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#64 - State's Response Brief
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 13-4429

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

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CIVIL ACTION NO. 13-5038

BRIEF IN OPPOSITION TO THE APPEAL ON BEHALF OF DEFENDANTS-APPELLEES

JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street, P.O. Box 112 Trenton, New Jersey 08625-112 609-292-8150 (Phone) SUSAN.SCOTT@DOL.LPS.STATE.NJ.US Attorney for Defendants-Appellees Robert Lougy Assistant Attorney General Of Counsel Eric S. Pasternack Susan M. Scott Deputy Attorneys General On the Brief

TABLE OF CONTENTS Page COUNTERSTATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION .................................................................................1 COUNTERSTATEMENT OF ISSUES PRESENTED FOR REVIEW ...................1 COUNTERSTATEMENT OF RELATED CASES AND PROCEEDINGS ...........2 COUNTERSTATEMENT OF THE CASE ...............................................................2 SUMMARY OF THE ARGUMENT ........................................................................8 ARGUMENT .............................................................................................................9 POINT I THE DISTRICT COURT PROPERLY FOUND THAT THE STATUTE DOES NOT VIOLATE THE RIGHT TO FREE SPEECH BECAUSE IT REGULATES CONDUCT, SURVIVES RATIONAL BASIS REVIEW, AND IS NOT VAGUE OR OVERBROAD. ........................................ 9 A. The District Court Correctly Found that the Challenged Statute is Subject Only to Rational Basis Review, Which It Survives, Because the Regulation Only Prohibits Licensed Professionals from Administering a Form of Treatment that the Legislature has Deemed Harmful to Minors............................. 10 The District Court Correctly Found that N.J. Stat. Ann. § 45:1-55 is Not Impermissibly Vague. ........................... 21 The District Court Correctly Determined that the Challenged Statute is not Overbroad. ....................................... 24

B.

C.

i

POINT II THE DISTRICT COURT CORRECTLY FOUND THAT THE CHALLENGED PROVISION DOES NOT OFFEND THE FREE EXERCISE CLAUSE BECAUSE IT IS NEUTRAL AND GENERALLY APPLICABLE. .................... 26 POINT III THE DISTRICT COURT CORRECTLY FOUND THAT APPELLANTS DO NOT HAVE THIRD PARTY STANDING AND THEREFORE, THE CLAIMS ASSERTED BY APPELLANTS ON BEHALF OF MINORS OR THE PARENTS OF MINORS WERE PROPERLY DISMISSED. ................................................................. 32 CONCLUSION ........................................................................................................35

ii

TABLE OF AUTHORITIES Page Cases , ___ U.S. ___, 133 S. Ct. 2321 (2013) ..................................................................18 Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999) .................................................................................19 Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004) .................................................................... 26, 27, 29 Borden v. School Dist., 523 F.3d 153 (3d Cir. 2008) .................................................................................21 Broadrick v. Oklahoma, 413 U.S. 601 (1973) ...................................................................................... 24, 25 , 427 A.2d 104 (N.J. Super. Ct. App. Div. 1981) ...................................................27 Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009) .......................................................................... 22, 28 Cal. Teachers Ass'n v. State Bd. of Educ., 271 F.3d 1141 (9th Cir. 2001) ..............................................................................22 Cantwell v. Connecticut, 310 U.S. 296 (1940) .............................................................................................26 Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) ................................................................................ 27, 28, 29 Coggeshall v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658 (1st Cir. 2010) ................................................................................14 Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008) .................................................................... 28, 29, 32

iii

Common Cause v. Pennsylvania, 558 F.3d 249 (3d Cir. 2009) ...................................................................................9 Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) ................................................................................17 Conestoga Wood Specialities Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. 2013)....................................................................26 Connally v. General Constr. Co., 269 U.S. 385 (1926) .............................................................................................22 Cooper Distrib. Co. v. Amana Refrigeration, 63 F.3d 262 (3d Cir. 1995) ............................................................................ 12, 31 Duffy v. Paper Magic Group, Inc., 265 F.3d 163 (3d Cir. 2001) ...................................................................................9 Employment Div. v. Smith, 494 U.S. 872 (1990) .............................................................................................26 FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993) .....................................................................................20 Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) .............................................................................................15 Hedges v. Musco, 204 F.3d 109 (3d Cir. 2000) ...................................................................................9 Heller v. Doe, 509 U.S. 312 (1993) .............................................................................................20 Hill v. Colorado, 530 U.S. 703 (2000) ...................................................................................... 22, 23 Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) .............................................................................................22

iv

Holder v. Humanitarian Law Project, ___ U.S. ___, 130 S. Ct. 2705 (2010) ........................................................... 17, 18 Kowalski v. Tesmer, 543 U.S. 125 (2004) .............................................................................................33 Lambert v. Yellowley, 272 U.S. 581 (1926) ................................................................................ 15, 19, 29 Lowe v. SEC, 472 U.S. 181 (1985) .............................................................................................14 Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) .............................................................................................24 National Association for the Advancement of Psychoanalysis v. California Board of Psychology, 228 F.3d 1043 (9th Cir. 2000) ..............................................................................25 s v. Carrigan, 131 S. Ct. 2343 (2011)..........................................................................................17 New York v. Ferber, 458 U.S. 747 (1982) .............................................................................................30 Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000) ...................................................................................9 , 436 U.S. 447 (1978) ...................................................................................... 14, 15 , 280 F.3d 278 (3d Cir. 2002) .................................................................................33 Pharmaceutical Mfrs. Assoc. v. Food & Drug Admin., 484 F. Supp. 1179 (D. Del. 1980) ........................................................................29 Pickup v. Brown, ___ F.3d ___, 2014 U.S. App. LEXIS 1878 (9th Cir. Jan. 29, 2014) .......... passim

