3:13-cv-06629 #9

Case 3:13-cv-06629-FLW-LHG Document 9 Filed 11/15/13 Page 1 of 2 PageID: 389
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JOHN DOE, by and through JACK DOE and JANE DOE, et al., Plaintiffs, - against CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, Defendants.
Case No. 13-cv-6629 (FLW) (LHG)
GARDEN STATE EQUALITYS NOTICE OF MOTION TO INTERVENE AS PARTY DEFENDANT Michael Gluck Andrew Bayer Ryan M. Jones GLUCKWALRATH LLP 428 River View Plaza Trenton, NJ 08611 Telephone: (609) 278-3900 Facsimile: (609) 278-3901 Frank Holozubiec David S. Flugman Brett J. Broadwater Shireen A. Barday Andrew C. Orr Pro hac vice applications pending KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -- and -Andrew J. Welz Pro hac vice application pending KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW Washington, D.C. 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200 Attorneys for Proposed Intervenor-Defendant Garden State Equality Shannon P. Minter Amy Whelan Christopher F. Stoll Pro hac vice applications pending NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442
Case 3:13-cv-06629-FLW-LHG Document 9 Filed 11/15/13 Page 2 of 2 PageID: 390
TO: Clerk, United States District Court Demetrios Stratis, Esq. Ruta S&S LLP 10-04 River Road Fair Lawn, New Jersey 07410-1433 Susan Marie Scott, Esq. Eric Scott Pasternack, Esq. Robert T. Lougy, Esq. Office of the Attorney General RJ Hughes Justice Complex P.O. Box 112 Trenton, New Jersey 08625 PLEASE TAKE NOTICE that the undersigned will apply to the above-named Court, at Clarkson S. Mitchell U.S. Courthouse, 402 East State Street, Trenton, New Jersey 08608 on December 16. 2013, for the entry of an Order authorizing Garden State Equality to Intervene as a party defendant pursuant to Rule 24(b) of the Federal Rules of Civil Procedure. In support of this motion, Garden State Equality shall rely upon the Certification of Troy Stevenson, Certification of Andrew Bayer and the Memorandum of Law in support of its Motion to Intervene. A proposed form of Order is included herein.
Dated: November 15, 2013
GLUCKWALRATH LLP By: / Andrew Bayer Andrew Bayer
Attorneys for Proposed Intervenor-Defendant Garden State Equality
Case 3:13-cv-06629-FLW-LHG Document 9-1 Filed 11/15/13 Page 1 of 3 PageID: 391
GARDEN STATE EQUALITYS MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO INTERVENE AS PARTY DEFENDANT
Michael Gluck Andrew Bayer Ryan M. Jones GLUCK WALRATH LLP 428 River View Plaza Trenton, NJ 08611 Telephone: (609) 278-3900 Facsimile: (609) 278-3901
Frank Holozubiec David S. Flugman Brett J. Broadwater Shireen A. Barday Andrew C. Orr Pro hac vice applications pending KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -- and -Andrew J. Welz Pro hac vice application pending KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW Washington, D.C. 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200
Shannon P. Minter Amy Whelan Christopher F. Stoll Pro hac vice applications pending NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442
Attorneys for Proposed Intervenor-Defendant Garden State Equality
TABLE OF CONTENTS Page FACTUAL BACKGROUND ........................................................................................................2 A. A3371 Protects Minors From Practices That All Leading Professional Healthcare Associations Have Found To Be Ineffective And Dangerous. ..............2 B. Garden State Equalitys Instrumental Role In Sponsoring A3371. .........................4 C. Plaintiffs Challenge To A3371. ..............................................................................5 ARGUMENT ..................................................................................................................................6 I. GARDEN STATE EQUALITY SATISFIES THE THRESHOLD REQUIREMENTS FOR PERMISSIVE INTERVENTION UNDER RULE 24(b) .....................................................................................................................................6 INTERVENTION BY GARDEN STATE EQUALITY WILL ASSIST THE COURT IN FAIRLY AND EFFICIENTLY ADJUDICATING THE PARTIES CLAIMS ........................................................................................................10
II.
CONCLUSION ............................................................................................................................14 CERTIFICATE OF SERVICE ................................................................................................16
TABLE OF AUTHORITIES CASES Am. Farm Bureau Fedn v. U.S. Envtl. Prot. Agency, 278 F.R.D. 98 (M.D. Pa. 2011) ................................................................................................. 13 Am. Tradition Inst. v. Colorado, No. 11-CV-00859-WJM-BNB, 2012 WL 555513 (D. Colo. Feb. 21, 2012) ............................. 8 Appleton v. Commr, 430 Fed. Appx. 135 (3d Cir. 2011) ................................................................................ 6, 12, 13 Blue Ribbon Fuel Corp. v. Am. Safety Indem. Co., 2:12-CV-00749 CCC, 2013 WL 69353 (D.N.J. Jan. 7, 2013) ................................................ 7, 8 Deluxe Bldg. Sys., Inc. v. Constructamax, Inc., CIV. 06-2996 GEB, 2011 WL 2221185 (D.N.J. June 6, 2011) .................................................. 8 Doe v. Harris, C12-5713 TEH, 2013 WL 140053 (N.D. Cal. Jan. 10, 2013)..................................................... 8 Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836 (9th Cir. 2011) ..................................................................................................... 10 Hemy v. Perdue Farms, Inc., Civ. A. 11-888 FLW, 2011 WL 6002463 (D.N.J. Nov. 30, 2011) ....................................... 7, 10 In re Lorazepam & Clorazepate Antitrust Litig., 205 F.R.D. 363 (D.D.C. 2001) .................................................................................................... 7 King v. Christie, No. 13-cv-5038 (FLW), __ F. Supp. 2d __, 2013 WL 5970343 (D.N.J. Nov. 8, 2013) .... passim Kleissler v. U.S. Forest Serv., 157 F.3d 964 (3d Cir. 1998) ...................................................................................................... 13 LG Electronics Inc. v. Q-Lity Computer Inc., 211 F.R.D. 360 (N.D. Cal. 2002) ................................................................................................ 9 Mountain Top Condo. Assn v. Dave Stabbert Master Builder, Inc., 72 F.3d 361 (3d Cir. 1995) ...................................................................................................... 7, 9 N.A.A.C.P v. New York, 413 U.S. 345 (1973) .................................................................................................................... 7 N.C.A.A. v. Governor of N.J., 520 F. Appx 61 (3d Cir. 2013) ................................................................................................... 6 ii
Pickup v. Brown, 2:12-CV-02497-KJM, 2012 WL 6024387 (E.D. Cal. Dec. 4, 2012) ................................. passim Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013) ................................................................................................... 12 Riley v. Simmons, 839 F. Supp. 1113 (D.N.J. 1993), revd on other grounds, 45 F.3d 764 (3d Cir. 1995) ................................................................... 9 Spangler v. Pasadena City Bd. of Ed., 552 F.2d 1326 (9th Cir. 1977) ................................................................................................... 10 Worthington v. Bayer Healthcare LLC, Civ. A. 11-2793 (ES), 2011 WL 6303999 (D.N.J. Dec. 15, 2011) ............................................. 7 STATUTES Act of Aug. 19, 2013, ch. 150, 2013 N.J. Laws A-3371 2(a) ............................................. passim N.J. STAT. ANN. 45:1-55 .............................................................................................................. 2 OTHER AUTHORITIES 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure 1917 (3d ed. 2010) ................................................................................................................. 10 RULES District of New Jersey L. Civ. R. 7.1(c)(1) ..................................................................................... 7 Fed. R. Civ. P. 24(b) .............................................................................................................. passim Fed. R. Civ. P. 24(c) ....................................................................................................................... 7 Fed. R. Civ. P. 5(a)(1) ..................................................................................................................... 7
