42 U.S.C. Section 1983 claims. Since all pleadings are to be construed as to do substantial justice, the Plaintiffs adequately alleged claims against Defendants. Otherwise, Plaintiffs should be allowed to amend the complaint as the scheduling order has not even been entered. Defendant's Motion must be denied for the following specific reasons:
II. Article III of the United States Constitution Article III of the United States Constitution limits federal court jurisdiction to "actual, ongoing cases or controversies." Lewis v. Cont'l Bank Corp., 494 U.S. 472,477, 110 S. Ct. 1249, 108 L. Ed. 2d 400 (1990); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S. Ct. 1055, 137 L. Ed. 2d 170 (1997).
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"[S]tanding is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992); see also Rein v. Freedom From Religion Found., Inc., 551 U.S. 587, 597-98, 127 S. Ct. 2553, 168 L. Ed. 2d 424 (2007). At an "irreducible constitutional minimum," standing requires the party asserting the existence of federal court jurisdiction to establish three elements: (l) an injury in fact that is (a) concrete and particularized and (b) actual or imminent; (2) causation; and (3) a likelihood that a favorable decision will redress the injury. Lujan, 504 U.S. at 560-61. In addition to these requirements, the doctrine of prudential standing requires us to consider, among other things, whether the alleged injury is more than a "'mere generalized grievance,' whether the plaintiff is asserting her own rights or the rights of third parties, and whether the claim 'falls within the zone of interests to be protected or regulated by the constitutional guarantee in question.'" Alaska Right to Life PAC v. Feldman, 504 F.3d 840, 84849 (9th Cir. 2007), quoting Johnson v. Stuart, 702 F.2d 193, 196 (9th Cir. 1983).
III. Argument Based upon the reasoning of the case of Awad v. Ziriax, (loth Cir. 2012), attached as Exhibit "A", the Court should deny the Motion to Dismiss. In Awad, a Muslim filed suit to enjoin certification of a constitutional ban of Sharia Law in the State Courts of Oklahoma. The U.S. District Court enjoined the certification
5

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finding that both Article III conditions of standing and ripeness were satisfied (Awad was never directly affected by the law in any manner as the law had not taken effect). The 10th Circuit Court of Appeals affirmed the granting of the preliminary injunction by the U.S. District Court in Awad on the establishment clause grounds.
The defendants in Awad, as in the case at bar, tried to assert that Awad lacked standing and that his claims were not ripe. The 10th circuit affirmed on the establishment grounds and failed to reach the free exercise grounds. See Exhibit A, page 10.
As noted by the State in its moving papers at page 10, there are churches which allow same-sex unions; therefore Act 1, as amended through HB 2569, HD 2, SD1, CD 1, will have no negative effect on those churches. It will however, have legal consequences on Plaintiffs' in the event they turn away a same-sex couple wishing to celebrate a same-sex union on their church grounds.
As in the Awad case, Plaintiffs Harris and Hunkin, suffer personal and unwelcome contact with a State law (Act 1, as amended) that opens the door for the State Attorney General or the Civil Rights Commissioner to bring actions against their Churches for refusing to rent to same-sex couples. See HRS § 489-8. The State Attorney General and/or the Civil Rights Commissioner may bring actions in their own capacity for Plaintiffs refusing to allow their property to be
6

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rented for civil union ceremonies based upon sexual orientation. It condemns their particular faith while allowing other faiths which freely allow same-sex couples to use their property to hold civil union ceremonies to be subjected to no legal consequences. The limited exemption of Act 1, as amended, fails to satisfy the First Amendment by placing three conditions precedent for a church needing to meet before being able to utilize the limited exemption.
As the law discriminates among religions, those that prohibit same-sex unions, and those that allow same-sex unions, Act 1, as amended does not survive strict scrutiny under the Establishment Clause.
This Honorable Court cannot with any degree of certainty, hold that Plaintiffs cannot prove any set of facts based upon the reasoning of Awad.
CONCLUSION In conclusion, Plaintiffs respectfully request that this Honorable Court deny Defendants' Motion to Dismiss based upon the foregoing reasoning. Defendants' raised the Act 1 amendments in their moving papers, so the matter is properly before the Court. Act 1, as amended, violates Plaintiffs' First Amendment rights, privileges and immunities on establishment grounds. Dated: Honolulu, Hawaii, August 31,2012.
/s/ Shawn A. Luiz SHAWN A. LUIZ Attorney for Plaintiffs
7

 
 Case 1:11-cv-00790-JMS-KSC Document 26 Filed 10/03/12 Page 1 of 26 PageID #: 238

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

EMMANUEL TEMPLE, THE

)

HOUSE OF PRAISE; CARL E. )

HARRIS; LIGHTHOUSE

)

OUTREACH CENTER ASSEMBLY )

OF GOD; JOE HUNKIN, JR.,

)

)

Plaintiffs,

)

)

vs.

)

)

NEIL ABERCROMBIE, in his

)

official capacity as Governor of the )

State of Hawaii; LORETTA J.

)

FUDDY, in her official capacity as )

Director of Health of the State of )

Hawaii; STATE OF HAWAII,

)

)

Defendants.

)

_____________________________ )

CIV. NO. 11-00790 JMS-KSC
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND DISMISSING ACTION

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND DISMISSING ACTION

I. INTRODUCTION

This action challenges the constitutionality of Hawaii’s Civil Unions

Law, 2011 Haw. Sess. L. Act 1 (“Act 1”) codified at Hawaii Revised Statutes

(“HRS”) Ch. 572B (the “Civil Unions Law”), which became effective on January

1, 2012. Plaintiffs Emmanuel Temple, the House of Praise (“Emmanuel Temple”);

Carl E. Harris (“Harris”); Lighthouse Outreach Center Assembly of God; and Joe

Case 1:11-cv-00790-JMS-KSC Document 26 Filed 10/03/12 Page 2 of 26 PageID #: 239
Hunkin, Jr. (“Hunkin”) (collectively “Plaintiffs”) filed the action under 42 U.S.C. § 1983 on December 28, 2011, seeking declaratory and prospective injunctive relief to prevent Defendants Neil Abercrombie, in his official capacity as Governor of the State of Hawaii (“Abercrombie”); and Loretta J. Fuddy, in her official capacity as Director of Health of the State of Hawaii (collectively “Defendants”) from “any conduct violating the Plaintiff’s (sic) rights[.]” Doc. No. 1, Compl. ¶ 19(b). Plaintiffs’ Complaint primarily alleges that Act 1 is unconstitutional because it does not exempt religious organizations from being subject to Hawaii public accommodations laws “for refusing to rent their facilities for same sex unions and/or marriage ceremonies.” Id. ¶¶ 13-14.
On December 30, 2011, the court denied Plaintiffs’ Motion for Temporary Restraining Order (“TRO”) which sought to prevent Act 1 from being implemented and enforced. See Emmanuel Temple, House of Praise v. Abercrombie, 2011 WL 6935321, at *1 (D. Haw. Dec. 30, 2011). The court denied the Motion for TRO because the action was not justiciable -- whether analyzed in terms of standing or ripeness, there was no “case or controversy” as necessary for this court to have jurisdiction to reach the constitutionality of Act 1. Id. at *4. By agreement of the parties, the court subsequently stayed the action while the 2012 Hawaii Legislature considered amendments to the Civil Unions Law. On
2

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July 6, 2012, Abercrombie signed Act 267, 2012 Haw. Sess. L. (“Act 267”) relating to Civil Unions. Among other measures, Act 267 amended HRS Ch. 572B to add an exemption for religious organizations that refuse to make facilities available for solemnizing civil unions. Defendants now move to dismiss the action.
Based on the following, the Motion to Dismiss is GRANTED. The current Complaint is moot because Act 267 amended the Civil Unions Law, and the Complaint was not amended to reflect the statutory change. More important, granting leave to amend (to revise the Complaint to challenge the current version of the Civil Unions Law) would be futile because the action would remain nonjusticiable. Whether gauged in relation to the current Complaint or an amended complaint, conditions for justiciability have not changed since the denial of the Motion for TRO. Plaintiffs have not demonstrated that they have standing or that the action is ripe. Accordingly, the action is DISMISSED without prejudice for lack of subject matter jurisdiction.
II. BACKGROUND A. Factual Background
Plaintiffs’ Complaint alleges violations of the First, Fifth, and Fourteenth Amendments to the United States Constitution. Plaintiffs contend that
3

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Act 1 violates the Constitution because Act 1 does not specifically exempt
religious organizations from Hawaii’s anti-discrimination laws (e.g., HRS Ch. 489
-- Discrimination in Public Accommodations).1 According to the Complaint, Act 1
1 In particular, HRS § 489-3 provides:
Unfair discriminatory practices that deny, or attempt to deny, a person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of race, sex, including gender identity or expression, sexual orientation, color, religion, ancestry, or disability are prohibited.
In turn, HRS § 489-7.5(a) provides a private cause of action for violations, as follows:
Any person who is injured by an unlawful discriminatory practice, other than an unlawful discriminatory practice under part II of this chapter, may:
(1) Sue for damages sustained, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorneys’ fees together with the costs of suit; and
(2) Bring proceedings to enjoin the unlawful discriminatory practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorneys’ fees together with the cost of suit.
And HRS § 489-8 provides for imposition of penalties for violations in actions brought by the Hawaii Attorney General or Hawaii Civil Rights Commission, as follows:
(a) It shall be unlawful for a person to discriminate unfairly in public accommodations. (b) Any person, firm, company, association, or corporation who violates this part shall be fined a sum of not less than $500 nor more than $10,000 for each violation, which sum shall be collected in a civil action brought by the attorney general or the civil rights commission on behalf of the State. The penalties provided in this section shall be cumulative to the remedies or penalties available under all other laws of this State. Each day of violation under this
(continued...)
4

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and actions by the Hawaii Civil Rights Commission have a “chilling effect on Plaintiffs’ free exercise of religion,” as “Plaintiffs are [or were] immediately subject to the imminent threat of Civil Rights Complaints upon Act 1 taking effect[.]” Doc. No. 1, Compl. ¶ 19.
The Complaint alleges that Emmanuel Temple is a domestic, nonprofit corporation whose purposes are to advance and promote the worship of God; to engage in and promote the study of the Holy Scriptures; and to advance the gospel of Jesus Christ. Harris is a Bishop and Pastor of Emmanuel Temple. Likewise, Lighthouse Outreach Center Assembly of God is a domestic, nonprofit corporation whose purposes are to worship the Lord, and to conduct activities such as Sunday school, outreach programs, and day care. Id. ¶ 4.
During the proceedings on the Motion for TRO, Harris provided a declaration dated December 26, 2011 explaining the allegations of harm that Plaintiffs believed they faced at that time. (The court relies on the factual allegations of the Complaint and on the record created during the Motion for TRO proceedings to analyze whether the entire action is justiciable.2) In particular,
1(...continued) part shall be a separate violation.
2 In responding to the present Motion challenging the court’s subject matter jurisdiction, Plaintiffs submitted no factual information. Rather, Plaintiffs responded with additional legal
(continued...) 5

