Susan Scott DOL LPS State NJ US

Case: 13-4429
Document: 003111477240
Page: 1
Date Filed: 12/09/2013
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 13-4429
TARA KING, ED.D, et al., Plaintiffs-Appellants, v. CHRIS CHRISTIE, et al., Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CIVIL ACTION NO. 13-5038
BRIEF OF DEFENDANTS-APPELLEES IN OPPOSITION TO APPELLANTS MOTIONS FOR INJUNCTION PENDING APPEAL AND TO EXPEDITE THE APPEAL
JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street, P.O. Box 112 Trenton, New Jersey 08625-112 609-777-3442 (Phone) SUSAN.SCOTT@DOL.LPS.STATE.NJ.US Robert Lougy Assistant Attorney General Of Counsel Eric S. Pasternack Susan M. Scott Deputy Attorneys General On the Brief
Case: 13-4429
Document: 003111477240
Page: 2
TABLE OF CONTENTS Page TABLE OF CONTENTS ........................................................................................... i TABLE OF AUTHORITIES ................................................................................... iii JURISDICTIONAL STATEMENT ..........................................................................1 STATEMENT OF RELATED CASES AND PROCEEDINGS ..............................1 STATEMENT OF THE CASE ..................................................................................2 STATEMENT OF FACTS ........................................................................................3 SUMMARY OF THE ARGUMENT ........................................................................7 ARGUMENT .............................................................................................................8 POINT I THE COURT SHOULD DENY APPELLANTS MOTION FOR AN INJUNCTION PENDING APPEAL BECAUSE THEY FAILED TO COMPLY WITH FED. R. APP. P. 8(A)(1). ....................................................................................................... 8 POINT II APPELLANTS LACK STANDING TO SEEK AN INJUNCTION PENDING THE APPEAL ON BEHALF OF NONPARTIES. ................................................................................. 11 POINT III THE COURT SHOULD DENY APPELLANTS MOTION FOR AN INJUNCTION PENDING APPEAL BECAUSE THEY FAIL TO SATISFY THE REQUIREMENTS FOR SUCH AN EXTRAORDINARY REMEDY. .......................................... 15
Case: 13-4429
Document: 003111477240
Page: 3
A. Appellants Cannot Show A Likelihood of Success On the Merits Because the Challenged Provision Regulates Conduct And Easily Survives Rational Basis Review. ....................... 18 B. Appellants Have Not Established Any Legal Harm, Let Alone Imminent Irreparable Harm. ..................................................... 28 C. The Hardship To Appellants in the Absence Of Relief Does Not Outweigh the Hardship To the Defendants and the Public. ............................................................................................ 29 D. The Public Interest Does Not Favor the Requested Injunction............................................................................................. 30 POINT IV APPELLANTS MOTION TO EXPEDITE THE APPEAL SHOULD BE DENIED. ........................................................................... 31 CONCLUSION ........................................................................................................33
ii
Case: 13-4429
Document: 003111477240
Page: 4
TABLE OF AUTHORITIES Page Cases A. O. Smith Corp. v. F.T.C., 530 F.2d 515 (3d Cir. 1976) .................................................................................29 Acierno v. New Castle County, 40 F.3d 645 (3d Cir. 1994) ............................................................................ 16, 29 Adams v. Freedom Forge Corp., 204 F.3d 475 (3d. Cir. 2000) ................................................................... 16, 17, 28 Anspach v. City of Phila., Dep't of Pub. Health, 503 F.3d 256 (3d Cir. 2007) .................................................................................17 AT&T v. Winback, 42 F.3d 1421 (3d Cir. 1994). ................................................................................16 Aurora Bancshares Corp. v. Weston, 777 F.2d 385 (7th Cir. 1985) ................................................................................11 Baker v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927 (6th Cir. 2002) ..............................................................................8, 9 Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999) .................................................................................24 Chemical Weapons Working Group v. Dep't of the Army, 101 F.3d 1360 (10th Cir. 1996) ............................................................................31 Coggeshall v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658 (1st Cir. 2010) ...............................................................................22 Cooper Distrib. Co. v. Amana Refrigeration, 63 F.3d 262 (3d Cir. 1995) ...................................................................................20
iii
Case: 13-4429
Document: 003111477240
Page: 5
Eccles v. Peoples Bank of Lakewood Vill., 333 U.S. 426 (1948)..............................................................................................15 FCC v. Beach Communications, Inc., 508 U.S. 307 (1993) .............................................................................................26 Franks GMC Truck Ctr., Inc. v. General Motors Corp., 847 F.2d 100 (3d Cir. 1988). ................................................................................15 Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) .............................................................................................23 Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U.S. 334 (1933) .............................................................................................30 Heller v. Doe, 509 U.S. 312 (1993) .............................................................................................26 Hommans v. City of Albuquerque, 264 F.3d 1240 (10th Cir. 2001) ............................................................................10 In re Arthur Treachers Franchisee Litigation, 689 F.2d 1137 (3d Cir. 1982) ...............................................................................16 In re Diet Drugs, 369 F.3d 293 (3d Cir. 2004) .................................................................................28 Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir. 2004). ................................................................................16 Kowalski v. Tesmer, 543 U.S. 125 (2004). ..................................................................................... 11, 12 Laborers' Int'l Union v. Foster Wheeler Corp., 26 F.3d 375 (3d Cir. 1994) ...................................................................................17 Lambert v. Yellowley, 272 U.S. 581 (1926) ...................................................................................... 23, 25
iv
Case: 13-4429
Document: 003111477240
Page: 6
