Case 2:12-cv-02484-WBS-KJN Document 61 Filed 01/02/13 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1

NOTICE OF MOTION AND MOTION TO STAY PROCEEDINGS (2:12-cv-02484)

KAMALA D. HARRIS, State Bar No. 146672 Attorney General of California TAMAR PACHTER, State Bar No. 146083 Supervising Deputy Attorney General ALEXANDRA ROBERT GORDON,State Bar No. 207650 DANIEL POWELL, State Bar No. 230304 Deputy Attorneys General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5509 Fax: (415) 703-5480 E-mail: Alexandra.RobertGordon@doj.ca.gov Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION

WELCH ET AL.,

2:12-cv-02484 Plaintiffs, DEFENDANTS NOTICE OF MOTION AND MOTION TO STAY PROCEEDINGS PENDING APPEAL Date: Time: Dept: Defendants. Judge: February 11, 2013 2:00 p.m. 5 The Honorable William B. Shubb Action Filed: October 1, 2012

v. BROWN ET AL.,

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NOTICE OF MOTION AND MOTION TO STAY PROCEEDINGS (2:12-cv-02484)

TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on February 11, 2013 at 2:00 p.m., or as soon thereafter as this matter may be heard in Courtroom 5 of the United States District Court, located at 501 I Street, Sacramento, California, Defendants Governor Edmund G. Brown Jr., in his official capacity, Anna M. Caballero, in her official capacity as Secretary of the California State and Consumer Services Agency; Denise Brown, in her official capacity as Director of Consumer Affairs; Christine Wietlisbach, Patricia Dawson, Samara Ashley, Harry Douglas, Julia Johnson, Sarita Kohli, Renee Lonner, Karen Pines, and Christina Wong, in their official capacities as members of the California Board of Behavioral Sciences; and Sharon Levine, Michael Bishop, Silvia Diego, Dev Gnanadev, Reginald Low, Denise Pines, Janet Salomonson, Gerrie Schipske, David Serrano Sewell, and Barbara Yaroslavsky, in their official capacities as members of the California Medical Board, will and hereby do move to stay the proceedings in this action pending the resolution of the appeal filed on January 2, 2013 in the United States Court of Appeals for the Ninth Circuit of this Courts December 3, 2012 Order granting the motion for preliminary injunction as to the named plaintiffs in this action. This motion is made pursuant to 28 U.S.C. 1292(b), as well as to the Courts inherent discretion to control the disposition of the cases on its docket, on the grounds that a stay of this action would promote efficiency and prevent unnecessary expense and the waste of judicial and party resources. This motion is based on the Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities in support thereof, the pleadings and papers on file in this action, the arguments of counsel, and any matters upon which the Court may or must take judicial notice.

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NOTICE OF MOTION AND MOTION TO STAY PROCEEDINGS (2:12-cv-02484)

Dated: January 2, 2013

Respectfully submitted, KAMALA D. HARRIS Attorney General of California TAMAR PACHTER Supervising Deputy Attorney General /s/ Alexandra Robert Gordon ALEXANDRA ROBERT GORDON Deputy Attorney General Attorneys for Defendants

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CERTIFICATE OF SERVICE
Case Name: Welch, Donald, et al. v. Brown, et al. No. 2:12-cv-02484

I hereby certify that on January 2, 2013, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system: DEFENDANTS NOTICE OF MOTION AND MOTION TO STAY PROCEEDINGS PENDING APPEAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS NOTICE OF MOTION AND MOTION TO STAY PROCEEDINGS PENDING APPEAL [PROPOSED] ORDER GRANTING MOTION TO STAY PROCEEDINGS PENDING APPEAL I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on January 2, 2013, at San Francisco, California.

N. Newlin Declarant
20661182.doc

/s/ N. Newlin Signature

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MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)

KAMALA D. HARRIS, State Bar No. 146672 Attorney General of California TAMAR PACHTER, State Bar No. 146083 Supervising Deputy Attorney General ALEXANDRA ROBERT GORDON,State Bar No. 207650 DANIEL POWELL, State Bar No. 230304 Deputy Attorneys General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5509 Fax: (415) 703-5480 E-mail: Alexandra.RobertGordon@doj.ca.gov Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION

WELCH ET AL., Plaintiffs, v. BROWN ET AL., Defendants.