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Harris attested that he opposes Act 1 because same sex marriage and civil unions
are against the teachings of the gospel of Jesus Christ. Doc. No. 4-1, Harris Decl.
¶¶ 3, 4. He stated that he is aware of instances in “New Jersey, California, and
Hawaii” where religious institutions and churches have refused to rent their
properties to others for civil unions and receptions, and have thus been subject to
civil rights complaints. Id. ¶ 6. No specific details of those instances were
provided. He further attested that he was “aware that this year [2011], the Hawaii
Civil Rights Commission accepted a complaint from a same sex couple against a
church which refused to rent its property for a same sex couple to perform a same
sex marriage.” Id. ¶ 7. He stated:
[b]ecause of my stance regarding same-sex unions and marriages, I am under imminent and immediate threat commencing on January 1, 2012 of being investigated; incurring attorneys fees and costs in defending my religious liberties; being enjoined and fined by the Hawaii Civil Rights Commission for refusing to rent my facilities to same sex couples.
Id. ¶ 8.
2(...continued) argument and caselaw. See Doc. No. 23, Pls.’ Opp’n at 5. Thus, the court relies on the allegations of the Complaint and the evidence in the record. As was the situation when the Motion for TRO was filed, the court has no indication that any couples seeking to solemnize a civil union have sought to utilize Plaintiffs’ facilities, much less that authorities are specifically seeking to enforce public accommodations laws against Plaintiffs for refusing to make facilities available to couples.
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Among other provisions, the Civil Unions Law details who may solemnize a civil union. HRS § 572B-4(b), as amended by Act 267, allows judges who may “legally join persons in chapter 572 or a civil union” to solemnize civil unions. It also allows “[a]ny minister, priest, or officer of any religious denomination or society who has been ordained or is authorized to solemnize civil unions according to the usages of such denomination or society, or any religious society not having clergy but providing solemnization in accordance with the rules and customs of that society” to solemnize a civil union. Id. And the Civil Unions Law specifically provides that such authorized persons are not required to solemnize civil unions and are not subject to fines, penalties, or other civil actions if they refuse, for any reason, to join persons in a civil union. HRS § 572B-4(c). The Civil Unions Law thus contains “immunity” from fines, penalties, or civil actions if a pastor, such as Harris, refuses to perform a civil union.
Prior to its amendment by Act 267, however, the Civil Unions Law did not contain similar immunity if a church or other religious organization refused -- on the basis that it is opposed to civil unions -- to rent or otherwise allow use of its facilities for performing civil unions or hosting receptions celebrating a civil union. Based on that (prior) lack of immunity, the Complaint and corresponding Motion for TRO sought to prevent implementation of Act 1 and the Complaint still
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seeks prospective injunctive relief to enjoin Defendants from enforcing Hawaii
anti-discrimination laws against Plaintiffs, given Plaintiffs’ stated intention to
refuse (if asked) to make their facilities available to those who might seek to use
them for performing or celebrating civil unions.
As mentioned above, Act 267 was signed into law on July 6, 2012
and, among other provisions, amended the Civil Unions Law to add a specific
section providing immunity for religious organizations that refuse to make their
facilities available for solemnizing civil unions. In particular, Act 267 added HRS
§ 572B-B, which provides:
(a) A religious organization shall not be required to make a religious facility owned or leased by the religious organization available for solemnization of a civil union; provided that:
(1) The religious facility is regularly used by the religious organization for its religious purposes;
(2) For solemnization of marriages pursuant to chapter 572, the religious organization restricts use of the religious facility to its members; and
(3) The religious organization does not operate the religious facility as a for profit business.
(b) A religious organization that refuses to make a religious facility available for solemnization of a civil union under subsection (a) shall not be subject to any fine, penalty, or civil liability for the refusal.
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(c) Nothing in this section shall be interpreted to exempt the owner or operator of any religious facility from the requirements of chapter 489 if the religious facility is a place of public accommodation as defined in section 489-2. Act 267 § 3. Notably, Act 267 was made retroactive to January 1, 2012 (with two exceptions not at issue here). Id. § 20. The Complaint was not amended to reflect the passage of Act 267, nor to indicate definitively that Plaintiffs are challenging the constitutionality of § 572B-B or of any other aspect of the now-revised Civil Unions Law. The court thus addresses the current version of the Complaint, but infers from argument that Plaintiffs still seek to challenge the amended version of the Civil Unions Law. B. Procedural Background Plaintiffs filed their Complaint and Motion for TRO on December 28, 2011. The court denied the Motion for TRO on December 30, 2011, Doc. No. 12, and the action was stayed on January 19, 2012. Doc. No. 15. After Act 267 was signed into law, Plaintiffs indicated at a July 19, 2012 status conference that they intended to pursue this action. On July 27, 2012, Defendants filed their Motion to Dismiss. Plaintiffs filed their Opposition on August 31, 2012, and a Reply was filed on September 4, 2012. The court heard the Motion to Dismiss on October 1, 2012.
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III. STANDARD OF REVIEW Under Article III § 2 of the Constitution, this court’s subject matter jurisdiction is limited to deciding “cases” or “controversies.” See, e.g., Allen v. Wright, 468 U.S. 737, 750 (1984). No case or controversy exists if a plaintiff lacks standing or if a case is not ripe for adjudication, see, e.g., Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 1999) (en banc), and consequently a federal court lacks subject matter jurisdiction. See, e.g., White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (reiterating that “standing . . . pertain[s] to a federal court’s subject-matter jurisdiction under Article III”); St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (“Whether a claim is ripe for adjudication goes to a court’s subject matter jurisdiction under the case or controversy clause of article III of the federal Constitution.”). Thus, a motion to dismiss for lack of standing or ripeness is a motion under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. “Such a motion may either attack the allegations of the complaint as insufficient to confer subject-matter jurisdiction upon the court, or attack the existence of subject-matter jurisdiction in fact.” Baker v. Castle & Cooke Homes Hawaii, Inc., 2012 WL 1454967, at *3 (D. Haw. Apr. 25, 2012) (citing Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). “When the motion to
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dismiss attacks the allegations of the complaint as insufficient to confer subject-matter jurisdiction -- a facial challenge -- all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” Id. (citing Fed’n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996)). But “[w]hen the motion to dismiss is a factual attack on subject-matter jurisdiction, no presumption of truth attaches to the plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the existence of subject-matter jurisdiction in fact.” Id. (citing Safe Air for Everyone, 373 F.3d at 1039).
IV. DISCUSSION The court must first determine whether it has subject-matter jurisdiction. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998); see also Bernhardt v. Cnty. of L.A., 279 F.3d 862, 868 (9th Cir. 2002) (“[F]ederal courts are required sua sponte to examine jurisdictional issues such as standing.”) (citation omitted). In so doing, the court determines whether Plaintiffs’ challenge is justiciable, as this court’s “role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution.” Thomas, 220 F.3d at 1138. Justiciability includes the doctrines of
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mootness, ripeness, and standing, see, e.g., Culinary Workers Union, Local 226 v. Del Papa, 200 F.3d 614, 617 (9th Cir. 1999) (observing that Article III’s case or controversy “justiciability limitations are reflected in the doctrines of standing, mootness, and ripeness”) -- and all three doctrines are implicated here, as analyzed to follow. A. The Complaint Is Moot
Initially, the factual basis of the Complaint as pled no longer exists. Because Act 267 amended the Civil Unions Law retroactively to add an immunity provision -- the absence of which formed the primary basis of the alleged constitutional infirmity of Act 1 -- the Complaint as written no longer constitutes a live controversy. In short, the Complaint is moot. See, e.g., Montana Wilderness Ass’n, Nine Quarter Circle Ranch v. U.S. Forest Serv., 655 F.2d 951, 958 (9th Cir. 1981) (“[A]n attack on a statute will be mooted by new legislation which eliminates the aspects of the old law which gave rise to the challenge.”) (citations omitted); Chem. Producers & Distribs. Ass’n v. Helliker, 463 F.3d 871, 875 (9th Cir. 2006) (“Where intervening legislation has settled a controversy involving only injunctive or declaratory relief, the controversy has become moot.”) (quoting
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Bunker Ltd. P’ship v. United States, 820 F.2d 308, 311 (9th Cir. 1987)).3
Despite the pleading deficiency, Plaintiffs’ argument indicates that
they now seek to challenge the constitutionality or adequacy of Act 267’s key
amendment (the new immunity provision in HRS § 572B-B) -- they briefly
contend that “[t]he limited exemption of Act 1, as amended, fails to satisfy the First
Amendment by placing three conditions precedent for a church needing to meet
before being able to utilize the limited exemption.” Doc. No. 23, Pls.’ Opp’n at 7.
Such a challenge, however, would require an Amended Complaint that references
the specific provisions of Act 267.
The court thus next addresses whether Plaintiffs should be given leave
to amend their Complaint to challenge the revised provisions of the Civil Unions
Law. See, e.g., Lacey v. Maricopa Cnty., --- F.3d ----, 2012 WL 3711591, at *19
(9th Cir. Aug. 29, 2012) (reiterating that “a district court should grant leave to
amend even if no request to amend the pleading was made, unless it determines
3 An exception to mootness might apply “where a repeal or amendment is part of a bad faith attempt by the government to avoid judicial review or where the government has enacted a substantially similar law[.]” Get Outdoors II, LLC v. City of Chula Vista, 407 F. Supp. 2d 1172, 1178 (S.D. Cal. 2005) (citing Lewis v. Cont’l Bank Corp., 494 U.S. 472 (1990); Princeton Univ. v. Schmid, 455 U.S. 100 (1982); and Diffenderfer v. Cent. Baptist Church, Inc., 404 U.S. 412 (1972)). This exception does not apply. Plaintiffs have made no attempt to demonstrate bad faith, and the record reveals no indication that the Hawaii Legislature intends to repeal Act 267’s amendments. And, in this regard, Act 267’s immunity provision is certainly not “substantially similar” to Act 1, which lacked such a provision.
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that the pleading could not possibly be cured by the allegation of other facts”) (citation omitted). B. Further Amendment Is Futile -- Doctrines of Ripeness and Standing
In denying Plaintiffs’ Motion for TRO on December 30, 2011, the court analyzed the threshold principles of justiciability (ripeness and standing) that must be satisfied before it could address the merits of Plaintiffs’ constitutional challenge, and found that the action was not justiciable at that time. See Emmanuel Temple, 2011 WL 6935321, at *1. The court reiterates those justiciability principles here, drawing upon its prior Order Denying the Motion for TRO. Ultimately, the court concludes that further amendment would be futile because Plaintiffs have not demonstrated that the situation facing them is any more justiciable now than it was nine months ago. That is, even if their Complaint was amended to challenge Act 267, Plaintiffs still lack standing to challenge it (or, stated alternatively, such a challenge is still not ripe).
Keeping in mind that leave to amend is freely given under Federal Rule of Civil Procedure 15(a)(2), it would be futile to allow an amended complaint that lacks subject matter jurisdiction. See, e.g., Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th Cir. 2009) (reiterating that “futility of amendment alone can justify the denial of a motion [to amend]”) (citing Johnson v. Buckley,
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356 F.3d 1067, 1077 (9th Cir. 2004)). If Plaintiffs would lack standing to bring an amended complaint, the court need not “prolong the litigation by permitting further amendment.” Chaset v. Fleer/Skybox Int’l, LP, 300 F.3d 1083, 1088 (9th Cir. 2002) (affirming trial court’s denial of leave to amend where plaintiffs could not cure a lack of standing in their pleading).
1. Ripeness/Standing Principles4 The ripeness doctrine avoids “premature adjudication” of disputes.
Scott v. Pasadena Unif. Sch. Dist., 306 F.3d 646, 662 (9th Cir. 2002). Where, as here, Plaintiffs challenge a law before it might be enforced -- a “pre-enforcement challenge” -- the claim is “only ripe if a plaintiff is presented with ‘the immediate dilemma to choose between complying with newly imposed, disadvantageous restrictions and risking serious penalties for violation.’” San Luis & DeltaMendota Water Auth. v. Salazar, 638 F.3d 1163, 1173 (9th Cir. 2011) (quoting Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 (1993)). A court examines (1) “whether the plaintiffs have articulated a ‘concrete plan’ to violate the law in question;” (2) “whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings;” and (3) “the history of past prosecution
4 “The constitutional component of the ripeness inquiry is often treated under the rubric of standing and, in many cases, ripeness coincides squarely with standing’s injury in fact prong.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 1999) (en banc).
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or enforcement under the challenged statute.” Thomas, 220 F.3d at 1139; see also McCormack v. Hiedeman, --- F.3d ----, 2012 WL 3932735, at *13 (9th Cir. Sept. 11, 2012) (applying the Thomas factors); Cal. Tow Truck Ass’n v. City & Cnty. of S.F., --- F.3d ----, 2012 WL 3641744, at *15 (9th Cir. Aug. 27, 2012) (same).
“Constitutional challenges based on the First Amendment present unique standing considerations.” Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003). “In an effort to avoid the chilling effect of sweeping restrictions, the Supreme Court has endorsed what might be called a ‘hold your tongue and challenge now’ approach rather than requiring litigants to speak first and take their chances with the consequences.” Id. That is, a plaintiff “does not have to await the consummation of threatened injury to obtain preventive relief.” Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 143, n.29 (1974). But, “when plaintiffs seek to establish standing to challenge a law or regulation that is not presently being enforced against them, they must demonstrate ‘a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.’” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154 (9th Cir. 2000) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 297 (1979)); see also Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (stating that even when plaintiffs challenge a restriction on the grounds that it may chill their First
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Amendment rights, they must still satisfy the “rigid constitutional requirement that plaintiffs must demonstrate an injury in fact to invoke a federal court’s jurisdiction.” (quoting Dream Palace v. Cnty. of Maricopa, 384 F.3d 990, 999 (9th Cir. 2004)). “[N]either the mere existence of a proscriptive statute nor a generalized threat of prosecution satisfies the ‘case or controversy’ requirement.” Thomas, 220 F.3d at 1139. “As the Supreme Court observed in Pennell [v. City of San Jose, 485 U.S. 1 (1988),] ‘application of the constitutional standing requirement [is not] a mechanical exercise.’” Carrico v. City & Cnty. of S.F., 656 F.3d 1002, 1007 (9th Cir. 2011) (quoting Pennell, 485 U.S. at 7). “In other words, context matters.” Id.
2. Application -- the Action Is Not Justiciable Considering (1) the allegations of the Complaint, (2) the amendments
to the Civil Unions Law in Act 267, (3) the factual information in the record, and (4) the nature and timing of the Plaintiffs’ specific challenge -- the action is not justiciable now and would not be justiciable if an amended complaint was filed. The court thus lacks subject matter jurisdiction. See White, 227 F.3d at 1242; St. Clair, 880 F.2d at 201.5
5 The conclusion is the same whether the Motion is construed as a facial or factual challenge to subject matter jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (explaining the types of challenges to jurisdiction under Rule 12(b)(1)).
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In applying Thomas’ three-part test, the court first considers whether Plaintiffs have articulated a concrete plan to violate the law in question. And in considering this factor, “[a] general intent to violate a statute at some unknown date in the future does not rise to the level of an articulated, concrete plan.” Thomas, 220 F.3d at 1139. Thomas concluded that several landlords’ future intent not to rent apartments to unmarried couples in violation of Alaska law was insufficiently concrete: “The landlords’ expressed ‘intent’ to violate the law on some uncertain day in the future -- if and when an unmarried couple attempts to lease one of their rental properties -- can hardly qualify as a concrete plan.” Id. at 1140.
Likewise, in this case, any threat of enforcement and imposition of fines by government officials (e.g., the Hawaii Attorney General or the Hawaii Civil Rights Commission) under HRS § 489-8 for violating the Civil Unions Law is highly speculative. No one has asked Plaintiffs to use their facilities for a civil union. No one has inquired about such use in the days following Act 1’s effective date. And, the record contains no indication that, in the nine months since its implementation, any couple has sought to use Plaintiffs’ facilities in relation to solemnizing a civil union. Plaintiffs cannot say when and under what circumstances such a request might be made, if ever. Although they suggest that
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they will refuse to make their facilities available if asked, it remains speculative when, to whom, and under circumstances that might occur. Moreover, there is no indication that HRS § 572B-B would not apply to provide immunity from enforcement of HRS § 489-8 if Plaintiffs refused.
In other words, whether Plaintiffs would face “a realistic danger of sustaining a direct injury as a result of” enforcement of § 489-8, is “wholly contingent upon the occurrence a number of unforseeable events[.]” Thomas, 220 F.3d at 1141. First, a couple would have to ask Plaintiffs to use a particular facility of theirs for a civil union made possible by the Civil Unions Law.6 Second, Plaintiffs would wrongly have to refuse a request based upon a protected ground. A facility would also have to fail to fulfill the conditions set forth in HRS § 572BB. Next, the couple, having been denied such a request, would have to file a complaint with the Hawaii Civil Rights Commission under HRS § 489-6 or otherwise notify authorities of alleged discrimination. Finally, such authorities would then have to decide to proceed against Plaintiffs. None of this has occurred, and without some indication of the parameters of such a hypothetical violation (e.g., the nature of the request, the proposed use, the circumstances of a denial), a
6 As noted in the court’s Order Denying the Motion for TRO, this fact, by itself, is highly speculative. Plaintiffs do not even attempt to explain why a same-sex couple would legitimately desire to solemnize a civil union on a premises owned or operated by an entity clearly hostile to same-sex couples.
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“‘dispute is not justiciable, because it is not ripe for court review.’” Thomas, 220 F.3d at 1141 (quoting Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 732 (1998)).7 See also Shirmer v. Nagode, 621 F.3d 581, 586 (7th Cir. 2010) (stating that to present a justiciable controversy, the plaintiff must assert more than “a wholly speculative possibility” of enforcement); Wolfson v. Brammer, 616 F.3d 1045, 1064 (9th Cir. 2010) (stating, in the context of prudential ripeness, that a claim is not ripe for adjudication if it rests on future contingent events); Erwin Chemerinsky, Federal Jurisdiction § 2.4.1 (5th ed. 2007) (“Specifically, the ripeness doctrine seeks to separate matters that are premature for review because the injury is speculative and may never occur, from those cases that are appropriate for federal court action.”).
During the TRO proceedings, Plaintiffs pointed to HRS § 489-7.5, which provides a private cause of action for persons injured by an unlawful discriminatory practice in a public accommodation. Under this section, caselaw indicates an injured party may file a civil action for a violation without first seeking administrative relief with the Hawaii Civil Rights Commission. See The Epileptic
7 Although Harris states that he is aware that in 2011 the Hawaii Civil Rights Commission accepted a complaint brought by a same sex couple against a church that refused to rent its property for a same sex couple to perform a same sex marriage, Doc. No. 4-1, Harris Decl. ¶ 7, the possible application of such a complaint -- with no other details -- is entirely speculative to the present dispute.
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Found. v. City & Cnty. of Maui, 300 F. Supp. 2d 1003, 1017 n.35 (D. Haw. 2004) (“[A] plaintiff injured in violation of chapter 489 may either bring a civil action pursuant to § 489-7.5 or seek administrative relief.”). Again, however, a genuine threat of enforcement (by a private party) against Plaintiffs would be contingent on several events beyond Plaintiffs’ control: a couple would have to ask, they would have to be denied, immunity under HRS 572B-B would have to be insufficient, and the couple would then have to file suit.
Moreover, if the alleged discrimination victims filed suit on their own (without resort to assistance from government authorities such as the Hawaii Attorney General or Hawaii Civil Rights Commission), such private action would raise other justiciability concerns. See Associated Or. Indus. v. Avakian, 2010 WL 1838661, at *5 (D. Or. May 6, 2010) (reasoning that court was “aware of no case permitting a plaintiff to preemptively challenge the right of a private actor to bring a private cause of action before that cause of action has arisen”). Avakian examined standing and ripeness in a pre-enforcement, First Amendment context, and reiterated that a “‘relaxed approach to justiciability’ is appropriate ‘only upon a showing that the plaintiff is immediately in danger of sustaining a direct injury as a result of an executive or legislative action.’” Id. (citation omitted). Plaintiffs are seeking to enjoin enforcement of laws such as HRS § 489-7.5 based upon a
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position they might be put in under the Civil Unions Law. In this hypothetical situation, then, a complaint would be seeking to enjoin a private actor from enforcing a facially-valid statute (HRS Ch. 489). See Bronson v. Swensen, 500 F.3d 1099, 1110 (10th Cir. 2007) (“It is well-established that when a plaintiff brings a pre-enforcement challenge to the constitutionality of a particular statutory provision, the causation element of standing requires the named defendants to possess authority to enforce the complained-of provision.”) (citations omitted).
As to Thomas’ second prong, there are also no “specific warning or threat to initiate proceedings” by authorities. Thomas, 220 F.3d at 1139 (emphasis added). Although the record indicates that the Hawaii Civil Rights Commission (during the 2011 legislative session) opposed the granting of broad immunity for religious organizations from anti-discrimination laws, such testimony is not a specific warning or threat against Plaintiffs to impose penalties for a hypothetical violation. Indeed, the 2012 Legislature granted religious organizations immunity for non-public accommodations.
Next, given that the Civil Unions Law is new, the last Thomas inquiry -- history of past enforcement -- “has little weight in [the court’s] analysis.” Wolfson, 616 F.3d at 1060. In this context, there is no history of enforcement of the Civil Unions Law. Indeed, Plaintiffs have provided no indication that it has
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been the basis of any enforcement action in the nine months since its enactment.
Accordingly, this third prong of Thomas also indicates the action is not ripe.
3. Plaintiffs’ “Non Economic” Injury Is Insufficient to Confer Standing
Despite the Thomas factors clearly weighing against them, Plaintiffs
argue that they are injured by the Civil Unions Law because they (Harris and
Hunkin) “suffer personal and unwelcome contact with a State law[.]” Doc. No. 23,
Pls.’ Opp’n at 6. They contend that the Civil Unions Law “condemns their
particular faith while allowing other faiths which freely allow same-sex couples to
use their property to hold civil union ceremonies to be subjected to no legal
consequences.” Id. at 7. Plaintiffs rely on Awad v. Ziriax, 670 F.3d 1111 (10th
Cir. 2012), in which the Tenth Circuit held that an Oklahoma resident had Article
III standing to bring an Establishment Clause claim challenging an amendment to
the Oklahoma Constitution that would have forbidden Oklahoma state courts from considering “Sharia law” in making judicial decisions. Id. at 1117-18.8
8 “Sharia” is defined by one source as “Islamic law based on the Koran.” See www.merriam-webster.com/dictionary/sharia (last visited Oct. 2, 2012). Similarly, another authority defines “Sharia” as
Islamic canonical law based on the teachings of the Koran and the traditions of the Prophet (Hadith and Sunna), prescribing both religious and secular duties and sometimes retributive penalties for lawbreaking. It has generally been supplemented by legislation adapted to the conditions of the day, though the manner in which it should be applied in modern states is a subject of dispute
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The plaintiff in Awad was an American citizen residing in Oklahoma affiliated with the Oklahoma Chapter of the Council on American-Islamic Relations. Id. at 1119. He was of the Muslim faith, which adheres to religious principles of the Koran. Id. He challenged the impending certification of an amendment to Oklahoma’s Constitution that Oklahoma voters had passed by ballot in a November 2010 election. The proposed “Save Our State” amendment would have changed a section of the Oklahoma Constitution regarding state courts so as to forbid its courts from “considering or using” “international law or Sharia Law” in making decisions. Id. at 1118. The Tenth Circuit held that the plaintiff had standing to challenge implementation of that provision because he suffered “a form of ‘personal and unwelcome contact’ with an amendment to the Oklahoma Constitution that would target his religion for disfavored treatment.” Id. at 1122. The amendment expressly condemned his religious faith and exposed him and other Muslims to disfavored treatment by “enshrin[ing] . . . a prohibition in the state’s constitution.” Id. at 1123. He had alleged that the amendment “condemns his religion and prohibits him from relying on his religion’s legal precepts in
8(...continued) between Muslim traditionalists and reformists. http://english.oxforddictionaries.com/definition/sharia (last visited Oct. 2, 2012).
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Oklahoma courts[.]” Id.9 He was “facing the consequences of a . . . constitutional measure that would disfavor his religion relative to others.” Id. And the Tenth Circuit carefully distinguished plaintiff’s injury from a mere “psychological consequence presumably produced by observation of conduct with which one disagrees,” which does not confer standing. Id. at 1122 (quoting Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 485 (1982)).
Awad is distinguishable. Nothing in the Civil Unions Law targets a specific religion. Nothing in the Civil Unions Law “condemns” Harris’ or Hunkin’s religion. Nothing in the Civil Unions Law mentions any religion. At most, Harris’ and Hunkin’s “personal and unwelcome contact with a State law,” Doc. No. 23, Pls.’ Opp’n at 6, rises to a “psychological consequence . . . produced by observation of conduct with which one disagrees.” Valley Forge Christian Coll., 454 U.S. at 485. Such a consequence “is not an injury sufficient to confer standing under Art. III.” Id. In short, this action is not justiciable.
V. CONCLUSION The Motion to Dismiss is GRANTED. The current Complaint is
9 The plaintiff had, for example, alleged that the amendment’s implementation would have “disabl[ed] a court from probating his last will and testament (which contains references to Sharia law), limiting the relief Muslims can obtain from Oklahoma state courts[.]” Awad v. Ziriax, 670 F.3d 1111, 1119 (10th Cir. 2012).
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moot. Granting leave to amend would be futile because the action is not presently justiciable. The action is dismissed without prejudice. See Ass’n of Am. Med. Colls. v. United States, 217 F.3d 770, 785 (9th Cir. 2000) (modifying a dismissal of an unripe claim to a dismissal without prejudice because events may later progress “to a point where plaintiffs’ claims are ripe”); Frontline Processing Corp. v. First State Bank of Eldorado, 389 Fed. Appx. 748, 754, 2010 WL 2990890, at *4 (9th Cir. July 30, 2010) (holding that a district lacking subject matter jurisdiction over unripe counterclaims was required to dismiss them without prejudice). The Clerk of Court shall close the case file and enter Judgment in favor of Defendants.
IT IS SO ORDERED. DATED: Honolulu, Hawaii, October 2, 2012.
/_s_/_J_. _M_i_c_h_a_e_l _S_e_a_b_ri_g_h_t__________ J. Michael Seabright United States District Judge
Emmanuel Temple et al. v. Abercrombie et al., Civ. No. 11-00790 JMS-KSC, Order Granting Defendants’ Motion to Dismiss and Dismissing Action
26