iii
This is the second case filed by opponents of New Jerseys Assembly Bill Number 3371 (A3371), a law duly passed by both houses of the New Jersey Legislature and signed by Governor Christie which prohibits licensed mental health professionals from engaging in long-discredited and risky practices seeking to change a minors sexual orientation. On
November 8, 2013, this Court dismissed the entirety of a case brought by two licensed therapists and two organizations that support so-called sexual orientation change efforts (SOCE). See King v. Christie, No. 13-cv-5038 (FLW), __ F. Supp. 2d __, 2013 WL 5970343 (D.N.J. Nov. 8, 2013). In that opinion, the Court also granted Garden State Equalitys motion to intervene as a party defendant, finding that Garden State Equalitythe largest civil rights organization in the State of New Jersey and a leading advocate for New Jerseys lesbian, gay, bisexual, and transgender (LGBT) residentssatisfied all the requirements of Federal Rule of Civil Procedure 24(b). See id. at *7-*8. For the same reasons articulated in its motion to intervene in the King litigation, Garden State Equality respectfully requests that the Court grant its motion to intervene in this litigation as well. Just as in King, Garden State Equalitys participation in this litigation is proper. Garden State Equalitys timely intervention as a party in this action would not expand the issues before the Court or prejudice any party. Nor would it cause delay, since Garden State Equality is prepared to respond to Plaintiffs pending motion for a preliminary injunction on the same schedule previously set by the Court. Garden State Equalitys unique position as a primary sponsor of the challenged law and its deep understanding of the medical consensus rejecting the prohibited practices would assist the Court in efficiently adjudicating the existing parties rights. As the Court already has found, Garden State Equality will provide a helpful, alternative viewpoint from the vantage of some persons who have undergone [sexual orientation change
efforts] or are potential patients of treatment that will aid the court in resolving plaintiffs claims fully and fairly. Id. at *8 (quoting Pickup v. Brown, 2:12-CV-02497-KJM, 2012 WL 6024387, at *4 (E.D. Cal. Dec. 4, 2012) (internal quotations omitted) (granting intervention motion of statewide LGBT organization in lawsuit challenging California statute prohibiting licensed medical professionals from subjecting minors to SOCE)). As more fully explained below, Garden State Equality respectfully requests that the Court grant Garden State Equalitys motion to intervene. FACTUAL BACKGROUND A. A3371 Protects Minors From Practices That All Leading Professional Healthcare Associations Have Found To Be Ineffective And Dangerous.
The Court is familiar with the scope and purposes of A3371 from the King litigation challenging the same statute. A3371 prohibits [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, [or] certified psychoanalyst, from engag[ing] in sexual orientation change efforts with a person under 18 years of age. See Act of Aug. 19, 2013, ch. 150, 2013 N.J. Laws A-3371 (A3371)1 2(a). The statute defines sexual orientation change efforts 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. Id. at 2(b). A3371s definition of sexual orientation change efforts excludes:
A3371 has been codified at N.J. STAT. ANN. 45:1-55.
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. at 2(b). The statute in no way limits the activities of individuals not licensed as mental health providers by the State of New Jersey, including clergy, and does not prohibit licensed mental health providers from engaging in sexual orientation change efforts with persons 18 years of age or older. Id. at 2(a)-(b); see also King, 2013 WL 5970343, at *3 n.7. In enacting A3371, the New Jersey Legislature recognized, after extensive legislative hearings and submissions, 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. A3371 1(a). The Legislature cited position statements and resolutions submitted by numerous professional associations, including the American Psychiatric Association, the American Academy of Pediatrics, and the American Academy of Child and Adolescent Psychiatry. Id. at 1 (c)-(m). As the Court recognized in King, [a]ccording to the Legislature, each of these professional associations has concluded that there is little or no evidence of the efficacy of SOCE, and that SOCE has the potential for harm, such as causing those treated to experience depression, guilt, anxiety and thoughts of suicide. 2013 WL 5970343, at *1. For example, the Legislature specifically relied upon the American Psychological Associations Task Force on Appropriate Therapeutic Responses to Sexual Orientation issued a report in 2009, concluding that:
[S]exual 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, [and] a loss of faith . . . . A3371 1(b). The Legislature further observed that the American Psychiatric Association
published a position statement in 2000, which found 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. . . . Therefore, the American Psychiatric Association opposes 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/her sexual homosexual orientation. Id. at 1(d)(2). And the Legislature also pointed in its findings to a journal article published by the American Academy of Pediatrics, that stated that [t]herapy directed at specifically changing sexual orientation is contraindicated, since it can provoke guilt and anxiety while having little or no potential for achieving changes in orientation. Id. at 1(f). In light of these findings, the Legislature concluded that 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 its minors against exposure to serious harms caused by sexual orientation change efforts. Id. at 1(n). The legislation passed by
votes of 28 to 9 in the Senate and 56 to 14 in the Assembly. Governor Christie signed A3371 into law on August 19, 2013, and the law went into effect immediately. Id. at 3. B. Garden State Equalitys Instrumental Role In Sponsoring A3371.
As part of its mission to combat discrimination, harassment, and violence on the basis of sexual orientation, Garden State Equality has lobbied for and supported the enactment of 215 4
LGBT civil rights laws at the state, county, and municipal levels.
(Certification of Troy
Stevenson, filed concurrently herewith (Stevenson Cert.), 2, 3.) Garden State Equality participated as the lead organization supporting the passage of A3371. (Id. 6.) In particular, Garden State Equality assisted legislators in identifying leading members of the medical, psychiatric, and psychological fields, as well as persons who had experienced SOCE, who could consult with legislators and provide testimony to the legislature. (Id.) Garden State Equalitys members also testified before both houses of the New Jersey Legislature in support of A3371, including members Mordechai Levovitz, Ryan Kendall, and Joey Kemmerling, who previously underwent SOCE and testified about the extreme psychological trauma they experienced as a result of these practices. (Id. 6-7.) In sum, Garden State Equalitys efforts were integral to the passage of A3371. C. Plaintiffs Challenge To A3371.
Plaintiffs are a 15 year old minor, who alleges that he desires SOCE counseling, and his two parents, who allege that they to wish to provide SOCE counseling to their son. (See Complaint for Declaratory Judgment, Injunctive Relief, and Nominal Damages (Compl.), Dkt. # 1 16-17.) Plaintiffs Complaint, filed on November 1, 2013, alleges that A3371 violates their constitutional rights, (id. at 2-5), and seeks (1) a permanent injunction against the enforcement of A3371 by Defendant; (2) a declaration that A3371 is unconstitutional under the United States Constitution and the New Jersey Constitution; and (3) nominal damages. (Id. at pp. 26-27.) Plaintiffs filed a motion seeking a preliminary injunction concurrently with the filing of their Complaint. (See Motion for Preliminary Injunction, Dkt. # 4.) Defendants response to that motion is due December 6, and Plaintiffs reply is due December 13.