v

Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) ..............................................................................12 Pickup v. Brown, 2012 U.S. Dist. LEXIS 172034 (E.D. Ca. Dec. 4, 2012) .....................................34 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) ................................................................................ 14, 16, 19 Powers v. Ohio, 499 U.S. 400 (1991) .............................................................................................33 Precious Metals Assocs., Inc. v. Commodity Futures Trading Commission, 620 F.3d 900 (1st Cir. 1980) ................................................................................22 Prince v. Massachusetts, 321 U.S. 158 (1944) .............................................................................................30 Reynolds v. United States, 98 U.S. 145 (1878) .................................................................................. 26, 27, 28 Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) ...............................................................................................17 San Filippo v. Bongiovanni, 961 F.2d 1125 (3d Cir. 1992) ...............................................................................21 Steffel v. Thompson, 415 U.S. 452 (1974) .............................................................................................22 Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2012) ....................................................................... 26, 27 Tenafly Eruv Assoc., Inc. v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002) .................................................................... 26, 27, 32 United States v. Knox, 977 F.2d 815 (3d Cir. 1992) .................................................................................24

vi

, 391 U.S. 367 (1968) ...................................................................................... 18, 19 United States v. Scarfo, 263 F.3d 80 (3d Cir. 2001) .....................................................................................9 United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1994) ................................................................................22 United States v. Williams, 553 U.S. 285 (2008) .............................................................................................24 Ward v. Rock Against Racism, 491 U.S. 781 (1989) .............................................................................................22 Washington v. Glucksberg, 521 U.S. 702 (1997) .............................................................................................19 Watson v. Maryland, 218 U.S. 173 (1910) ...................................................................................... 15, 19 Zahl v. Harper, 282 F.3d 204 (3d Cir. 2002) .................................................................................27 Constitutional Provisions U.S. Const., amend. I ...............................................................................................26 Statutes 28 U.S.C. § 1291 ........................................................................................................1 28 U.S.C. § 1331 ........................................................................................................................ 1 N.J. Stat. Ann. §§ 45:1-14 to -15 ............................................................................... 6 N.J. Stat. Ann. § 45:1-54.................................................................................. passim N.J. Stat. Ann. § 45:1-55.................................................................................. passim

vii

N.J. Stat. Ann. §§ 45:8B-1 to -50 .............................................................................. 6 N.J. Stat. Ann. §§ 45:8B-34 to- 50 ........................................................................... 6 N.J. Stat. Ann. §§ 45:9-1 to -27.9 ............................................................................. 6 N.J. Stat. Ann. §§ 45:14B-1 to -46 ........................................................................... 6 N.J. Stat. Ann. §§ 45:14BB-1 to -12 ......................................................................... 6 N.J. Stat. Ann. §§ 45:15BB-1 to -13 ......................................................................... 6 Other Authorities 2A N. Singer and J. Singer, Sutherland on Statutory Construction § 47.7 (7th ed. 2007) ...............................12

viii

COUNTERSTATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION The United States District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. This Court has subject matter jurisdiction over this appeal under 28 U.S.C. § 1291. COUNTERSTATEMENT OF ISSUES PRESENTED FOR REVIEW 1. Did the District Court correctly determine that N.J. Stat. Ann. § 45:1-

55 regulates professional conduct, i.e. mental health treatment, is subject to and survives rational basis review, and therefore, does not violate the First Amendment right to free speech because t interest in protecting minors from the dangers of sexual orientation change efforts? 2. Did the District Court correctly determine that N.J. Stat. Ann.

§ 45:1-55 is clear as to what it prohibits in the vast majority of its intended applications, and is not overbroad because the conduct Appellants describe falls squarely within the plainly legitimate sweep of the statute? 3. Did the District Court correctly determine that N.J. Stat. Ann.

§ 45:1-55 is fully consistent with the Free Exercise Clause of the United States Constitution because the statute is neutral and generally applicable? 4. Did the District Court correctly determine that Appellants lack

standing to assert claims on behalf of minors and their parents because Appellants

1

have failed to establish an injury in fact and the minors and their parents do not face a hindrance or obstacle to pursuing a challenge to N.J. Stat. Ann. § 45:1-55. COUNTERSTATEMENT OF RELATED CASES AND PROCEEDINGS Appellants unsuccessfully attempted to assert third-party standing in this lawsuit on behalf of parents who seek sexual orientation change efforts for their minor children and minors who seek SOCE. While this matter was pending in the District Court, a minor and his parents filed declarations in support , represented by Appellants counsel, then filed suit in the District Court on their own behalf challenging the constitutionality of N.J. Stat. Ann. §§ 45:1-54, -55, the statute at issue in this matter, on essentially the same grounds. That matter, John Doe, et al., v. Chris Christie, Civil Action No. 13-6629, is before the Honorable Freda L. Wolfson, U.S.D.J. The Doe Plaintiffs filed a motion for a preliminary injunction enjoining the enforcement of N.J. Stat. Ann. §§ 45:1-54, -55. Defendant Governor Chris Christie filed a cross-motion to dismiss the complaint. COUNTERSTATEMENT OF THE CASE On August 19, 2013, Governor Christie signed Assembly Bill A3371, codified at N.J. Stat. Ann. §§ 45:1-54, -55. The statute precludes persons licensed to practice in certain professions from engaging in conduct that the Legislature concluded was harmful to minors. This is but one component of a comprehensive 2

regulatory framework governing the conduct of mental health professionals licensed to practice within the State. In N.J. Stat. Ann. § 45:1-54, the Legislature included extensive findings, sta deficiency, or shortcoming. The major professional associations of mental health practitioners and researchers in the United States have recognized this fact for nearly 40 ye Id. at (a). The Legislature cited many of the position statements