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

EMMANUEL TEMPLE, THE

)

HOUSE OF PRAISE; CARL E. )

HARRIS; LIGHTHOUSE

)

OUTREACH CENTER ASSEMBLY )

OF GOD; JOE HUNKIN, JR.,

)

)

Plaintiffs,

)

)

vs.

)

)

NEIL ABERCROMBIE, in his

)

official capacity as Governor of the )

State of Hawaii; LORETTA J.

)

FUDDY, in her official capacity as )

Director of Health of the State of )

Hawaii; STATE OF HAWAII,

)

)

Defendants.

)

_____________________________ )

CIV. NO. 11-00790 JMS-KSC
ORDER DENYING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

ORDER DENYING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

I. INTRODUCTION

Hawaii’s Civil Unions Law, 2011 Haw. Sess. L. Act 1 (codified at

Hawaii Revised Statutes (“HRS”) Ch. 572B) (“Act 1”) becomes effective on

January 1, 2012. Plaintiffs Emmanuel Temple, the House of Praise; Carl E. Harris;

Lighthouse Outreach Center Assembly of God; and Joe Hunkin, Jr. (collectively

“Plaintiffs”) filed this action under 42 U.S.C. § 1983 on December 28, 2011,

seeking declaratory and prospective injunctive relief to prevent Defendants Neil Abercrombie, in his official capacity as Governor of the State of Hawaii; and Loretta J. Fuddy, in her official capacity as Director of Health of the State of Hawaii (collectively “Defendants”) “from enforcing Act 1 against [them].” Doc. No. 4, Pls.’ Mot. at 2. Plaintiffs move for a temporary restraining order (“TRO”) to prevent such enforcement and to stop Act 1’s implementation on January 1, 2012. Based on the following, the Motion is DENIED.
II. BACKGROUND Hawaii Governor Neil Abercrombie signed Act 1 into law on February 23, 2011. Now, three days before it is to go into effect, Plaintiffs seek a TRO under Federal Rule of Civil Procedure 65, contending that they will be subject to “imminent and immediate danger” by being subject to civil fines or penalties if Act 1 takes effect on January 1, 2012. Id. at 12; Doc. No. 1, Compl. ¶ 19. Plaintiffs’ Complaint alleges violations of the First, Fifth, and Fourteenth Amendments to the United States Constitution. Plaintiffs contend that -- because Act 1 does not specifically exempt religious organizations from Hawaii’s antidiscrimination laws (e.g., HRS Chapter 489 -- Discrimination in Public
2

Accommodations)1 -- they will be subject to immediate and irreparable harm, and
that they are likely to succeed on the merits of their Constitutional claims.
1 In particular, HRS § 489-3 provides:
Unfair discriminatory practices that deny, or attempt to deny, a person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of race, sex, including gender identity or expression, sexual orientation, color, religion, ancestry, or disability are prohibited.
In turn, HRS § 489-7.5(a) provides a private cause of action for violations, as follows:
(a) Any person who is injured by an unlawful discriminatory practice, other than an unlawful discriminatory practice under part II of this chapter, may:
(1) Sue for damages sustained, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorneys' fees together with the costs of suit; and
(2) Bring proceedings to enjoin the unlawful discriminatory practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorneys’ fees together with the cost of suit.
And HRS § 489-8 provides for imposition of penalties for violations in actions brought by the Hawaii Attorney General or Hawaii Civil Rights Commission, as follows:
(a) It shall be unlawful for a person to discriminate unfairly in public accommodations.
(b) Any person, firm, company, association, or corporation who violates this part shall be fined a sum of not less than $500 nor more than $10,000 for each violation, which sum shall be collected in a civil action brought by the attorney general or the civil rights commission on behalf of the State. The penalties provided in this section shall be cumulative to the remedies or penalties available under all other laws of this State. Each day of violation under this part shall be a separate violation.
3

The Complaint alleges that Plaintiff Emmanuel Temple, the House of Praise, is a domestic, nonprofit corporation whose purpose is to advance and promote the worship of God; to engage in and promote the study of the Holy Scriptures; and to advance the gospel of Jesus Christ. Plaintiff Carl E. Harris (“Harris”) is a Bishop and Pastor of Emmanuel Temple, House of Praise. Likewise, co-Plaintiff Lighthouse Outreach Center Assembly of God is a domestic, nonprofit corporation whose purpose is to worship the Lord, and conduct activities such as Sunday school, outreach programs, and day care. Doc. No. 1, Compl. ¶ 4.
Harris attests that he opposes Act 1 because same sex marriage and civil unions are against the teachings of the gospel of Jesus Christ. Doc. No. 4-1, Harris Decl. ¶¶ 3,4. He states that he is aware of instances in “New Jersey, California, and Hawaii” where religious institutions and churches have refused to rent their properties to others for civil unions and receptions, and have thus been subject to civil rights complaints. Id. ¶ 6. He is “aware that this year, the Hawaii Civil Rights Commission accepted a complaint from a same sex couple against a church which refused to rent its property for a same sex couple to perform a same sex marriage.” Id. ¶ 7. He further attests that:
[b]ecause of my stance regarding same-sex unions and marriages, I am under imminent and immediate threat commencing on January 1, 2012 of being investigated; incurring attorneys fees and costs in defending my
4

religious liberties; being enjoined and fined by the Hawaii Civil Rights Commission for refusing to rent my facilities to same sex couples.
Id. ¶ 8.
Among other provisions, Act 1 details who may solemnize a civil
union. HRS § 572B-4 (b) allows judges who may perform marriages under HRS
Ch. 572 to legally perform civil unions. It also allows “[a]ny ordained or licensed
member of the clergy” to solemnize a civil union. And it specifically provides that
such authorized persons are not required to solemnize civil unions and are not
subject to fines or penalties if they refuse, for any reason, to join persons in a civil
union. Id. Act 1 thus contains “immunity” from fines or penalties if a pastor, such
as Harris, refuses to perform a civil union (if such refusal would otherwise
constitute illegal discrimination). Act 1 does not, however, contain “immunity” if
a church or other religious organization refuses -- on the basis that it is opposed to
civil unions -- to rent or otherwise allow use of its facilities for performing civil
unions or hosting receptions celebrating a civil union.2
2 Legislation was introduced in 2011 that would have exempted religious organizations from “any civil claim or cause of action” for refusing to provide “services, accommodations, benefits, advantages, facilities, goods, or privileges” if “related to a solemnization or celebration of a same-sex relationship, such as a same-sex marriage or a civil union between persons of the same sex” if it violated the organization’s religious beliefs and faith. See H.B. No. 1244, 26th Leg. (Hawaii 2011) and S.B. No. 1447, 26th Leg. (Hawaii 2011), Doc. Nos. 5 & 6, Harris Decl. Exs. 4 & 5. That legislation was not enacted, and the Hawaii Civil Rights Commission opposed
(continued...) 5

The Complaint, among other things, seeks prospective injunctive relief to enjoin Abercrombie and/or Fuddy, in their official capacities, from enforcing Hawaii anti-discrimination laws against Plaintiffs, based upon Plaintiffs’ planned refusal to make their facilities available to those who might seek to use them for performing or celebrating civil unions. Because of the alleged burden on their Constitutional rights, Plaintiffs seek a TRO “mandating that Act 1 cannot be implemented until a trial on the merits.” Doc. No. 4, Pls.’ Mot. at 15.
III. STANDARD OF REVIEW The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. See, e.g., Hawaii v. Gannett Pac. Corp., 99 F. Supp. 2d 1241, 1247 (D. Haw. 1999); cf. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (observing that an analysis of a preliminary injunction is “substantially identical” to an analysis of a temporary restraining order). A “preliminary injunction is an extraordinary and drastic remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
2(...continued) it. In opposing the legislation, the Hawaii Civil Rights Commission testified that the language was vague and overly broad because, for among other reasons, it might allow a religious organization to discriminate against same-sex couples in civil unions in use of church facilities that are offered to the general public for a fee for marriages and other celebrations. See Doc. No. 4-7, Luiz Decl. Ex. 5, Testimony regarding H.B. 1244, at 2.
6

24 (2008) (citation omitted). A “plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20; accord Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). “That is, ‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1135-36 (9th Cir. 2011) (citing Clear Channel Outdoor, Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir. 2003)). Winter emphasized that -- contrary to some earlier Ninth Circuit caselaw -- plaintiffs seeking preliminary relief must demonstrate that “irreparable injury is likely in the absence of an injunction.” 555 U.S. at 22. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (“In Winter, the Supreme Court definitively refuted [the Ninth Circuit’s] ‘possibility of irreparable injury’ standard.”). /// /// ///
7

IV. DISCUSSION A. Principles of Justiciabilty -- Ripeness and Standing
Before addressing the merits of a challenge to the constitutionality of Act 1, either facially or as it might be applied to Plaintiffs, the court determines whether Plaintiffs’ challenge is justiciable. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998); see also Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002). This court’s “role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc). This justiciability inquiry may be addressed by asking whether Plaintiffs have standing or, alternatively, whether the challenge is ripe. See id. (“The constitutional component of the ripeness inquiry is often treated under the rubric of standing and, in many cases, ripeness coincides squarely with standing’s injury in fact prong.”).
The ripeness doctrine avoids “premature adjudication” of disputes. Scott v. Pasadena Unif. Sch. Dist., 306 F.3d 646, 662 (9th Cir. 2002). Where, as here, a plaintiff challenges a law before it might be enforced -- a “pre-enforcement challenge” -- the claim is “only ripe only if a plaintiff is presented with ‘the
8

immediate dilemma to choose between complying with newly imposed, disadvantageous restrictions and risking serious penalties for violation.’” San Luis & Delta-Mendota Water Authority v. Salazar, 638 F.3d 1163, 1173 (9th Cir. 2011) (quoting Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 (1993)). A court examines (1) “whether the plaintiffs have articulated a concrete plan to violate the law in question”; (2) “whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings”; and (3) “the history of past prosecution or enforcement under the challenged statute.” Thomas, 220 F.3d at 1139.
“Constitutional challenges based on the First Amendment present unique standing considerations.” Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003). “In an effort to avoid the chilling effect of sweeping restrictions, the Supreme Court has endorsed what might be called a ‘hold your tongue and challenge now’ approach rather than requiring litigants to speak first and take their chances with the consequences.” Id. That is, a plaintiff “does not have to await the consummation of threatened injury to obtain preventive relief.” Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 143, n.29 (1974). But, “when plaintiffs seek to establish standing to challenge a law or regulation that is not presently being enforced against them, they must demonstrate ‘a realistic danger of sustaining a direct injury as a result of the statute’s operation
9

or enforcement.’” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154 (9th Cir. 2000) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 297 (1979)); see also Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (stating that even when plaintiffs challenge a restriction on the grounds that it may chill their First Amendment rights, “they must still satisfy the rigid constitutional requirement that plaintifs must demonstrate an injury in fact to invoke a federal court’s jurisdiction.” (quoting Dream Palace v. Cnty. of Maricopa, 384 F.3d 990, 999 (9th Cir. 2004)). “[N]either the mere existence of a proscriptive statute nor a generalized threat of prosecution satisfies the ‘case or controversy’ requirement.” Thomas, 220 F.3d at 1139. “As the Supreme Court observed in Pennell [v. City of San Jose, 485 U.S. 1 (1988)] ‘application of the constitutional standing requirement [is not] a mechanical exercise.’” Carrico v. City and Cnty. of San Francisco, 656 F.3d 1002, 1007 (9th Cir. 2011) (quoting Pennell, 485 U.S. at 7). “In other words, context matters.” Id. /// /// /// /// ///
10

B. Application of Justiciability Principles In the specific context now before the court -- that is, given the
present evidentiary record and the nature and timing of the Plaintiffs’ specific challenge to Act 1 -- the relief sought is not justiciable.3 Because the dispute is not ripe (or because Plaintiffs presently lack standing), Plaintiffs necessarily fail to meet the standard for granting of a TRO. See, e.g., Washington v. Bert Bell/Pete Rozelle NFL Retirement Plan, 504 F.3d 818, 825 (9th Cir. 2005); Newcomb v. U.S. Office of Special Counsel, 2010 WL 4055572 (S. D. Cal. Oct. 5, 2010) (reasoning that, because no ripe claim was presented, a court could not issue a TRO).
In applying Thomas’ three-part test, the court first considers whether the plaintiffs have articulated a concrete plan to violate the law in question. And in considering this factor, “[a] general intent to violate a statute at some unknown date in the future does not rise to the level of an articulated, concrete plan.” Thomas, 220 F.3d at 1139. Thomas thus concluded that several landlords’ future intent not to rent apartments to unmarried couples in violation of Alaska law was insufficiently concrete: “The landlords’ expressed ‘intent’ to violate the law on some uncertain day in the future - if and when an unmarried couple attempts to
3 In this Order, the court considers only the constitutional, not prudential, component of the ripeness doctrine.
11

lease one of their rental properties - can hardly qualify as a concrete plan.” Id. at 1140.
Likewise, in this case any threat of enforcement and imposition of fines by government officials (e.g., the Hawaii Attorney General or the Hawaii Civil Rights Commission) under HRS § 489-8 for violating Act 1 is highly speculative. No one has asked Plaintiffs to use their facilities for a civil union. No one has inquired about such use in the days following Act 1’s effective date. Plaintiffs cannot say when and under what circumstances such a request might be made. Although they suggest that they will refuse to make their facilities available if asked, it remains speculative when, to whom, and under circumstances that might occur.
In other words, whether Plaintiffs would face “a realistic danger of sustaining a direct injury as a result of” enforcement of § 489-8, is “wholly contingent upon the occurrence a number of unforseeable events[.]” Id. at 1141. First, a couple would have to ask Plaintiffs to use a particular facility of theirs -which presumably would have to be a “public accommodation” -- for a civil union made possible by Act 1.4 Second, Plaintiffs would wrongly have to refuse based
4 This fact, standing alone, is highly speculative. Plaintiffs do not even attempt to explain why a same-sex couple would desire to solemnize a civil union on a premises owned or operated by an entity clearly hostile to same-sex couples.
12