Lowe v. SEC, 472 U.S. 181 (1985) .............................................................................................21 Morton v. Beyer, 822 F.2d 364 (3d Cir. 1987) .................................................................................16 NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151 (3d Cir. 1999) .................................................................................28 Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978) ...................................................................................... 22, 23 Penn. Psychiatric Soc'y v. Green Springs Health Servs., Inc., 280 F.3d 278 (3d Cir. 2002) .................................................................................12 Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013) ...................................................................... passim Pickup v. Brown, Civil Action No. 12-17681, 2012 U.S. App. LEXIS 26789 (9th Cir. Dec. 21, 2012) ......................................27 Pickup v. Brown, Civil Action No. 12-2497, 2012 U.S. Dist. LEXIS 172034 (E.D. Ca. Dec. 4, 2012) .............................. 13, 27 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) ................................................................................ 22, 23, 25 Powers v. Ohio, 499 U.S. 400 (1991) .............................................................................................12 Punnett v. Carter, 621 F.2d 578 (3d Cir. 1980) .................................................................................16 Ruiz v. Estelle, 650 F.2d 555 (5th Cir. 1981) ................................................................................11 Ruiz v. New Garden Twp., 376 F.3d 203 (3d Cir. 2004) .................................................................................28
Case: 13-4429
Document: 003111477240
Page: 7
Salazar v. Buono, 130 S. Ct. 1803 (2010)..........................................................................................30 Torres v. Davis, 506 Fed. Appx. 98 (3d Cir. 2012) ..........................................................................9 United States v. O'Brien, 391 U.S. 367 (1968) .............................................................................................24 Warner Bros. Pictures v. Gittone, 110 F.2d 292 (3d Cir. 1940) .................................................................................17 Washington v. Glucksberg, 521 U.S. 702 (1997) .............................................................................................25 Watson v. Maryland, 218 U.S. 173 (1910) ...................................................................................... 23, 25 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) .............................................................................................30 Welch v. Brown, 907 F. Supp. 2d 1102 (E.D. Ca. 2012) .................................................................27 Winter v. NRDC, Inc., 555 U.S. 7 (2008) .......................................................................................... 15, 29 Statutes N.J. Stat. Ann. 45:1-14............................................................................................6 N.J. Stat. Ann. 45:14B-1 .........................................................................................6 N.J. Stat. Ann. 45:14BB-1 ......................................................................................6 N.J. Stat. Ann. 45:1-54.................................................................................. passim N.J. Stat. Ann. 45:1-55.................................................................................. passim
vi
Case: 13-4429
Document: 003111477240
Page: 8
N.J. Stat. Ann. 45:15BB-1 ......................................................................................6 N.J. Stat. Ann. 45:8B-1 ...........................................................................................6 N.J. Stat. Ann. 45:8B-34 .........................................................................................6 N.J. Stat. Ann. 45:9-1..............................................................................................6 Other Authorities 16A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure 3954 (3d ed. 1999) ..............................................8 2A N. Singer and J. Singer, Sutherland on Statutory Construction 47.7 (7th ed. 2007) ...............................20 Rules Fed. R. App. P. 31 ....................................................................................................32 Fed. R. App. P. 8(a) ...................................................................................................8
vii
Case: 13-4429
Document: 003111477240
Page: 9
JURISDICTIONAL STATEMENT On November 8, 2013, the United States District Court for the District of New Jersey issued an Order and Opinion denying Plaintiffs-Appellants motion for summary judgment and granting Defendants-Appellee cross-motion for summary judgment. (App.s Ex. A.) On November 12, 2013, Appellants filed a Notice of Appeal. This Court has jurisdiction pursuant to 28 U.S.C. 1291. STATEMENT OF RELATED CASES AND PROCEEDINGS Appellants unsuccessfully attempted to assert third-party standing on behalf of parents who seek sexual orientation change efforts (SOCE) for their minor children and minors who seek SOCE. While this matter was pending in the District Court, a minor and his parents filed declarations in support of Appellants claims. The minor and his parents, represented by Appellants counsel, then filed suit in the District Court on their own behalf challenging the constitutionality of N.J. Stat. Ann. 45:1-54, -55, the statute at issue in this matter, on essentially the same grounds. That matter, John Doe, et al., v. Chris Christie, Civil Action No. 13-6629, is before the Honorable Freda L. Wolfson, U.S.D.J. The Doe Plaintiffs filed a motion for a preliminary injunction enjoining the enforcement of N.J. Stat. Ann. 45:1-54, -55. Defendant Governor Chris Christie filed a cross-motion to
dismiss the complaint. Briefing on those motions is to be concluded by December 13, 2013.
Case: 13-4429
Document: 003111477240
Page: 10
STATEMENT OF THE CASE On August 22, 2013, Appellants filed a Complaint and Motion for a Temporary Restraining Order and Preliminary Injunction in the United States District Court for the District of New Jersey seeking injunctive and declaratory relief on the grounds that one or more provisions of the United States Constitution prohibits New Jersey from enforcing N.J. Stat. Ann. 45:1-55. The challenged statute prohibits State licensed mental health providers from engaging in SOCE with minors. However, at Appellants request, and with Appellees consent, the District Court converted Appellants motion for a preliminary injunction to a summary judgment motion. On September 13, 2013, Appellees filed a CrossMotion for Summary Judgment. The District Court held oral argument on the motions on October 1, 2013. On November 8, 2013, the District Court issued an Order and Opinion denying Appellants motion for summary judgment and granting the Defendants crossmotion for summary judgment. The Honorable Freda L. Wolfson, U.S.D.J. concluded that the statute is constitutional. On November 12, 2013, Appellants filed a Notice of Appeal with this Court. On November 22, 2013, ten days after filing the appeal, Appellants filed a Motion to Expedite the Appeal and a Motion for an Injunction Pending Appeal. They did not first seek a stay pending appeal from the District Court.
Case: 13-4429
Document: 003111477240
Page: 11
This opposition on behalf of Appellees to those motions follows. STATEMENT OF FACTS On August 19, 2013, Governor Christie signed Assembly Bill A3371, codified at N.J. Stat. Ann. 45:1-54, -55, which precludes persons licensed to practice in certain professions from engaging in conduct that the Legislature concluded was harmful to minors. This is but one component of a comprehensive regulatory framework governing the conduct of mental health professionals licensed to practice within the State. In N.J. Stat. Ann. 45:1-54, the Legislature included extensive findings, stating that [b]eing lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming. The major professional associations of mental health practitioners and researchers in the United States have recognized this fact for nearly 40 years. Id. at (a). The Legislature cited many of the position statements and resolutions of those professional associations, including the American Psychiatric Association, the American Academy of Pediatrics and the American Psychological Association. Id. at (c)-(m). Each of these professional associations, the Legislature recounted, has concluded that there is little or no evidence of the efficacy of SOCE, and that SOCE has the serious potential for harm, such as depression, guilt, anxiety and thoughts of suicide. Id.