and resolutions of those professional associations, including the American Psychiatric Association, the American Academy of Pediatrics, and the American Psychological Association. Id. at (c)-(m). Each of these professional associations, the Legislature recounted, has concluded that there is little or no evidence of the efficacy of SOCE, and that SOCE has the serious potential for harm, such as depression, guilt, anxiety and thoughts of suicide. Id. The Legislature looked first to a task force established by the American Appropriate Therapeutic Responses to Sexual Orientation concluded that: sexual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people, including confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, substance abuse, stress, disappointment, self-blame, decreased self-esteem and authenticity to others, increased self-hatred, hostility and blame toward parents, feelings of anger and betrayal, loss of friends and potential romantic partners, problems 3

in sexual and emotional intimacy, sexual dysfunction, high-risk sexual behaviors, a feeling of being dehumanized and untrue to self, a loss of faith, and a sense of having wasted time and resources. [Id. at (b).]

reparative therapy are great, including depression, anxiety and self-destructive behavior, since therapist alignment with societal prejudices against homosexuality may reinforce selfId. at (d)(2). These

cure[,] id 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 sh id. at (d)(3).

Moreover, the Legislature focused particularly on the potential for harm to

orien

Id. at (m). Drawing on research

published in the Journal of the American Academy of Child and Adolescent Psychiatry, the Legislature explained that efforts to change sexual encourage family rejection and undermine self-esteem, connectedness and caring, Id. at (k).

4

N.J. Stat. Ann. § 45:1-55

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 (b). SOCE specifically does not nother, or counseling that: (1) provides acceptance, support, and understanding of a person

development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (2) does not seek to Id Id. at (a). The statute also explains who is prohibited from engaging in SOCE. The

Title 45 of the Revised Statutes[.] Id. Such licensed professionals include, by way of example, psychiatrists, licensed practicing psychologists, certified social workers, licensed clinical social workers, licensed social workers, licensed marriage and family therapists, certified psychoanalysts, and persons who perform counseling as part of their professional training for any of these professions. Id.

5

The practitioners in each of the professions covered in the statute operate under the oversight of a board or committee that is charged with protecting the public by setting standards for examination and licensing, and reviewing and approving applications for licensure. See N.J. Stat. Ann. §§ 45:9-1 to -27.9 (physicians and surgeons, including psychiatrists); N.J. Stat. Ann. §§ 45:8B-1 to 50 (marriage and family therapists); N.J. Stat. Ann. §§ 45:8B-34 to- 50 (professional counselors); N.J. Stat. Ann. §§ 45:15BB-1 to -13 (social workers); N.J. Stat. Ann. §§ 45:14B-1 to -46 (psychologists); N.J. Stat. Ann. §§ 45:14BB-1 to -12 (state certified psychoanalysts). The Legislature granted each board uniform investigative and enforcement authority and established uniform standards for license revocation, suspension, and disciplinary proceedings for all of the licensees and registrants under their respective jurisdictions. See N.J. Stat. Ann. §§ 45:1-14 to -15. On August 22, 2013, Appellants filed a Complaint and Motion for a Temporary Restraining Order and Preliminary Injunction in the United States District Court for the District of New Jersey seeking injunctive and declaratory relief on the grounds that one or more provisions of the United States Constitution prohibits New Jersey from enforcing N.J. Stat. Ann. § 45:1-55. (PACER, Civil Action No. 13-5038, Docket Entry 1.) The challenged statute prohibits State licensed mental health providers from engaging in SOCE with minors. N.J. Stat. 6

Ann. § 45:1-55. District Court conver

the

summary judgment motion. (PACER, Civil Action No. 13-5038, Docket Entry 13.) On September 13, 2013, Appellees filed a Cross-Motion for Summary Judgment. (Id. at Docket Entry No. 29) The District Court held oral argument on the motions on October 1, 2013. On November 8, 2013, the District Court issued an Order and Opinion denying crossmotion for summary judgment. (Id. at Docket Entry Nos. 57, 58.) The Honorable Freda L. Wolfson, U.S.D.J., concluded that the statute is constitutional. On November 12, 2013, Appellants filed a Notice of Appeal with this Court. (Id. at Docket Entry No. 29) On November 22, 2013, Appellants filed a Motion to Expedite the Appeal and a Motion for an Injunction Pending Appeal.

Appeal to a merits panel.

7

SUMMARY OF THE ARGUMENT The New Jersey Legislature acted consistent with the Constitution and in the interests of New Jersey residents when it prohibited New Jersey licensed mental health providers from practicing a form of mental health treatment on minors that it has deemed harmful. The statute regulates conduct, not speech, is neutral and generally applicable, interest in protecting minors from the harmful effects of sexual orientation change efforts, such as depression, self-destructive behaviors, and suicidality. Therefore, the statute religion. Furthermore, challenges on these grounds are without merit. Finally, Appellants lack standing to assert claims on behalf of minors or their parents because Appellants have suffered no injury in fact, and the minors and their parents do not face a hindrance or obstacle to pursuing a challenge to N.J. Stat. Ann. § 45:1-55. Accordingly, the District Court properly concluded that Appellees were entitled to summary judgment as a matter of law and this Court should affirm. s to free speech or

8

ARGUMENT This Court reviews an order granting summary judgment de novo, applying the same standard used by the District Court. Duffy v. Paper Magic Group, Inc., 265 F.3d 163 (3d Cir. 2001); Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000). age in a United States v. Scarfo, 263 F.3d 80, 91 (3d Cir. 2001) lack of standing de novo Common Cause v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009). Finally, the District Court may be affirmed on any grounds supported by the record. Hedges v. Musco, 204 F.3d 109, 116 (3d Cir. 2000). POINT I THE DISTRICT COURT PROPERLY FOUND THAT THE STATUTE DOES NOT VIOLATE THE RIGHT TO FREE SPEECH BECAUSE IT REGULATES CONDUCT, SURVIVES RATIONAL BASIS REVIEW, AND IS NOT VAGUE OR OVERBROAD. This Court should affirm the judgment to Appellees because the statute as a regulation of conduct does not

offend the First Amendment and is not vague or overbroad.

