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Case 3:13-cv-05038-FLW-LHG Document 27 Filed 09/11/13 Page 1 of 6 PageID: 416

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON DIVISION 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), AMERICAN ASSOCIATION OF CHRISTIAN COUNSELORS (AACC), Plaintiffs, 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; PAUL JORDAN, President of the New Jersey State Board of Medical Examiners, in his official capacity, Defendants. Case No. 13-cv-5308

MOTION FOR RECONSIDERATION OF THE COURTS SCHEDULING ORDER ON GARDEN STATE EQUALITYS MOTION TO INTERVENE COME NOW Plaintiffs, by and through counsel, and file this Motion for Reconsideration of the Courts September 9, 2013, scheduling order permitting proposed intervenor to file an

Case 3:13-cv-05038-FLW-LHG Document 27 Filed 09/11/13 Page 2 of 6 PageID: 417

independent motion for summary judgment and expediting the briefing schedule as to the motion to intervene. As grounds, Plaintiffs show: 1. Plaintiffs filed this action August 22, 2013 seeking a temporary restraining order

and a preliminary and permanent injunction to restrain the State from enforcing New Jersey Assembly Bill 3371 (A3371). (Dkt. 1). On August 27, 2013, the Court held a telephone conference with counsel for Plaintiffs and the State Defendants. During that discussion and in subsequent communications between the parties, all parties agreed that Plaintiffs motion should be converted to a motion for summary judgment because this case presented a pure question of law without the need to develop a factual record. Plaintiffs and Defendants subsequently agreed to a briefing schedule whereby Plaintiffs would file a supplemental memorandum on their free exercise claims on September 3, 2013, Defendants would file a response/cross-motion for summary judgment on September 13, 2013, and Plaintiffs would file a reply brief in support of summary judgment a mere seven days later on September 20, 2013. (Dkt. 17, Defendants Letter to Judge Wolfson). The Court subsequently approved that expedited schedule and set oral argument on the cross-motions for summary judgment for October 1, 2013. 2. On Friday, September 6, 2013 -- after Plaintiffs had already submitted their

motion for temporary restraining order and preliminary injunction (which was converted to a summary judgment motion by agreement) and only one week before the States motion for summary judgment is due -- Garden State Equality filed numerous documents seeking to intervene. (Dkt. 19, 19-1, 19-2, 19-3, 19-4). Garden State Equalitys filing consists of a voluminous 83-page discussion admitting that it seeks to introduce numerous declarations and attempt to develop a factual record that the parties themselves have agreed is irrelevant to the question of law at issue here.

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3.

On Monday, September 9, 2013, this Court issued an order setting the motion to

intervene on October 7, 2013, to be decided on the papers. Later that morning, however, the Courts law clerk sent counsel an email asking whether the parties would oppose the motion to intervene, in which case the Court was inclined to set a truncated briefing schedule on that motion. (Email from Wayne Fang, dated Sept. 9, 2013). Plaintiffs responded that they would oppose the motion. Thereafter, the Court issued a revised briefing schedule, (Dkt. 26), requiring a response to the motion to intervene to be filed by September 17, 2013, and allowing proposed intervenor to file its own motion for summary judgment by September 13, 2013. The motion itself was set for October 1, 2013, the same date as the hearing on the parties cross-motions for summary judgment. Id. 4. This revised scheduling order thus imposes on Plaintiffs the very prejudice

Plaintiffs seek to avoid by opposing the proposed intervention. Under the current order, Garden State Equality is permitted to file its voluminous and factually detailed motion for summary judgment -- that the parties have agreed is irrelevant to the pure question of law at issue here -while a ruling on the ultimate merits of the motion to intervene is delayed until October 1. The effect of this ruling is that Plaintiffs will have no choice but to respond to all of the States crossmotion for summary judgment and supporting declarations as well as Garden State Equalitys motion for summary judgment and supporting declarations within seven (7) days, by September 20, 2013. 5. This result is substantially prejudicial in itself. In effect, the burden is the same on

Plaintiffs under this order as if the Court had simply granted the motion to intervene. Indeed, the burden is even greater, because had the Court simply granted the motion to intervene outright Plaintiffs would not have had to prepare a substantive response to the motion.

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6.

Under the Courts current order, Plaintiffs are now under the burden of

responding to an 83-page motion to intervene, the States cross-motion for summary judgment, and a voluminous new motion for summary judgment filed by Garden State Equality, all on an accelerated basis. 7. Plaintiffs therefore ask the Court to reconsider its revised briefing schedule.

Specifically, Plaintiffs ask that the motion to intervene be denied, and that Garden State Equality not be allowed to file its own motion for summary judgment.1 Alternatively, Plaintiffs move the Court to disallow Garden State Equalitys filing of a separate motion for summary judgment and to postpone the deadline for responding substantively to the motion for leave to intervene until after the hearing on the cross-motions for summary judgment, at which time it will be known whether there are indeed factual disputes remaining to which issue Garden State Equalitys submissions may have some relevance. 8. The grounds for this motion are more fully set forth in the memorandum filed

simultaneously herewith.

Garden State Equalitys representations concerning the substance of its proposed filing sound more like an amicus brief than a substantive motion in any event. It claims to have a deep understanding of the consensus of the bias of various professional organizations that oppose SOCE, and so it can assist the Court in efficiently adjudicating the existing parties rights. (Dkt. 19-1, Brief of Garden State Equality at 1). See, e.g., United States v. Gotti, 755 F. Supp. 1157, 1158 (E.D.N.Y.1991) (The phrase amicus curiae means, literally, friend of the court, serving for the benefit of the court and for the purpose of assisting the court in cases of general public interest.). Plaintiffs also believe the participation of amicus is unnecessary here and that the State will adequately represent those favoring A3371. Nevertheless, should this Court deem it necessary to consider the positions of Garden State Equality, it should be through the limited role of filing an amicus brief only and not an independent motion for summary judgment accompanied by substantial factual information the parties have agreed is irrelevant.
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Respectfully submitted, /s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. 022391991 Mathew D. Staver* Stephen M. Crampton* Daniel J. Schmid* Liberty Counsel Attorneys for Plaintiffs P.O. Box 11108 Lynchburg, VA 24502 Tel. 434-592-7000 Fax: 434-592-7700 court@LC.org *Admitted Pro Hac Vice Attorneys for Plaintiffs

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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 September 11, 2013. Service will be effectuated by the Courts electronic notification system upon all counsel of record.

/s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. 022391991 Mathew D. Staver* Stephen M. Crampton* Daniel J. Schmid* Liberty Counsel Attorneys for Plaintiffs P.O. Box 11108 Lynchburg, VA 24502 Tel. 434-592-7000 Fax: 434-592-7700 court@LC.org *Admitted Pro Hac Vice Attorneys for Plaintiffs