Case: 13-4429
Document: 003111477240
Page: 12
The Legislature looked first to a task force established by the American Psychological Association. The Associations Task Force on Appropriate Therapeutic Responses to Sexual Orientation concluded that sexual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people, including confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, substance abuse, stress, disappointment, self-blame, decreased self-esteem and authenticity to others, increased self-hatred, hostility and blame toward parents, feelings of anger and betrayal, loss of friends and potential romantic partners, problems in sexual and emotional intimacy, sexual dysfunction, high-risk sexual behaviors, a feeling of being dehumanized and untrue to self, a loss of faith, and a sense of having wasted time and resources. [Id. at (b).] So, too, the American Psychiatric Association explained that the potential risks of reparative therapy are great, including depression, anxiety and self-destructive behavior, since therapist alignment with societal prejudices against homosexuality may reinforce self-hatred already experienced by the patient. Id. at (d)(2). These risks, and the lack of rigorous scientific research to substantiate their claims of cure, id. at (d)(1), led the Association to oppose any psychiatric treatment such as reparative or conversion therapy which is based upon the assumption that homosexuality per se is a mental disorder or based upon the a priori assumption that a patient should change his or her sexual orientation, id. at (d)(3).
Case: 13-4429
Document: 003111477240
Page: 13
Moreover, the Legislature focused particularly on the potential for harm to minors because [m]inors who experience family rejection based on their sexual orientation face especially serious health risks. Id. at (m). Drawing on research published in the Journal of the American Academy of Child and Adolescent Psychiatry, the Legislature explained that efforts to change sexual orientation may encourage family rejection and undermine self-esteem, connectedness and caring, important protective factors against suicidal ideation and attempts. Id. at (k). N.J. Stat. Ann. 45:1-55 defines the prohibitions scope. First, it defines SOCE as the practice of seeking to change a persons sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender . . . . N.J. Stat. Ann. 45:1-55(b). SOCE specifically does not include counseling for a person seeking to transition from one gender to another, or counseling that: (1) provides acceptance, support, and understanding of a person or facilitates a persons coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (2) does not seek to change sexual orientation. Id. Second, the prohibition only applies to sexual orientation change efforts with a person under 18 years of age. Id. at (a).
Case: 13-4429
Document: 003111477240
Page: 14
The statute also explains who is prohibited from engaging in SOCE. The statute applies only to persons licensed to provide professional counseling under Title 45 of the Revised Statutes. Id. Such licensed professionals include, by way of example, psychiatrists, licensed practicing psychologists, certified social workers, licensed clinical social workers, licensed social workers, licensed marriage and family therapists, certified psychoanalysts, and persons who perform counseling as part of their professional training for any of these professions. Id. The practitioners in each of the professions covered in the statute operate under the oversight of a board or committee that is charged with protecting the public by setting standards for examination and licensing, and reviewing and approving applications for licensure. See N.J. Stat. Ann. 45:9-1 et seq. (physicians and surgeons, including psychiatrists); N.J. Stat. Ann. 45:8B-1 et seq. (marriage and family therapists); N.J. Stat. Ann. 45:8B-34 et seq. (professional counselors); N.J. Stat. Ann. 45:15BB-1 et seq. (social workers); N.J. Stat. Ann. 45:14B-1 et seq. (psychologists); N.J. Stat. Ann. 45:14BB-1 (state certified psychoanalysts). The Legislature granted each board uniform investigative and enforcement authority and established uniform standards for license revocation, suspension, and disciplinary proceedings for all of the licensees and registrants under their respective jurisdictions. See N.J. Stat. Ann. 45:1-14 et seq.
Case: 13-4429
Document: 003111477240
Page: 15
By its terms, the challenged statute applies only to persons licensed by the State under Title 45. Persons licensed in another state are not within that universe. John Does current counselor is a Licensed Clinical Social Worker in New York. Jane Doe Decl., 2. Such counseling is not impacted by New Jerseys statute. Moreover, Jane Doe states that they are happy with their current therapist and only seek to retain the option of seeking similar therapy within New Jersey. Id. The Does interests are being represented in the District Court matter, John Doe, et al. v. Chris Christie, Civil Action No. 13-6629. SUMMARY OF THE ARGUMENT The New Jersey Legislature acted fully consistent with the Constitution and the interests of New Jersey residents when it prohibited New Jersey licensed mental health providers from practicing a form of mental health treatment on minors which it has deemed harmful. The statute regulates conduct, not speech, and is rationally related to the governments legitimate interest in protectin g minors from the harmful effects of sexual orientation change efforts, such as depression, self-destructive, and suicidality. Therefore, it does not violate the Appellants First Amendment right to free speech. Accordingly, the District Court properly concluded that Appellees were entitled to summary judgment as a matter of law. Moreover, Appellants will not suffer irreparable harm without the requested permanent injunction because the
Case: 13-4429
Document: 003111477240
Page: 16
statute does not violate their constitutional rights. The balancing of the equities falls in favor of the Appellees and the public interest lies in protecting minors from the harmful effects of SOCE practiced by State-licensed mental health providers. Therefore, this Court should reject Appellants request for injunctive relief and an expedited appeal. ARGUMENT POINT I THE COURT SHOULD DENY APPELLANTS MOTION FOR AN INJUNCTION PENDING APPEAL BECAUSE THEY FAILED TO COMPLY WITH FED. R. APP. P. 8(A)(1). Simply because Appellants lost below does not erase their obligation to comply with Rule 8. Pursuant to Fed. R. App. P. 8(a) (1)(C), [a] party must ordinarily move first in the district court for an injunction pending appeal. This is the cardinal principle of stay applications. Baker v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 930 (6th Cir. 2002) (quoting 16A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure 3954 (3d ed. 1999)). A failure to do so is grounds for denial of the motion. See Baker, 310 F.3d at 930 (even if [the court] were inclined to stay the judgment, [granting the relief] would be ill-advised[,] in part, because movant failed to move first in district court for relief sought).
Case: 13-4429
Document: 003111477240
Page: 17