9

A.

The District Court Correctly Found that the Challenged Statute is Subject Only to Rational Basis Review, Which It Survives, Because the Regulation Only Prohibits Licensed Professionals from Administering a Form of Treatment that the Legislature has Deemed Harmful to Minors.

The District Court properly determined that N.J. Stat. Ann. § 45:1-55 does not violate the First Amendment right to free speech because it regulates conduct, not speech or expressive conduct, and it survives rational basis review. King, 2013 U.S. Dist. LEXIS 160035, at *74-75. The plain language of N.J. Stat. Ann. § 45:1-55 reveals that it regulates conduct. King, 2013 U.S. Dist. LEXIS 160035, at *33. The statute states that a Statechange efforts engage in sexual orientation practice of . King, 2013 U.S. Dist. LEXIS 160035, at *33-34 (emphasis in original) (quoting N.J. Stat. Ann. § 45:1-55).

Id. at *34. Moreover, N.J. Stat. Ann. § 45:1-55 only licensed to provide professional counseling under Title 45 of the Revised Statutes, including, but not limited to, a psychiatrist, licensed practicing psychologist, certified social worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, certified psychoanalyst. . . . 10 King, 2013

U.S. Dist. LEXIS 160035, at *42 (citing N.J. Stat. Ann. § 45:1-55). The nature of these licensed practices is defined as the application of principles, procedures, methods, and techniques, such as counseling and psychotherapy, for the purpose of treating or resolving psychological conflict. Id. at *42-44, n. 17. Furthermore,

sugges omitted). In addition, any other form of

Id. at *46 (citations

psychodynamic process of looking at root causes, childhood issues, developmental factors, and other things that cause a person to present with all types of physical, mental, emotional, or psychological King,

2013 U.S. Dist. LEXIS 160035, at *48 (quoting Decl. of Dr. Tara King, ¶ 12).

for Injunction Pending Appeal, 15 n. 2). Finally, Appellants concede that the statue regulates professional conduct. See ute is regulating

11

Accordingly, the District Court properly found that the statute regulates conduct, i.e. treatment, not speech.1 Similarly, in Pickup identical statute prohibiting licensed mental health providers from practicing SOCE on minors permissibly regulated conduct, not speech. Pickup v. Brown, ___ F.3d ___, 2014 U.S. App. LEXIS 1878, at *35-38 (9th Cir. Jan. 29, 2014).2 The Pickup Court ychoanalysis is the

treatment of emotional suffering and depression, not speech. That psychoanalysts
1

quiry necessarily stops

viewpointunwanted

(App. Br., 30). Nevertheless, the statute

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 N.J. Stat. Ann. § 45:1-55 (emphasis provided a non-exhaustive list of examples of prohibited conduct. See Cooper Distrib. Co. v. Amana Refrigeration, 63 F.3d 262, 280 (3d Cir. 1995); 2A N. Singer and J. Singer, Sutherland on Statutory Construction § 47.7, p. 305 (7th ed. 2007) irrespective of sexual orientation, contrary to the argument advanced by Appellants. On January 29, 2014, the Ninth Circuit denied the Pickup petitions for panel rehearing and petitions for rehearing en banc. Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) Judges Bea and Ikuta, dissented from the denial of rehearing en banc. Id. In response to the concerns raised therein, the Ninth Circuit issued an Amended Opinion reaffirming that the statute is nonetheless a constitutional regulation of medical treatment. Pickup, 2014 U.S. App. LEXIS 1878. 12
2

employ speech to treat their clients does not entitle them, or their profession, to King, 2013 U.S. Dist. LEXIS 160035, at *51 (quoting Pickup v. Brown, 728 F.3d 1048, 1052 (9th Cir. 2013), modified by Pickup, 2014 U.S. App. LEXIS 1878). Thus during psychoanalysis is entitled to constitutional protection, but it is not immune Id. (quoting Pickup, 728 F.3d at 1052). The Ninth Circuit identified the following principles in Pickup: (1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself; (2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and (3) nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation. [Pickup, 2014 U.S. App. LEXIS 1878, at *22.]

continuum

Id. at *23. At one end of the continuum, the First Amendment

provides the greatest protection where a professional is engaged in public dialogue. Id. medical establishment considers outside the mainstream, or even dangerous, is entitled to robust protection under the First Amendment just as any person is

13

even though the state has the power to regulate medicine Id. (citing Lowe v. SEC, 472 U.S. 181, 232 (1985) (White, J. concurring)). Within the confines of a professional relationship, however, the First Id. at *25. At this midpoint along the continuum, the Supreme Court upheld, for

Id. (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 884 (1992)). Finally, at the other end of the continuum, the state has great power to re i.e. Id. at *28. . The Ninth Circuit found that prohibiting licensed mental health providers

have an incidental effect on speech

medical and mental health treatments requires speech, but that fact does not give rise to a First Amendment claim when the state bans a particular treatment Id.

raise First Amendment concerns because of its incidental effect on speech also , 436 U.S. 447, 456 (1978)

Id. See

not lose its power to regulate commercial activity deemed harmful to the public Coggeshall v. Mass. Bd. of 14