ARGUMENT Just as the Court found in King, Garden State Equality satisfies Rule 24(b)s threshold requirements for permissive intervention in this case. Permissive intervention under Rule 24 requires (1) the motion to be timely; (2) an applicants claim or defense and the main action have a question of law or fact in common; and (3) the intervention may not cause undue delay or prejudice to the original parties rights.2 King, 2013 WL 5970343, at *7 (citing Fed. R. Civ. P. 24(b); N.C.A.A. v. Governor of N.J., 520 F. Appx 61, 63 (3d Cir. 2013); Appleton v. Commr, 430 Fed. Appx. 135, 137-38 (3d Cir. 2011)). So long as these threshold requirements are met, whether to allow a party to permissively intervene is left to the sound discretion of the Court. King, 2031 WL 5970343, at *7 (citing N.C.A.A., 520 Fed. Appx. at 63.) Here, as explained below, Garden State Equality satisfies Rule 24(b)s three requirements, and there are compelling reasons for the Court to exercise its discretion to permit Garden State Equality to intervene.3 I. GARDEN STATE EQUALITY SATISFIES THE THRESHOLD REQUIREMENTS FOR PERMISSIVE INTERVENTION UNDER RULE 24(b) Garden State Equalitys motion to intervene satisfies Rule 24(b)s requirements for permissive intervention. First, the motion is timely. Rule 24 [t]imeliness is to be determined
Specifically, Rule 24(b) provides that [o]n timely motion, the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact[,] and [i]n exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties rights. Fed. R. Civ. P. 24(b).
2
At oral argument on the parties cross-motions for summary judgment in King, plaintiffs in that case raised the novel argument that Garden State Equality lacked standing to intervene. After supplemental briefing by the parties in that case, the Court ruled that Garden State Equality need not separately satisfy standing requirements to intervene. King, 2013 WL 5970343, at *5-7. To the extent that Plaintiffs attempt to raise the same argument in this litigation, the Courts reasoning in the King decision is equally applicable here and clearly supports Garden State Equalitys ability to intervene in this action.
3
from all the circumstances[.] N.A.A.C.P. v. New York, 413 U.S. 345, 366 (1973). [T]he critical inquiry is: what proceedings of substance on the merits have occurred? Mountain Top Condo. Assn v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 369 (3d Cir. 1995); see also In re Lorazepam & Clorazepate Antitrust Litig., 205 F.R.D. 363, 368 (D.D.C. 2001) (citation and internal quotation marks omitted) (The timeliness analysis is substantively the same under both subsections of Rule 24.). Here, the only proceedings of substance that have occurred are Plaintiffs filing of their Complaint and motion for injunctive relief. (See Dkt. ## 1, 4.) Just as in King, Garden State Equality has moved to intervene 14 days after the Complaint was filed and before the substantive briefing on any motion has been completed and before any activities other than the filing of a complaint and a motion for preliminary injunction have occurred in the case. See King, 2013 5970343, at *7; see also Hemy v. Perdue Farms, Inc., Civ. A. 11-888 (FLW), 2011 WL 6002463, at *7 (D.N.J. Nov. 30, 2011) (finding that motion to intervene was timely, even after five-month delay, where litigation was still in its infancy [and] the parties [had] not engaged in extensive discovery.); L. Civ. R. 7.1(c)(1).4 Here, as in King, Garden State Equality can and will abide by the briefing schedule set by the Court for Plaintiffs motion for preliminary injunction and for any dispositive motion that Defendant may file. As such, Garden State Equalitys Motion to Intervene is timely and the first prong of the threshold test is satisfied. See Blue Ribbon Fuel Corp. v. Am. Safety Indem. Co., 2:12-CV-00749 CCC, 2013 WL 69353, at *2 (D.N.J. Jan. 7, 2013) (granting motion to intervene filed four months after original defendant removed case and answered complaint); Worthington v. Bayer Healthcare LLC,
Civ .A. 11-2793 (ES), 2011 WL 6303999, at *4 (D.N.J. Dec. 15, 2011) (finding that motion to Garden State Equality has also complied with the requirements for service under Federal Rules of Civil Procedure 5(a)(1) and 24(c).
4
intervene filed two months after complaint was timely); Deluxe Bldg. Sys., Inc. v. Constructamax, Inc., Civ. No. 06-2996 (GEB), 2011 WL 2221185, at *3 (D.N.J. June 6, 2011) (granting motion to intervene filed more than four years after original defendant removed case and answered complaint). Second, Garden State Equalitys intervention would not change or expand the questions of law now before the Court: namely, whether A3371 survives plaintiffs constitutional challenges. Garden State Equality seeks to address these same questions, and therefore readily satisfies Rule 24(b)s legal commonality requirement. See, e.g., Blue Ribbon Fuel Corp., 2013 WL 69353, at *2 (granting intervention motion where proposed intervention and primary action shared an obvious common issue of law or fact); Deluxe Bldg. Sys., 2011 WL 2221185, at *1 (permitting intervention where intervenors proposed claims [were] identical to those already lodged). Notably, courts have allowed intervention where, as here, third parties seek to intervene to defend the constitutionality of a state statute, including under virtually identical circumstances. See, e.g., Pickup, 2012 WL 6024387, at *4 (permitting statewide advocacy group for LGBT persons to intervene to defend statute barring licensed therapists in California from subjecting minors to SOCE); see also Doe v. Harris, No. C12-5713 TEH, 2013 WL 140053, at *2 (N.D. Cal. Jan. 10, 2013) (allowing proponents of sex offender registration statute to intervene under Rule 24(b) to defend constitutionality of statute); Am. Tradition Inst. v. Colorado, Civil Action No. 11-CV-00859-WJM-BNB, 2012 WL 555513, at *2 (D. Colo. Feb. 21, 2012) (allowing environmental groups to intervene under Rule 24(b) to defend constitutionality of Colorados Renewable Energy Standard Act). And as the Court recognized in King, the presence of overlapping interests between Garden State [Equality] and the State does not preclude permissive
intervention.
2013 WL 5970343, at *7.
Rather, the shared interests of [Garden State
Equality] and the state defendant[] support [Garden State Equalitys] argument that it shares a common question of law with the current action because it plans to defend the constitutionality of [A3371], the subject of the dispute between plaintiffs and the state defendant[]. Id. (quoting Pickup, 2012 WL 6024387, at *4). Third, intervention by Garden State Equality will neither delay nor prejudice the adjudication of either Plaintiffs or Defendants rights. To the contrary, and as in King, Garden State [Equality]s filings in this matter would not unduly expand Plaintiffs submissions because Garden State [Equality]s arguments and positions are similar to those advanced by the State. 2013 WL 5970343 at *8. Indeed, the case is at its very beginning so there is no credible basis for Plaintiffs to contend that Garden State Equalitys participation will cause a delay. See Mountain Top, 72 F.3d at 370 ([T]he stage of the proceeding is inherently tied to the question of the prejudice the delay in intervention may cause to the parties already involved.); Riley v. Simmons, 839 F. Supp. 1113, 1122 (D.N.J. 1993) (permitting intervention, and holding that, where proposed intervenors motion [could] be determined simultaneously with the defendant[s] motion, there will be no delay), revd on other grounds, 45 F.3d 764 (3d Cir. 1995); LG Elecs. Inc. v. Q-Lity Computer Inc., 211 F.R.D. 360, 366 (N.D. Cal. 2002) ([I]ntervention would not delay or prejudice the adjudication of the rights of the original parties, because these issues [that the proposed intervenor seeks to address] have already been raised by the other parties. . . . [T]he Court must consider these issues regardless of whether [the proposed intervenor] intervenes.). To the contrary, Garden State Equalitys participation will provide a helpful, alternative viewpoint from the vantage of some persons who have undergone SOCE treatment or are potential patients of treatment that will aid the court in resolving plaintiffs