In Baker, the defendant filed a motion to stay the district courts judgment in the district court, but did not seek the specific relief sought in their motion for an injunction filed in the Court of Appeals. 310 F.3d at 930. The Sixth Circuit recognized that the defendant failed to comply with Rule 8 and denied the request for a stay pending appeal because the defendant did not so move below and ha[d] not made any showing that such a motion would have been impracticable. Id. at 931. Likewise, in Torres v. Davis, 506 Fed. Appx. 98, 102 (3d Cir. 2012), this Court denied plaintiffs motion for an injunction pending appeal because the plaintiff did not first apply to the District Court for an injunction pursuant to Fed. R. App. P. 8(a)(1)(C). The plaintiff there sought an injunction directing the defendant government officials to stop restricting his First Amendment rights and to direct them to include his proposed referendum questions in the then-upcoming special election. Id. at 100. After the District Court dismissed that plaintiffs complaint, the plaintiff appealed and filed a motion for an injunction with this Court. Id. Even though the Torres plaintiffs appeal was considered for summary action due to the immediacy of the special election, this Court denied his request for an injunction pending appeal because he had failed to comply with Fed. R. App. P. 8(a)(1)(C).
Case: 13-4429
Document: 003111477240
Page: 18
Like the plaintiff in Torres, the Appellants here are appealing the dismissal of their claims for an injunction premised on the alleged violation of their First Amendment rights. However, in contrast to Torres, the immediacy of the circumstances is not present here. Cf. Hommans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001) (mayoral candidates election was imminent). Appellants never sought an injunction pending appeal in the District Court. Appellants argue that applying to the District Court for an injunction pending appeal would be futile given the District Courts November 8, 2013 Opinion . However, the District Court never considered, much less denied, a request for injunctive relief. The opinion below explains why. See King v. Christie, 2013 U.S. Dist. LEXIS 160035, at *2-4 (D.N.J. Nov. 8, 2013) (District Court Dkt. No. 57). Although Appellants initially filed a motion for a preliminary injunction in the District Court, during an initial telephone conference, Appellants requested that the motion be converted into a motion for summary judgment. Because the parties agreed, the District Court so converted Appellants motion. (District Court Dkt. No. 13). Thereafter, Appellees filed a cross-motion motion for summary
judgment. (District Court Dkt. No. 29). Accordingly, the District Court did not address the factors relevant to an application for injunctive relief. Rather, the District Court considered the motions for summary judgment and ruled solely upon the merits of Appellants claims. Therefore, the District Court, which is well
10
Case: 13-4429
Document: 003111477240
Page: 19
versed on the statute and issues involved in this matter, was afforded no opportunity to consider the relief sought by Appellants. The District Court should be provided with the opportunity to consider and rule on the reasons and evidence presented in support of [an injunction] and render findings as to whether the balancing weighs in favor or against an injunction pending appeal. Ruiz v. Estelle, 650 F.2d 555, 567 (5th Cir. 1981) (denying relief sought that was not raised in motion before district court); see also Aurora Bancshares Corp. v. Weston, 777 F.2d 385, 387-388 (7th Cir. 1985). Therefore, this Court should deny Appellants motion for an injunction pending the appeal for failure to comply with Fed. R. App. P. 8(a). POINT II APPELLANTS LACK STANDING TO SEEK AN INJUNCTION PENDING THE APPEAL ON BEHALF OF NONPARTIES. As the District Court properly found below, Appellants lack standing to raise claims based on the rights of minors or the parents of minors, who are not parties in this matter. Therefore, this Court should disregard Appellants plea for an injunction pending the appeal on behalf of minors seeking SOCE therapy or parents seeking SOCE therapy for their minor children. Generally, a litigant may only assert his own constitutional rights or immunities. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). There may be,
11
Case: 13-4429
Document: 003111477240
Page: 20
however, limited circumstances where a court will grant a third-party standing to assert the rights of another. Id. Third-party standing is granted only when three important criteria are satisfied: The litigant must have suffered an injury in fact, thus giving him or her a sufficiently concrete interest in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third partys ability to protect his or her own interests. Powers v. Ohio, 499 U.S. 400, 410-11 (1991) (citations omitted); see also Penn. Psychiatric Socy v. Green Springs Health Servs., Inc., 280 F.3d 278, 288-89 (3d Cir. 2002). In Pennsylvania Psychiatric, the Third Circuit held that the psychiatrist-patient relationship satisfies close relationship prong for third-party standing and the stigma associated with receiving mental health services presents a considerable deterrent to litigation. 280 F.3d at 289-90. Here, Appellants argue that the statute intrudes into the fundamental rights of counselors, parents, and minors, and is an immediate threat to the lives, mental health, and emotional security of [] minors who desperately seek such counsel. (Appellants Motion For Injunction Pending Appeal, 4). As set forth in Point III, infra, Appellants have not established an injury in fact. The challenged statute is a valid regulation of a licensed profession and as such regulates conduct, not speech, easily passes rational basis review, and does not violate the First Amendment. Therefore, as the District Court properly found, Appellants do not
12
Case: 13-4429
Document: 003111477240
Page: 21
meet the first criteria for third-party standing. King, 2013 U.S. Dist. LEXIS 160035, at *29. Moreover, minors who desire SOCE and parents who seek SOCE for their minor children face no hindrance or obstacle to filing suit on their own behalf. In fact, minor John Doe and his parents Jack and Jane Doe, represented by Appellants counsel, filed suit in the District Court while this matter was pending. That matter, John Doe, et al., v. Chris Christie, Civil Action No. 13-6629, is also before the Honorable Freda L. Wolfson, U.S.D.J.
1
The Doe plaintiffs filed a
motion for a preliminary injunction enjoining the enforcement of N.J. Stat. Ann. 45:1-54, -55, and Defendant Governor Chris Christie filed a cross-motion to dismiss the complaint. Briefing on those motions is to be concluded by December 13, 2013. As such, the Does interests and rights are being represented in that matter. Therefore, as the District Court rightly found, Appellants cannot show that minors seeking SOCE and parents seeking SOCE for their minor children face any hindrance to their ability to protect their own interests. As such, Appellants do not meet the third criteria to warrant third-party standing in this appeal and this Court
In addition, a minor and his parents have also filed suit challenging Californias virtually identical statute. See Pickup v. Brown, Civil Action No. 122497, 2012 U.S. Dist. LEXIS 172034 (E.D. Ca. Dec. 4, 2012).
13
Case: 13-4429
Document: 003111477240
Page: 22