Registration of Psychologists, 604 F.3d 658, 667 (1st Cir. 2010) speech occurs does not exempt those who practice a profession from state regulation (including the imposition of Therefore, the about treatment, recommendations to obtain treatment, and expressions of opinions about

s conduct, not speech. Id. at *29-30, 35. t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or Ohralik, 436 U.S. at 456 (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)). The State indisputably has a proper and pervasive role in regulating the medical profession. See, e.g., Watson v. Maryland, 218 U.S. 173, 176 (1910) ly open to such regulation Lambert v. Yellowley, 272 U.S. 581, 597 (1926) medicinal value of spirituous and vinous liquors taken as a beverage, it would, indeed, be strange if Congress lacked the power to determine that the necessities of the liquor problem require a limitation of permissible prescriptions[.] 15

physicia the practice of medicine or providing treatment to a patient, is subject to reasonable licensing and regulation by the State. Planned Parenthood, 505 U.S. at 884 (observing where speech is part of medicine, it is subject to licensing and regulation by state). G the conduct in which they seek to engage, hat the State

is regulating professional conduct, the District Court properly held that the statute regulates conduct and not speech ion merely King, 2013 U.S. Dist. LEXIS 160035, at *56. Appellants argument to the contrary fails because the practice of SOCE is not intended to be communicative, but rather to treat mental distress and bring about some form of change in the client. See King, 2013 U.S. Dist. LEXIS 160035, at *63 (citing Decl. of Dr. Tara King, ¶ 12 (discussing SOCE as form of counseling invol orientation); Decl. of Dr. Ron Newman, ¶ and have personally counseled individuals who have successfully reduced or eliminated their unwanted same16

Dr. Joseph Nicolosi, ¶ 11 (discussing SOCE as a means to eliminate or reduce a SOCE reveals that such conduct

King, 2013 U.S. Dist. LEXIS 160035, at *63-64. Just as the California statute at issue in Pickup, statute does that might Pickup, 2014 U.S. App. LEXIS 1878, at *3031, *33; King, 2013 U.S. Dist. LEXIS 160035, at *63-64. Licensed mental health providers remain free under the statute to express their views on the subject of SOCE with anyone, including their minor patients. Cf. Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) (holding that regulation that prohibited speech wholly apart from provision of treatment violated First Amendment). The statute, thus, does not

Amendment protection. Pickup, 2014 U.S. App. LEXIS 1878, at *30-31; Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 66 (2006); Nev. , 131 S. Ct. 2343, 2350 (2011). It only prohibits a form of treatment that the Legislature has deemed harmful, and for that reason, Appellants err by relying upon Holder v. Humanitarian Law Project, ___ U.S. ___, 17

130 S. Ct. 2705, 2713-14 (2010),

v. Alliance v.

, ___ U.S. ___, 133 S. Ct. 2321 (2013), and United States v. , 391 U.S. 367 (1968). (Ab21-24, 33-34). Humanitarian Law Project is distinguishable because in that case the may be described as directed at conduct, . . . as applied . . . the conduct triggering coverage under the statute consist[ed] Humanitarian Law Project, 130 S. Ct.

at 2724. For that reason, the Court subjected the statute to First Amendment review. Id. Here, the conduct triggering N.J. Stat. Ann. §§ 45:1-54, -55 does not consist of communicating a message, but rather is the provision of mental health treatment to an individual. The statue does not prohibit Appellants from engaging in discussions, recommendations, and expressions about SOCE to their minor patients. As such, the statute does not prohibit message, see Pickup, 2014 U.S. App. LEXIS 1878, at *31-32, and Humanitarian Law Project, is of little relevance. AID is likewise distinguishable. In AID, the Court evaluated a statute that required organizations seeking AID, 133 S. Ct. at 2324-25 (citing 22 U.S.C. § 7631(f)). The Supreme Court found this compulsion to adopt a viewpoint violated the First Amendment. Id. at 2331-32. Unlike the statute in AID, N.J. Stat. 18

Ann. §§ 45:1-54, -55 permits licensed mental health providers to discuss, recommend, and express their opinions regarding SOCE. Therefore, the statute does not compel Appellants to adopt or express any particular viewpoint as their own. for the proposition that N.J. Stat. Ann. §§ 45:1-54, -55 should be subject to intermediate scrutiny is also wrong. ,

391 U.S. at 376-77. (Ab21-24). The Third Circuit has defined expressive conduct

reasonably be understood by the viewer to be communicative

Bartnicki v.

Vopper, 200 F.3d 109, 120 (3d Cir. 1999). Though counseling and psychotherapy may be effectuated through speech, once a professional engages in the actual

speech or expressive conduct to treatment, which the State may regulate to protect See, e.g., Washington v. Glucksberg, 521 U.S. 702, 731 (1997); see also Planned Parenthood, 505 U.S. at 884; Lambert, 272 U.S. at 597; Watson, 218 U.S. at 176; Pickup, 2014 U.S. App. LEXIS 1878, at *33. As such, intermediate scrutiny is not appropriate here because SOCE are not intended to be communicative, but rather therapeutic. King, 2013 U.S. Dist. LEXIS 160035, at *65-66. Therefore, rational basis review applies.