2:12-cv-02484

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS NOTICE OF MOTION AND MOTION TO STAY PROCEEDINGS PENDING APPEAL Date: Time: Dept: Judge: February 11, 2013 2:00 p.m/ 5 The Honorable William B. Shubb Action Filed: October 1, 2012

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MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)

TABLE OF CONTENTS Page INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 1 ARGUMENT .................................................................................................................................. 2 I. This Court Should Grant a Stay of All Proceedings Pending Appeal. ................... 2 A. Defendants Will Suffer Considerable Hardship and Inequity If This Action Is Not Stayed. .................................................................................. 3 B. A Stay of This Action Will Not Prejudice Plaintiffs .................................. 4 C. A Stay of the Action Will Serve the Interests of Judicial Economy and Efficiency. ............................................................................................ 4 CONCLUSION ............................................................................................................................... 5

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MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)

TABLE OF AUTHORITIES Page CASES California Assoc. for Health Services at Home v. Sebelius No. CV 11-10618, 2012 WL 893782 (C.D. Cal. Mar. 13, 2012) ............................................. 4 Chrysler-Jeep, Inc. v. Witherspoon No. CV F 04-6663, 2007 WL 135688 (E.D. Cal. Jan. 16, 2007).............................................. 5 Dependable Highway Exp., Inc. v. Navigators Ins. Co. 498 F.3d 1059 (9th Cir. 2007)................................................................................................... 4 Greene v. Pliler No. CIVS020684, 2006 WL 572910 (E.D. Cal. Mar. 8, 2006) ................................................ 5 In re Lorazepam & Clorazepate Antitrust Litig. 208 F.R.D. 1 (D.D.C. 2002) ...................................................................................................... 3 Kotrous v. Goss-Jewett Co. of Northern California, Inc. No. Civ. S021520, 2005 WL 2452606 (E.D.Cal. Oct. 4, 2005) ........................................... 3, 5 Landis v. North American Co. 299 U. S. 248 (1936) ................................................................................................................. 5 Leyva v. Certified Grocers of California, Ltd. 593 F.2d 857 (9th Cir. 1979)..................................................................................................... 2 Minor v. FedEx No. C 09-1375, 2009 WL 1955816 (N.D.Cal. Jul.6, 2009) ...................................................... 4 Pickup et al. v. Brown et al. No. 12-02497 ............................................................................................................................ 2 Rivers v. Walt Disney Co. 980 F. Supp. 1358 (C.D. Cal. 1997) ..................................................................................... 2, 3 San Diego Padres Baseball Pship v. United States No. 99-CV-0828, 2001 WL 710601 (S.D. Cal. May 10, 2001) ................................................ 4

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MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)

TABLE OF AUTHORITIES (continued)

Page

STATUTES California Business and Professions Code 865 .......................................................................................................................................... 1 865.1 ....................................................................................................................................... 1 865.2 ................................................................................................................................... 1, 2 United States Code, Title 28 1292 ........................................................................................................................................ 2 CONSTITUTIONAL PROVISIONS United States Constitution First Amendment ................................................................................................................... 1, 2 COURT RULES Ninth Circuit Rules 3-3 ................................................................................................................... 4

Case 2:12-cv-02484-WBS-KJN Document 61-1 Filed 01/02/13 Page 5 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION Defendants respectfully move to stay the proceedings in this action pending resolution of the appeals currently filed in the United States Court of Appeals for the Ninth Circuit regarding the constitutionality of Senate Bill (SB) 1172. As this Court is aware, there are two conflicting Orders in this District on whether SB 1172 violates the right to freedom of speech under the First Amendment, and each Order has been appealed. The Ninth Circuits ruling on this purely legal issue will profoundly affect the scope of, and/or possibly resolve, this case. Accordingly, staying proceedings pending appeal will prevent the Court and the parties from wasting time and resources addressing issues and matters that may be rendered unnecessary by the determination in the Court of Appeals. Because this action is at an early stage, there is an accelerated briefing schedule in the Ninth Circuit, and the Ninth Circuit has enjoined SB 1172 pending appeal, there is no prejudice to plaintiffs from the grant of a stay. By contrast, forcing Defendants to litigate, simultaneously and perhaps needlessly, the same legal issues before this Court and the Court of Appeals would cause substantial hardship and inequity to Defendants. Thus, law, equity, and the interests of economy and efficiency all dictate the grant of a stay pending appeal. BACKGROUND SB 1172 was signed by the Governor on September 29, 2012.1 See Cal. Stats. 2012, ch. 835, p. 91. SB 1172 prohibits any mental health provider from engaging in sexual orientation change efforts (SOCE) with patients under 18 years of age. Id. 2 (to be codified at Cal. Bus. & Prof. Code 865.1, 865(a)). Further, [a]ny sexual orientation change efforts attempted on a patient under 18 years of age by a mental health provider shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider. Id. (to be codified at Cal. Bus. & Prof. Code 865.2). On October 1, 2012, Plaintiffs filed this action alleging violations of the right to privacy, see Complaint (Count I) and the rights to free speech, religion, association, and due process under Because the Court is familiar with the history of this action, only those facts relevant to the instant motion are set forth here. 1
MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)
1