claims fully and fairly. King, 2013 WL 5970343, at *8 (quoting Pickup, 2012 WL 6024387, at *4 (internal quotation marks omitted)). II. INTERVENTION BY GARDEN STATE EQUALITY WILL ASSIST THE COURT IN FAIRLY AND EFFICIENTLY ADJUDICATING THE PARTIES CLAIMS Because Garden State Equality satisfies the threshold requirements for permissive intervention, Rule 24(b) authorizes the Court, in its discretion, to permit intervention. See Hemy, 2011 WL 6002463, at *7. Among the factors that courts have identified as relevant to this determination are: the nature and extent of the intervenors interest, their standing to raise relevant legal issues, the legal position they seek to advance, and its probable relation to the merits of the case[,] whether the intervenors interests are adequately represented by other parties, whether intervention will prolong or unduly delay the litigation, and whether parties seeking intervention will significantly contribute to full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions presented. Spangler v. Pasadena City Bd. of Ed., 552 F.2d 1326, 1329 (9th Cir. 1977). Here, as in King, the Court should exercise its discretion to grant Garden State Equalitys motion for permissive intervention. 2013 WL 5970343, at *7-*8. Indeed, all of the relevant factors support permitting Garden State Equality to intervene, and its participation would significantly contribute to the fair and efficient adjudication of the issues before the Court. See id. 5
While some courts have mentioned an additional requirement that the intervenors claim be supported by an independent ground of jurisdiction, that concern is not present in federal question casessuch as the one at barin which the intervenor does not seek to bring new claims. See Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836, 844 (9th Cir. 2011) (Where the proposed intervenor in a federal-question case brings no new claims, the jurisdictional concern drops away.) (citing 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure 1917 (3d ed. 2010) (In federal-question cases there should be no problem of jurisdiction with regard to an intervening defendant . . .)).
5
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First, the nature and extent of the intervenors interest supports permitting Garden State Equality to intervene. Id. Garden State Equality has a direct and unique interest in this litigation as the largest LGBT civil rights organization in New Jersey and the lead organizational sponsor of the statute challenged in this action. Garden State Equality was involved at every stage of the legislative process that led to the passage of A3371. (Stevenson Cert. 6.) Its members include persons who have experienced the harmful practices prohibited by A3371, and part of its mission is to enact laws that protect LGBT youth, including those who are members, from harmful and discriminatory treatment. (Stevenson Cert. 2-4.) Members of Garden State Equality testified in support of the bill, including individuals who were subjected to the prohibited practices as minors and experienced severe, long-term harms as a result, including depression and suicidality. (Stevenson Cert. 6-7.) Garden State Equality therefore has a unique interest in the enforcement of the statute that distinguishes it from the general public. See Pickup, 2012 WL 6024387 at *1-*2 (noting that a ruling that law was unconstitutional would undercut [organizations] mission of protecting LGBT youth from harmful therapies). Second, Garden State Equality will significantly contribute to the development of the record in this case and aid in the fair, efficient adjudication of the issues before the Court. Its members experience with the harmful effects of sexual orientation change efforts will allow it to provide a firsthand perspective different than that of Defendant. See id. at *4 (finding that California LGBT advocacy organizations information about harms of SOCE would provide a helpful, alternative viewpoint to plaintiff therapists view that they are effective and safe). Garden State Equality also is familiar with the current medical and scientific understanding of sexual orientation change efforts and the risks they pose for youth. See Worthington, 2011 WL
11
6303999, at *8 (noting that court deciding Rule 24(b) motion should consider whether the proposed intervenors will add anything to the litigation).6 Third, the fact that Garden State Equalitylike the Governor Christieintends to argue that the Court should uphold A3371 also supports intervention. See Appleton, 430 F. Appx at 139 (holding that Tax Court abused its discretion by denying permissive intervention motion, and stating that identity of interest [with existing parties] should only be a bar to intervention when it has the adverse effect of undue delay or prejudice). As one court recently stated in permitting a statewide LGBT equality group to intervene to defend a similar statute in California, the shared interests of [the equality group] and the state defendants support [the groups] argument that it shares a common question of law with the current action because it plans to defend the constitutionality of [the statute]. Pickup, 2012 WL 6024387, at *4. Fourth, Defendant must balance interests different from those of Garden State Equality. While Garden State Equalitys interest lies solely in upholding the challenged statute to protect its members and other youth from the serious risks of harm posed by these discredited practices, Governor Christie has a wider range of interests to consider due to their status as governmental officials. The Third Circuit has noted that a government defendant may have varying sets of interests to balance, such that its interests may diverge from those of a proposed intervenor. See In addition to the important information that Garden State Equality and its members will contribute to the development of the record, Garden State Equalitys counsel includes the National Center for Lesbian Rights, which represented a California LGBT advocacy organization as a defendant-intervenor in a recent challenge to similar legislation in California. The California organization submitted briefs on the merits, as well as testimony from experts demonstrating the risk of severe harm to minors caused by sexual orientation change efforts, and counsel offered oral argument before the district court and the United States Court of Appeals for the Ninth Circuit, which recently rejected constitutional challenges virtually identical to many of the challenges that Plaintiffs bring in this Court. Pickup v. Brown, 728 F.3d 1642 (9th Cir. 2013).
6
12
Kleissler v. U.S. Forest Serv., 157 F.3d 964, 973-74 (3d Cir. 1998) (The straightforward business interests asserted by intervenors here may become lost in the thicket of . . . governmental policies.). Relying on the Third Circuits analysis, the court in Am. Farm Bureau Fedn v. U.S. Envtl. Prot. Agency permitted public interest groups to intervene in litigation challenging an action taken by the federal Environmental Protection Agency (EPA) in which the EPA was a defendant, explaining: Here, the interests of numerous stakeholders are implicated by the [challenged EPA action], as evidenced by the numerous groups presently seeking intervention. Because the EPA represents the broad public interest, it must consider not only the interests of the public interests groups, but also the possibly conflicting interests from agriculture, municipal stormwater associations, and land developers. 278 F.R.D. 98, 110-11 (M.D. Pa. 2011) (citations omitted). In the case at bar, Garden State Equality represents the particular interests of LGBT youth and their parents who are members of Garden State Equality, while Defendant also must balance other concerns, including the States interests as a provider of public health care services through employees subject to the requirements of A3371. Further, Garden State Equality will not be inhibited by any concerns that the State may have about its own potential liability for violations of A3371 by state employees who are licensed mental health professionals. Thus, the imperfect alignment of Garden State Equalitys interests with those of Defendant further supports the exercise of discretion to permit intervention here. See Appleton, 430 F. Appx at 138 (reversing denial of intervention motion and noting that, [w]hile the issue that concerns both the Government and Appleton is the same, namely, the statute of limitations, the Governments interest in the proceedings is certainly different from Appletons interest in dealing with this one-time tax adjustment).