19

The parameters of rational basis review are well-known. A statute

Id. at *68 (citation omitted); see also Heller v. Doe, 509 U.S. 312, 320 (1993)

arrangement to negate every conceivable basis which might support it[.] (citation omitted); Sammon v. New Jersey Bd. of Med. Examiners, 66 F.3d 639, 644-45 (3d Cir. 1995) [A] court engaging in rational basis review is not entitled

to second guess the legislature on the factual assumptions or policy considerations

psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting minors against exposure to serious harms N.J. Stat. Ann. § 45:1-54 beyond debate that the State has an interest in p which includes minor King, 2013 U.S. Dist. LEXIS 160035, at *71 (citations

SOCE; for [the statute] to have a rational basis, it is sufficient that the legislature could reasonably believe that SOCE conveyed no benefits and potentially caused Id. at *71-72 (citing FCC v. Beach Communications, Inc., 508 20

U.S. 307, 315 (1993) 54] support s

N.J. Stat. Ann. § 45:1Id. at *72. Accordingly, the statute is rationally

related to the legitimate government interest of protecting the health and wellbeing of minors; and therefore, survives rational basis review. In conclusion, the District Court properly found that N.J. Stat. Ann. § 45:155 does not violate the First Amendment right to free speech because it regulates conduct, not speech or expressive conduct, and it survives rational basis review. The challenged statute only prohibits licensed mental health providers from engaging in SOCE with minors. It does not regulate, much less prohibit, discussions, recommendations, and expressions about SOCE. As such, it does not implicate Ap from obtaining SOCE from licensed mental health providers in another state, as does John Doe, (see Jane Doe Decl., ¶ 2), or from unlicensed mental health providers, such as religious counselors. B. The District Court Correctly Found that N.J. Stat. Ann. § 45:1-55 is Not Impermissibly Vague.

The District Court properly determined that the challenged statute is not void for vagueness. King, 2013 U.S. Dist. LEXIS 160035, at *84. -for-vagueness challenge, [a court] must ensure that a statute or standard is fair in that it is not so vague that a party would not know what conduct Borden v. School Dist., 523 F.3d 153, 166-67 (3d Cir. 2008) (citing 21

San Filippo v. Bongiovanni, 961 F.2d 1125, 1136 (3d Cir. 1992)). Nonetheless,

Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989). Where, as here, the statute does not infringe on constitutionally protected freedoms, a challenger must establish that the statute is incapable of any valid application. Steffel v. Thompson, 415 U.S. 452, 474 (1974); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982); Brown v. City of Pittsburgh, 586 F.3d 263, 269 (3d Cir. 2009) bear in mind that speculation about possible or hypothetical applications does not

King, 2013 U.S. Dist. LEXIS 160035, at *77 (quoting Hill v. Colorado, 530 U.S. 703, 733 (2000)). A statute is intelligence would understand that his or her conduct is prohibited by the law in Pickup, 2014 U.S. App. LEXIS 1878, at *42 (quoting United States v. Weitzenhoff, 35 F.3d 1275, 1289 (9th Cir. 1994)). This standard is further lowered rohibition involves conduct of a select group of persons having specialized knowledge, and the challenged phraseology is indigenous to the idiom King, 2013 U.S. Dist. LEXIS 160035, at *77 (quoting ). See also Precious Metals Assocs., Inc. v. Commodity Futures Trading Commission , 620 22

F.3d 900, 907 (1st Cir. 1980) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)); Cal. Teachers Ass'n v. State Bd. of Educ., 271 F.3d 1141, 1151 (9th Cir. 2001)

(quoting Hill, 530 U.S. at 733)).

Ab44-46).

about SOCE to their clients, even if they are not engagin U.S. Dist. LEXIS 160035, at *78.

King, 2013

(Ab44). However, as the District Court

N.J. Stat. Ann. § 45:1-55 is not reasonable. King, 2013 U.S. Dist. LEXIS 160035, at *78. T

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 N.J. Stat. Ann. § 45:1from mentioning the existence of SOCE, recommending a book on SOCE or recommending SOCE treatment by another unlicensed person such as a religious King, 2013 U.S. Dist. 23

LEXIS 160035, at *79Id. at *80. the statute does not allow a person or ordinary intelligence to determine what Id. at 79. Moreover, it is difficult to fathom exactly how these Appellants, much like the Appellants in Pickup, can credibly argue that they do not understand what the

See Pickup, 2014 U.S. App. LEXIS 1878, at *43. Therefore statute is not facially vague. C. The District Court Correctly Determined that the Challenged Statute is not Overbroad. N.J. Stat. Ann. § 45:1-55 is not overbroad. The overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute s plainly legitimate sweep. Broadrick v. conclusion that the

Oklahoma, 413 U.S. 601, 615-16 (1973). The mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreath challenge. United States v. Williams, 553 U.S. 285,

303 (2008) (quoting Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984) 24 ute as overbroad . . . is an

exceptional remedy and should be employed sparingly and only as a last resort ... United States v. Knox, 977 F.2d 815, 823 (3d Cir. 1992). Here, Appellants argue that the enforcement of N.J. Stat. Ann. § 45:1-55 will cause a l counseling to a minor who wants to reduce or eliminate SSA, mannerisms, or Ab47). However, the conduct Appellants deem overly broad falls squarely within the plainly legitimate sweep of N.J. Stat. Ann. § 45:1-55. Indeed, just because SOCE may be effectuated through

Pickup v. Brown, 2014 U.S. App. LEXIS 1878, at *33 (citing National Association for the Advancement of Psychoanalysis v. California Board of Psychology , 228 F.3d 1043, 1054 (9th Cir. 2000)). or mental health treatment, there may be an incidental effect on speech. Any

Id. at 44-45 (quoting Broadrick, 413 U.S. at 615).

overbreadth challenge is without merit and this Court should affirm.

25

POINT II THE DISTRICT COURT CORRECTLY FOUND THAT THE CHALLENGED PROVISION DOES NOT OFFEND THE FREE EXERCISE CLAUSE BECAUSE IT IS NEUTRAL AND GENERALLY APPLICABLE. The District Court properly found that N.J. Stat. Ann. §§ 45:1-54, -55 is neutral, generally applicable, and fully consistent with the Free Exercise Clause of the United States Constitution. While the Free Exercise Clause immunizes religious beliefs from government interference, Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), it does not bar the regulation of all conduct related to the practice of religion. U.S. Const., amend. I; Employment Div. v. Smith, 494 U.S. 872, 879 (1990). Where a

protection at all, id., even if the law incidentally burdens a particular religious practice or a particular religious group. Id. at 884-85, 886 n.3; Reynolds v. United States, 98 U.S. 145, 166-67 (1878); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1128 (9th Cir. 2012) (citing Cantwell, 310 U.S. at 303-04); Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004); Tenafly Eruv Assoc., Inc. v. Borough of Tenafly, 309 F.3d 144, 165 (3d Cir. 2002).

