Free Response in Opposition to Motion - District Court of California - California

Case 3:07-cv-02246-BTM-WMC

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1 ROBERT S. GERBER (BAR NO. 137961) SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 2 12275 El Camino Real, Suite 200 San Diego, California 92130 3 T: (858) 720-8900 / F: (858) 509-3691 Email: [email protected] 4 Additional counsel listed on the following page: NATIONAL CENTER FOR LESBIAN RIGHTS 5 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. TRANSGENDER LAW CENTER 6 LAW OFFICE OF DAVID C. CODELL 7 Attorneys for Proposed Defendant-Intervenors and Proposed Amici Curiae EQUALITY CALIFORNIA and 8 GAY-STRAIGHT ALLIANCE NETWORK 9 10 11 12 13 CALIFORNIA EDUCATION COMMITTEE, LLC and PRISCILLA SCHREIBER, 14 15 16 v. 17 ARNOLD SCHWARZENEGGER, in his official capacity as Governor of the State of 18 California; EDMUND G. BROWN, JR., in his official capacity as Attorney General of the 19 State of California; JACK O'CONNELL in his official capacity as California Superintendent of 20 Public Instruction; and DOES 1 through 20 inclusive, 21 22 23 24 25 26 27 28
AMICI'S RESPONSE TO PLAINTIFFS' NOTICE OF OPPOSITION TO AMICI BRIEF CASE NO. 07-CV-02246-BTM-WMC

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Case No.: 07-CV-02246-BTM-WMC RESPONSE OF PROPOSED DEFENDANT-INTERVENORS AND PROPOSED AMICI CURIAE EQUALITY CALIFORNIA AND GAY-STRAIGHT ALLIANCE NETWORK TO PLAINTIFFS' NOTICE OF OPPOSITION TO AMICI CURIAE EQUALITY CALIFORNIA AND GAY-STRAIGHT ALLIANCE NETWORK'S MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS Date: Time: Courtroom: Judge: None Specified None Specified 15 Hon. Barry Ted Moskowitz

Plaintiffs,

Defendants.

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1 Additional counsel for Proposed Defendant-Intervenors and Amici Curiae EQUALITY CALIFORNIA and GAY-STRAIGHT ALLIANCE NETWORK: 2 3 SHANNON MINTER (BAR NO. 168907) VANESSA H. EISEMANN (BAR NO. 210478) 4 JODY MARKSAMER (BAR NO. 229913) NATIONAL CENTER FOR LESBIAN RIGHTS 5 870 Market Street, Suite 370 San Francisco, California 94102 6 T: (415) 392-6257 / F: (415) 392-8442 Email: [email protected], [email protected], [email protected] 7 BRIAN CHASE (BAR NO. 242542) 8 TARA BORELLI (BAR NO. 216961) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 9 3325 Wilshire Boulevard, Suite 1300 10 Los Angeles, California 90010 T: (213) 382-7600 / F: (213) 351-6050 11 Email: [email protected], [email protected] 12 KRISTINA WERTZ (BAR NO. 235441) TRANSGENDER LAW CENTER 13 870 Market Street, Suite 823 San Francisco, California 94102 14 T: (415) 865-0176 / F: (877) 847-1278 Email: [email protected] 15 16 DAVID C. CODELL (BAR NO. 200965) LAW OFFICE OF DAVID C. CODELL 17 9200 Sunset Boulevard, Penthouse Two Los Angeles, California 90069 18 T: (310) 273-0306 / F: (310) 273-0307 Email: [email protected] 19 20 21 22 23 24 25 26 27 28
AMICI'S RESPONSE TO PLAINTIFFS' NOTICE OF OPPOSITION TO AMICI BRIEF CASE NO. 07-CV-02246-BTM-WMC

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RESPONSE TO PLAINTIFFS' NOTICE OF OPPOSITION TO AMICI MEMORANDUM

1.