should not consider the Does declarations in support of Appellants motion for an injunction pending the appeal. To the extent that the Court does consider th e Does declarations, the Court should understand that Appellants have grossly misrepresented the impact of New Jerseys statute on John Does current counseling situation. Appellants submitted declarations from John and Jane Doe in support of their motion for an injunction pending appeal, arguing that the statute has forced the clients of New Jersey professionals into a perilous situation where the counseling that saved their livesis suddenly no longer available. (Appellants Motion For Injunction Pending Appeal, 4). However, John Doe is currently receiving reparative therapy from a Licensed Clinical Social Worker in New York. Jane Doe Decl., 2, 11-14. Such counseling is not affected by New Jerseys statute. John Doe can continue to receive counseling in New York by a New York licensed counselor without an injunction in his suit or the requested injunction pending the appeal in this matter. Moreover, Jane Doe states that they are happy with their current therapist and only seek to retain the option of seeking similar therapy within New Jersey. Id. Such a desire does not warrant the extraordinary relief sought by Appellants in this matter.
14
Case: 13-4429
Document: 003111477240
Page: 23
POINT III THE COURT SHOULD DENY APPELLANTS MOTION FOR AN INJUNCTION PENDING APPEAL BECAUSE THEY FAIL TO SATISFY THE REQUIREMENTS FOR SUCH AN EXTRAORDINARY REMEDY. The Court should deny Appellants request for the exceptional and extraordinary relief they seek because they fail to establish the requirements for an injunction pending appeal. The District Court, after oral argument and extensive briefing by the parties on precisely the issues raised here, properly concluded that New Jerseys statute does not violate the First Amendment right to free speech. Because the trial court correctly engaged in and applied the appropriate analysis, and reached a legally sound conclusion, this Court should deny Appellants requested relief. A preliminary injunction is an extraordinary remedy never awarded as of right. Winter v. NRDC, Inc., 555 U.S. 7, 24 (2008); see also Franks GMC Truck Ctr., Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988). Especially where governmental action is involved, courts should not intervene unless the need for equitable relief is clear, not remote or speculative. Eccles v. Peoples Bank of Lakewood Vill., 333 U.S. 426,431 (1948). Therefore, Appellants bear the burden of affirmatively demonstrating four conditions before this extraordinary relief is granted:
15
Case: 13-4429
Document: 003111477240
Page: 24
(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief. [Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004).] The first two conditions are mandatory. To obtain a preliminary injunction, the moving party must demonstrate both a likelihood of success on the merits and the probability of irreparable harm if relief is not granted. Morton v. Beyer, 822 F.2d 364, 367 (3d Cir. 1987); see also In re Arthur Treachers Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982) (commenting that [a] failure to show a likelihood of success or a failure to demonstrate irreparable injury [] must necessarily result in the denial of a preliminary injunction.). When the remaining two factors are relevant, an applicant must demonstrate that all four factors favor preliminary relief. AT&T v. Winback, 42 F.3d 1421, 1427 (3d Cir. 1994). A party seeking a mandatory preliminary injunction that will alter the status quo bears a particularly heavy burden in demonstrating its necessity. Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994) (quoting Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980)). [T]he granting of a preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it. Adams v. Freedom Forge Corp., 204 F.3d 475, 487 n. 12
16
Case: 13-4429
Document: 003111477240
Page: 25
(3d. Cir. 2000) (quoting Warner Bros. Pictures v. Gittone, 110 F.2d 292 (3d Cir. 1940)). Measured by these rigorous standards, Appellants cannot establish a right to an injunction pending the appeal. While N.J. Stat. Ann. 45:1-55 limits the ability of State-licensed mental health providers to engage in the practice of SOCE as a treatment for minors, it does not, given its limited reach, implicate Appellants free speech rights.2 It does not prohibit Appellants from discussing, recommending, or expressing their views on treatment options, such as SOCE. Because the provision only prohibits conduct, i.e. engaging in the practice of SOCE, it is only subject to rational basis review. And it easily withstands that scrutiny because it serves the legitimate governmental interest of protecting the health and well-being of minors by prohibiting licensed mental health providers from engaging in SOCE with minors. Accordingly, Appellants cannot show a likelihood of success on the merits and cannot establish irreparable harm. Further, any injunction would result in
Although Appellants state that the statute places them in the position of having to violate their sincerely held religious beliefs and threatens their Free Exercise rights, (Appellants Motion For Injunction Pending Appeal, 6), Appellants mere passing reference to this issue renders this argument waived for the purposes of their motion for an injunction pending appeal. Anspach v. City of Phila., Dept of Pub. Health, 503 F.3d 256, 258 n.1 (3d Cir. 2007); Laborers Intl Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (An issue is waived unless a party raises it in its opening brief, and for those purposes a passing reference to an issue . . . will not suffice to bring that issue before this court.).
17
Case: 13-4429
Document: 003111477240
Page: 26
greater harm to the Appellees and offend the publics interest in protecting minors from the harms caused by SOCE. Therefore, injunctive relief is not warranted and, for the reasons set forth herein, this Court should deny Appellants motion for an injunction pending the appeal. A. Appellants Cannot Show A Likelihood of Success On the Merits Because the Challenged Provision Regulates Conduct And Easily Survives Rational Basis Review.
The District Court properly determined that N.J. Stat. Ann. 45:1-55 does not violate the First Amendment right to free speech because it regulates conduct, not speech or expressive conduct, and it survives rational basis review. King, 2013 U.S. Dist. LEXIS 160035, at *74-75. The plain language of the statute reveals that it regulates conduct. King, 2013 U.S. Dist. LEXIS 160035, at *33. N.J. Stat. Ann. 45:1-55 states that a State-licensed mental health provider shall not engage in sexual orientation change efforts, and defines sexual orientation changes efforts as the practice of seeking to change a persons sexual orientation. Id. at *33-34 (emphasis in original) (quoting N.J. Stat. Ann. 45:1-55). These terms refer to conduct, not speech, expression or some other form of communication. Id. at *34 (citations omitted).
18
Case: 13-4429
Document: 003111477240
Page: 27
Moreover, N.J. Stat. Ann. 45:1-55 applies to [a] person who is licensed to provide professional counseling under Title 45 of the Revised Statutes, including, but not limited to, a psychiatrist, licensed practicing psychologist, certified social worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, certified psychoanalyst . Id. at *42 (citing N.J. Stat. Ann. 45:1-55). The nature of these licensed practices is defined as the application of principles, procedures, methods, and techniques, such as counseling and psychotherapy, for the purpose of treating/resolving psychological conflict. Id. at *42-44, n. 17. Furthermore, commentators have also long discussed psychological counseling in a manner that suggests counseling is therapy, and thus a form of conduct. Id. at *46 (citations omitted). In addition, Appellants define SOCE counseling as being no different than any other form of mental health counseling, involving the traditional psychodynamic process of looking at root causes, childhood issues, developmental factors, and other things that cause a person to present with all types of physical, mental, emotional, or psychological issues that in turn cause them distress. King, 2013 U.S. Dist. LEXIS 160035, at *48 (quoting Decl. of Dr. Tara King, 12). According to Appellants, SOCE counseling is the treatment of the mind. (Appellants Motion For Injunction Pending Appeal, 15 n. 2). Finally, Appellant s concede that the statue regulates professional conduct. See Appellants Motion For