13
In sum, Garden State Equality meets the requirements for permissive intervention, and all the relevant considerations support the Courts exercise of its discretion to permit Garden State Equality to intervene. CONCLUSION For the all these reasons, Garden State Equality respectfully requests that the Court grant its motion and permit it to intervene as a party defendant pursuant to Federal Rule of Civil Procedure 24(b). Dated: November 15, 2013 GLUCK WALRATH LLP By: /s Andrew Bayer Michael Gluck Andrew Bayer Ryan M. Jones 428 River View Plaza Trenton, NJ 08611 Telephone: (609) 278-3900 Facsimile: (609) 278-3901 KIRKLAND & ELLIS LLP By: /s David S. Flugman Frank Holozubiec David S. Flugman Brett J. Broadwater Shireen A. Barday Andrew C. Orr Pro hac vice applications pending 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -- and --
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Andrew J. Welz Pro hac vice application pending 655 Fifteenth Street, NW Washington, D.C. 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200 NATIONAL CENTER FOR LESBIAN RIGHTS By: /s Shannon L. Minter Shannon L. Minter Amy Whelan Christopher F. Stoll Pro hac vice applications pending 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442 Attorneys for Proposed Intervenor-Defendant Garden State Equality
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CERTIFICATE OF SERVICE I hereby certify that on this 15th day of November, 2013, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record via transmission of Notices of Electronic Filing generated by CM/ECF and via Email.
/s Andrew Bayer Andrew Bayer
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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JOHN DOE, by and through JACK DOE and JANE DOE, et al., Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, Defendant. DEFENDANT-INTERVENOR GARDEN STATE EQUALITYS ANSWER AND AFFIRMATIVE DEFENSES Michael Gluck Andrew Bayer GLUCK WALRATH LLP 428 River View Plaza Trenton, NJ 08611 Telephone: (609) 278-3900 Facsimile: (609) 278-3901 Frank Holozubiec David S. Flugman Brett J. Broadwater Shireen A. Barday Andrew C. Orr Admitted Pro hac vice KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -- and -Andrew Welz Admitted Pro hac vice KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW Washington, D.C. 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200 Attorneys for Defendant-Intervenor Garden State Equality Shannon P. Minter Amy Whelan Christopher F. Stoll Admitted Pro hac vice NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442
The Plaintiffs in this case are John Doe, a 15 year old minor whose declaration states that he is a resident of the State of New Jersey who is seeking sexual orientation change efforts (SOCE) counseling from a licensed mental health counselor in New Jersey, and his two parents, Jack Doe and Jane Doe. Plaintiffs have filed a Motion for Protective Order and to Proceed Using Pseudonym (Dkt. #3), which motion remains pending. Defendants opposition to that motion is due on December 6, and Plaintiffs reply is due on December 13. At issue in this lawsuit is Plaintiffs challenge to Assembly Bill Number 3371 (A3371), which passed with significant majorities in both the New Jersey Senate and Assembly. Governor Christopher Christie signed the bill into law on August 19, 2013. A3371 codifies the longstanding consensus among the major professional associations of medical and mental health professionals and researchers in the United States that sexual orientation change efforts (SOCE) pose critical health risks to lesbian, gay, and bisexual people, including depression, substance abuse, self-hatred, and suicidality. A3371 therefore prohibits licensed mental health providers from engaging in SOCE with patients under 18 years of age. Garden State Equality, the largest civil rights organization in the State of New Jersey and a leading advocate for New Jerseys lesbian, gay, bisexual, and transgender (LGBT) residents, concurrently moves this Court for permission to intervene as a party defendant pursuant to Rule 24(b) of the Federal Rules of Civil Procedure. As Garden State Equality establishes in its accompanying memorandum of law in support of its motion to intervene, it was one of the primary organizational supporters of A3371, and its more than 125,000 members include New Jersey residents who are most in need of the protections provided by the statute. Garden State Equalitys participation in this case will not expand the issues before the Court, prejudice any party, or cause any delay in the case schedule. Moreover, because of Garden State Equalitys
unique position as a primary sponsor of the statute and its deep understanding of the scientific and medical consensus rejecting the prohibited practices, it will assist the Court in efficiently adjudicating the existing parties rights. Defendant-Intervenor Garden State Equality (Defendant-Intervenor) hereby responds to the complaint (Complaint) of Plaintiffs as stated below. Defendant-Intervenor reserves the right to assert and rely upon other facts or defenses as may become available or apparent during discovery proceedings or as may be raised or asserted by others in this case, and to amend its answer and/or affirmative defenses accordingly. Defendant-Intervenor has not knowingly or intentionally waived any applicable affirmative defense. INTRODUCTION 1. In answer to paragraph 1 of the Complaint, Defendant-Intervenor admits that the
Governor of New Jersey recently signed into law Assembly Bill Number 3371 (A3371) and that the law would become effective immediately, unless enjoined. Defendant-Intervenor admits that A3371 is An Act concerning the protection of minors from attempts to change sexual orientation. With respect to the Complaints allegation about the reasons Plaintiffs bring this lawsuit, Defendant-Intervenor lacks knowledge or information sufficient to form a belief about the truth of the allegation and, on that basis, denies it. To the extent the allegations contained in paragraph 1 of the Complaint constitute argument and legal conclusions, Defendant-Intervenor denies them as not requiring a response. Defendant-Intervenor specifically denies that Plaintiffs have stated any valid claims or that Plaintiffs have suffered or will suffer any hardship or injury. Except as specifically admitted herein, Defendant-Intervenor denies the allegations.
2.
In answer to paragraph 2 of the Complaint, Defendant-Intervenor Defendant-
Intervenor admits that federal law speaks for itself. Except as specifically admitted, DefendantIntervenor denies the allegations. 3. In answer to paragraph 3 of the Complaint, Defendant-Intervenor Defendant-
Intervenor admits that federal law speaks for itself. Except as specifically admitted, DefendantIntervenor denies the allegations. 4. In answer to paragraph 4 of the Complaint, Defendant-Intervenor denies the
allegations contained therein. 5. In answer to paragraph 5 of the Complaint, Defendant-Intervenor denies the
allegations contained therein. Defendant-Intervenor also expressly denies that SOCE counseling provides any value or benefit to anyone. 7. In answer to paragraph 7 of the Complaint, Defendant-Intervenor denies the
allegations contained therein. 9. In answer to paragraph 9 of the Complaint, Defendant-Intervenor admits that
Plaintiffs seek the relief that they allege. Except as specifically admitted, Defendant-Intervenor denies the allegations. 10. In answer to paragraph 10 of the Complaint, Defendant-Intervenor admits that
