Case: 13-4429

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Date Filed: 03/07/2014

CASE NO. 13-4429 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT TARA KING, ED.D., individually and on behalf of her patients, RONALD NEWMAN, PH.D., individually and on behalf of his patients, NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY (NARTH), and AMERICAN ASSOCIATION OF CHRISTIAN COUNSELORS (AACC), Plaintiffs/Appellants, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, ERIC T. KANEFSKY, Director of the New Jersey Department of Law and Public Safety: Division of Consumer Affairs, in his official capacity, MILAGROS COLLAZO, Executive Director of the New Jersey Board of Marriage and Family Therapy Examiners, in her official capacity, J. MICHAEL WALKER, Executive Director of the New Jersey Board of Psychological Examiners, in his official capacity; and PAUL JORDAN, President of the New Jersey State Board of Medical Examiners, in his official capacity, Defendants/Appellees, and GARDEN STATE EQUALITY, Intervenor-Defendant/Appellee. APPELLANTS RESPONSE IN OPPOSITION TO MOTION TO FILE AMICUS BRIEF OF PURPORTED SURVIVORS OF SEXUAL ORIENTATION CHANGE EFFORTS AND MOTION TO STRIKE Mathew D. Staver (Lead Counsel) Anita L. Staver LIBERTY COUNSEL 1053 Maitland Ctr. Cmmns 2d Floor Maitland, FL 32751-7214 Tel. (800) 671-1776 Email court@lc.org Attorneys for Appellants Stephen M. Crampton Mary E. McAlister Daniel J. Schmid LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 Tel. (434) 592-7000 Email court@lc.org Attorneys for Appellants

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INTRODUCTION The proposed brief of Proposed Amici, Survivors of Sexual Orientation Change Efforts (SOCE Survivors), consists almost entirely of inadmissible evidence. (Doc. 003111549940, Proposed Br.). The brief attempts to introduce a factual record that was never presented nor considered by the district court, introduce highly partisan accounts of facts beyond the record with little discussion of their legal relevancy, introduce irrelevant evidence, and introduce inadmissible hearsay. The attempted introduction of this evidence is improper. This Court should therefore strike the brief in its entirety as irrelevant and inadmissible. OBJECTIONS I. PROPOSED AMICI CURIAE SOCE SURVIVORS IMPROPERLY INTRODUCE EVIDENCE BEYOND THE RECORD AT THE DISTRICT COURT This Courts review is limited to the facts presented at the district court and itcannot consider material that is outside of the district court record. In re Capital Cities ABC Inc.s Application for Access to Sealed Trans cripts, 913 F.2d 89, 96 (3d Cir. 1990). Indeed, this Court can consider the record only as it existed at the time the court below made the order dismissing the action. Landy v. FDIC, 486 F.2d 139, 150 (3d Cir. 1973) (quoting Jaconski v. Avisun Corp., 359 F.2d 931, 936 n.11 (3d Cir. 1966)). This Court has previously stated that briefs that deal with matters not considered by or properly brought before the district court should 1

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be stricken. Gaston v. U.S. Postal Serv., 319 F. Appx 115, 157 (3d Cir. 2009) (to the extent a brief raises issues that were not presented before the district court in the instant case, we do not consider them) (emphasis added). This principle applies with equal force to new facts and issues raised for the first time on appeal by proposed amicus curiae. See Webb v. City of Philadelphia, 562 F.3d 256, 261 n.4 (3d Cir. 2009) (refusing to consider new material and facts in an amicus brief because it was never raised in the district court and because of its blatant hearsay nature). Indeed, new issues raised by an amicus are not properly before the court. General Engg Corp. v. Virgin Islands Water & Power Auth., 805 F.2d 88, 92 n.5 (3d Cir. 1986); see also Corrie v. Caterpillar, Inc., 343 F.3d 974, 978 n.3 (9th Cir. 2007) (amicus may not generally introduce new facts at the appellate stage). As the preceding citations demonstrate, other circuits have also recognized that amicus briefs cannot go beyond the record and introduce highly partisan accounts of facts never before the district court when reviewing an appeal. The Court must decline to consider the merits of issues based on new evidence furnished for the first time on appeal in the form of affidavits presented by the amicus. . . . Sitting as a reviewing court, the Court of Appeals cannot go behind the record. Nor can the Court consider the new factual material included in the brief of the amicus. Smith v. United States, 343 F.2d 539, 541 (5th Cir. 1965) (emphasis added).