upon a protected ground. Next, the couple, having been denied such a request, would have to file a complaint with the Hawaii Civil Rights Commission under HRS § 489-6 or otherwise notify authorities of alleged discrimination. Finally, such authorities would then have to decide to proceed against Plaintiffs. None of this has occurred, and without some indication of the parameters of such a hypothetical violation (e.g., the nature of the request, the proposed use, the circumstances of a denial), a “‘dispute is not justiciable, because it is not ripe for court review.’” Id. at 1141 (quoting Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 732 (1998)).5 See also Shirmer v. Nagode, 621 F.3d 581, 586 (7th Cir. 2010) (stating that to present a justiciable controversy, the plaintiff must assert more than “a wholly speculative possibility”of enforcement); Wolfson v. Brammer, 616 F.3d 1045, 1064 (9th Cir. 2010) (stating, in the context of prudential ripeness, that a claim is not ripe for adjudication if it rests on future contingent events); Erwin Chemerinsky, Federal Jurisdiction § 2.4.1 (5th ed 2007) (“Specifically, the ripeness doctrine seeks to separate matters that are premature for review because
5 Although Harris states that he is aware that this year the Hawaii Civil Rights Commission accepted a complaint brought by a same sex couple against a church that refused to rent its property for a same sex couple to perform a same sex marriage, Doc. No. 4-1, Harris Decl. ¶ 7, the possible application of such a complaint -- with no other details -- is entirely speculative to the present dispute. If anything, it demonstrates that Plaintiffs’ alleged injury (imminent threat of enforcement, and chilling of First Amendment rights) does not depend upon Act 1 becoming effective.
13

the injury is speculative and may never occur, from those cases that are appropriate for federal court action.”).
Plaintiffs also point to HRS § 489-7.5, which provides a private cause of action for persons injured by an unlawful discriminatory practice in a public accommodation. Under this section, caselaw indicates an injured party may file a civil action for a violation without first seeking administrative relief with the Hawaii Civil Rights Commission. See The Epileptic Found. v. City and Cnty. of Maui, 300 F. Supp. 2d 1003, 1017 n.35 (D. Haw. 2004) (“[A] plaintiff injured in violation of chapter 489 may either bring a civil action pursuant to § 489-7.5 or seek administrative relief.”). Again, however, a genuine threat of enforcement (by a private party) against Plaintiffs would be contingent on several events beyond Plaintiffs’ control: a couple would have to ask, they would have to be denied, and they would then have to file suit.
Moreover, if the alleged discrimination victims filed suit on their own (without resort to assistance from government authorities, e.g. the Hawaii Attorney General or Hawaii Civil Rights Commission), such private action would raise other justiciability concerns. See Associated Oregon Indus. v. Avakian, 2010 WL 1838661, at *5 (D. Or. May 6, 2010) (reasoning that court was “aware of no case permitting a plaintiff to preemptively challenge the right of a private actor to bring
14

a private cause of action before that cause of action has arisen.”). Avakian examined standing and ripeness in a pre-enforcement, First Amendment context, and reiterated that a “‘relaxed approach to justiciability’ is appropriate ‘only upon a showing that the plaintiff is immediately in danger of sustaining a direct injury as a result of an executive or legislative action.” Id. (citation omitted). Plaintiffs are not seeking to declare Chapter 489 unconstitutional; they are, however, seeking to enjoin its enforcement based upon a position they might be put in if Act 1 takes effect. In this hypothetical situation, then, they would be seeking to enjoin a private actor from enforcing a surely facially-valid statute (HRS ch. 489). See Bronson v. Swensen, 500 F.3d 1099, 1110 (10th Cir. 2007) (“It is well-established that when a plaintiff brings a pre-enforcement challenge to the constitutionality of a particular statutory provision, the causation element of standing requires the named defendants to possess authority to enforce the complained-of provision.”) (citations omitted).
As to Thomas’ second prong, there are also no “specific warning or threat to initiate proceedings” by authorities. Thomas, 220 F.3d at 1139 (emphasis added). Although the Hawaii Civil Rights Commission during the past legislative session in opposed the granting of broad immunity for religious organizations from anti-discrimination laws, such testimony is not a specific warning or threat against
15

Plaintiffs to impose penalties for a hypothetical violation. Similarly, contrary to Plaintiffs’ argument, the Attorney General’s broad statement in its Opposition that religious organizations should not be exempt from liability for discrimination when participating in non-religious activity hardly amounts to a specific threat of penalties.
Finally, the last Thomas inquiry -- history of past enforcement -- “has little weight in [the court’s] analysis.” Wolfson, 616 F.3d at 1060. In this context, because Act 1 is entirely new, there is no history of enforcement or interpretation regarding its provisions. Given the weakness of the claim of ripeness on the first two prongs of Thomas, it is clear that the present dispute is not ripe for the granting of a TRO.
In short, the present dispute -- based upon the current record and allegations -- is not justiciable such that Plaintiffs have not met their burden to authorize this court to issue a temporary restraining order that would prevent Act 1 from taking effect on January 1, 2012. See Winter, 555 U.S. at 20. /// /// ///
16

V. CONCLUSION For the foregoing reasons, Plaintiffs’ Motion for Temporary Restraining Order, Doc. No. 4, is DENIED. IT IS SO ORDERED. DATED: Honolulu, Hawaii, December 30, 2011
/_s_/_J_. _M_i_c_h_a_e_l _S_e_a_b_ri_g_h_t__________ J. Michael Seabright United States District Judge
Temple et al. v. Abercrombie, et al., Civ. No. 11-00790 JMS-KSC, Order Denying Plaintiffs’ Motion for Temporary Restraining Order
17

 
 , Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 1 of 18 PageID #: 15

SHAWN A. LUIZ (6855) Attorney at Law 1132 Bishop Street Suite 1520 Honolulu, Hawaii 96813 Telephone: (808) 538 - 0500 Facsimile: (808) 538 - 0600 E-mail: attorneyluiz@msn.com

FILED IN THE
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII

<ilL

~~C~,'l<_'~ OEC 28 2011

oo'IclIUloEckBaEnId TI~E

_
K

' ,~,­

Attorney for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

aJMS EMMANUEL TEMPLE, THE HOUSE ) cltN 1rd.: 0 0 79

I{S(

OF PRAISE; CARL E. HARRIS;

)

LIGHTHOUSE OUTREACH CENTER) PLAINTIFFS' MOTION FOR

ASSEMBLY OF GOD; JOE HUNKIN, ) TEMPORARY RESTRAINING

JR.

) ORDER AND PRELIMINARY

) INJUNCTION; PLAINTIFFS'

Plaintiffs, ) MEMORANDUM IN SUPPORT OF

) MOTION FOR TEMPORARY

vs.

) RESTRAINING ORDER AND

) PRELIMINARY INJUNCTION;

NEIL ABERCROMBIE, in his official ) DECLARATION OF CARL E.

capacity as Governor of the State of ) HARRIS,' EXHIBITS "1"-"4'",

Hawaii; LORETTA J. FUDDY, in her ) DECLARATION OF SHAWN A.

official capacity as Director of Health of ) LUIZ', EXHIBITS "5"-"6"

the State of Hawaii; STATE OF

)

HAWAII,

)

) HEARING:

) DATE:

Defendants.

) TIME:

------------------------) JUDGE

PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 2 of 18 PageID #: 16
Plaintiffs, EMMANUEL TEMPLE, THE HOUSE OF PRAISE, CARL E. HARRIS, LIGHTHOUSE OUTREACH CENTER ASSEMBLY OF GOD; and JOE HUNKIN, JR., bring this action pursuant to 42 U.S.C. Section 1983 and Federal Rules of Civil Procedure ("FRCP") Rule 65, to ask this court to issue a temporary restraining order ("TRO") against the Defendants, ABOVE NAMED,
[from enforcing Act 1 against Plaintiffs] who violated the 1st, 5th and 14th
amendments to the United States Constitution in enacting Act 1, also known as Senate Bi11232, without providing immunity to religious entities and their clergy, officers and congregation from being compelled to follow the requirements of Act 1. Defendants are going to implement Act 1 on January 1,2012, a National and State Holiday.
Time is of essence because Defendants are implementing Act 1 without providing the federal constitutional immunity (freedom of religion and freedom of association) guaranteed to plaintiffs as citizens of the United States. Plaintiffs are unable to wait for normal court scheduling and/or proceedings.
Plaintiffs therefore request that this court issue a TRO, and, in the interest of judicial economy, that the court subsequently and immediately issue a preliminary injunction upon the expiration of the TRO. The attached memorandum and the exhibits and declarations attached thereto support this motion.
2

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 3 of 18 PageID #: 17
Plaintiffs respectfully request that the TRO and preliminary injunction require the following of the Defendants:
Defendants cannot implement Act 1 until a trial on the merits has occurred
in federal court as to whether Defendants violated the 1st, 5th and 14th amendments
in enacting Act 1 in its present form. DATED: Honolulu, Hawaii, December 28,2011
Attorney for Plaintiffs
3

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 4 of 18 PageID #: 18

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

EMMANUEL TEMPLE, THE HOUSE )

OF PRAISE; CARL E. HARRIS;

)

LIGHTHOUSE OUTREACH CENTER)

ASSEMBLY OF GOD; JOE HUNKIN, )

JR.

)

)

Plaintiffs, )

)

vs.

)

)

NEIL ABERCROMBIE, in his official )

capacity as Governor of the State of )

Hawaii; LORETTA J. FUDDY, in her )

official capacity as Director of Health of )

the State of Hawaii; STATE OF

)

HAWAII,

)

)

)

Defendants.

)

CIVIL NO: - - - - - - -
PLAINTIFFS' MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

--------------)

PLAINTIFFS' MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

I. INTRODUCTION

Plaintiffs, EMMANUEL TEMPLE, THE HOUSE OF PRAISE and CARL E. HARRIS, its Bishop and Pastor, and LIGHTHOUSE OUTREACH CENTER ASSEMBLY OF GOD and JOE HUNKIN, JR., its Pastor bring this action pursuant to 42 U.S.C. Section 1983 and Federal Rules of Civil Procedure

1

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 5 of 18 PageID #: 19
("FRCP") Rule 65, to ask this court to issue a temporary restraining order ("TRO") against the Defendants, above-named (hereinafter "Defendants") [from enforcing Act 1 against Plaintiffs]; Defendants have failed to comply with the 1st, 5th and 14th Amendments of the United States' Constitution subsequently discussed, which are required by said law. Defendants have announced their intention to implement Act 1 on January 1,2012, a National and State Holiday.
Time is of essence because Defendants are going to implement Act 1 on January 1, 2012, a National and State Holiday; Act 1 fails to comply with Plaintiffs' federal constitutional rights guaranteed as U.S. Citizens by the 1st, 5th and 14th amendments.
Plaintiffs are unable to wait for normal court scheduling and/or proceedings to obtain necessary relief.
Plaintiffs therefore request that this court issue a TRO, and, in the interest of judicial economy, that the court subsequently and immediately issue a preliminary injunction upon the expiration of the TRO. This attached memorandum and the exhibits and declarations attached thereto support this motion.
II. PARTIES Plaintiff EMMANUEL TEMPLE, THE HOUSE OF PRAISE is a Domestic Nonprofit Corporation whose purpose is to advance and promote the worship of God; to engage in and promote the study of the Holy Scriptures; and to advance the
2

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 6 of 18 PageID #: 20
gospel of Jesus Christ. Plaintiff, CARL E. HARRIS at all times relevant to the matters alleged here, is a Bishop and Pastor of Emmanuel Temple, House of Praise and is a resident of Honolulu, Hawaii. Plaintiff LIGHTHOUSE OUTREACH CENTER ASSEMBLY OF GOD is a Domestic Nonprofit Corporation whose purpose is for religious purposes to worship the Lord, Sunday school, outreach program, day care, men & women ministry assoc.; JOE HUNKIN, JR. is a Pastor of Lighthouse Outreach Center Assembly of God and is a resident of Honolulu, Hawaii.
Defendants are the State of Hawaii as the principal and employer of its agents and employees. Defendant NEIL ABERCROMBIE as Governor is the final decision maker who signed into law Act 1. Defendants at all times pertinent hereto, were and are located in the District of Hawaii.
As a final decision maker, Governor ABERCROMBIE is ultimately responsible for ensuring compliance with all applicable federal statutory laws, including but not limited to, the First Amendment, Due Process Clause to the Fifth Amendment of the United States Constitution, made applicable upon the states by the Fourteenth Amendment and other federal law referenced above.
LORETTA J. FUDDY is sued in her official capacity as Director of Health of the State of Hawaii. As a final decision maker, Director Fuddy is ultimately responsible for ensuring compliance with all applicable federal statutory laws,
3

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 7 of 18 PageID #: 21
including but not limited to, the First Amendment, Due Process Clause to the Fifth Amendment of the United States Constitution, made applicable upon the states by the Fourteenth Amendment and other federal law referenced above.
III. STANDARD FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
The standard for a temporary restraining order are the same as those for a preliminary injunction. Bieros v. Nicola, 857 F.Supp. 445, 446, (E.D.Pa. 1194). The Court may issue a preliminary injunction if the moving party demonstrates either (1) a likelihood of success on the merits and a possibility of irreparable injury if the injunction is not issued, or (2) that serious questions are raised as to the merits and the balance of hardships tips sharply in the movant's favor. United States v. Nutri-Cology, Inc., 982 F.2nd 394, 397 (9th Cir. 1992); HalfMoon BayFisherman's Mktg. Ass'n v. Carlucci, 857 F. 2nd 505, 507 (9th Cir. 1988). These alternative tests are, in effect, extremes on a continuum with points at which the degree of harm and likelihood of success are inversely related. United States v. Odessa Union Warehouse Co-op, 833 F. 2d 172, 174 (9th Cir. 1987).
In addition to the traditional factors, the Court may consider the public's interest concerning the injunction sought. Id. at 176. See also Alaska v. Native Village of Venetie, 856 F. 2nd 1384, 1388-89 (9th Cir. 1988). In the absence of statutory guidance, a motion for a preliminary injunction is addressed to the discretion of the Court. Syanon Found., Inc. v. California, 444 U.S. 1307 (1979)
4

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 8 of 18 PageID #: 22
Courts have consistently exercised their discretion to not require the moving party to post a bond where either (1) the party lacks financial resources, or (2) the suit is brought to protect an important federal interest. See 7 Moore;s Federal Practice,-r 65.09 (1995); 11A Wright, Miller & Kane, Federal Practice and Procedure Section 2954 (1995). See also Bass v.Richardson, 338 F. Supp 478, 490 (D. N.Y. 1971) (the district court, in granting motion for preliminary injunction brought by plaintiff class seeking to restrain cut-backs in benefits underNew York's Medicaid program, declared that "it is clear to us that indigents, suing individually or as class plaintiffs, ordinarily should not be required to post a bond under Rule 65(c"); Doe v. Perales, 782 F. Supp. 201 (D. N. Y. 1991) (bond not required when elderly Medicaid recipients brought suit to enjoin New York officials from implementing changes which would have reduced Medicaid benefits); California ex reI. Van de Kamp v. Tahoe Reg'l Planning Agency, 766 F. 2nd 1319 (9th Cir. 1985) (district court exercised discretion to allow environmental group seeking injunction prohibiting Lake Tahoe regional planning agency from taking any action to amend regional plan to proceed without posting a bond).
IV. THE PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS
A. Defendants are persons subject to 42 USC Section 1983.
5

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 9 of 18 PageID #: 23
The United States Supreme Court held in WILL v. MICHIGAN
DEPARTMENT OF STATE POLICE ET AL., 491 U.S. 58; 109 S. Ct. 2304; 105
L. Ed. 2d 45 (1989) that neither a State nor its officials acting in their official
capacities are "persons" under § 1983 in a suit seeking money damages. However,
again the Court specifically noted in WILL at footnote 10 on pages 71, 2312, and
58, respectively that Ex parte Young remains the law of the land.
n10 Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because "officialcapacity actions for prospective relief are not treated as actions against the State." Kentucky v. Graham, 473 U.S., at 167, n. 14; Ex parte Young, 209 U.S. 123, 159-160 (1908). This distinction is "commonplace in sovereign immunity doctrine," L. Tribe, American Constitutional Law § 3-27, p. 190, n. 3 (2d ed. 1988), and would not have been foreign to the 19th-century Congress that enacted § 1983, see, e. g., In re Ayers, 123 U.S. 443, 506-507 (1887); United States v. Lee, 106 U.S. 196,219-222 (1882); Board ofLiquidation v. McComb, 92 U.S. 531, 541 (1876); Osborn v. Bank of United States, 9 Wheat. 738 (1824). City ofKenosha v. Bruno, 412 U.S. 507, 513 (1973), on which Justice Stevens relies, see post, at 93, n. 8, is not to the contrary. That case involved municipal liability under § 1983, and the fact that nothing in § 1983 suggests its "bifurcated application to municipal corporations depending on the nature of the relief sought against them," 412 U.S., at 513, is not surprising, since by the time of the enactment of § 1983 municipalities were no longer protected by sovereign immunity. Supra, at 67-68, n. 7.
There is no 11 th Amendment immunity for either prospective relief or
attorney fees and costs. In order to vindicate the supremacy of federal law, the
Supreme Court has held that supreme officials can be sued for a prospective relief
in the nature of injunctions and declaratory judgments for alleged violations of
federal law without being entitled to the protection of the Eleventh Amendment.
6

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 10 of 18 PageID #: 24
See Pennhurst State School & Hospital v. Halderman, 465 US 89, 104 S.Ct. 900, 79 LE2d 67 (1984); Ex parte Young, 209 US 123,28 S.Ct. 441, 52 LE 714 (1908); Green v. Mansour, 474 US 64, 106 S.Ct. 423, 88 LE2d 371 (1985) reh den 474 US 1111 (1986).
This exception to the general rule concerning a states' Eleventh Amendment immunity, although narrowly construed, extends beyond action seeking injunctive relief to prohibit unconstitutional acts and includes declaratory relief actions for violations of federal statutes. Barnes v. Cohen, 749 F2d 1009 (3rd Cir Pa 1984) cert. den Cohen v. Betson, 471 US 1061, 105 S.Ct. 2126, 85 LE2d 490 (1985) and Continental Insurance Co v. Illinois Department of Transportation, 709 F.2d 471 (7th Cir 1111983).
As for attorney fees and costs which are not barred by the Eleventh Amendment see, Hutto v. Finney, 437 US 678, 98 S.Ct. 2565, 57 LE2d 522 (1978) reh den 439 US 1122 (1979) [noting also that Congress intended to abrogate states' Eleventh Amendment immunity for attorney's fees under 42 USC § 1988].
By enacting Act 1 without providing full religious immunities (freedom of religion and freedom of association), the State of Hawaii has put itself in direct conflict with the First Amendment to the federal constitution.
The First Amendment provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Both the
7

