Case: 13-4429

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Date Filed: 03/21/2014

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 REPLY IN OPPOSITION TO MOTION TO FILE AMICUS BRIEF OF PURPORTED SURVIVORS OF SEXUAL ORIENTATION CHANGE EFFORTS AND IN SUPPORT OF 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 Appellants ask this Court to strike the amicus brief of purported Survivors of Sexual Orientation Change Efforts (SOCE Survivors). Garden State Equality (GSE) opposes Appellants motion on several grounds, most notably that amici can present hearsay evidence in this case because it is directly relevant to the States interest in enacting A3371. (Dkt. 0033111560140, GSE Response at 9-11). GSE fails to refute the express statements of numerous circuit court decisions. In addition, GSE unsuccessfully attempts to cure the many infirmities of the proposed amicus brief by categorizing the inadmissible statements as legislative facts. Moreover, the fact that GSE has pleaded with this Court to admit the irrelevant and hearsay statements of proposed amicus SOCE Survivors proves that proposed amicus seeks not to be a friend of the court, but to be a friend of GSE. Ryan v. Commodity Futures Trading Commn, 125 F.3d 1062, 1063 (7th Cir. 1997) (The term amicus curiae means friend of the court, not friend of a party .) (emphasis added). This Court should not permit such misuse of the amicus curiae concept. ARGUMENT Proposed Amicus SOCE Survivors brief contains little more than partisan hearsay statements recounting certain individuals alleged experiences with sexual orientation change efforts (SOCE) counseling. The statements have not been admitted in the district court or this Court, tested by the rigid evidentiary standards 2

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required for admissibility, or vetted by the parties. They are textbook hearsay evidence that does not fit within any exception. GSE cites to Neonatology Associates, P.A. v. Commr of Internal Revenue, 293 F.3d 128, 131 (3d Cir. 2002) for the notion that amici no longer need to be impartial and are certainly permitted to take a strong position on the merits of a case. (GSE Response at 3). While Neonatology might have made the standards for taking and defending a position in an amicus brief less stringent, it did not promote irresponsible advocacy. Id. GSE ignores then-Circuit Judge Alitos statement that strong (but fair) advocacy on behalf of opposing views promotes sound decision making. Thus, an amicus who makes a strong but responsible presentation in support of a party can truly serve as the courts friend. Id. (emphasis added). SOCE Survivors presentation of double and triple hearsay, irrelevant, and speculative information hardly meets that standard. A responsible presentation assumes that it will satisfy the standards necessary for the presentation of evidence upon which a court will rely. Indeed, the entire purpose of the evidentiary rules governing admissibility is to ensure that evidence is presented in a fair and responsible manner subject to the rigors of a proper foundation and crossexamination. Here, no such responsible presentation has been made, and the proposed amicus brief of SOCE Survivors should be stricken.

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Moreover, this Court also stated in Neonatology that the proposed amicus brief needs to present relevant information. Id. at 133. Proposed amicus SOCE Survivors brief does not. 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 and should not be countenanced here. In fact, some of the statements presented are the beliefs of a relative of a person who allegedly received SOCE counseling over three decades ago. (See Appellants Motion at 78). Such speculative beliefs not founded in any evidence presented to the district court are not relevant to these proceedings. The proposed brief of SOCE Survivors should be stricken. I. SOCE SURVIVORS PRESENT NOTHING MORE THAN IRRELEVANT HEARSAY NOT SUBJECT TO ANY EXCEPTION. GSE attempts to save the double and triple hearsay statements offered in the proposed amicus brief of SOCE Survivors by falsely categorizing them as legislative facts rather than partisan recitations of perceived experiences with purported SOCE counselors. (GSE Response at 10). This is simply false. Legislative facts are established truths, facts or pronouncements that do not change from case to case but apply universally, while adjudicative facts are those developed in a particular case. United States v. Gould, 536 F.2d 216, 220 (8th Cir. 1976) (emphasis added); see also Schultz v. Henderson, No. 01-1591, 2014 WL 868876 (W.D. Penn. Mar. 5, 2014) (same). As this Court has made clear, [t]he 4