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Proposed Amici SOCE Survivors entire brief is comprised solely of the testimony of individuals who claim to have been subjected to SOCE counseling and to have survived it. Notably, nothing in the SOCE Survivors brief was ever presented to the district court. This proposed amicus brief is therefore nothing more than an attempt to impermissibly create a biased and partisan factual record where none exists and to expand the relevant facts before this Court. This is contrary to the purpose of amicus briefs and is unquestionably improper. Resident Council of Allen Parkway Vill. v. U.S. Dept of Housing and Urban Dev., 980 F.2d 1043, 1049 (5th Cir. 1993) (We are constrained only by the rule than an amicus curiae generally cannot expand the scope of an appeal to implicate issues that have not been presented to the district court.). The proposed brief of amicus here does exactly that. It attempts to introduce inadmissible and unverified accounts of counseling that the individuals claim to have experienced, and it does so without permitting the district court to serve its function in testing the veracity of the claims presented. (Proposed Br. at 5-17). Whatever the experiences these individuals allegedly had with SOCE counseling, their testimony was never introduced at the district court and was not subjected to the crucible of crossexamination. It is therefore improper for SOCE Survivors to attempt to introduce it here. This Court should strike SOCE Survivors entire brief as impermissibly beyond the record. 3

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II.

PROPOSED AMICI CURIAE SOCE SURVIVORS IMPERMISSIBLY EXCEED THE TRADITIONAL FUNCTION OF AMICUS CURIAE. The traditional function of amicus curiae is to take a legal position not

previously espoused by the parties and defend it. See New England Patriots Football Club, Inc. v. Univ. of Colorado, 592 F.2d 1196, 1198 n.3 (1st Cir. 1979) (In granting permission we had assumed, wrongly, it proved, that counsel knew what an amicus is, namely, one who . . . for the assistance of the court gives information of some matter of law in regard to which the court is doubtful or mistaken.) (citations omitted) (emphasis added); Miller-Wohl Co. v. Commr of Labor & Indus., 694 F.2d 203, 204 (9th Cir. 1982) (amici fulfill the classic role of amicus curiae by assisting in a case of general public interest, supplementing the efforts of counsel, and drawing the courts attention to law that might otherwise escape consideration) (emphasis added). Amici curiae exceeds this traditional function when, as here, they provide nothing more than a highly partisan account of the facts (or in this case, heretofore unknown new facts of a highly partisan nature). Id. (emphasis added); see also Funbus Sys., Inc. v. Cal. Pub. Utils. Commn, 801 F.2d 1120, 1124-25 (9th Cir. 1986) (noting that an amicus brief is not helpful and exceeds its function if it merely introduces a highly partisan account of the facts). Indeed, amicis purpose is to provide impartial information on matters of law about which there is doubt , especially in matters of public 4

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interest. United States v. Michigan, 940 F.3d 143, 164-65 (6th Cir. 1991) (emphasis added). The Sixth Circuit articulated a sound justification for opposing partisan information submitted in amicus briefs. The orthodox view of amicus curiae was, and is, that of an impartial friend of the courtnot an adversary party in interest in the litigation. The position of classical amicus in litigation was not to provide a highly partisan account of the facts, but rather to aid the court in resolving doubtful issues of law. Id. (emphasis added). Indeed, [t]he vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants briefs, in effect merely extending the length of the litigants brief. Such amicus briefs should not be allowed. They are an abuse. The term amicus curiae means friend of the court, not friend of a party. Ryan v. Commodity Futures Trading Commn, 125 F.3d 1062, 1063 (7th Cir. 1997) (emphasis added). The Court is not helped by an amicus curiaes expression of a strongly held view . . . but by being pointed to considerations germane to our decision of the appeal that the parties for one reason or another have not brought to our attention. Id. (emphasis added) (citations omitted). Proposed Amici SOCE Survivors entire brief is a discussion of the subjective views that various individuals have towards SOCE counseling based on their alleged former experiences with it. (Proposed Br. at 5-17). SOCE Survivors 5