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 11 of 18 PageID #: 25
establishment and Free Exercise Clauses of the First Amendment apply to the States under the Fourteenth Amendment. The free exercise clause prohibits the government from (denying benefits to, or imposing burdens on) someone on the basis of the person's religious beliefs. The first amendment also protects freedom of association and belief.
In Boy Scouts of Am. v. Dale, 530 U.S. 640, 643-644 (U.S. 2000), Petitioners were the Boy Scouts of America and the Monmouth Council, a division of the Boy Scouts of America (collectively, Boy Scouts). The Boy Scouts are a private, not-for-profit organization engaged in instilling its system of values in young people. The Boy Scouts asserted that homosexual conduct was inconsistent with the values it sought to instill. Respondent was James Dale, a former Eagle Scout whose adult membership in the Boy Scouts was revoked when the Boy Scouts learned that he was an avowed homosexual and gay rights activist. The New Jersey Supreme Court held that New Jersey's public accommodations law required that the Boy Scouts admit Dale. The case presented the question whether applying New Jersey's public accommodations law in this way violated the Boy Scouts' First Amendment right of expressive association. The U.S. Supreme Court held that it did. Boy Scouts of Am. v. Dale, 530 U.S. 640, 643-644 (U.S. 2000); see also Thomas v. Review Bd. a/Indiana Employment Security Div., 450 U.S. 707, 714, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981) ("Religious beliefs need not be
8

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 12 of 18 PageID #: 26
acceptable, logical, consistent, or comprehensible to others to merit First Amendment protection").
In Boy Scouts of Am., the Boy Scouts asserted that it "teaches that homosexual conduct is not morally straight," and that it did "not want to promote homosexual conduct as a legitimate form of behavior". The Court accepted the Boy Scouts' assertion:
We need not inquire further to determine the nature of the Boy Scouts' expression with respect to homosexuality. But because the record before us contains written evidence of the Boy Scouts' viewpoint, we look to it as instructive, if only on the question of the sincerity of the professed beliefs.
Boy Scouts of Am. v. Dale, 530 U.S. 640, 651 (U.S. 2000).
Hurley v. Irish-American Gay, Lesbian and Bisexual Group ofBoston, Inc., 515 U.S. 557, 132 L. Ed. 2d 487, 115 S. Ct. 2338 (1995) is illustrative on this point. In Hurley, the U.S. Supreme Court considered whether the application of Massachusetts' public accommodations law to require the organizers of a private St. Patrick's Day parade to include among the marchers an Irish-American gay, lesbian, and bisexual group, GLIB, violated the parade organizers' First Amendment rights. The U.S. Supreme Court stated:
We observed: "[A] contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of
9

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 13 of 18 PageID #: 27
their sexual orientations have as much claim to unqualified social acceptance as heterosexuals .... The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to contro1." 515 U.S. at 574-575.
Here, we have found that the Boy Scouts believes that homosexual conduct is inconsistent with the values it seeks to instill in its youth members; it will not "promote homosexual conduct as a legitimate form of behavior." Reply Brief for Petitioners 5. As the presence of GLIB in Boston's St. Patrick's Day parade would have interfered with the parade organizers' choice not to propound a particular point of view, the presence of Dale as an assistant scoutmaster would just as surely interfere with the Boy Scout's choice not to propound a point of view contrary to its beliefs.
Boy Scouts of Am. v. Dale, 530 U.S. 640,653-654 (U.S. 2000) explaining Hurley v. Irish-American Gay, Lesbian and Bisexual Group ofBoston, Inc., 515 U.S. 557, 132 L. Ed. 2d 487, 115 S. Ct. 2338 (1995).
The U.S. Supreme Court stated further in Boy Scouts of Am.:
The Boy Scouts takes an official position with respect to homosexual conduct, and that is sufficient for First Amendment purposes...
Boy Scouts of Am. v. Dale, 530 U.S. 640,655 (U.S. 2000) ...
.. .Having determined that the Boy Scouts is an expressive association and that the forced inclusion of Dale would significantly affect its expression, we inquire whether the application of New Jersey's public accommodations law to require that the Boy Scouts accept Dale as an assistant scoutmaster runs afoul of the Scouts' freedom of expressive association. We conclude that it does.
Boy Scouts of Am. v. Dale, 530 U.S. 640,656 (U.S. 2000) ...
. ..As the definition of "public accommodation" has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to membership
10

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 14 of 18 PageID #: 28
organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased ...
Boy Scouts of Am. v. Dale, 530 U.S. 640,657 (U.S. 2000) ...
... The state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the Boy Scouts' rights to freedom of expressive association. That being the case, we hold that the First Amendment prohibits the State from imposing such a requirement through the application of its public accommodations law ....
Boy Scouts of Am. v. Dale, 530 U.S. 640,659 (U.S. 2000) ...
... .mSTICE STEVENS' dissent makes much of its observation that the public perception of homosexuality in this country has changed. See post, at 37-39. Indeed, it appears that homosexuality has gained greater societal acceptance. See ibid. But this is scarcely an argument for denying First Amendment protection to those who refuse to accept these views. The First Amendment protects expression, be it of the popular variety or not. ..
Boy Scouts of Am. v. Dale, 530 U.S. 640,660 (U.S. 2000).
Finally the Court concluded in Boy Scouts of America:
We are not, as we must not be, guided by our views of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization's expression does not justify the State's effort to compel the organization to accept members where such acceptance would derogate from the organization's expressive message. "While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government." Hurley, 515 U.S. at 579.
The judgment of the New Jersey Supreme Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
11

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 15 of 18 PageID #: 29
It is so ordered. Boy Scouts of Am. v. Dale, 530 U.S. 640,661 (U.S. 2000).
Boy Scouts of America shows the imminent and immediate danger Plaintiffs will be subject to (injunctions, civil fines and civil penalties) if Act 1 takes effect on January 1,2012. Act 1 merely exempts Plaintiffs from performing the civil union itself; it does not exempt Plaintiffs for refusing to rent their church grounds for same sex ceremonies and receptions; and further to be subject to damages and fined should it refuse to allow a sacrilege on its grounds. Compare Exhibit 1 with 3 and 4. Exhibits 5 and 6 show the absurdity of the State, through State action, attempting to dictate how a church interprets its own canon laws and religious doctrines and beliefs. Exhibits 5 and 6 and Boy scouts of America demonstrate why the First Amendment was put in place to guarantee religious freedom despite the misguided efforts of State's to interfere with the free exercise of one's religious beliefs through State anti-discrimination laws that are preempted by Article III of the U.S. Constitution.
For example the imminent injuries for refusing to rent their church grounds for same sex ceremonies and receptions include, HRS § 489-7.5, which provides:
§ 489-7.5. Suits by persons injured; amount of recovery, injunctions. (a) Any person who is injured by an unlawful discriminatory practice, other than an unlawful discriminatory practice under part II of this chapter, may:
12

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 16 of 18 PageID #: 30
(1) Sue for damages sustained, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorneys' fees together with the costs of suit; and
(2) Bring proceedings to enjoin the unlawful discriminatory practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorneys' fees together with the cost of suit.
(b) The remedies provided in subsection (a) shall be applied in class action and de facto class action lawsuits or proceedings provided that:
(1) The minimum $1,000 recovery provided in subsection (a) shall not apply in a class action or a de facto class action lawsuit; and
(2) That portion of threefold damages in excess of compensatory damages shall be apportioned and allocated by the court in its exercise of discretion so as to promote effective enforcement of this part and deterrence from violation of its prOVISIOns.
(c) The remedies provided in this section are cumulative and may be brought in one action.
HRS § 489-8, entitled "Civil penalty", further provides:
(a) It shall be unlawful for a person to discriminate unfairly in public accommodations.
(b) Any person, firm, company, association, or corporation who violates this part shall be fined a sum of not less than $500 nor more than $10,000 for each violation, which sum shall be collected in a civil action brought by the attorney general or the civil rights commission on behalf of the State. The penalties provided in this section shall be cumulative to the remedies or penalties available under all other laws of this State. Each day of violation under this part shall be a separate violation.
(c) This section shall not apply to violations of part II of this chapter.
13

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 17 of 18 PageID #: 31
V. A GREAT POSSIBILITY OF IRREPARABLE HARM EXISTS Without the requested temporary injunction and preliminary injunction, Plaintiffs are subject to injunctive relief, civil damages and civil fines for refusing to rent their church grounds for same sex ceremonies and receptions.
VI. THE BALANCE OF HARDSHIPS FAVORS THE PLAINTIFF The balance of hardship favors Plaintiffs because the entering of this TRO
and preliminary injunction will allow Plaintiffs to retain their 1st, 5th and 14th amendment rights. Moreover, Defendants will not suffer any hardship in being temporarily delayed in implementing what amounts to a wrongful infringement upon religious liberty and freedom of association as guaranteed by the First Amendment to the U.S. Constitution. Moreover, Defendants will not suffer any significant hardship in the delay when balanced against the irreparable harm to Plaintiffs. Without the entering of this TRO and preliminary injunction, Plaintiffs will be unable maintain their 1st, 5th and 14th Amendment rights without being subjected to injunctions, fines and other penalties for refusing to rent their church grounds for same sex ceremonies and receptions.
VII. CONCLUSION
14

Case 1:11-cv-00790-JMS-KSC Document 4 Filed 12/28/11 Page 18 of 18 PageID #: 32
In conclusion, Plaintiffs respectfully request that this Court enter an order granting a TRO and preliminary injunction in accordance with F.R.C.P. Rule 65 mandating that Act 1 cannot be implemented until a trial on the merits. Dated: Honolulu, Hawaii, December 28, 2011.
~~--\
1· SHAWN Ll!¥.
Attorney for PlamtIffs
15

Case 1:11-cv-00790-JMS-KSC Document 4-1 Filed 12/28/11 Page 1 of 4 PageID #: 33

I I

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

EMMANUEL TEMPLE, THE HOUSE )

OF PRAISE; CARL E. HARRIS;

)

LIGHTHOUSE OUTREACH CENTER)

ASSEMBLY OF GOD; JOE HUNKlN, )

JR.

)

)

Plaintiffs, )

)

vs.

)

)

NEIL ABERCROMBIE, in his official )

capacity as Governor of the State of )

Hawaii; LORETTA J. FUDDY, in her )

official capacity as Director of Health of )

the State of Hawaii; STATE OF

)

HAWAII,

)

)

Defendants. )

CIVIL NO. _ _ _ _ _ __
DECLARATION OF CARL E. HARRIS

DECLARATION OF CARL E. HARRIS CARL E. HARRIS, pursuant to 28 U.S.C. Section 1746, hereby declares as follows:
1. I am the named Plaintiff in the above-captioned case. I have personal knowledge and am competent to testify as to the matters contained in this Declaration.
2. I am the current Pastor and Bishop of "EMMANUEL TEMPLE, THE HOUSE OF PRAISE", a Domestic Nonprofit Corporation whose purpose is to

Case 1:11-cv-00790-JMS-KSC Document 4-1 Filed 12/28/11 Page 2 of 4 PageID #: 34
advance and promote the worship of God; to engage in and promote the study of the holy scriptures; and to advance the gospel of Jesus Christ.
3. Same sex marriage and civil unions are against the teachings of the gospel of Jesus Christ.
4. I oppose Act 1 because of the teachings of the gospel of Jesus Christ. 5. Act 1 does not provide religious institutions, churches and houses of worship with immunity from the filing of civil rights complaints in public accommodations. 6. In New Jersey, California, and Hawaii, same sex couples have sought to rent the properties of religious institutions, churches and houses of worship for marriages, civil unions and receptions. When the religious institutions, churches and houses of worship refused, the same sex couples have pursued civil rights complaints against said religious institutions, churches and houses of worship. 7. Because of my duties as Pastor and Bishop, I am aware that this year, the Hawaii Civil Rights Commission accepted a complaint from a same sex couple against a church which refused to rent its property for a same sex couple to perform a same sex marriage. The Hawaii Civil Rights Commission did not dismiss the same sex discrimination complaint, and is investigating despite the religious liberty and freedom of association guaranteed by the federal constitution.
2

Case 1:11-cv-00790-JMS-KSC Document 4-1 Filed 12/28/11 Page 3 of 4 PageID #: 35
8. Because of my stance regarding same-sex unions and marriages, I am under imminent and immediate threat commencing on January 1, 2012 of being investigated; incurring attorneys fees and costs in defending my religious liberties; being enj oined and fined by the Hawaii Civil Rights Commission for refusing to rent my facilities to same sex couples.
9. Attached as Exhibit" 1" is a true and correct copy of Act 1. 10. Attached as Exhibit "2" is a true and correct copy of the Legislative's acknowledgment of the Hawaii Civil Rights Commission's unconditional support for Act 1 without religious liberty protections/amendments. 11. Attached as Exhibit "3" is a true and correct copy of the HB 1244 which was never enacted. The bill's enactment would have assured religious liberty/freedom of association consistent with the First Amendment to the U.S. Constitution. In refusing this provision, the Hawaii Legislature has assured a conflict between the State of Hawaii's anti-discrimination statutes and the First Amendment to the U.S. Constitution. 12. Attached as Exhibit "4" is a true and correct copy of the SB 1447, which was never enacted. The bill's enactment would have assured religious liberty/freedom of association consistent with the First Amendment to the U.S. Constitution. In refusing this provision, the Hawaii Legislature has assured a
3