Case 2:12-cv-02484-WBS-KJN Document 61-1 Filed 01/02/13 Page 6 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. the First, Fifth, and Fourteenth Amendments to the United States Constitution, see id. (Counts IIVIII). On December 3, 2012, this Court granted Plaintiffs motion for a preliminary injunction as to the three named Plaintiffs in this action. In so doing, this Court held, among other things, that Plaintiffs had established a likelihood of success on the merits of their claims that SB 1172 violates their First Amendment rights to freedom of speech. Defendants filed a notice of appeal of this Courts Order on January 2, 2013.2 On October 4, 2012, another action challenging the constitutionality of SB 1172 and naming some of the same defendants was filed in this Court and assigned to the Honorable Kimberly M. Mueller. See Pickup et al. v. Brown et al., No. 12-02497. The Pickup plaintiffs also allege that SB 1172 violates the rights to privacy, free speech, and free exercise of religion. By Order dated December 4, 2012, Judge Mueller denied Pickup plaintiffs motion for a preliminary injunction and held that SB 1172 did not violate the First Amendment or parental rights. Pickup plaintiffs appealed Judge Muellers order on December 4, 2013. On December 21, 2012, the Ninth Circuit granted Pickup plaintiffs emergency motion to enjoin SB 1172 pending appeal. ARGUMENT THIS COURT SHOULD GRANT A STAY OF ALL PROCEEDINGS PENDING APPEAL. Pursuant to 28 U.S.C. section 1292(b), the district court is authorized to issue a stay of proceedings pending an interlocutory appeal. In addition, district courts possess authority to stay their proceedings that is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997) (citing Landis v. North American Co., 299 U. S. 248, 254 (1936)); see also Leyva v. Certified Grocers of California, Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979) (A trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case. This rule applies whether the separate proceedings are judicial, administrative, or arbitral in character, and There currently is a Status Conference in this Court set for January 22, 2013, with a Joint Status Conference Report due on January 15, 2013. 2
MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)
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Case 2:12-cv-02484-WBS-KJN Document 61-1 Filed 01/02/13 Page 7 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 does not require that the issues in such proceedings are necessarily controlling of the action before the court). A stay is warranted where it prevents prejudice to one or both parties and serves the interests of judicial economy and efficiency. See, e.g., Rivers, 980 F.Supp. at 1360 (citing Wright, Miller & Cooper, Federal Practice and Procedure 3866 (1986)). When considering a motion to stay, district courts consider three factors: (1) whether the moving party will suffer hardship or inequity if a stay is not granted; (2) whether the non-moving party will be prejudiced if a stay is granted; and (3) whether judicial resources will be saved by granting a stay. See, e.g., id. As set forth below, all three of these factors weigh in favor of staying this action. A. Defendants Will Suffer Considerable Hardship and Inequity If This Action Is Not Stayed.

As noted above, the issue of the constitutionality of SB 1172 currently is before the Ninth Circuit on appeal. If this action is not stayed, Defendants will be forced to litigate the same issues simultaneously before the district and the appellate court, and without the guidance of the Court of Appeals. Among other things, Defendants will have to respond to potentially expensive and time-consuming discovery and motion practice that ultimately may be unnecessary.3 Having to duplicate and/or waste time and resources would impose an inequitable and unfair burden on Defendants that warrants granting a temporary stay pending appeal. See, e.g., In re Lorazepam & Clorazepate Antitrust Litig., 208 F.R.D. 1, 6 (D.D.C. 2002) (granting stay and noting that because two significant issues are currently pending before the Court of Appeals, one of which could dispose of this litigation while the other could substantially reshape it, proceeding headlong with discovery and other matters before this Court has the very real potential of unnecessarily wasting significant resources of all parties); Kotrous v. Goss-Jewett Co. of Northern California, Inc., No. Civ. S021520, 2005 WL 2452606, *4-5 (E.D.Cal. Oct. 4, 2005) (Because the issue before the Ninth Circuit may be dispositive of plaintiffs federal claims, a To be clear, because this action involves a facial challenge to SB 1172, very little discovery is appropriate. Plaintiffs, however, have indicated that they intend to propound apparently more than minimal discovery with a cut-off date of July 1, 2013. 3
MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)
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Case 2:12-cv-02484-WBS-KJN Document 61-1 Filed 01/02/13 Page 8 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 stay of the proceedings at this point will promote economy of time and effort for both the parties and the court). B. A Stay of This Action Will Not Prejudice Plaintiffs