Equality California and the Gay-Straight Alliance Network ("GSA Network")

4 respectfully submit the following Response to Plaintiffs' Notice of Opposition (filed January 21, 5 2008) to the Proposed Amici Curiae Memorandum that Equality California and the GSA Network 6 submitted to the Court electronically on Friday, January 18. Equality California and the GSA 7 Network regret the need to trouble the Court with the matters discussed herein. 8
2. On Friday, January 11, 2008, the State Defendants in this action filed a Motion to

9 Dismiss, which is scheduled to be heard on February 15, 2008, the same date on which the Court is 10 scheduled to hear a Motion for Intervention filed by Equality California and GSA Network. The 11 State Defendants' Motion to Dismiss is based on both Rule 12(b)(1) (lack of subject matter 12 jurisdiction) and Rule 12(b)(6) (failure to state a claim). 13
3. On Friday, January 18, 2008, Plaintiffs, State Defendants, and Proposed

14 Intervenors/Proposed Amici Curiae Equality California and GSA Network filed a Joint Motion and 15 lodged a proposed order that, if approved by the Court, would authorize Equality California and 16 GSA Network to file on that date (January 18, 2008) a proposed amici memorandum in support of 17 the State Defendants' Motion to Dismiss. The conversations among counsel in advance of the 18 January 18, 2008 Joint Motion did not address the content of the proposed amici memorandum, 19 other than describing the proposed memorandum as supporting the State's Motion to Dismiss. 20 Equality California and GSA Network timely submitted their proposed amici memorandum on 21 January 18, 2008, just seven days after the State Defendants filed their Motion to Dismiss, and a 22 full twenty-eight days before the scheduled hearing on the Motion to Dismiss, in order to provide 23 the Court and the parties adequate time to consider the points and authorities contained therein. 24
4. On Monday, January 21, 2008, Plaintiffs, through their counsel, filed a "Notice of

25 Opposition," stating that they oppose the inclusion in the proposed amici memorandum of 26 arguments pertaining to the legal sufficiency of the vagueness cause of action, which, Plaintiffs 27 contend, are beyond the scope of the Defendants' Motion to Dismiss, which the State Defendants 28 based on both Rule 12(b)(1) and Rule 12(b)(6). Plaintiffs' Notice of Opposition requests that the
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1 Court either disregard the Rule 12(b)(6) arguments that Proposed Amici, but not the State 2 Defendants, have raised or provide the Plaintiffs sufficient time to respond to the arguments to 3 which Plaintiffs object. 4
5. Equality California and GSA Network wish to bring the following matters to the

5 attention of the Court: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
a. In contrast to principles that various appellate courts apply in determining

whether to consider arguments that amici, but not parties, raise, it is solidly within the discretion of a district court to decide whether and when to consider such arguments proffered by amici. See, e.g., Trunk v. City of San Diego, 2007 U.S. Dist. LEXIS 82647 (S.D.Cal. 2007) (Southern District of California Judge Burns directed the parties to address an issue raised by Amicus Pacific Justice Institute in support of Defendants' motion to dismiss either in the parties' "briefing on the motion to dismiss, or in a subsequent motion."). There is certainly nothing inappropriate about amici curiae presenting to the District Court arguments in addition to those presented by the parties so that the Court may consider how best to decide a case. b. The arguments of Proposed Intervenors/Amici to which Plaintiffs object are

Rule 12(b)(6) arguments that, though the State Defendants have not yet raised, can be fairly deemed included in a Rule 12(b)(6) Motion, which the State Defendants have filed and can, in the alternative, be considered in the near future as part of a Motion for Judgment on the Pleadings under Rule 12(h)(2) should this action continue through completion of the pleading stage. Proposed Intervenors Equality California and GSA Network have included in their proposed Answer in Intervention an affirmative defense of failure to state a claim (which needs only to be pleaded generally). c. It appears from Plaintiffs' Notice of Opposition that Plaintiffs desire

guidance as to whether, and if so, when, they should address arguments regarding the voidfor-vagueness claims that are contained in section B of the Argument section of the Proposed Amici Memorandum, from page 10, line 23, to page 20, line 6. Equality California and GSA Network do not oppose Plaintiffs' apparent request for guidance from
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the Court as to whether and when to address the above-referenced arguments. 6. Equality California and GSA Network's Motion to Intervene is currently scheduled

3 to be heard on February 15, 2008, at 11:00 a.m. All parties to the case ­ Plaintiffs and Defendants 4 ­ have represented in the Joint Motion regarding the Amicus Brief filed with the Court on 5 January 18, 2008 that the parties do not oppose Equality California and GSA Network's Motion to 6 Intervene. Given the lack of opposition to Equality California and GSA Network's Motion to 7 Intervene, should this Court rule in advance of February 1, 2008 (the due date for parties' responses 8 to the State's Motion to Dismiss) that Equality California and GSA Network may intervene as party 9 defendants, Equality California and GSA Network would promptly resubmit their amicus brief 10 (with minor corrections) as a party Response to the State Defendants' Motion to Dismiss. 11 12
CONCLUSION For the foregoing reasons, Amici request that this Court (1) grant the Joint Motion