Plaintiffs seek the relief that they allege. Except as specifically admitted, Defendant-Intervenor denies the allegations.
JURISDICTION AND VENUE 11. In answer to paragraph 11 of the Complaint, Defendant-Intervenor admits that the
Plaintiffs allege violations of the First and Fourteenth Amendments to the United States Constitution. Defendant-Intervenor denies that Plaintiffs have stated a valid claim under either of those constitutional provisions and denies that any of Plaintiffs causes of action have merit. With respect to Plaintiffs citation to the Civil Rights Act (42 U.S.C. 1983), DefendantIntervenor denies that Plaintiffs have stated a valid claim under the Civil Rights Act (42 U.S.C. 1983) or have a right to any remedy or relief under the Civil Rights Act (42 U.S.C. 1983). 12. In answer to paragraph 12 of the Complaint, Defendant-Intervenor admits that
the Complaint seeks to invoke this Courts jurisdiction over this case pursuant to 28 U.S.C. 1331 and 1343. Except as specifically admitted, Defendant-Intervenor denies the allegations. 13. In answer to paragraph 13 of the Complaint, Defendant-Intervenor admits that the
Court is authorized generally to grant relief regarding costs and attorneys fees pursuant to 42 U.S.C. 1988. Defendant-Intervenor denies that Plaintiffs have a right to any remedy or relief under 42 U.S.C. 1988. 14. In answer to paragraph 14 of the Complaint, Defendant-Intervenor admits that the
Court is authorized generally to grant declaratory and injunctive relief. Defendant-Intervenor denies that Plaintiffs have a right to any of these remedies or relief. 15. In answer to paragraph 15 of the Complaint, Defendant-Intervenor admits that
venue is proper under 28 U.S.C. 1391(b) and that Defendant maintains offices in this district. Except as specifically admitted, Defendant-Intervenor denies the allegations. PARTIES
16.
In answer to paragraph 16 of the Complaint, Defendant-Intervenor lacks sufficient
knowledge or information to form a belief as to the truth of the allegations and, on that basis, denies the allegations contained therein. 17. In answer to paragraph 17 of the Complaint, Defendant-Intervenor lacks sufficient
knowledge or information to form a belief as to the truth of the allegations and, on that basis, denies the allegations contained therein. 18. In answer to paragraph 18 of the Complaint, Defendant-Intervenor admits that
Defendant Christopher J. Christie is the Governor of the State of New Jersey and that Plaintiffs have sued him in his official capacity. Defendant-Intervenor lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations and, on that basis, denies the allegations contained therein. STATEMENT OF FACTS1 19. In answer to paragraph 19 of the Complaint, Defendant-Intervenor admits that the
legislative history of A3371 speaks for itself. With respect to the purported attachment of A3371 to the Complaint, Defendant-Intervenor states that the document speaks for itself. 20. In answer to paragraph 20 of the Complaint, Defendant-Intervenor admits that
Section 2(a) of A3371 speaks for itself. Except as specifically admitted, Defendant-Intervenor denies the allegations. 21. In answer to paragraph 21 of the Complaint, Defendant-Intervenor admits that
Section 2(b) of A3371 speaks for itself. Except as specifically admitted, Defendant-Intervenor denies the allegations.
By using the section title Statement of Facts as it appears in Plaintiffs complaint, Defendant-Intervenor does not in any way admit that any of the allegations in the ensuing numbered paragraphs are true except as specifically noted therein.
22.
In answer to paragraph 22 of the Complaint, Defendant-Intervenor admits that
Section 3 of A3371 speaks for itself. Except as specifically admitted, Defendant-Intervenor denies the allegations. 23. In answer to paragraph 23 of the Complaint, Defendant-Intervenor admits that the
New Jersey Legislature relied upon the Report of the APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation (the APA Report) and that the APA Report speaks for itself. Except as specifically admitted, Defendant-Intervenor denies the allegations. 24. In answer to paragraph 24 of the Complaint, Defendant-Intervenor admits that
the APA Report speaks for itself. Except as specifically admitted, Defendant-Intervenor denies the allegations. 25. In answer to paragraph 25 of the Complaint, Defendant-Intervenor admits that the
APA Report speaks for itself. Except as specifically admitted, Defendant-Intervenor denies the allegations. 26. In answer to paragraph 26 of the Complaint, Defendant-Intervenor admits that the
APA Report speaks for itself. Except as specifically admitted, Defendant-Intervenor denies the allegations.
29.
In answer to paragraph 29 of the Complaint, Defendant-Intervenor admits that the
APA Report speaks for itself. Except as specifically admitted, Defendant-Intervenor denies the allegations. JOHN DOE 35. In answer to paragraph 35 of the Complaint, Defendant-Intervenor lacks sufficient
knowledge or information to form a belief as to the truth of the allegations contained in that paragraph and, on that basis, denies the allegations contained therein.
36.
knowledge or information to form a belief as to the truth of the allegations and, on that basis, denies the allegations contained therein.
43.
10
50.
11
57.
12
64.
13
71.
knowledge or information to form a belief as to the truth of the allegations and, on that basis, denies the allegations contained therein. JACK AND JANE DOE 75. In answer to paragraph 75 of the Complaint, Defendant-Intervenor lacks sufficient
14
78.
15
85.
16
92.
17
99.
knowledge or information to form a belief as to the truth of the allegations and, on that basis, denies the allegations contained therein. 100. In answer to paragraph 100 of the Complaint, Defendant-Intervenor lacks
sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, denies the allegations contained therein. 101. In answer to paragraph 101 of the Complaint, Defendant-Intervenor lacks
sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, denies the allegations contained therein.
18
106.
In answer to paragraph 106 of the Complaint, Defendant-Intervenor lacks
19
113.
sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, denies the allegations contained therein. COUNT I
20
120.
In answer to paragraph 120 of the Complaint, Defendant-Intervenor incorporates
by reference its responses to paragraphs 1 through 119 of the Complaint set forth above in paragraphs 1 through 119 of this Answer as though fully set forth herein. 121. In answer to paragraph 121 of the Complaint, Defendant-Intervenor admits that
federal law speaks for itself. Except as specifically admitted, Defendant-Intervenor denies the allegations. 122. In answer to paragraph 122 of the Complaint, Defendant-Intervenor denies the
allegations contained therein. 125. In answer to paragraph 125 of the Complaint, Defendant-Intervenor admits that
federal law speaks for itself. Except as specifically admitted, Defendant-Intervenor denies the allegations. 126. In answer to paragraph 126 of the Complaint, Defendant-Intervenor lacks
sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, denies the allegations contained therein. 127. In answer to paragraph 127 of the Complaint, Defendant-Intervenor admits that
A3371 prohibits licensed therapists from engaging in SOCE with minors. Except as specifically admitted, Defendant-Intervenor denies the allegations contained therein. 128. In answer to paragraph 128 of the Complaint, Defendant-Intervenor denies the
allegations contained therein.
21
129.
In answer to paragraph 129 of the Complaint, Defendant-Intervenor denies the
allegations contained therein. Defendant-Intervenor also denies the allegations as irrelevant to this matter. 131. In answer to paragraph 131 of the Complaint, Defendant-Intervenor denies the
allegations contained therein. Defendant-Intervenor specifically denies that Plaintiffs have stated any valid claims or that Plaintiffs have suffered or will suffer any hardship or injury. 132. In answer to paragraph 132 of the Complaint, Defendant-Intervenor denies the