Conestoga Wood Specialities Corp. v. 26

Sebelius, 917 F. Supp. 2d 394, 409-10 (E.D. Pa.),

, 2013 U.S. App. LEXIS

15238 (3d Cir. July 26, 2013) (citing Blackhawk, 381 F.3d at 209); see also Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533, 533-40 (1993); Tenafly, 309 F.3d at 167. The statute at issue here makes no reference to any religious practice, conduct, or motivation. N.J. Stat. Ann. §§ 45:1-54, -55; King, 2013 U.S. Dist. LEXIS 160035, at *90. Therefore, it is facially neutral. Id. While Appellants argue

Ab50-51), that does not undermine the neutrality of the law. Reynolds, 98 U.S. at 166-67 (holding regulation does not offend Free Exercise Clause even when group motivated by religious reasons may be more likely to engage in proscribed conduct); Stormans, 586 F.3d at 1131

statute because SOCE . N.J. Stat. Ann. § 45:1-54(b); Zahl v. Harper, 282 F.3d 204, 211 (3d Cir. 2002) (citing , 427 A.2d 104, 108

(N.J. Super. Ct. App. Div. 1981)); King, 2013 U.S. Dist. LEXIS 160035, at *91. 27

The provision bars all licensed mental health providers from engaging in SOCE with minors, regardless of whether the mental health provider or the minor seeking SOCE is motived by religious beliefs. King, 2013 U.S. Dist. LEXIS 160035, at *91-92.

Brown v. City of Pittsburgh, 586 F.3d 263, 284 (3d Cir. 2009) (holding that

Indeed, because the Act is neutral both facially and in operation, the District Court properly found that the statute it were to disproportionately affect those motivated by religious belief as Appellants suggest. King, 2013 U.S. Dist. LEXIS 160035, at *92 (citing Lukumi, 508 U.S. at 581); see also Reynolds, 98 U.S. at 166-67. The District Court also correctly found that N.J. Stat. Ann. §§ 45:1-54, 55 is generally applicable. King, 2013 U.S. Dist. LEXIS 160035, at *91. A law that imposes the same requirements on those engaging in conduct for secular reasons as those engaging in the same conduct for religious reasons will be found generally applicable. Combs v. Homer-Center School Dist., 540 F.3d 231, 241-42 (3d Cir. 2008) of religiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the 28

purposes of the law to at least the same degree as the covered conduct that is Blackhawk, 381 F.3d at 209 (citing Lukumi, 508 U.S. at 543-36); Combs, 540 F.3d at 241-42. Here, Appellants contend that the statute contains several exemptions that render it not generally applicable. (Ab51). However, as the District Court explain

King, 2013 U.S. Dist. LEXIS 160035, at *92-93. Appellants claim that the statute is not generally applicable because Ab51-52). They are simply wrong. Of course the statute does not govern unlicensed counselors; it only regulates the provision of mental health treatment by those that are licensed through the State to provide such treatment. N.J. Stat. Ann. § 45:1-2.1 (limiting the applicability of Title 45 to certain boards and commissions); N.J. Stat. Ann. § 45:155; King, 2013 U.S. Dist. LEXIS 160035, at *93-

Pharmaceutical Mfrs. Assoc. v. Food & Drug Admin., 484 F. Supp. 1179, 1187 (D. Del. 1980) (citing Lambert, 272 U.S. at 596-97)

29

King, 2013 U.S. Dist. LEXIS 160035, at *93-94. See, e.g., Pickup, 2014 U.S. App. LEXIS 1878, *29 (affirming the mental health

Appellants Ab52). s not undermine the purposes of the

gender identity, but toward assisting someone seeking to live consistently with his King, 2013 U.S. Dist. LEXIS 160035, at *93. Appellants further contend that the statute is not generally applicable because the statute permits SOCE as treatment for adults. (Ab51). However, the Supreme Court emotional well-being of youth even when the laws have operated in the sensitive New York v. Ferber, 458 U.S. 747, 757 (1982). For example, in Prince v. Massachusetts, the Supreme Court held that the [simply] does not include [the] liberty to expose . . . [a] child . . 67 (1944). Therefore, Prince v. Massachusetts, 321 U.S. 158, 166argument that the limited reach of the statute 30

renders the law not generally applic interest in the wellc Appellants of the statute. Appellants maintain that the statute bans only to change N.J. Stat. Ann. § 45:1-54(b).

homosexualit the phrase

Ab52). However, as set forth above, the use of

non-exhaustive list of examples of prohibited conduct. See Cooper Distrib. Co., 63 F.3d at 280 irrespective of sexual orientation, contrary to the argument advanced by Appellants. Finally, the statute does not contain a mechanism for individualized exemptions or exempt a substantial category of conduct that is not religiously motivated from its prohibition on the practice of SOCE. N.J. Stat. Ann. § 45:1-55; King, 2013 U.S. Dist. LEXIS 160035, at *94-95. Rather, the provision prohibits all State licensed mental health providers from practicing SOCE; it does not selectively impose burdens on religiously motivated conduct. Id. Therefore, the statute is generally applicable because it bans the administration of SOCE to 31