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doctrines of legislative facts and judicial notice are not talismans by which gaps in a litigants evidentiary presentation before the district court may be re paired on appeal. City of New Brunswick v. Borough of Milltown, 686 F.2d 120, 131 n.15 (3d Cir. 1982). Here, proposed amicus may not fill gaps in the parties evidentiary record merely by employing legerdemain to mask the true nature of the irrelevant and unsubstantiated testimony SOCE Survivors attempt to present. GSE would have this Court establish the hearsay statements offered by proposed amicus SOCE Survivors as legislative facts not subject to the fundamental rules of evidence. (See GSE Response at 10). This request is unfounded and improper. Adjudicative facts are facts about the parties and their activities . . . usually answering the questions of who did what, where, when, how, why, with what motive or intent; adjudicative facts are roughly the kind of facts that go to a jury. Marshall v. Sawyer, 365 F.2d 105, 111 (9th Cir. 1966) (citing Kenneth Davis, The Requirements of a Trial-Type Hearing, 70 Harv. L. Rev. 193 (1956)) (emphasis added). SOCE Survivors present nothing more than speculative and unsubstantiated claims of purported harm caused by SOCE counseling. Such evidence is not properly judicially noticeable. A second hallmark of facts properly subject to judicial notice is that they be either matters of common knowledge or capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy. Government of Virgin Islands v. Gereau, 523 5

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F.2d 140, 147 (3d Cir. 1975) (quoting Weaver v. United States, 298 F.2d 496, 498 (5th Cir. 1962)) (emphasis added). Here, the statements made by individuals who purportedly experienced SOCE counseling and their attempts to speak about their perceived experiences with it are not matters of common knowledge, nor are they anything close to verifiable by sources of indisputable accuracy. Indeed, some of the testimony contained in the proposed brief is not even presented by a person who actually experienced SOCE but by a relative of an individual who allegedly experienced it over thirty years ago. (See Appellants Motion at 8). The notion that such facts can be judicially noticed is not grounded in reason or precedent. The proposed amicus brief of SOCE Survivors should be stricken. Moreover, it is especially important that the Court take care to distinguish between scientific fact and political or ideological opinion or, as here, rank speculation. [T]here is a real danger when judges, inexperienced in making empirical judgments and unrestrained in how they do so, are forced to make factual determinations that are highly contestable and ideologically laden without any guidelines. Brianne J. Gorod, The Adversarial Myth: Appellate Court ExtraRecord Factfinding, 61 Duke L.J. 1, 49-50 (2011). This is particularly true when many of the studies on which courts might be t empted to rely arguably reflect the ideological biases of their authors. Id. at 50; see also Ellie Margolis, Beyond 6

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Brandeis: Exploring the Uses of Non-Legal Materials in Appellate Briefs, 34 U.S.F. L. Rev. 197, 232 (2000) (Non-legal information itself may be the product of biased, advocacy-driven research.). The facts sought to be introduced in this proposed amicus brief are little more than highly biased, advocacy-driven opinions, not subjected to the rigors of cross-examination or the other checks and balances inherent in our adversarial system. In short, the speculation and hearsay contained in SOCE Survivors proposed amicus brief amount to little more than an end run around the limitations imposed on the parties and should be stricken. Voice for Choices v. Illinois Bell Telephone Co., 339 F.3d 542, 544 (7th Cir. 2003) (Posner, J., in chambers). II. SOCE SUVIVORS HEARSAY STATEMENTS CANNOT BE SAVED BY THE RESIDUAL EXCEPTION. GSE also claims that the hearsay statements contained in SOCE Survivors proposed amicus brief, including the double and triple hearsay statements, are also subject to the residual hearsay exception. (GSE Response at 11). Rule 807 is to be used only rarely, and in exceptional circumstances and when high degrees of probativeness and necessity are present. United States v. Wright, 363 F.3d 237, 245 (3d Cir. 2004) (quoting United States v. Bailey, 581 F.2d 341, 347 (3d Cir. 1974)) (emphasis added). Indeed, [c]ourts must use caution when admitting evidence under Rule [807], for an expansive interpretation of the residual exception would threaten to swallow the entirety of the hearsay rule. United 7