Case 1:11-cv-00790-JMS-KSC Document 4-1 Filed 12/28/11 Page 4 of 4 PageID #: 36
conflict between the State of Hawaii's anti-discrimination statutes and the First Amendment to the U.S. Constitution.
13. All of these exhibits were either produced by myself or received in the ordinary course of business.
14. To this date, the Defendants have failed to provide the full religious liberty immunities/freedom of association guaranteed by the federal constitution in either Act 1 or HRS 368; 378; 489; or 515. I declare under penalty of petjury that the foregoing is true and correct. DATED: Honolulu, Hawaii, December 26,2011
~~~
CARL E. HARRIS
4

Case 1:11-cv-00790-JMS-KSC Document 4-2 Filed 12/28/11 Page 1 of 12 PageID #: 37
GOV. MSG. NO. IIO~

2011 FEB 2 W A Cj: 4 I
HSE OF REPS/SENATE
NEIL ABERCROMBIE
GOVERNOR

EXECUTIVE CHAMBERS
HONOLULU
February 23, 2011

The Honorable Shan Tsutsui, President

and Members of the Senate

Twenty-Sixth State Legislature

State Capitol, Room 409

Honolul~. H::~113

~

The Honorable Calvin Say, Speaker and Members of the House
Twenty-Sixth State Legislature State Capitol, Room 431
Honolulu,;;;aii 96813

Tsutsu~~ Me.~e DJ'l,.e-nt

Say and

Legislature:

This -is to inform you that on February 23, 2011, the following bill was signed into law:

S8232 SD1 HD1

RELATING TO CIVIL UNIONS. ACT 001 (11)

~~
., . ··/·_C~~
Ck~ ........ NEIL P. ERCROMBIE Governor, State of Hawaii

XH /81

1/ II
I

- - - - - - - - ACT 0 0 1 Case)\1p:p1r1o-vcve-d00b7y90t-hJMe SG-KoSveCrnoDrocument 4-2 Filed 12/28/11 Page 2 of 12 PageID #: 38

·/

on

FEB 2 3 2011 .

THE SENATE TWENTYMSIXTH LEGISLATURE, 2011 STATE OF HAWAII

8.B.

NO.

232 8.D.1

H.D.1

A BILL FOR AN ACT

RELATING TO CIVIL UNIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAIl:

1

SECTION 1. The intent of this measure is to recognize

2 civil unions in Hawaii~ By establishing the status of civil

3 unions in this State, it is not the legislature's intent to

4 revise the definition or eligi~ility requirements of marriage

5 under chapter 572, Hawaii Revised Statutes .

•

I,

•

6

SECTION 2. The Hawaii Revised Statutes is' amended by

7 adding a new chapter to be appropriately designated and to read

8 as follows:

9

"CHAPTER

10

CIVIL UNIONS

11

§ -1 Definitions. As used in this chapter, unless the

12 context otherwise requires:

13

n Agent 11 means the person or persons appointed as an agent

14 or agents by the department pf heal'th pursuant to section 572-5.

15

"Civil union" means a union between two individuals

16 established pursuant to this chapter.

17

II Partner 11 means an individual who is a party to a civil

18 union established pursuant to this chapter.
SB232 HD1 EMS 2011-2044
! I

Case 1:11-cv-00790-JMS-KSC Document 4-2 Filed 12/28/11 Page 3 of 12 PageID #: 39

Page 2

8.B.

NO.

232 S.D. 1

H.D.1

1

§ -2 Eligibility to enter into a civil union. A person

2 shall be eligible to enter into a civil union only if the person

3 is:

4

(i) Not a partner in another civil .union, a spouse in a

5

marriage, or a party to a reciprocal beneficiary

6

relationship pursuant to ichapter 572C;

7

(2) At least eighteen years of age; and

8

(3) Not related to the other proposed partner in the civil

9

union, as provided in section -3.

10

§ -3 Civil unions void; when. A civil union shall be

11 void between the following persons: parent and child,

12 grandparent and grandchild, two siblings, aunt and nephew, aunt

13 and niece, uncle and nephew, uncle and niece, and persons who

14 stand in relation to each other as ancestor and descendant of

15 any degree whatsoever.

16

§ -4 Solemnization; ligense to perfor.m; refusal to join

17 persons in a civil union. (a) A civil union shall become valid

18 only upon completion of a solemnization by a person licensed in

19 accordance with this section.

20

(b) Any judge or retired judge, including a federal judge

21 or judge of another state who may legally join persons in

22 chapter 572 or a civil union, may solemnize a civil union. Any

SB232 HD1 HMS 2011-2044
I

Case 1:11-cv-00790-JMS-KSC Document 4-2 Filed 12/28/11 Page 4 of 12 PageID #: 40

· Page 3

S.B.

NO.

232
8.D.1

H.D.1

1 ordained or licensed member of the clergy may solemnize a civil

2 union. Solemnization may be entirely secular or may be

3 performed acoording to the forms and usages of any religious

4 denomination in this state. Nothing in this section shall be

5 construed to require any person authorized to perform

6 solemnizations of marriages or civil unions to perform a
7 solemnization of a civil union, and no such authorized person

8 who fails or refuses for any reason to join persons in a civil

9 union shall be subj ect to any fine or other penalty for the

10 fail ure or refusal.

11

(c) Nothing in this section shall be construed to require

12 any person authorized to perform solemnizations pursuant to /

13 chapter 572 or civil unions pursuant to this chapter to perform

14 a solemnization of a civil union, and no such authorized person

15 who fails or refuses for any reason to join persons .in a civil

16 union shall be subject to any fine or other penalty for the

17 failure or refusal.

18

(d) No agent may solemnize a civil unioni nor may any

19 assistant or deputy of the agent solemnize a civil union.

20

(e) No person shall perform the solemnization of a civil

21 union without first having obtained a license from the

22 department' of health. The department of health shall issue

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Case 1:11-cv-00790-JMS-KSC Document 4-2 Filed 12/28/11 Page 5 of 12 PageID #: 41

Page 4

S.B.NO.

232 S.0.1

H.D.1

1 licenses to solemnize civil unions in the same manner as it

2 issues licenses pursuant to chapter 572. The department of

3 health may revoke or suspend a license to solemnize civil

4 unions. Any penalties or fines that may be levied or assessed

5 by the department of health for violation of chapter 572 shall

6 apply equally to a person licensed to solemnize civil unions.

7

§ -5 Applicants for civil union; license required;

8 limitations. (a) No persons may be joined in a civil union in

9 this State unless both partners have:

10

(1) Met the requirements of section -2;

11

(2) Complied with section -6 and, if applicable,.

12

section -7; and

13

(3) Been issued a license by an agent in the judicial

14

circuit in which a civil union is to be solemnized or

15

in which either person resides, which license shall

16

bear the certification of the agent that the persons

17

named therein have met the requirements of section

18

-2 and have complied with section -6 and, if

19

applicable, section -7.

20

(b) The license, when certified by the agent, is

21 sufficient authority for any person authorized to perform a

22 civiI union solemnization in this State to join the persons in a

SB232 HDl HMS 2011-2044
111I1~111~~II~i~t'~I~lllli~l~i~~JlllI~ilil

Case 1:11-cv-00790-JMS-KSC Document 4-2 Filed 12/28/11 Page 6 of 12 PageID #: 42

Page 5

S.B.

NO.

232
S.0.1

H.D.1

1 civil union; provided that the solemnization is performed not

2 more than thirty days after the date of issuance. The license

3 shall become void thirty days after issuance.

4

§ -6 Application for license for:persons who wish to

5 enter into a civil union; fee. (a) No license for a civil

6 union may be issued by an agent until both applicants have

7 appeared before the agent and applied for the license. The

8 application for the license shall be completed in its entirety;

9 dated, signed, and sworn to by each applicant and shall state

10 each applicant's full name, date of birth, birthplace,

11 residence, social security number, whether single, widowed, or

12 divorced, and whether the applicant is under the supervision or

13 control of a conservator or guardian. If the application is

14 signed and sworn to by the applicants on different dates, the

15 earlier date shall be deemed the date of the application. The

16 agent shall issue a copy of this chapter to any person applying

17 for a license.

18

(b) The fee for a license to enter into a civil union

19 shall be an amount equal to the amount prescribed in section

20 572-5, and all amounts collected by the agent as application

21 fees under this chapter shall be retained or remitted and

22 apportio~ed in the same manner as prescribed i~ section 572-5.

SB232 HDl EMS 2011-2044
l~ll~I~lmllll~I~II~il~I~I~~~[I~I~I~~~~III~I~WI~11111~111II~~IIII~II~

Case 1:11-cv-00790-JMS-KSC Document 4-2 Filed 12/28/11 Page 7 of 12 PageID #: 43

Page 6

8.B.

NO.

232
8.0.1

H.D.1

1

§ -7 Persons under control of conservator'or guardian.

2 (a) No civil union license may be issued to any applicant under

3 the supervision or control of a conservator or guardian,

4 appointed in accordance with chapter 560, unless the written

5 consent of the conservator or guardian is signed, notarized, and

6 filed with the agent.

7

(b) Any person who enters into a civil union without the

, 8 consent provided for in subsection (a) shall acquire no rights

9 by that civil union in the property of any person who was under

10 the control or supervision of a conservator or guardian at the

11 time the civil union was entered into.

12

§ -8 Record of solemnization; reported by whom;

13 affidavit; evidentiary weight of certificate or affidavit. (a)

14 Each person who solemnizes a civil union shall certify upon the

15 civil union license certificate the fact, time, and place of the

16 solemnization of the civil union and return the certificate to

17 the agent within three business days following the solemnization

18 of the civil union, or as may otherwise be prescribed by the

19 department of health.

20

(b) If any person who has solemnized a civil union fails

21 to return the certificate to the agent as required under

22 subsection (a), the partners joined in a civil union may provide

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I

Case 1:11-cv-00790-JMS-KSC Document 4-2 Filed 12/28/11 Page 8 of 12 PageID #: 44

Page 7

S.B.

N,D.

232
8.D.1

H.D.1

1 the agent with a notarized affidavit attesting to the fact that

2 they were joined in a civil union and stating the date and place

3 of the solemnization of the civil union. Upon the receipt of

4 that affidavit by the agent, the civil union of the partners

5 shall be deemed to be valid as of the date of the solemnization

6 of the civil union stated in the affidavit.

7

(c) The certificate required by subsection (a) or an

8 affidavit received pursuant to subsection (b) shall be prima

9 facie evidence of the facts·stated therein.

10

§ -9 Benefits, protections, and responsibilities.

11 Partners to a civil union lawfully entered into pursuant to this

.12 chapter shall have all the same rights, benefits, protections,

13 and responsibilities under law, whether derived from statutes,

14 administrative rules, court decisions, the common law, or any'

15 other source of civil law, as are granted to those who contract,

16 obtain a license, and are solemnized pursuant to chapter 572.

17

§ -10 Civil unions perfor.med .in other jurisdictions.

18 All unions entered into in other jurisdictions between two

19 individuals not recognized under section 572-3 shall be

20 recognized as civil unions; provided that the relationship meets

21 the eligibility requirements of this chapter, has been entered

SB232

HMS 2011-2044

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Page 8

S.B.

NO.

232 S.D. 1

H.D.1

1· into in accordance with the laws of that jurisdiction, and can

2 be documented.

3

§ -11 References and inclusions. A party to a civil

4 union shall be included in any definition or use of the terms

5 "spouse", "family", "immediate family", 11 dependent " , "next of

6 kin", and other terms that denote the spousal relationship, as

7 those terms are used throughout the laws of the State."

8

SECTION 3. Chapter 231, Hawaii Revised Statutes, is

9 amended by adding a new section to be appropriately designated

10 and to read as follows:

·11

1I§231-

Effect of civil union. All provisions of the

12 Internal Revenue Code referred to in this chapter that apply to

13 a husband and wife, spouses, or person in a legal marital

14 relationship shall be deemed to apply in this chapter to

15 partners in a civil union with the same force and effect as if

16 they were "husband and wife" I "spouses", or other terms that

17 describe persons in a legal marital relationship."

18

SECTION 4. Chapter 235, Hawaii Revised Statutes, is

19 amended by adding a new section to be appropriately designated
}
20 and to read as follows:

21

1I§235-

Effect of civil union. All provisions of the

22 Internal Revenue Code referred to in this chapter that apply to

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I~IIIII

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Page 9

S.B.

NO.

232
8.D.1

H.D.1

1 a husband and wife, spouses, or person in a legal marital

2 relationship shall be deemed to apply in this chapter to

3 partners in a civil union with the same force and effect as if

4 they were "husband and wife", "spouses", or other terms that

5 describe persons in a legal marital relationship."

6

SECTION 5. Chapter 236D, Hawaii Revised Statutes, is

7 amended by adding a new section to be appropriately designated

8 and to read as follows:

9

"§236D-

Effect of civil union. All provisions of the

10 Internal Revenue Code referred tO'in this chapter that apply to

11 a husband and wife, spouses, or person in a legal marital

12 relationship shall be deemed to apply in this chapter to

13 partners in a civil union with the same force and effect as if

14 they were tthusband and wife", "spouses", or other terms that

15 describe persons in a legal marital relationship."

16

SECTION 6. Section 580-1, Hawaii Revised·Statutes, is

17 amended to read as follows:

18

1I§580-1 Jurisdiction; hearing. Exclusive original

19 jurisdiction in matters of annulment, divorce, and separation,

20 subject to section 603-37 as to change of venue, and subject

21 also to appeal according to law, is conferred upon the family

22 court of the circuit in which the applicant has been domiciled

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Page 10

S.B.

NO.

232
8.0.1

H.O.1

1 or has been physically present for a continuous period of at

2 least three months next preceding the application therefor. No

3 absolute divorce from the bond of matrimony shall be granted for

4 any cause unless either party to the marriage has been domiciled S or has been physically present in the State f"or a continuous

6 period of at least six months next preceding the application

7 therefor. A person who may be residing on any military or

8 federal base, installation, or reservation within the State or

9 who may be present in the State under military orders shall not

10' thereby be prohibited from meeting the requirements of this

11 section. The family court of each circuit shall have

12 jurisdiction over all proceedings relating to the annulment,

. 13 divorce, and separation of civil unions entered into in this

14 State in the same manner as marriages. 11

15

SECTION 7. Section 572-1.6, Hawaii Revised Statutes, is

16 . repeal ed.

17

[11 E55:]2 1.61 Pri"."a1seselem:aiBatsien net unlawful. No thin§'

18 in this ohapter shall be construed to render unla\iiful, or

19 otherwise affirmatively punishable at la'll"', the solemnization of

20 same sCJe relationships by reli§,ious or§,anizations; prov'idcd that

21 nothin§, in this section shall bc oonstrued to confer afl)' of the

SB232 HD1 HMS 2011-2044

10

1111~111~III~illl~I~~~~II~~II!IIII~II~~~~i~l~il~II~I~I~~~il~~IIII~l~II~I~1

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· Page 11

8.B.

NO.· 232 8.0.1

H.D.1

1 benefits, burdens,' or obligations of marriage under the laws of

2 Ha:•..aii. "]

3

SECTION 8 .. This Act does not affect rights and duties that

4 matured, penalties that were incurred, and proceedings that were

5 begun, before its effective date ..

6

SECTION 9. statutory material to be repealed is bracketed

7 and stricken. New statutory material is underscored.

8

SECTION 10. This Act shall take effect on January 1, 2012,

9 provided sections 3 I 4, and 5 of this Act shall apply to taxable

10 years ·beginning after December 31, 2011.

23 APPROVED this

day of

F~8

,2011

GOVERNOR OF THE STATE OF HAWAII

u

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Sw STAND. COM. REP. NO.

Honolulu, Hawaii

JAN 26 2011

RE:

S.B. No. 232

S.D. 1

Honorable Shan S. Tsutsui President of the Senate Twenty-Sixth State Legislature Regular Session of 2011 State of Hawaii

Sir:

Your Committee on Judiciary and Labor, to which was referred S.B. No. 232 entitled:

"A BILL FOR AN ACT RELATING TO CIVIL UNIONS,"

begs leave to report as follows:

The purpose and intent of this measure is to extend the same rights, benefits, protections, and responsibilities of spouses in a marriage to partners in a civil union by recognizing the status of civil unions in Hawaii, without revising the definition or eligibility requirements of marriage under chapter 572, Hawaii Revised Statutes.

Your Committee received testimony in support of this measure from Governor Neil Abercrombie, Lieutenant Governor Brian Schatz, Board of Education member Kim Coco Iwamoto, Hawaii Civil Rights Commission Executive Director William Hoshijo, and a significant number of private organizations and concerned individuals. Your Committee received testimony in opposition to this measure from many private organizations and concerned individuals. Finally, your Committee received comments on this measure from several individuals.

Your Committee finds that the Legislature has considered the question of whether to recognize civil unions in our State several times over the last few years. In 2009, a bill substantially similar to the current measure, H.B. No. 444 (2009), was introduced in the House of Representatives. After lengthy public hearings and deep consideration, however, the measure foundered.

2011-0935 SSCR SMA-l.doc

I

I II

EXhll(31

I( /I
;;Z

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STAND. COM. REP. NO. ~

Page 2

...

The following year, during the 2010 Regular Session, H.B. No. 444, S.D. 1 (2009) was resurrected and subsequently passed both houses of the Legislature before the bill was ultimately vetoed by the then-Governor. The issue is once again before the Legislature.
Your Committee recognizes that there are strong opinions and persuasive arguments on both sides of this controversial issue, as expressed ably by advocates and concerned citizens in committee hearings during the course of the last few years. These arguments involve civil rights, religion, equal protection of the laws, the education of our children, and the very core question of how our society should function. Your Committee believes that the Legislature represents a useful public forum to continue the discussion among members of our community regarding the impact of civil unions in these areas. As such, your Committee scheduled this measure for hearing early in'this legislative session and recommends that the Senate pass the measure as amended in order to provide a forum for thorough dialogue on this issue.
Accordingly, your Committee has amended this measure by making technical, nonsubstantive changes for purposes of style and clarity.
As affirmed by the record of votes of the members of your Committee on Judiciary and Labor that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 232, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 232, S.D. 1, and be placed on the calendar for Third Reading.
Respectfully submitted on behalf of the members of the Committee on JUdiciary and Labor,
I~
Chair

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The Senate Twenty-Sixth Legislature
State of Hawai'i
Record of Votes Committee on Judiciary and Labor