Given that this action is at a very early stage and that the Ninth Circuit has enjoined enforcement of SB 1172 pending appeal, Plaintiffs will suffer no prejudice if a stay is issued. In fact, a stay will benefit Plaintiffs, in the same way that it will benefit Defendants, as it will enable them to avoid expending resources on discovery and matters that may become moot. See Minor v. FedEx, No. C 09-1375, 2009 WL 1955816, at *1 (N.D.Cal. Jul.6, 2009) (granting stay and determining that [t]o the extent that both [p]laintiffs and [d]efendants will be able to tailor discovery and avoid duplicative or unnecessary tasks, this causes a benefit, rather than damage, to accrue to both parties.). Because there is an expedited briefing schedule in the Court of Appeals, there is no threat of significant delay in resuming proceedings in this Court. See California Assoc. for Health Services at Home v. Sebelius, No. CV 11-10618, 2012 WL 893782, at *3 (C.D. Cal. Mar. 13, 2012); Ninth Cir. R. 3-3. Accordingly, there is no meaningful possibility that the proposed stay would work damage to Plaintiffs. Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007). C. A Stay of the Action Will Serve the Interests of Judicial Economy and Efficiency.

A stay would promote economy of time and effort for the Court as well, as it would relieve the Court from expending valuable time and resources on decisions that it may have to reconsider in light of the Ninth Circuits ruling, or that the ruling may render moot. By granting a stay, this Court can avoid unnecessarily addressing issues or questions of law that will be impacted, if not resolved, by the Court of Appeals opinion regarding the constitutionality of SB 1172. Indeed, district courts regularly stay cases on the basis that resolution of the appellate proceedings will simplify issues or questions of law in the cases before them. See, e.g., California Assoc. for Health Services at Home, No. 2012 WL 893782, at *2-3 (granting stay where Ninth Circuit decision are likely to narrow issues in case); San Diego Padres Baseball Pship v. United States, No. 99-CV-0828, 2001 WL 710601, at *1 (S.D. Cal. May 10, 2001) 4
MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)

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MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)

(upholding stay because decision in pending Ninth Circuit appeal would simplify issues before the court); Chrysler-Jeep, Inc. v. Witherspoon, No. CV F 04-6663, 2007 WL 135688, at *10-15 (E.D. Cal. Jan. 16, 2007) (granting stay pending outcome of U.S. Supreme Court decision would simplify issues and questions of law); Greene v. Pliler, No. CIVS020684, 2006 WL 572910, at *1 (E.D. Cal. Mar. 8, 2006) (granting stay because upcoming Ninth Circuit decision would simplify issues and questions of law). Similarly, here, a stay would streamline issues, proof, and questions of law and thus best serve the interests of judicial economy and efficiency. See Landis v. North American Co., 299 U.S. at 254-255; Kotrous, 2005 WL 2452606, at *5. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court stay all proceedings in this matter pending the resolution of the appeal in the United States Court of Appeals for the Ninth Circuit of this Courts December 3, 2012 Order granting the motion for preliminary injunction as to the named plaintiffs in this action.

Dated: January 2, 2013

Respectfully Submitted, KAMALA D. HARRIS Attorney General of California TAMAR PACHTER Supervising Deputy Attorney General /s/ Alexandra Robert Gordon ALEXANDRA ROBERT GORDON Deputy Attorney General Attorneys for Defendants

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1 [Proposed] Order (2:12-cv-02484)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

WELCH ET AL.,

Case No. 2:12-cv-02484 Plaintiff, [PROPOSED] ORDER GRANTING MOTION TO STAY PROCEEDINGS PENDING APPEAL

v. BROWN ET AL.,

Defendant.

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2 [Proposed] Order (2:12-cv-02484)

The Defendants motion to stay the proceedings in this action pending the resolution of the appeal in the United States Court of Appeals for the Ninth Circuit of this Courts December 3, 2012 Order granting the motion for preliminary injunction, came on for hearing in this Court on February 11, 2013, at 2:00 p.m., in Courtroom 5, before the Honorable William B. Shubb, United States District Court Judge. Kevin T. Snider and Matthew B. McReynolds appeared on behalf of Plaintiffs. Deputy Attorney General Alexandra Robert Gordon appeared on behalf of Defendants. Having considered Defendants motion and Plaintiffs opposition, the other pleadings and documents on file in this case, and the arguments of the parties, and good cause appearing, the Court hereby GRANTS Defendants motion. All proceedings in this case are stayed pending resolution of the appeal of the order granting a preliminary injunction. IT IS SO ORDERED.

Dated: ___________________________

__________________________ The Honorable William B. Shubb