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States v. Tome, 61 F.3d 1446, 1452 (10th Cir. 1995). Rule 807 lists a number of factors that a court must consider when determining whether the residual exception applies, but this Court has noted that, [m]ost importantly, the statement must have circumstantial guarantees of trustworthiness equivalent to those present in the traditional exceptions to the hearsay rule. Fong v. Am. Airlines, Inc., 626 F.2d 759, 763 (9th Cir. 1980) (citing U.S. v. Hoyos, 573 F.2d 1111, 1116 (9th Cir. 1978)). But, [h]earsay statements admitted under the residual exception, almost by definition, therefore do not share the same tradition of reliability that supports the admissibility of statements under a firmly rooted hearsay exception. Idaho v. Wright, 497 U.S. 805, 817 (1990). Double and triple hearsay are clearly not the type of statements that have the circumstantial guarantees of trustworthiness that fall within the residual exception. Additionally, hearsay statements by amicus curiae with a particular interest in the outcome of the litigation do not bear the indicia of reliability required for the admission of hearsay. GSE contends that these statements are based on reliable and trustworthy sources. (GSE Response at 11). However, proponents of SOCE prohibitions have already revealed their propensity to testify falsely in front of government assemblies considering this legislation. See Emily Schatz, Witness Lies about Conversion Therapy, PolitickerNJ (Apr. 1, 2013), available at http://www.politickernj.com/64358/witness-lies-about-conversion-therapy 8 (last

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visited Mar. 20, 2014) (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). Hearsay, by its very nature, is unreliable. Indeed, [h]earsay is generally inadmissible because 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)). There is no guarantee of trustworthiness in such statements. The double and triple hearsay offered here simply does not offer the indicia of reliability necessary to admit it without ever subjecting it to the tested rules of evidence and cross-examination at the district court level. The proposed amicus brief of SOCE Survivors should therefore be stricken. III. THIS COURT IS LIMITED TO THE FACTS IN THE RECORD. GSE purports to prove a broad exception to the fact that appellate courts are limited to the record at the district court by citing several cases in which a few courts have considered some facts under limited circumstances. (GSE Response at 6-7). However, such cases are distinguishable from the speculative and hearsay facts offered here in an attempt to build an evidentiary record where none exists. 9

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GSE cites to The Abi Jaoudi & Azar Trading Corp. v. Cigna Worldwide Ins. Co. , 391 F. Appx 173, 179 (3d Cir. 2010), but this case provides no support for th eir contention that proposed amicus SOCE Survivors can present any facts they want under amicus status. Indeed, it ignores the plain language of the amicus rule permitting the United States to file an amicus brief without consent or leave of court. See Fed. R. App. P. 29(a). As such, this case provides no support whatsoever for their claims that a private party may provide such irrelevant and inadmissible material without limitation. Other cases relied upon by GSE to support its response are equally unavailing. See, e.g., Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004). NIBCO is distinguishable because the information there was not subject to reasonable dispute and carried the circumstantial evidence of trustworthiness not present in this case. See id. at 1064. 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). Proposed Amicus 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. Such partisan and unsubstantiated testimony is not properly before this Court. It should be rejected and stricken from the record.

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CONCLUSION For the foregoing reasons, and because SOCE Survivors proposed amicus brief includes irrelevant information, hearsay, evidence not in the record, and unverified speculation, Appellants respectfully request that this Court deny proposed amicus motion to submit the amicus brief and strike it from the record. Respectfully submitted, March 21, 2014 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 21, 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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