JDL

Bill / Resolution No.:*
SB 232.~

Committee Referral:
JDL

fDa !),,)/

D The committee is reconsidering its previous decision on this measure.

If so, then the previous decision was to:

The Recommendation is:
D Pass, unamended 2312

B' D Pass, with amendments

Hold

2311

2310

D Recommit 2313

Members

Aye

Aye (WR)

Nay

Excused

HEE, Clayton (C)

1/

SHIMABUKURO, Maile (VC)

V

GABBARD, Mike

i---/

IHARA, Jr., Les

i../""

SLaM, Sam

i.....--

TOTAL

:3

Recommendation:

Gr'Adopted

.Chair's or Designee's Signature/~~.d

D c;( 0'
D Not Adopted

Distribution:

<-
Original .'

File with Committee Report

Yellow Clerk's Office

Pink DraftinQ AQencv

Goldenrod Committee File Copy

*Only one measure per Record of Votes

Revised: 01/20/11

Case 1:11-cv-00790-JMS-KSC Document 4-3 Filed 12/28/11 Page 4 of 13 PageID #: 52

THE SENATE TWENTY~SIXTH LEGISLATURE, 2011 STATE OF HAWAII

S.B. NO. 232 S.D.1

A BILL FOR AN ACT

RELATING TO CIVIL UNIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

1

SECTION 1. The intent of this measure is to recognize

2 civil unions in Hawaii. By establishing the status of civil

3 unions in our State, it is not the legislaturels intent to

4 revise the definition or eligibility requirements of marriage

5 under chapter 572, Hawaii Revised Statutes.

6

SECTION 2. The Hawaii Revised Statutes is amended by

7 adding a new chapter to be appropriately designated and to read

8 as follows:

9

II CHAPTER

10

CIVIL UNIONS

11

§ -1 Definitions. As used in this chapter, unless the

12 context otherwise requires:

13

IIAgent ll means the person or persons appointed as an agent

14 or agents by the department of health pursuant to section 572-5.

15

IICivil union ll means a union between two individuals

16 established pursuant to this chapter.

17

IIPartner ll means an individual who is a party to a civil

18 union established pursuant to this chapter. 2011-0935 SB232 SD1 SMA. doc

1111111111111111111111111111111111111111111111111111111111111111111111111111

1

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Page 2

S.B.

NO.

232 S.D. 1

1

§ -2 Eligibility to enter into a civil union. A person

2 shall be eligible to enter into a civil union only if the person

3 is:

4

(1) Not a partner in another civil union, a spouse in a

5

marriage, or a party to a reciprocal beneficiary

6

relationship pursuant to chapter 572C;

7

(2) At least eighteen years of age; and

8

(3) Not related to the other proposed partner in the civil

9

union, as provided in section

-3.

10

§ -3 Civil unions void; when. A civil union shall be

11 void between the following persons: parent and child,

12 grandparent and grandchild, two siblings, aunt and nephew, aunt

13 and niece, uncle and nephew, uncle and niece, and persons who

14 stand in relation to each other as ancestor and descendant of

15 any degree whatsoever.

16

§ -4 Solemnization; license to perfor.m; refusal to join

17 persons in a civil union. (a) A civil union shall become valid

18 only upon completion of a solemnization by a person licensed in

19 accordance with this section.

20

(b) Any judge or retired judge, including a federal judge

21 or judge of another state who may legally join persons in

22 chapter 572 or a civil union, may solemnize a civil union. Any

2011-0935 SB232 SDl SMA. doc

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Page 3

S.B.

NO.

232
S.D.1

1 ordained or licensed member of the clergy may solemnize a civil

2 union. Solemnization may be entirely secular or may be

3 performed according to the forms and usages of any religious

4 denomination in this State. Nothing in this section shall be

5 construed to require any person authorized to perform

6 solemnizations of marriages or civil unions to perform a

7 solemnization of a civil union, and no such authorized person

8 who fails or refuses for any reason to join persons in a civil

9 union shall be subject to any fine or other penalty for the

10 failure or refusal.

11

(c) Nothing in this section shall be construed to require

12 any person authorized to perform solemnizations pursuant to

13 chapter 572 or civil unions pursuant to this chapter to perform

14 a solemnization of a civil union, and no such authorized person

15 who fails or refuses for any reason to join persons in a civil

16 union shall be subject to any fine or other penalty for the

17 failure or refusal.

18

(d) No agent may solemnize a civil unioni nor may any

19 assistant or deputy of the agent solemnize a civil union.

20

(e) No person shall perform the solemnization of a civil

21 union without first having obtained a license from the

22 department of health. The department of health shall issue

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I I I I I I I I I I I I!I I I I I !I I I I I I I I I I

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Page 4

S.B.

NO.

232
S.D. 1

1 licenses to solemnize civil unions in the same manner as it

2 issues licenses pursuant to chapter 572. The department of

3 health may revoke or suspend a license to solemnize civil

4 unions. Any penalties or fines that may be levied or assessed

5 by the department of health for violation of chapter 572 shall

6 apply equally to a person licensed to solemnize civil unions.

7

§ -5 Applicants for civil union; license required;

8 limitations. (a) No persons may be joined in a civil union in

9 this State unless both partners have:

10

(1 ) Met the requirements of section

-2;

11

(2 ) Complied with sections

-6 and, if applicable,

12

section

-7; and

13

(3) Been issued a license by an agent in the judicial

14

circuit in which a civil union is to be solemnized or

15

in which either person resides, which license shall

16

bear the certification of the agent that the persons

17

named therein have met the requirements of section

18

-2 and have complied with sections

-6 and, if

19

applicable, section

-7.

20

(b) The license~ when certified by the agent, is

21 sufficient authority for any person authorized to perform a

22 civil union solemnization in this State to join the persons in a

2011-0935 SB232 SD1 SMA. doc
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Page 5

S.B.

NO.

232
S.D. 1

1 civil union; provided that the solemnization is performed not

2 more than thirty days after the date of issuance. The license

3 shall become void thirty days after issuance.

4

§ -6 Application for license for persons who wish to

5 enter into a civil union; fee. (a) No license for a civil

6 union may be issued by an agent until both applicants have

7 appeared before the agent and applied for a license. The

8 application for the license shall be completed in its entirety,

9 dated, signed, and sworn to by each applicant and shall state

10 each applicant's full name, date of birth, birthplace,

11 residence, social security number, whether single, widowed, or

12 divorced, and whether the applicant is under the supervision or

13 control of a conservator or guardian. If the application is

14 signed and sworn to by the applicants on different dates, the

15 earlier date shall be deemed the date of the application. The

16 agent shall issue a copy of this chapter to any person applying

17 for a license.

18

(b) The fee for a license to enter into a civil union

19 shall be an amount equal to the amount prescribed in section

20 572-5, and all amounts collected by the agent as application

21 fees under this chapter shall be retained or remitted and

22 apportioned in the same manner as prescribed in section 572-5.

2011-0935 SB232 SD1 SMA. doc

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I I I I I I I I I I I I I I I I I I ~I I I I I I I I I1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

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Page 6

S.B.

NO.

232
S.D. 1

1

§ -7 Persons under control of conservator or guardian.

2 (a) No civil union license may be issued to any applicant under

3 the supervision or control of a conservator or guardian,

4 appointed in accordance with chapter 560, unless the written

5 consent of the conservator or guardian is signed, notarized, and

6 filed with the agent.

7

(b) Any person who enters into a civil union without the

8 consent provided for in subsection (a) shall acquire no rights

9 by that civil union in the property of any person who was under

10 the control or supervision of a conservator or guardian at the

11 time the civil union was entered into.

12

§ -8 Record of solemnization; reported by whom;

13 affidavit; evidentiary weight of certificate or affidavit. (a)

14 Each person who solemnizes a civil union shall certify upon the

15 civil union license certificate the fact, time, and place of the

16 solemnization of the civil union and return the license to the

17 agent within three business days following the solemnization of

18 the civil union, or as may otherwise be prescribed by the

19 department of health.

20

(b) If any person who has solemnized a civil union fails

21 to return the certificate to the agent as required under

22 subsection (a), the partners joined in a civil union may provide

2011-0935 SB232 SD1 SMA. doc
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Page 7

S.B. NO. 232 S.D.1

1 the agent with a notarized 'affidavit attesting to the fact that

2 they were joined in a civil union and stating the date and place

3 of the solemnization of the civil union. Upon the receipt of

4 that affidavit by the agent, the civil union of the partners

5 shall be deemed to be valid as of the date of the solemnization

6 of the civil union stated in the affidavit.

7

(c) The certificate required by subsection (a) or an

8 affidavit received pursuant to subsection (b) shall be prima

9 facie evidence of the facts stated therein.

10

§ -9 Benefits, protections, and responsibilities.

11 Partners to a civil union lawfully entered into pursuant to this

12 chapter shall have all the same rights, benefits, protections,

13 and responsibilities under law, whether derived from statutes,

14 administrative rules, court decisions, the common law, or any

15 other source of civil law, as are granted to those who contract,

16 obtain a license, and are solemnized pursuant to chapter 572.

17

§ -10 Civil unions performed in other jurisdictions.

18 All unions between two individuals not recognized under section

19 572-3 shall be recognized as civil unionsi provided that the

20 relationship meets the eligibility requirements of this

21 chapter. "

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Page 8

S.B.

NO.

232
S.D. 1

1

SECTION 3. Section 572-1.6, Hawaii Revised Statutes, is

2 repealed.

3

[II [§S72 1.6] Private solemnization not unlawful. Nothing

4 in this chapter shall be construed to render unlawful, or

5 otherwise affirmatively punishable at law, the solemnization of

6 same sex relationships by religious organizations; provided that

7 nothing in this section shall be construed to confer any of the

8 benefits, burdens, or obligations of marriage under the la',,'s of

9 Ha',vaii. ,,]

10

SECTION 4. A party to a civil union shall be included in

11 any definition or use of the terms "spouse", "family",

12 "immediate family", "dependent", "next of kin", and other terms

13 that denote the spousal relationship, as those terms are used

14 throughout the law.

15

SECTION 5. This Act does not affect rights and duties that

16 matured, penalties that were incurred, and proceedings that were

17 begun, before its effective date.

18

SECTION 6. Statutory material to be repealed is bracketed

19 and stricken.

20

SECTION 7. This Act shall take effect on January 1, 2012.

21

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Page 9

S.B.

NO.

232
S.D.1

Report Title: Civil Unions
Description: Extends the same rights, benefits, protections, and responsibilities of spouses in a marriage to partners in a civil union. Takes effect 1/1/2012. (SD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

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HOUSE OF REPRESENTATIVES TWENTY-SIXTH LEGISLATURE, 2011 STATE OF HAWAII

H.B. NO. \1-~'t

A BILL FOR AN ACT

RELATING TO SOLEMNIZATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

1

SECTION 1. Section 572-1.6, Hawaii Revised Statutes, is

2 amended to read as follows:

3

"[tl§572-1.6[-}-] Private solemnization of same sex

4 relationships not unlawful[7]; refusal to provide services, etc.

5 ~ Nothing in this chapter shall be construed to render

6 unlawful, or otherwise affirmatively punishable at law, the

7 solemnization of same-sex relationships by religious

8 organizations[; provided that nothin~] or religious or

9 charitable organizations operated, supervised, or controlled by

10 a religious institution or organization. Nothing in this

11 section shall be construed to confer any of the benefits,

12 burdens, or obligations of marriage under the laws of Hawaii.

13

(b) Religious institutions or organizations,' or religious

14 or charitable organizations operated, supervised, or controlled

15 by a religious institution or organization, shall not be

16 required to provide to an individual or individuals, services,

17 accommodations, benefits, advantages, facilities, goods, or

~8 privileges that are related to a solemnization or celebration of

HB

2011-1540

Xkli e I II It

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Page 2

H.B. NO. ~

1 a same-sex relationship, such as a same-sex marriage or a civil

2 union between persons of the same sex, if the solemnization or

3 celebration is in violation of the institution or organization's

4 religious beliefs and faith. Any refusal to provide services,

5 accommodations, benefits, advantages, facilities, goods, or

6 privileges that is made in accordance with this subsection shall

7 not create any civil claim or cause of action, or result in an~

8 state action to penalize or withhold benefits from the

9 institution or organization tliat refused."

10

SECTION 2. Statutory material to be repealed is bracketed

(

11 and stricken. New statutory material is underscored.

12

SECTION 3. This Act shall take effect upon its approval.

13

INTRODUCED BY: ~_~_'"---",~~t_

JAN .2 5 2011

HB HMS 2011-1540

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Page 3

H.B. NO. ~

Report Title:
Solemnization; Lawful
Description:
Allows for the refusal of services or accommodations related to the solemnization of same-sex marriages, civil unions, and other same-sex unions on religious grounds.
The summary description of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.

( "

HB HM:S 2011-1540
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1~lm 111111111111!lllllllllmllll

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THE SENATE TWENTY-SIXTH LEGISLATURE, 2011 STATE OF HAWAII

S.B. NO. IWl-

JAN 26 2011

A BILL FOR AN ACT

RELATING TO REFUSAL TO PROVIDE SERVICES OR ACCOMMODATIONS FOR THE SOLEMNIZATION OR CELEBRATION OF SAME-SEX MARRIAGES, CIVIL UNIONS, AND OTHER SAME-SEX UNIONS ON RELIGIOUS GROUNDS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

1

SECTION 1. Chapter 572, Hawaii Revised Statutes, is

2 amended by adding a new section to be appropriately designated

3 and to read as follows:

4

II§S72-

Refusal to provide services or accommodations

5 related to the solemnization or celebration of same-sex

6 marriages, civil unions, or other same-sex unions on religious

7 grounds. (a) Notwithstanding any other provision of law to the

8 contrary, a religious institution shall not be required to

9 provide benefits to an individual or individuals if the request

10 for the benefits is related to the solemnization or celebration

11 of a same-sex marriage, civil union, or other same-sex union and

12 the solemnization or celebration is in violation of the beliefs

13 or faith of the religious institution. Any refusal to provide

14 the benefits in accordance with this section shall not create

15 any civil claim or cause of action, or result in any state

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1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 I1 1 1~l l Iil l l l l 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1/ Lf' r/

Case 1:11-cv-00790-JMS-KSC Document 4-5 Filed 12/28/11 Page 2 of 3 PageID #: 66

Page 2

S.B. NO./W':I-

1 action to penalize or withhold benefits from the religious

2 institution.

3

(b) For purposes of this section:

4

"Benefits" means services, accommodations, benefits,

5 advantages, facilities, goods, or privileges.

6

"Religious institution" means a religious institution or

7 organization or a religious or charitable organization that is

8 operated, supervised, or controlled by a religious institution

9 or organization. II

10

SECTION 2. If an Act is enacted during the 2011

11 legislative session that amends the Hawaii Revised Statutes by

12 adding a new chapter relating to civil unions, then the revisor

13 is authorized to insert the new section established under

14 section 1 of this Act into the new chapter in lieu of adding the

15 new section to chapter 572, Hawaii Revised Statutes.

16

SECTION 3. New statutory material is underscored.

17

SECTION 4. This Act shall take effect upon its approval.

18

2011-0925 SB SMA. doc
I IIII~I~IIIIIIIIIIIIIIIIIIIIIII~IIIIII~II.

Case 1:11-cv-00790-JMS-KSC Document 4-5 Filed 12/28/11 Page 3 of 3 PageID #: 67

Page 3

S.B. NO. IW-;'

Report Title: Refusal to Provide Benefits; Solemnization or Celebration of Same-Sex Marriages; Civil Unions; Same-Sex Unions on Religious Grounds
Description: Exempts from liability a religious institution or religious or charitable organization operated, supervised, or controlled by a religious institution, that refuses to provide services or accommodations relating to the solemnization or celebration of a same-sex marriage, civil union, or other same-sex union on religious grounds.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

2011-0925 SE SMA. doc
111111111111111111111111111111111111111111111111111111IIIIIIIIIIIIIII!IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII

Case 1:11-cv-00790-JMS-KSC Document 4-6 Filed 12/28/11 Page 1 of 2 PageID #: 68

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

EMMANUEL TEMPLE, THE HOUSE) CIVIL NO. _ _ _ _ _ __

OF PRAISE; CARL E. HARRIS;

)

LIGHTHOUSE OUTREACH CENTER) DECLARATION OF

ASSEMBLY OF GOD; JOE HUNKIN, ) SHAWN A. LUIZ

JR.

)

)

Plaintiffs, )

)

vs.

)

)

NEIL ABERCROMBIE, in his official )

capacity as Governor of the State of )

Hawaii; LORETTA J. FUDDY, in her )

official capacity as Director of Health of )

the State of Hawaii; STATE OF

)

HAWAII,

)

)

Defendants. )

DECLARATION OF SHAWN A. LUIZ I, SHAWN A. LUIZ, pursuant to 28 U.S.C. Section 1746, hereby declares as follows:
1. I am the counsel of record for the named Plaintiffs in the abovecaptioned case. I have personal knowledge and am competent to testify as to the matters contained in this Declaration.
2. Attached as Exhibit "5" is a true and correct copy of the Hawaii Civil Rights Commission Chairs' opposition to HB 1244's religious liberty protections.

Case 1:11-cv-00790-JMS-KSC Document 4-6 Filed 12/28/11 Page 2 of 2 PageID #: 69
3. Attached as Exhibit "6" is a true and correct copy of the Hawaii Civil Rights Commission Executive Director's opposition to HB 1244's religious liberty protections. I declare under penalty ofpetjury that the foregoing is true and correct. DATED: Honolulu, Hawaii, December 27, 2011
2

Case 1:11-cv-00790-JMS-KSC Document 4-7 Filed 12/28/11 Page 1 of 3 PageID #: 70

830 PUNCHBOWL STREET. ROOM 411 HONOWW. HI 96813 ,PHONE:: 586·8636 FAX: 586·8655 TDD: 568·8692

February 8, 2011 State Capitol Auditorium 2:15 p.m.

To: From:

The Honorable Gilbert Keith-Agaran, Chair Members of the House Committee on Judiciary
. \
Coral Wong Pietsch, Chair and Commissioners of the Hawai'i Civil Rights Commission