19
Case: 13-4429
Document: 003111477240
Page: 28
Injunction Pending Appeal, 14 (stating as is true here, the state is regulating professional conduct). Accordingly, the District Court properly found that the statute regulates conduct, i.e. treatment, not speech.3 Similarly, in Pickup, the Ninth Circuit held that Californias virtually identical statute prohibiting licensed mental health providers from practicing SOCE on minors permissibly regulated conduct, not speech. Pickup v. Brown, 728 F.3d 1042, 1048, 57 (9th Cir. 2013). The Pickup Court aptly explained that the key component of psychoanalysis is the treatment of emotional suffering and depression, not speech. That psychoanalysts employ speech to treat their clients does not entitle them, or their profession, to special First Amendment protection. King, 2013 U.S. Dist. LEXIS 160035, at *51 (quoting Pickup, 728 F.3d at 1052). Thus, the communication that occurs during psychoanalysis is entitled to Because the statute regulates conduct, the Courts inquiry necessarily stops there and the Court need not consider Appellants argument that the statute is a content-based restriction prohibiting only discussions of changing [sic] reducing or eliminating [same sex attractions]. (Appellants Motion For Injunction Pending Appeal, 12-13). Nevertheless, the statute prohibits the practice of seeking to change a persons sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender . N.J. Stat. Ann. 45:1-55 (emphasis added). By including the phrase including, but not limited to, the Legislature provided a non -exhaustive list of examples of prohibited conduct. See Cooper Distrib. Co. v. Amana Refrigeration, 63 F.3d 262, 280 (3d Cir. 1995); 2A N. Singer and J. Singer, Sutherland on Statutory Construction 47.7, p. 305 (7th ed. 2007) ([T]he word includes is usually a term of enlargement, and not of limitation.). Therefore, the statutes ban on SO CE administered to minors applies irrespective of sexual orientation, contrary to the argument advanced by Appellants.
3
20
Case: 13-4429
Document: 003111477240
Page: 29
constitutional protection, but it not immune from regulation. Id. (quoting Pickup, 728 F.3d at 1052). The Ninth Circuit identified the following principles in Pickup: (1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself; (2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and (3) nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation. [Pickup, 728 F.3d at 1053.] The Ninth Circuit explained that it is necessary to view this issue along a continuum. Id. At one end of the continuum, the First Amendment provides the greatest protection where a professional is engaged in public dialogue. Id. Thus, for example, a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream, or even dangerous, is entitled to robust protection under the First Amendment just as any person is even though the state has the power to regulate medicine. Id. (citing Lowe v. SEC, 472 U.S. 181, 232 (1985) (White, J. concurring)). Within the confines of a professional relationship, however, the First Amendment protections afforded to a professionals speech are diminished. Id. at 1054. At this midpoint along the continuum, the Supreme Court upheld, for example, a requirement that doctors disclose truthful, nonmisleading information
21
Case: 13-4429
Document: 003111477240
Page: 30
to patients about certain risks of abortion[.] Id. (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 884 (1992)). Finally, at the other end of the continuum, the state has great power to regulate professional conduct, i.e. treatment, even when such regulation may have an incidental effect on speech. Id. at 1055. The Ninth Circuit found that Californias virtually identical statute prohibiting licensed mental health providers from practicing SOCE on minors falls here, explaining that [m]ost, if not all, medical treatment requires speech, but that fact does not give rise to a First Amendment claim when the state bans a particular treatment. Id. Were it otherwise, than any prohibition of a particular medical treatment would raise First Amendment concerns because of its incidental effect on speech. Id. See also Ohralik v. Ohio State Bar Assn, 436 U.S. 447, 456 (1978) (the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity.); Coggeshall v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658, 667 (1st Cir. 2010) (Simply because speech occurs does not exempt those who practice a profession from state regulation (including the imposition of disciplinary sanctions).). The Ninth Circuit concluded that, since Californias statute allows discussions of treatment, recommendations to obtain treatment, and expressions of opinions about SOCE and homosexuality, and leaves mental health providers
22
Case: 13-4429
Document: 003111477240
Page: 31
free to discuss and recommend, or recommend against, SOCE, the statute regulated conduct, not speech. Id. at 1056. [I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Ohralik, 436 U.S. at 456) (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)). Moreover, the State has a proper and pervasive role in regulating the medical profession. See, e.g., Watson v. Maryland, 218 U.S. 173, 176 (1910) (There is perhaps no profession more properly open to such regulation than that which embraces the practitioners of medicine.); Lambert v. Yellowley, 272 U.S. 581, 597 (1926) (High medical authority being in conflict as to the medicinal value of spirituous and vinous liquors taken as a beverage, it would, indeed, be strange if Congress lacked the power to determine that the necessities of the liquor problem require a limitation of permissible prescriptions.). Even a physicians First Amendment right to speak or not speak, when offered as part of the practice of medicine or providing treatment to a patient, is subject to reasonable licensing and regulation by the State. Planned Parenthood, 505 U.S. at 884 (observing where speech is part of medicine, it is subject to licensing and regulation by state).
23
Case: 13-4429
Document: 003111477240
Page: 32
Therefore, given the District Courts extensive findings, the Appellants characterization of the conduct in which they seek to engage and the Appellants admission that, here, the state is regulating professional conduct, the District Court properly held that the statute regulates conduct, not speech, because the statute on its face does not target speech, and counseling is not entitled to special constitutional protection merely because it is primarily carried out through talk therapy. King, 2013 U.S. Dist. LEXIS 160035, at *57. Relying on United States v. OBrien, 391 U.S. 367 (1968), Appellants argue that [e]ven when, as is true here, the state is regulating professional conduct, the statute is subjected to intermediate scrutiny if the regulation has an incidental effect on speech. (Appellants Motion For Injunction Pending Appeal, 14). However, Appellants reliance upon OBrien is fundamentally misplaced. The Third Circuit has defined expressive conduct as [c]onduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative. Bartnicki v. Vopper, 200 F.3d 109, 120 (3d Cir. 1999). The practice of SOCE is not intended to be communicative, but rather to treat mental distress and bring about some form of change in the client. See King, 2013 U.S. Dist. LEXIS 160035, at *63 (citing Decl. of Dr. Tara King, 12 (discussing SOCE as a form of counseling involving the traditional psychodynamic process to effect change in the clients sexual orientation);