13 submitted January 18, 2008 requesting leave for Equality California and GSA Network to file a 14 Memorandum as Amici Curiae in support of the State's Motion to Dismiss; (2) provide any 15 guidance that the Court in its discretion may deem advisable regarding whether or when the parties 16 should address any particular arguments contained in the Proposed Memorandum of Amici Curiae 17 submitted on January 18, 2008; and (3) give consideration to expedited resolution of 18 / / / / / 19 / / / / / 20 / / / / / 21 / / / / / 22 / / / / / 23 / / / / / 24 / / / / / 25 / / / / / 26 / / / / / 27 / / / / / 28 / / / / /
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1 Equality California and GSA Network's Motion to Intervene, in light of the parties' non-opposition 2 to that motion. 3 4 Dated: January 22, 2008 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
AMICI'S RESPONSE TO PLAINTIFFS' NOTICE OF OPPOSITION TO AMICI BRIEF CASE NO. 07-CV-02246-BTM-WMC

Respectfully submitted, ROBERT S. GERBER SHEPPARD, MULLIN, RICHTER & HAMPTON LLP SHANNON MINTER VANESSA H. EISEMANN JODY MARKSAMER NATIONAL CENTER FOR LESBIAN RIGHTS BRIAN CHASE TARA BORELLI LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. KRISTINA WERTZ TRANSGENDER LAW CENTER DAVID C. CODELL LAW OFFICE OF DAVID C. CODELL s/ Robert S. Gerber_________________________ Attorneys for Proposed Defendant-Intervenors and Amici Curiae EQUALITY CALIFORNIA and GAY-STRAIGHT ALLIANCE NETWORK Email: [email protected]

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CERTIFICATE OF SERVICE

2 I am employed in the City and County of San Diego; I am over the age of eighteen years and not a 3 party to the within entitled action; my business address is 12275 El Camino Real, Suite 200 San Diego, California 92130. 4 On January 22, 2008, I served the following document(s) described as: 5 RESPONSE OF PROPOSED DEFENDANT-INTERVENORS AND PROPOSED AMICI 6 CURIAE EQUALITY CALIFORNIA AND GAY-STRAIGHT ALLIANCE NETWORK TO PLAINTIFFS' NOTICE OF OPPOSITION TO AMICI CURIAE EQUALITY 7 CALIFORNIA AND GAY-STRAIGHT ALLIANCE NETWORK'S MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS 8 Electronic Mail Notice List 9 10 The following are those who are currently on the list to receive e-mail notices for this case. 11 ADVOCATES FOR FAITH AND FREEDOM Robert H. Tyler, Esq. 12 Jennifer L. Monk, Esq. 24910 Las Brisas Road, Suite 110 13 Murrieta, CA 92562 14 Telephone: 951-304-7583 Facsimile: 951-600-4996 15 Email: [email protected] [email protected] 16 17 ALLIANCE DEFENSE FUND Timothy D. Chandler 18 101 Parkshore Drive, Suite 100 Folsom, CA 95630 19 Telephone: 916-932-2850 Facsimile: 916-932-2851 20 Email: tchandler@tellad£org 21 22 23 24 25 26 27 28
Edmund G. Brown, Jr. Attorney General of the State of California Christopher E. Krueger Senior Assistant Attorney General Stephen P. Acquisto Supervising Deputing Attorney General Jeffrey I. Bedell, Deputy Attorney General 1300 I Street, Suite 125 P. O. Box 944255 Sacramento, CA 94244-2550 Telephone: 916-322-6103 Facsimile: 916-324-8835 Email: [email protected] Attorneys for Plaintiffs California Education Committee, LLC and Priscilla Schreiber

Attorneys for Plaintiffs California Education Committee, LLC and Priscilla Schreiber

Attorneys for Defendants Arnold Schwarzenegger, in his Official Capacity as Governor of the State of California; Edmund G. Brown Jr., in his Official Capacity as Attorney General of the State of California; and Jack O'Connell, in his Official Capacity as the California State Superintendent of Public Instruction

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Executed on January 22, 2008, at San Diego, California. [X] FEDERAL: I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

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AMICI'S RESPONSE TO PLAINTIFFS' NOTICE OF OPPOSITION TO AMICI BRIEF CASE NO. 07-CV-02246-BTM-WMC

s/ Rosa Urias Rosa Urias

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