Re: H.B. No. 1244

The Hawai'i Civil Rights Commission (HCRC) has enforcement jurisdiction over state laws prohibiting discrimination in employment, housing, public accommodations, and access to state and state~ funded services. The HeRC carries out the Hawai'i constitutional mandate that "no person shall be discriminated against in the exercise of their civil rights because of race, religion, sex or ancestryl1. Art. I, Sec. 5.
The HCRC opposes H.B. No. 1244 in large measure, because the bill would establish a broad religious exemption to laws of general applicability, including the public accommodations antidiscrimination law that fall under HCRC jurisdiction. However, the HCRC supports the establishment of a narrow religious exemption which would allow clergy who are authorized to perform marriages to refuse to perform solemnizations of civil unions.
S.B. No. 232, S.D. 1, which is currently under consideration, proposes an express religious exemption allowing clergy who are authorized to perform marriages to refuse to perform solemnizations of civil unions. The HCRC has supported this narrowly crafted religious exemption, consistent with free exercise of religion and other religious exemptions in our civil right laws.

1-1/ [J /

Case 1:11-cv-00790-JMS-KSC Document 4-7 Filed 12/28/11 Page 2 of 3 PageID #: 71 However, this bill creates an exemption that is much broader in scope and vague in definition and
parameters. Religious organizations provide a range of social services (marriage counseling, adoption and
foster care services, etc.), some funded by state funding through grants or purchase of service contracts.
Many own, operate, or control enterprises that offer goods, services, or facilities to the general public as
public accommodations. Under the vague and overly broad language of the bill, these religious
organizations could arguably be exempted from legal obligations to provide those services in a non-
discriminatory manner to same sex couples who are married or in civil unions, on the basis that such
relationships violate the organization's religious beliefs.
Impact of the proposed exemption
H.B. No. 1244 expressly provides:
(b) Religious institutions or organizations, or religious or charitable organizations operated, supervised or controlled by a religious institution or organization, shall not be required to provide to an individual or individuals, services, accommodations, benefits, advantages, facilities, goods, or privileges that are related to a solemnization or celebration of a same-sex relationship, such as a same-sex marriage or a civil union between persons of the same sex, if the solemnization or celebration is in violation of the institution or organization'S religious beliefs and faith. Any refusal to provide services, accommodation, benefits, advantages, facilities, goods, or privileges that is made in accordance with this subsection shall not create any civil claim or cause of action or result in any state action to penalize or withhold benefits from the institution or organization that refused.
The proposed statutory exemption is vague and overly broad. The newly created exemption could arguably
allow religious institutions or organizations to discriminate against same-sex couples in civil unions in: 1)
social services to the public, both state and privately funded; 2) use of church facilities that are offered to the
general public for a fee (e.g., grounds, halls, catering services) for marriages and other celebrations; and 3)
commercial enterprises owned, operated, or controlled by a religious institution or organization that rent out
accommodations or facilities or sells goods or services.
Basis for HCRC Opposition
The proposed exemption would allow religious institutions and organizations to discriminate on the
basis of a protected basis, sexual orientation, that does not conform with their religious doctrines and beliefs.
This exemption to discriminate would not be religious ceremonies, but would extend to social services and

Case 1:11-cv-00790-JMS-KSC Document 4-7 Filed 12/28/11 Page 3 of 3 PageID #: 72 public accommodations. Arguably, it would allow religious organizations that own, operate, or control places of public accommodations to discriminate against same-sex couples who are married or in civil unions in the provision of services, accommodations, benefits, advantages, facilities, goods, or privileges. This broad exemption conflicts with the H.R.S. chapter 489 protections against discrimination in places of public accommodations on the basis of sexual orientation, and diminishes the legitimacy and recognition of civil unions (if enacted). Religious exemptions to laws of general applicability, including civil rights laws that prohibit discrimination, should be narrowly drawn. The HeRe opposes the establishment of such a broad exemption to the public accommodations law that falls under HeRe jurisdiction.

Case 1:11-cv-00790-JMS-KSC Document 4-8 Filed 12/28/11 Page 1 of 4 PageID #: 73

JUDtestimony
From: Sent:
To:
Cc: Subject: Attachments:

mailinglist@capitol.hawaiLgov
Monday, February 07, 2011 6:18 PM JUDtestimony
William.D. Hoshijo@hawaii.gov Testimony for HB1244 on 2/8/20112:15:00 PM
HB 1244 HeRe test. House JUD 2-8-11.doc

Testimony for JUD 2/8/2911 2:15:99 PM HB1244
Conference room: Auditorium Testifier position: oppose Testifier will be present: Yes Submitted by: William Hoshijo Organization: Hawai'i Civil Rights Commission Address: 839 Punchbowl st' J Rm. 411 Honolulu J Hawai-i Phone: 586-8636· E-mail: William.D.Hoshijo@hawaii.gov Submitted on: 2/7/2911
Comments: If there is any problem or question regarding this testimony, please contact Bill Hoshijo at the email address above.

II
XI-II!3/ 1

Case 1:11-cv-00790-JMS-KSC Document 4-8 Filed 12/28/11 Page 2 of 4 PageID #: 74

830 PUNCHBOWL STREET, ROOM 411 HONOLULU, HI 96813 .PHONE: 586-8636 FAX: 586-8655 TOO: 568-8692

February 8, 2011 State Capitol Auditorium 2:15 p.m.

To: From:

The Honorable Gilbert Keith-Agaran, Chair Members ofthe House Committee on Judiciary
Coral Wong Pietsch~ Chair and Commissioners of the Hawai'i Civil Rights Commission

Re: H.B. No. 1244

.The Hawai'i Civil Rights Commission (HCRC) has enforcement jurisdiction over state laws prohibiting discrimination in employment, housing, public accommodations, and access to state and statefunded services. The HCRC carries out the Hawai'i constitutional mandate that "no person shall be discriminated against in the exercise of their civil rights because of race, religion, sex or ancestry". Art. I, Sec. S.
The HCRC opposes H.B. No. 1244 in large measure, because the bill would establish a broad religious exemption to laws of general applicability, including the public accommodations antidiscrimination law that fall under HeRe jurisdiction. However. the HeRe supports the establishment of a narrow religious exemption which would allow clergy who are authorized to perform marriages to refuse to perform solemnizations of civil unions.
S.B. No. 232, S.D. 1, which is currently under consideration, proposes an express religious exemption allowing clergy who are authorized to perform marriages to refuse to perform solemnizations of civil unions. The HeRC has supported this narrowly crafted religious exemption, consistent with free exercise of religion and other religious exemptions in our civil right laws.

Case 1:11-cv-00790-JMS-KSC Document 4-8 Filed 12/28/11 Page 3 of 4 PageID #: 75 However, this bill creates an exemption that is much broader in scope and vague in definition and
parameters. Religious organizations provide a range of social services (marriage counseling, adoption and
foster care services, etc.), some funded by state funding through grants or purchase of service contracts.
Many own, operate, or control enterprises that offer goods, services, or facilities to the general public as
public accommodations. Under the vague and overly broad language of the bill, these religious
organizations could arguably be exempted from legal obligations to provide those services in a non-
discriminatory manner to same sex couples who are married or in civil unions, on the basis that such
relationships violate the organization's religious beliefs.
Imnact of the proposed exemption
B.B. No. 1244 expressly provides:
(b) Religious institutions or organizations, or religious or charitable organizations operated, supervised or controlled by a religious institution or organization, shall not be required to provide to an individual or individuals, services, accommodations, benefits, advantages, facilities, goods, or privileges that are related to a solemnization or celebration of a same-sex relationship, such as a same-sex marriage or a civillUlion between persons of the same sex, if the solemnization or celebration is in violation of the institution or organization's religious beliefs and faith. Any refusal to provide services, accommodation, benefits, advantages, facilities, goods, or privileges that is made in accordance with this subsection shall not create any civil claim or cause of action or result in any state action to penalize or withhold benefits from the institution or organization that refused.
The proposed statutory exemption is vague and overly broad. The newly created exemption could arguably
allow religious institutions or organizations to discriminate against same~sex couples in civil unions in: 1)
social services to the public, both state and privately funded; 2) use of church facilities that are offered to the
general public for a fee (e.g., grounds, halls, catering services) for marriages and other celebrations; and 3)
commercial enterprises owned, operated, or controlled by a religious institution or organization that rent out
accommodations or facilities or sells goods or services.
Basis for HCRC Opposition
The proposed exemption would allow religious institutions and organizations to discriminate on the
basis of a protected basis, sexual orientation, that does not conform with their religious doctrines and beliefs.
This exemption to discriminate would not be religious ceremonies, but would extend to social services and

Case 1:11-cv-00790-JMS-KSC Document 4-8 Filed 12/28/11 Page 4 of 4 PageID #: 76 public accommodations. Arguably, it would allow religious organizations that own, operate, or control places of public accommodations to discriminate against same-sex couples who are married or in civil unions in the provision of services, accommodations, benefits, advantages, facilities, goods, or privileges. This broad exemption conflicts with the H.R.S. chapter 489 protections against discrimination in places of public accommodations on the basis of sexual orientation, and diminishes the legitimacy and recognition of civil unions (if enacted). Religious exemptions to laws of general applicability, including civil rights laws that prohibit discrimination, should be narrowly drawn. The HeRe opposes the establishment of such a broad exemption to the public accommodations law that falls under HeRe jurisdiction.

 
 Case: 1:11-cv-790 As of: 03/10/2014 10:43 AM HST 1 of 4
CLOSED,STAYED
U.S. District Court District of Hawaii (Hawaii) CIVIL DOCKET FOR CASE #: 1:11−cv−00790−JMS−KSC

Emmanuel Temple, The House Of Praise et al v. Abercrombie et Date Filed: 12/28/2011

al

Date Terminated: 10/03/2012

Assigned to: JUDGE J. MICHAEL SEABRIGHT

Jury Demand: None

Referred to: JUDGE KEVIN S.C. CHANG

Nature of Suit: 440 Civil Rights: Other

Cause: 42:1983 Civil Rights Act

Jurisdiction: Federal Question

Plaintiff

Emmanuel Temple, The House Of Praise

represented by Shawn A. Luiz 1132 Bishop Street, Ste 1520 Honolulu, HI 96813 538−0500 Fax: 538−0600 Email: attorneyluiz@msn.com ATTORNEY TO BE NOTICED

Plaintiff Carl E. Harris

represented by Shawn A. Luiz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Lighthouse Outreach Center Assembly Of God

represented by Shawn A. Luiz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Joe Hunkin, Jr.

represented by Shawn A. Luiz (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Neil Abercrombie in his official capacity as Governor of the State of Hawaii
Defendant Loretta J. Fuddy in her official capacity as Directory of Health of the State of Hawaii Defendant State of Hawaii

represented by John F. Molay Office of the Attorney General−State of Hawaii Civil Rights Litigation 425 Queen Street Honolulu, HI 96813 586−1494 Fax: 587−3077 Email: john.f.molay@hawaii.gov ATTORNEY TO BE NOTICED
represented by John F. Molay (See above for address) ATTORNEY TO BE NOTICED
represented by John F. Molay (See above for address) ATTORNEY TO BE NOTICED

Case: 1:11-cv-790 As of: 03/10/2014 10:43 AM HST 2 of 4

Date Filed 12/28/2011 12/28/2011 12/28/2011 12/28/2011
12/28/2011
12/29/2011
12/29/2011 12/29/2011 12/29/2011 12/29/2011 12/30/2011 12/30/2011

# Docket Text
1 COMPLAINT against All Defendants, filed by Joe Hunkin, Jr, Emmanuel Temple, The House Of Praise, Lighthouse Outreach Center Assembly Of God, Carl E. Harris. (Attachments: # 1 Summons, # 2 Civil Cover Sheet)(gls, ) (Entered: 12/28/2011)
2 Order Setting Rule 16 Scheduling Conference for 09:00AM on 4/2/2012 before JUDGE KEVIN S.C. CHANG. Signed by JUDGE SUSAN OKI MOLLWAY on 12/28/11. (Attachments: # 1 Corporate Disclosure Memo)(gls, ) (Entered: 12/28/2011)
3 Filing fee: $ 350.00,receipt number HI002194 re 1 Complaint (gls, ) (Entered: 12/28/2011)
4 MOTION for Temporary Restraining Order and Preliminary Injunction Shawn A. Luiz appearing for Plaintiffs Emmanuel Temple, The House Of Praise, Carl E. Harris, Joe Hunkin, Jr, Lighthouse Outreach Center Assembly Of God (Attachments: # 1 Declaration of Carl E. Harris, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Declaration of Shawn A. Luiz, # 7 Exhibit 5, # 8 Exhibit 6)(gls, ) (Entered: 12/28/2011)
5 EO: Status Conference set for 12/29/2011 09:00 AM before JUDGE J. MICHAEL SEABRIGHT. (JUDGE J. MICHAEL SEABRIGHT)(apg, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 12/28/2011)
6 EP: Status Conference held on 12/29/2011. Defendants opposition to the Complaint and Motion for Temporary Restraining Order 4 is due by today Thursday December 29, 2011 by 10:00pm. Response due by 8:00 am tomorrow, Friday December 30, 2011. (Court Reporter Gloria Bediamol.) (JUDGE J. MICHAEL SEABRIGHT)(apg, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 12/29/2011)
7 RESPONSE in Opposition re 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Neil Abercrombie, Loretta J. Fuddy, State of Hawaii. (Attachments: # 1 Certificate of Service)(Molay, John) (Entered: 12/29/2011)
9 SUMMONS Returned Executed Loretta J. Fuddy served on 12/28/2011, answer due 1/18/2012. (gls, ) (Additional attachment(s) added on 12/30/2011: # 1 Second return) (gls, ). (Entered: 12/30/2011)
10 SUMMONS Returned Executed Neil Abercrombie served on 12/28/2011, answer due 1/18/2012. (gls, ) (Additional attachment(s) added on 12/30/2011: # 1 Second Return) (gls, ). (Entered: 12/30/2011)
11 SUMMONS Returned Executed State of Hawaii served on 12/28/2011, answer due 1/18/2012. (gls, ) (Entered: 12/30/2011)
8 REPLY in Support of 4 Motion for Temporary Restraining Order and Preliminary Injunction filed by Emmanuel Temple, The House Of Praise. (Luiz, Shawn) Modified
on 1/3/2012 to add linkage to 4 Motion for Temporary Restraining Order and Preliminary Injunction and to clarify
docket text (emt, ). (Entered: 12/30/2011)
12 ORDER Denying Plaintiffs' Motion For Temporary Restraining Order re 4 . Signed by JUDGE J. MICHAEL SEABRIGHT on 12/30/11. (gls, )
CERTIFICATE OF SERVICE

Case: 1:11-cv-790 As of: 03/10/2014 10:43 AM HST 3 of 4

01/04/2012 01/09/2012
01/19/2012
01/20/2012 04/19/2012
04/19/2012 07/19/2012 07/19/2012

Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 12/30/2011)
13 EO: Status Conference set for 1/9/2012 11:00 AM before JUDGE J. MICHAEL SEABRIGHT. (JUDGE J. MICHAEL SEABRIGHT)(apg, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 01/04/2012)
14 EP: Motion Hearing held on 1/9/2012. By agreement of the parties, the Motion for Preliminary Injunction is denied without prejudice as moot. Upon suggestion of Plaintiffs, the parties are to meet and confer regarding a possible stay of this action pending consideration of related matters in the upcoming Legislative session. By January 18, 2012, the parties are to submit a letter to the court indicating whether such a stay is appropriate. If a stay is not agreed to, Defendants as indicated at the hearing may proceed to answer or file a motion to dismiss the Complaint.(JUDGE J. MICHAEL SEABRIGHT)(apg, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 01/09/2012)
15 EO:By agreement of the parties as set forth in Plaintiffs letter of 1/18/2012, this case is STAYED until further order of the court. The Rule 16 conference of 4/2/2012 is VACATED. The parties shall provide a letter to the court by 4/19/2012 indicating the status of any related matters (e.g., H.B. 1244) in the current Legislative session. (JUDGE J. MICHAEL SEABRIGHT)(lls, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 01/19/2012)
16 Correspondence re: Letter to Judge Seabright (gls, ) Modified on 4/19/2012 (apg, ). (Entered: 01/23/2012)
17 EO: By agreement of the parties as indicated in the April 19, 2012 letter from Defendant, this action remains STAYED for an additional ninety days. A Status Conference is set for July 19, 2012 at 9:00 a.m. before JUDGE J. MICHAEL SEABRIGHT. If there are further relevant developments resulting from the current legislative session before that date, the parties may contact the court for an earlier conference. (JUDGE J. MICHAEL SEABRIGHT)(apg, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 04/19/2012)
18 Letter from AG's Office to Judge Seabright (gls, ) (Entered: 04/20/2012)
19 EP: Status Conference held on 7/19/2012. Defendant to file a motion by 8/31/2012, Plaintiff to file an opposition by 8/31/2012, defendants reply by 9/14/2012. Motion hearing to be held on Monday October 1, 2012 at 10:00am. (Court Reporter Gloria Bediamol.) (JUDGE J. MICHAEL SEABRIGHT)(apg, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 07/19/2012)
20 EP: Amended Minutes RE: 19 Status Conference. Defendant's Motion to be filed by August 3, 2012. (JUDGE J. MICHAEL SEABRIGHT)(apg, )

Case: 1:11-cv-790 As of: 03/10/2014 10:43 AM HST 4 of 4

07/27/2012 07/27/2012
08/31/2012 09/04/2012 10/01/2012
10/03/2012
10/03/2012

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 07/19/2012)
21 MOTION to Dismiss John F. Molay appearing for Defendants Neil Abercrombie, Loretta J. Fuddy, State of Hawaii (Attachments: # 1 Memorandum in Support, # 2 Declaration of John F. Molay, # 3 Exhibit A, # 4 Certificate of Service)(Molay, John) (Entered: 07/27/2012)
22 NOTICE of Hearing on Motion 21 MOTION to Dismiss :. Motion Hearing set for 10/1/2012 10:00 AM before JUDGE J. MICHAEL SEABRIGHT. (apg, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry. (Entered: 07/27/2012)
23 MEMORANDUM in Opposition to Defendants Motion to Dismiss, filed July 27, 2012 filed by Emmanuel Temple, The House Of Praise. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit)(Luiz, Shawn) (Entered: 08/31/2012)
24 REPLY to Response to Motion re 21 MOTION to Dismiss filed by Neil Abercrombie, Loretta J. Fuddy, State of Hawaii. (Attachments: # 1 Certificate of Service)(Molay, John) (Entered: 09/04/2012)
25 EP: Motion Hearing held on 10/1/2012 re 21 MOTION to Dismiss filed by Loretta J. Fuddy, State of Hawaii, Neil Abercrombie. Motion to Dismiss 21 − GRANTED; Court to prepare order. DOP=10/1/2012. (Court Reporter Gloria Bediamol.) (JUDGE J. MICHAEL SEABRIGHT)(apg, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 10/01/2012)
26 ORDER Granting Defendants' Motion To Dismiss And Dismissing Action re 25 , 21 . Signed by JUDGE J. MICHAEL SEABRIGHT on 10/2/12. (gls, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 10/03/2012)
27 JUDGMENT In A Civil Case. by Sue Beitia, Clerk/GS, Deputy Clerk on 10/3/12. (gls, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 10/03/2012)