allegations contained therein. Defendant-Intervenor specifically denies that Plaintiffs have stated any valid claims or that Plaintiffs have a right to any remedy or relief. Defendant-Intervenor denies that the Court should grant any of the relief set forth in the Complaints Prayer for Relief. COUNT II 133. In answer to paragraph 133 of the Complaint, Defendant-Intervenor incorporates
federal law speaks for itself. Except as specifically admitted, Defendant-Intervenor denies the allegations. 135. In answer to paragraph 135 of the Complaint, Defendant-Intervenor lacks
22
136.
sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, denies the allegations contained therein. 137. In answer to paragraph 137 of the Complaint, Defendant-Intervenor denies the
allegations contained therein.
23
146.
allegations contained therein. Defendant-Intervenor specifically denies that Plaintiffs have stated any valid claims or that Plaintiffs have a right to any remedy or relief. Defendant-Intervenor denies that the Court should grant any of the relief set forth in the Complaints Prayer for Relief. COUNT III 148. In answer to paragraph 148 of the Complaint, Defendant-Intervenor incorporates
federal law speaks for itself. Except as specifically admitted, Defendant-Intervenor denies the allegations. 150. In answer to paragraph 150 of the Complaint, Defendant-Intervenor admits that
federal law speaks for itself. Except as specifically admitted, Defendant-Intervenor denies the allegations. 151. In answer to paragraph 151 of the Complaint, Defendant-Intervenor denies the
allegations contained therein. 152. In answer to paragraph 152 of the Complaint, Defendant-Intervenor lacks
24
153.
allegations contained therein. COUNT IV 159. In answer to paragraph 159 of the Complaint, Defendant-Intervenor incorporates
by reference its responses to paragraphs 1 through 158 of the Complaint set forth in paragraphs 1 through 158 of this Answer as though fully set forth herein. 160. In answer to paragraph 160 of the Complaint, Defendant-Intervenor admits that
federal law speaks for itself. Except as specifically admitted, Defendant-Intervenor denies the allegations. 161. In answer to paragraph 161 of the Complaint, Defendant-Intervenor admits that
federal law speaks for itself. Except as specifically admitted, Defendant-Intervenor denies the allegations.
25
162.
sufficient knowledge or information to form a belief as to the truth of the allegations and, on that basis, denies the allegations contained therein. 163. In answer to paragraph 163 of the Complaint, Defendant-Intervenor denies the
allegations contained therein. Defendant-Intervenor specifically denies that Plaintiffs have stated any valid claims or that Plaintiffs have a right to any remedy or relief. Defendant-Intervenor denies that the Court should grant any of the relief set forth in the Complaints Prayer for Relief. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) By Defendant-Intervenor Against All Plaintiffs Plaintiffs claims fail to allege facts sufficient to state or constitute a claim for a violation of the U.S. Constitution, the Civil Rights Act (42 U.S. C. 1985 and 1983), or any other laws and further fail to allege facts sufficient to entitle Plaintiffs to the relief sought, or to any other
26
relief whatsoever. In addition, Plaintiffs are not entitled to costs or attorneys fees under 42 U.S.C. 1988 or otherwise. SECOND AFFIRMATIVE DEFENSE (Lack of Subject Matter Jurisdiction) By Defendant-Intervenor Against All Plaintiffs The Court lacks subject matter jurisdiction over all or some of the claims alleged in the Complaint. THIRD AFFIRMATIVE DEFENSE (No Deprivation of Rights) By Defendant-Intervenor Against All Plaintiffs None of the statutes challenged in the Complaint have deprived or will deprive any person of any right, privilege or interest guaranteed by the United States Constitution. FOURTH AFFIRMATIVE DEFENSE (Lack of Ripeness) By Defendant-Intervenor Against All Plaintiffs Plaintiffs claims fail because some or all are not ripe for adjudication. FIFTH AFFIRMATIVE DEFENSE (Lack of Standing) By Defendant-Intervenor Against All Plaintiffs Plaintiffs claims fail because Plaintiffs do not have standing to assert some or all of them. SIXTH AFFIRMATIVE DEFENSE (Lack of Damage) By Defendant-Intervenor Against All Plaintiffs The Complaint and each claim for relief alleged therein are barred because Plaintiffs have not suffered any damage. SEVENTH AFFIRMATIVE DEFENSE (Injury to the Public) By Defendant-Intervenor Against All Plaintiffs
27
Plaintiffs are barred from obtaining relief sought in the Complaint because such relief would cause undue injury to the public. RESERVATION OF AFFIRMATIVE DEFENSES By Defendant-Intervenor Against All Plaintiffs Defendant-Intervenor has not knowingly or intentionally waived any applicable affirmative defense. Defendant-Intervenor reserves the right to assert and rely upon other such defenses as may become available or apparent during discovery proceedings or as may be raised or asserted by others in this case, and to amend its answer and/or affirmative defenses accordingly. Defendant-Intervenor further reserves the right to amend its answer to delete affirmative defenses that it determines are not applicable after subsequent discovery. WHEREFORE, Defendant-Intervenor Garden State Equality prays as follows: 1. That Plaintiffs take nothing by virtue of the Complaint herein and that this action
be dismissed in its entirety with prejudice; and 2. For such other and further relief as this Court may deem just and proper. GLUCK WALRATH LLP By: s/ Andrew Bayer Michael Gluck Andrew Bayer Ryan M. Jones 428 River View Plaza Trenton, NJ 08611 Telephone: (609) 278-3900 KIRKLAND & ELLIS LLP Frank J. Holozubiec David S. Flugman Brett J Broadwater Shireen A. Barday Andrew C. Orr All admitted Pro hac vice 601 Lexington Avenue New York, NY 10022 28
Telephone: -- and --
(212) 446-4800
Andrew Welz Admitted Pro hac vice 655 Fifteenth Street, NW Washington, D.C. 20005 Telephone: (202) 879-5000 NATIONAL CENTER FOR LESBIAN RIGHTS Shannon P. Minter Amy Whelan Christopher Stoll Admitted Pro hac vice 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 392-6257 Attorneys for Defendant-Intervenor Garden State Equality
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CERTIFICATION PURSUANT TO L. CIV. R. 11.2 Pursuant to Local Civil Rule 11.2, I, Andrew Bayer, the undersigned attorney of record for Defendant-Intervenor, do hereby certify based on my own knowledge and based upon information available to me at my office, apart from the case listed below, the matter in controversy is not the subject of any other action now pending in any court or in any arbitration or administrative proceeding: Case: Plaintiffs: King v. Christie, Case No. 13-cv-5038 (FLW) (LHG) Tara King, Ed.D., Ronald Newman, Ph.D., National Association for Research and Therapy of Homosexuality, American Association of Christian Counselors 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; Paul Jordan, President of the New Jersey State Board of Medical Examiners, in his official capacity. Garden State Equality Dismissed in its Entirety by Order of Hon. Freda L. Wolfson dated November 8, 2013 (see Dkt. #58); Notice of Appeal to the Third Circuit filed by Plaintiffs on November 8, 2013 (see Dkt.# 59).
Defendants:
DefendantIntervenor: Case Status:
/s/ Andrew Bayer Andrew Bayer, Esquire
30
CERTIFICATE OF SERVICE I, Andrew Bayer, hereby certify that a copy of Defendant-Intervenors Answer was served this 15th day of November, 2013 upon all counsel via the Courts CM/ECF system. This document is available for viewing and downloading from the CM/ECF system. /s/ Andrew Bayer Andrew Bayer, Esquire
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[PROPOSED] ORDER PERMITTING GARDEN STATE EQUALITY TO INTERVENE AS PARTY DEFENDANT Upon consideration of Garden State Equalitys Motion To Intervene As Party Defendant, dated November 15, 2013, it is on this __ day of November, 2013, hereby: ORDERED that Garden State Equality shall be permitted to intervene in this action as a Party Defendant pursuant to Rule 24(b) of the Federal Rules of Civil Procedure.
______________________________ Hon. Freda L. Wolfson United States District Judge