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devote a total of one sentence to any legal argument whatsoever, and even that sentence is a highly partisan and factually inaccurate account of the issues. ( Id. at 4) (arguing that even the licensed professional counselors who have practiced psychotherapy for decades and are specialists in mental health counseling for minors would not qualify as expert witnesses because their studies and evidence are really nothing more than purportedly junk science) . SOCE Survivors cannot fulfill the traditional role of amici in providing to the Court impartial information on matters of law when they have provided no information on any matter of law. Indeed, SOCE Survivors brief does nothing more than present to this Court inadmissible evidence to provide a strongly biased point of view not supported by anything presented to the district court or verified by any standards of admissibility. This Court should strike SOCE Survivors entire brief as outside of the traditional role of amicus curiae. III. PROPOSED AMICI CURIAE SOCE SURVIVORS IMPERMISSIBLY ATTEMPT TO INCLUDE IRRELEVANT AND INADMISSIBLE EVIDENCE. Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Fed. R. Evid. 401; see also Treadways LLC v. Travelers Indem. Co., 467 F. Appx 143, 147 (3d Cir. 2012). Irrelevant evidence is inadmissible. Id. 6

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Proposed amici SOCE Survivors have introduced a lengthy brief comprised of nothing more than anecdotal evidence from individuals who allegedly have participated in SOCE counseling and claim they have been harmed as a result. (Proposed Br. at 5-17). Whether the individuals discussed in this proposed brief perceived SOCE counseling as harmful is of no consequence to the determination of the issues before this Court. The issue presented here is whether the State can impose a viewpoint-based and content-based restriction on speech because of a disagreement with the message it sends and whether a state has the authority to remove an entire category of speech from First Amendment protection simply by calling it a professional regulation. As such, the subjective views of alleged survivors of SOCE are irrelevant without concrete evidence of harm, which the State and Garden State Equality have failed to establish. United States v. Playboy Entmt Grp., 529 U.S. 803, 822 (2000) (anecdotes and supposition are insufficient evidence to establish concrete injury). Nevertheless, even if some testimony were potentially relevant to this pure question of law, much of the testimony put forth in this proposed brief has no bearing on the issue presented to this Court. The testimony of one of the survivors was 46-years-old when he allegedly sought out SOCE counseling. (Proposed Br. at 10-11). The testimony of another of their alleged survivors discusses the counseling a 20-year-old allegedly received. (Id. at 12-14). This 7

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testimony has no bearing whatsoever on a law applicable only to a minors ability to receive SOCE counseling from a licensed professional. Additionally, the final testimony in the brief is not even provided by the actual recipient of SOCE counseling. Rather, it is given by the sister of a person who allegedly received SOCE counseling. (Id. at 14-16). While the story of this individuals suicide is certainly tragic, it is worth noting that he took his own life at the age of 38, yet he allegedly received SOCE counseling at the age of 5. (Id.). So, all the proposed brief is able to provide is that his sister believes that SOCE counseling that occurred over 30 years prior to his death was the ultimate cause of his purported suicide. Her unsupported and unsubstantiated beliefs are irrelevant to the issue before this Court, but are reflective of the irrelevancy of the entire proposed amicus brief. It is chock full of irrelevant and inadmissible material, and should be stricken in its entirety. IV. PROPOSED AMICI CURIAE SOCE SURVIVORS IMPERMISSIBLY ATTEMPT TO INTRODUCE INADMISSIBLE HEARSAY. Hearsay means a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers into evidence to prove the truth of the matter asserted in the statement. Fed. R. Evid. 801(c). It is well settled that evidence is inadmissible hearsay if its probative value depends on the truth of any assertion of fact it contains or on the credibility of someone not 8