24
Case: 13-4429
Document: 003111477240
Page: 33
Decl. of Dr. Ron Newman, 8 (I also believe that change is possible and have personally counseled individuals who have successfully reduced or eliminated their unwanted same-sex attractions, behaviors, or identity.); Decl. of Dr. Joseph Nicolosi, 11 (discussing SOCE as a means to eliminate or reduce a clients unwanted same-sex sexual attractions)). Appellants own explanation of SOCE counseling reveals that such conduct is intended to apply traditional mental health treatment methods and principles to effect a change in the clients sexual orientation; not intended to be communicative. King, 2013 U.S. Dist. LEXIS 160035, at *63-64. Once a professional engages in the actual practice of SOCE on minors, the purpose of the professionals actions shifts from speech or expressive conduct to treatment, which the State may regulate to protect the publics health and safety. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 731 (1997); see also Planned Parenthood, 505 U.S. at 884; Lambert, 272 U.S. at 597; Watson, 218 U.S. at 176. Under this framework, as the District Court properly found, OBrien does not govern this constitutional challenge to N.J. Stat. Ann. 45:1-55 because statute does not have an incidental effect on speech.. King, 2013 U.S. Dist. LEXIS 160035, at *65-66. Therefore, rational basis review applies. The parameters of rational basis review are well-known. A statute withstands rational basis review if it identifies a legitimate state interest that the
25
Case: 13-4429
Document: 003111477240
Page: 34
legislature rationally could conclude was served by the statute. Id. at *68 (citation omitted); see also Heller v. Doe, 509 U.S. 312, 320 (1993) (A statute is presumed constitutional and the burden is on the one attacking the legislative arrangement to negate every conceivable basis which might support it.) (citation omitted); Sammon v. New Jersey Bd. of Med. Examiners, 66 F.3d 639, 644-45 (3d Cir. 1995) (A court engaging in rational basis review is not entitled to second guess the legislature on the factual assumptions or policy considerations underlying the statute.). New Jersey has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting minors against exposure to serious harms caused by sexual orientation change efforts. N.J. Stat. Ann. 45:1-54(n). It is beyond debate that the State has an interest in protecting vulnerable groups, , which includes minors. King, 2013 U.S. Dist. LEXIS 160035, at *71 (citations omitted). [I]t is immaterial whether there is any actual evidence of harm from SOCE; for [the statute] to have a rational basis, it is sufficient that the legislature could reasonably believe that SOCE conveyed no benefits and potentially caused harm to minors. Id. at *71-72 (citing FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993). The legislative findings set forth in [N.J. Stat. Ann. 45:154] support such a conclusion. Id. at *72. Accordingly, the statute is rationally
26
Case: 13-4429
Document: 003111477240
Page: 35
related to the legitimate government interest of protecting the health and wellbeing of minors; and therefore, survives rational basis review. In conclusion, the challenged statute only prohibits licensed mental health providers from engaging in SOCE with minors. It does not regulate, much less prohibit, discussions, recommendations, and expressions about SOCE. As such, it does not implicate Appellants free speech rights. Moreover, it does not prohibit minors from obtaining SOCE from licensed mental health providers in another state, as does John Doe, (see Jane Doe Decl., 2), or from unlicensed mental health providers, such as religious counselors. Therefore, Appellants cannot show a likelihood of success on the merits and their motion for a preliminary injunction pending the appeal should be denied.4
Appellants note that the Ninth Circuit granted an injunction pending appeal in Pickup v. Brown, Civil Action No. 12-17681, 2012 U.S. App. LEXIS 26789 (9th Cir. Dec. 21, 2012). (Appellants Motion For Injunction Pending Appeal, 16 n.3). However, the Ninth Circuits decision there arose from starkly different circumstances than the present matter. Pickup, 2012 U.S. App. LEXIS 26789, at *2. First, the California cases challenging SB 1172 were filed before the effective date of the statute. Pickup v. Brown, Civil Action No. 12-2497, 2012 U.S. Dist. LEXIS 172034 (E.D. Ca. Dec. 4, 2012); Welch v. Brown, 907 F. Supp. 2d 1102 (E.D. Ca. 2012), revd, Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013). Second, and most importantly, the district courts in California reached opposite conclusions as to the constitutionality of the challenged statute. Pickup, 2012 U.S. Dist. LEXIS 172034, *85 (denying the motion for a preliminary injunction); Welch, 907 F.3d at 1122 (granting a preliminary injunction). Thus, unlike the appellants in California, the Appellants in this case are unable to identify any support for their argument that there is a reasonable likelihood that they will prevail in this matter given the District Courts thorough and well-reasoned decision in King and the Ninth Circuits decision in Pickup. As a result, Appellants reliance on the Ninth
27
Case: 13-4429
Document: 003111477240
Page: 36
B.
Appellants Have Not Established Any Legal Harm, Let Alone Imminent Irreparable Harm.
Because Appellants cannot show a likelihood of success on the merits, they have failed to meet the requisite elements necessary for an injunction. Ruiz v. New Garden Twp., 376 F.3d 203, 206 (3d Cir. 2004); In re Diet Drugs, 369 F.3d 293, 307 (3d Cir. 2004) (Of primary importance, a party seeking an injunction must show that there is some legal transgression that an injunction would remedy.). Therefore, this Court should not consider the remaining elements necessary for an injunction. Cf. NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999) (instructing that [a] plaintiffs failure to establish any element in its favor renders a preliminary injunction inappropriate.). Nevertheless, Appellants cannot carry the burden of showing that they will suffer imminent irreparable harm unless the State is enjoined from enforcing the challenged provision. Showing irreparable harm is not an easy burden. Adams, 204 F.3d at 485. As demonstrated above, the statute does not violate Appellants First Amendment rights. It regulates conduct, not speech, and easily withstands rational basis review. It takes nothing away from the First Amendment to recognize that the use of speech in providing medical treatment does not insulate the provision of that treatment from regulation. Pickup, 728 F.3d at 1053. Most, if Circuits decision to grant an injunction pending an appeal is misplaced and their request should be denied.
28
Case: 13-4429
Document: 003111477240
Page: 37
not all, medical treatment requires speech, but that fact does not give rise to a First Amendment claim when the state bans a particular treatment. Id. at 1055. Because Appellants cannot establish that they have sustained a deprivation of their First Amendment right to free speech, they have not sustained any injury that is of a peculiar nature, so that compensation in money cannot atone for it. Acierno, 40 F.3d at 653 (quoting A. O. Smith Corp. v. F.T.C., 530 F.2d 515, 525 (3d Cir. 1976)). Thus, Appellants have not demonstrated that they will suffer legal harm, let alone irreparable harm, if an injunction is not granted. C. The Hardship To Appellants in the Absence Of Relief Does Not Outweigh the Hardship To the Defendants and the Public.