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Case 3:13-cv-06629-FLW-LHG Document 9 Filed 11/15/13 Page 1 of 2 PageID: 389

Case No. 13-cv-6629 (FLW) (LHG)

Case 3:13-cv-06629-FLW-LHG Document 9 Filed 11/15/13 Page 2 of 2 PageID: 390

Dated: November 15, 2013

GLUCKWALRATH LLP By: / Andrew Bayer Andrew Bayer

Attorneys for Proposed Intervenor-Defendant Garden State Equality

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Case No. 13-cv-6629 (FLW) (LHG)

Attorneys for Proposed Intervenor-Defendant Garden State Equality

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CONCLUSION ............................................................................................................................14 CERTIFICATE OF SERVICE ................................................................................................16

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A3371 has been codified at N.J. STAT. ANN. 45:1-55.

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2013 WL 5970343, at *7.

Rather, the shared interests of [Garden State

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/s Andrew Bayer Andrew Bayer

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Case No. 13-cv-6629 (FLW) (LHG)

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In answer to paragraph 2 of the Complaint, Defendant-Intervenor Defendant-

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In answer to paragraph 16 of the Complaint, Defendant-Intervenor lacks sufficient

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In answer to paragraph 22 of the Complaint, Defendant-Intervenor admits that

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In answer to paragraph 29 of the Complaint, Defendant-Intervenor admits that the

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In answer to paragraph 36 of the Complaint, Defendant-Intervenor lacks sufficient

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In answer to paragraph 43 of the Complaint, Defendant-Intervenor lacks sufficient

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In answer to paragraph 50 of the Complaint, Defendant-Intervenor lacks sufficient

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In answer to paragraph 57 of the Complaint, Defendant-Intervenor lacks sufficient

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In answer to paragraph 64 of the Complaint, Defendant-Intervenor lacks sufficient

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In answer to paragraph 71 of the Complaint, Defendant-Intervenor lacks sufficient

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