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available for contemporaneous cross-examination. United States v. Reynolds, 715 F.2d 99, 101 (3d Cir. 1983). Indeed, [h]earsay is generally inadmissible becaus e the statement is inherently untrustworthy; the declarant may not have been under oath at the time of the statement [and] his or her credibility cannot be evaluated at trial. United States v. Reilly, 33 F.3d 1396, 1409 (3d Cir. 1994) (quoting United States v. Console, 13 F.3d 641, 656 (3d Cir. 1993). While there are some exceptions to this blanket prohibition on hearsay, none of those exceptions would save the evidence presented by Proposed Amici SOCE Survivors. Here, Proposed Amici SOCE Survivors proposed brief consists entirely of inadmissible hearsay. In their own words, SOCE Survivors brief is nothing more than [a]micis personal stories as survivors of SOCE and the stories of those they love. (Proposed Br. at 2). None of the statements provided in this brief were offered into the record at the district court, so every story SOCE Survivors reference is an out-of-court statement offered to prove the truth of the matter asserted, i.e., that SOCE counseling allegedly caused great damage to these individuals. The stories of four out of the five purported survivors of SOCE are all hearsay from the individual testifying about their story. (Id. at 5-14). On top of the hearsay statements these alleged survivors put forth, all of them also contain double hearsay attempting to introduce alleged statements of their alleged

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counselors during their alleged counseling that occurred many years ago. ( Id. at 6, 7, 11, 13). While these hearsay statements are enough to warrant striking this brief in its entirety, they represent the least objectionable material included in this proposed brief. In fact, many of Proposed Amicis statements are double or even triple hearsay far outside the bounds of admissible testimony. For example, Proposed Amicis hearsay testimony also purports to introduce statements and counseling from the doctors and counselors who allegedly engaged in SOCE counseling with the five individuals mentioned in this brief. ( See, e.g., id. at 6, 8, 11). Even worse, Proposed Amicus Maris Ehlers attempts to introduce statements made by her brothers physician to his mother in a counseling session where she was not even present. (Id. at 15). These out-of-court statements are textbook hearsay, including double and triple hearsay, and are therefore improper and inadmissible. This Court should strike the SOCE Survivors brief in its entirety, as it is founded solely on these inadmissible out-of-court statements. This Court should also strike Proposed Amici SOCE Survivors brief because of the inherent unreliability of the hearsay testimony presented in it. See Reilly, 33 F.3d at 1409. The inherent untrustworthiness of this testimony is highlighted by the fact that those claiming to have been harmed by SOCE counseling have already proved their willingness to provide false testimony 10

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concerning their counseling. Indeed, when the New Jersey legislature was considering A3371 prior to its enactment, several individuals testified concerning the alleged harm that had been imposed on them by their SOCE counselors. One such witness was conclusively proved to have completely made up his entire story. See Emily Schatz, Witness Lies about Conversion Therapy, PolitickerNJ (Apr. 1, 2013), available at http://www.politickernj.com/64358/witness-lies-about-

conversion-therapy (detailing the story of a witness who claimed to have been subjected to brutal treatment at an SOCE camp in Ohio but was conclusively proved by the Ohio Secretary of State and Attorney General to be completely false, as the camp did not even exist). If activists ideologically opposed to this form of counseling are willing to testify falsely in person in front of a legislative committee considering the bill at issue here, then they are all the more willing to do so by written statement not subject to cross-examination or the rigors of a trial, and hearsay statements never presented to the district court nor tested for their veracity cannot be permitted in this Court. The proposed brief should be stricken in its entirety. CONCLUSION Appellants respectfully request that this Court deny the motion for leave to file an amicus curiae brief and order the proposed amicus brief of SOCE Survivors stricken from the record. 11

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Respectfully submitted,

Mathew D. Staver (Lead Counsel) Anita L. Staver LIBERTY COUNSEL 1055 Maitland Ctr. Cmmns 2d Floor Maitland, FL 32751-7214 Tel. (800) 671-1776 Email court@lc.org Attorneys for Appellants

/s/ Daniel J. Schmid Stephen M. Crampton Mary E. McAlister Daniel J. Schmid LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 Tel. (434) 592-7000 Email court@lc.org Attorneys for Appellants

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed electronically with the court on March 7, 2014. Service will be effectuated by the Courts electronic notification system upon all counsel of record. /s/ Daniel J. Schmid LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 Tel. (434) 592-7000 Email court@lc.org Attorney for Appellants

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