Even if Appellants were able to show a likelihood of success on the merits and irreparable harm, such a showing is outweighed in this case by the balancing of the equities by the public interest and New Jerseys interest in pro tecting the health and well-being of minors. Winter, 555 U.S. at 23. Appellants argue that the balance of equities tips in their favor because they have suffered a loss of their constitutional rights. (Appellants Motion For Injunction Pending Appeal, 19). However, as set forth above, because the statute does not violate Appellants constitutional rights, their alleged harm is unfounded. On the other hand, the harm caused by enjoining New Jersey from protecting minors is substantial. As the Legislature recognized, SOCE often result in
29
Case: 13-4429
Document: 003111477240
Page: 38
psychological pain by reinforcing damaging internalized attitudes, N.J. Stat. Ann. 45:1-54(j)(2), may encourage family rejection and undermine self-esteem, connectedness and caring, which are important protective factors against suicidal ideation and attempts, id. at (k), and represent a serious threat to the health and well-being of affected people, id. at (l). As such, Appellants baseless allegation of harm pales in comparison to the States very important role in preventing the harms suffered by minors subjected to SOCE. Accordingly, the balance of equities lies in favor of denying Appellants request for an injunction pending appeal. D. The Public Interest Does Not Favor the Requested Injunction.
[A] court should be particularly cautious when contemplating relief that implicates public interests. Salazar v. Buono, 130 S. Ct. 1803, 1816 (2010) (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction)); Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U.S. 334, 338 (1933) (Where an important public interest would be prejudiced, the reasons for denying the injunction may be compelling)). The publics interest will undoubtedly be served by enforcing a statute that protects minors from the deleterious practice of SOCE. By contrast, SOCE, a
30
Case: 13-4429
Document: 003111477240
Page: 39
medical treatment, is not immune from regulation and may be regulated if, as is the case here, the regulation is rationally related to a legitimate governmental interest. Therefore, the public interest in protecting children overwhelmingly favors enforcement of the statute. POINT IV APPELLANTS MOTION TO EXPEDITE THE APPEAL SHOULD BE DENIED. This Court should deny Appellants motion to expedite the appeal where the statute does not violate Appellants constitutional rights , Appellants own actions contradict their claim that this appeal should be expedited, and the interests of judicial economy would be undermined. Just as in Chemical Weapons Working Group v. Department of the Army, the procedural history of this case belies Appellants claim that this appeal should be expedited. 101 F.3d 1360, 1361 (10th Cir. 1996). Appellants filed their suit
challenging the constitutionality of N.J. Stat. Ann. 45:1-54, -55 three days after the statute became effective. In addition, Appellants waited two weeks after receiving the District Court judgment and filing a notice of appeal to file this motion. Furthermore, Appellants unilaterally proposed an expedited briefing schedule that expands their time in which to file a brief on the merits by eleven
31
Case: 13-4429
Document: 003111477240
Page: 40
days,5 while simultaneously reducing Appellees time to file. Therefore, Appellants claim that this appeal should be expedited is not credible in light of Appellants actions in prosecuting this matter. Moreover, the interests of judicial economy and consistency weigh heavily against expediting this appeal. There is a related case filed by Appellants counsel on behalf of John Doe, a minor, and his parents in the District Court, John Doe, et al., v. Chris Christie, Civil Action No. 13-6629, pending before the Honorable Freda L. Wolfson, U.S.D.J. The Doe Plaintiffs filed a motion for a preliminary injunction enjoining the enforcement of N.J. Stat. Ann. 45:1-54, -55. Defendant Governor Chris Christie filed a cross-motion to dismiss the complaint in lieu of an answer. Briefing on those motions is to be concluded by December 13, 2013, and an appeal is almost sure to follow the District Courts order and opinion on those motions. Therefore, the Court should not expedite this appeal as these two matters should be consolidated on appeal in the interest of judicial economy. Those facts notwithstanding, expediting an appeal is certainly within the Courts discretion. Therefore, if the Court is inclined to grant Appellants motion Pursuant to Fed. R. App. P. 31(a)(1), Appellants brief is due forty days after the record is filed. The record was filed on November 18, 2013. Therefore, Appellants brief would be due by December 28, 2013, which is a Saturday. Accordingly, Appellants brief would be due on December 30, 2013. Appellants propose, without any discussion with Appellees, that their brief be due on January 10, 2014, giving them an extra eleven days. After extending their time to file a brief, Appellants propose reducing Appellees time to twenty days.
5
32
Case: 13-4429
Document: 003111477240
Page: 41
to expedite the appeal, Appellees object to Appellants proposed briefing schedule and respectfully request the full time permitted under the Rules to file a brief on the merits of the appeal. CONCLUSION This Court should deny Appellants motions for an injunction pending the appeal and to expedite the appeal. Appellants failure to establish a reasonable likelihood of success, the irreparable harm that injunctive relief would inflict upon the State and the equities in this action all strongly weigh against the Court granting the requested relief. Accordingly, the motions should be denied. Respectfully submitted, JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY By: s/ Susan M. Scott Susan M. Scott Deputy Attorney General R.J. Hughes Justice Complex P.O. Box 112, 25 Market Street Trenton, New Jersey 08625-0112 (609) 777-3442 NJ Bar #028972004
Date: December 9, 2013 c: All Counsel (via electronic mail)
33
Case: 13-4429
Document: 003111477241
Page: 1
CERTIFICATION OF SERVICE Susan M. Scott, being of full age, hereby certifies that on December 9, 2013, copies of the brief on behalf of Defendants-Appellees in opposition to Appellants Motions for Injunction Pending Appeal and to Expedite the Appeal will be served by on all counsel of record via the electronic filing system.
Dated: December 9, 2013
s/Susan M. Scott Susan M. Scott Deputy Attorney General R.J. Hughes Justice Complex P.O. Box 112, 25 Market Street Trenton, New Jersey 08625-0112 (609) 777-3442 NJ Bar #028972004

Susan Scott DOL LPS State NJ US

Cargado por

Información del documento

Título original

Derechos de autor

Formatos disponibles

Compartir este documento

Compartir o incrustar documentos

Opciones para compartir

¿Le pareció útil este documento?

¿Este contenido es inapropiado?

Copyright:

Formatos disponibles

Susan Scott DOL LPS State NJ US

Cargado por

Copyright:

Formatos disponibles

Case: 13-4429

Date Filed: 12/09/2013

TARA KING, ED.D, et al., Plaintiffs-Appellants, v. CHRIS CHRISTIE, et al., Defendants-Appellees.

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

The Doe plaintiffs filed a

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date Filed: 12/09/2013

Date: December 9, 2013 c: All Counsel (via electronic mail)

Date Filed: 12/09/2013

Dated: December 9, 2013

También podría gustarte