minors, regardless of whether the mental health provider or the minor seeking SOCE is motived by religious beliefs. See Combs, 540 F.3d at 241-42. Accordingly, because the statute is neutral and generally applicable, it does not offend the Free Exercise Clause because it is only subject to rational basis review, which it easily survives.3 For these reasons, this Court should affirm the Appellees. POINT III THE DISTRICT COURT CORRECTLY FOUND THAT APPELLANTS DO NOT HAVE THIRD PARTY STANDING AND THEREFORE, THE CLAIMS ASSERTED BY APPELLANTS ON BEHALF OF MINORS OR THE PARENTS OF MINORS WERE PROPERLY DISMISSED. The District Court properly found that Appellants lack standing to raise claims based on the rights of minors or the parents of minors, who are not parties in this matter. Appellants also assert that N.J. Stat Ann. § 45:1-55 is subject to strict scrutiny under the hybrid rights theory, (Ab53) scrutiny may . . . apply when a neutral, generally applicable law incidentally burdens rights constitutional protections, such as freedom of speech and of the press, or the rights See Tenafly, 309 F.3d at 164 n. 26 (citing Smith in Smith discussed the hybrid rights theory only in dicta and this Court has declined to recognize the hybrid rights theory. Combs, 540 F.3d at 244-248. Moreover, as discussed supra, N.J. Stat Ann. § 45:1-55 does not burden rights protected by the First Amendment because the statute prohibits only a form of medical treatment that the Legislature has deemed especially harmful to minors. Thus, Plaintiff 32
3

Generally, a litigant may only assert his own constitutional rights or immunities. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). There may be, however, limited circumstances where a court will grant a third-party standing to assert the rights of another. Id. at 129-30. Third-party standing is granted only

outcome of the issue in dispute; the litigant must have a close relation to the third

Powers v. Ohio, 499 U.S. 400, 410-11 (1991) (citations omitted); see also ,

280 F.3d 278, 288-89 (3d Cir. 2002). In Pennsylvania Psychiatric, the Third Circuit held that the psychiatrist-patient relationship satisfies close relationship prong for third-party standing and the stigma associated with receiving mental health services presents a considerable deterrent to litigation. 280 F.3d at 289-90. Here, Appellants [N.J. Stat Ann.

§ 45:1-55] are addressed directly to professional counselors such as [Appellants], who are obliged either to heed the statutory prohibition, thereby incurring an injury to their counseling practices, religious beliefs and the therapeutic relationship with their clients, or to disobey the statute and suffer sanctions and perhaps the loss of Ab55). However, as set forth supra, Appellants have not 33

established an injury in fact. The challenged statute is a valid regulation of a licensed profession, which is neutral, generally applicable, and only prohibits a form of medical treatment. As such, the statute regulates conduct, not speech, and easily passes rational basis review. Therefore, the District Court properly found that Appellants do not meet the first criteria for third-party standing. King, 2013 U.S. Dist. LEXIS 160035, at *29. Moreover, minors who desire SOCE and parents who seek SOCE for their minor children face no hindrance or obstacle to filing suit on their own behalf. In fact, minor John Doe and his parents Jack and Jane Doe, represented by counsel, filed suit in the District Court while this matter was pending. That matter, John Doe, et al., v. Chris Christie, Civil Action No. 13-6629, is also before the Honorable Freda L. Wolfson, U.S.D.J.4 The Doe plaintiffs filed a motion for a preliminary injunction enjoining the enforcement of N.J. Stat. Ann. §§ 45:1-54, -55, and Defendant Governor Chris Christie filed a cross-motion to dismiss the complaint. As such, the interests and rights of a minor and the minor parents are being represented in that matter. Therefore, the District Court rightly found that Appellants cannot show that minors seeking SOCE and parents seeking SOCE for their minor children face any In addition, a minor and his parents have also filed suit challenging See Pickup v. Brown, Civil Action No. 122497, 2012 U.S. Dist. LEXIS 172034 (E.D. Ca. Dec. 4, 2012). 34
4

hindrance to their ability to protect their own interests. Accordingly, the District lack standing to raise claims based on the rights of minors or the parents of minors was proper and should be affirmed. CONCLUSION For the foregoing reasons, this Court should affirm the Order granting summary judgment to Defendants-Appellees. Respectfully submitted, JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY By: s/ Susan M. Scott Susan M. Scott Deputy Attorney General R.J. Hughes Justice Complex P.O. Box 112, 25 Market Street Trenton, New Jersey 08625-0112 (609) 292-8150 NJ Bar #02897-2004

Date: February 27, 2014 CC: All Counsel (via electronic mail)

35

CERTIFICATION OF BAR MEMBERSHIP I certify that I am an attorney in good standing of the bar of the Third Circuit. Dated: February 27, 2014 s/Susan M. Scott Susan M. Scott Deputy Attorney General R.J. Hughes Justice Complex P.O. Box 112, 25 Market Street Trenton, New Jersey 08625-0112 (609) 292-8150 NJ Bar #02897-2004

CERTIFICATION OF COMPLIANCE WITH RULE 32(a) I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a monospaced typeface using Microsoft Word 2010 with 12 characters per inch in Times New Roman. I further certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 7,985 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). Dated: February 27, 2014 s/Susan M. Scott Susan M. Scott Deputy Attorney General R.J. Hughes Justice Complex P.O. Box 112, 25 Market Street Trenton, New Jersey 08625-0112 (609) 292-8150 NJ Bar #02897-2004 36

CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 31.1(c) I certify that the text of the paper copies of this brief and the text of the PDF version of this brief filed electronically with the Court today are identical. I further certify that prior to electronically filing this brief with the Court today it was scanned by McAfee VirusScan Enterprise 8.7.0i, a virus detection software, and found to be free from computer viruses. Dated: February 27, 2014 s/Susan M. Scott Susan M. Scott Deputy Attorney General R.J. Hughes Justice Complex P.O. Box 112, 25 Market Street Trenton, New Jersey 08625-0112 (609) 292-8150 NJ Bar #02897-2004

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