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David Pickup, Christopher H. v. Edmund G. Brown

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


November 21, 2012

DAVID PICKUP, CHRISTOPHER H. ROSIK, PH.D., JOSEPH NICOLOSI, PH.D., ROBERT VAZZO, NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY, AMERICAN ASSOCIATION OF CHRISTIAN COUNSELORS, JOHN DOE 1, BY AND THROUGH JACK AND JANE DOE 1, JACK DOE 1, INDIVIDUALLY, AND JANE DOE 1, INDIVIDUALLY, JOHN DOE 2, BY AND THROUGH JACK AND JANE DOE 2, JACK DOE 2, INDIVIDUALLY, AND JANE DOE 2, INDIVIDUALLY PLAINTIFFS,
v.
EDMUND G. BROWN, JR., GOVERNOR OF THE STATE OF CALIFORNIA, IN HIS OFFICIAL CAPACITY; ANNA M. CABALLERO, SECRETARY OF THE STATE AND CONSUMER SERVICES AGENCY OF THE STATE OF CALIFORNIA, IN HER OFFICIAL CAPACITY, KIM MADSEN, EXECUTIVE OFFICER OF THE CALIFORNIA BOARD OF BEHAVIORAL SCIENCES, IN HER OFFICIAL CAPACITY; MICHAEL ERICKSON, PH.D., PRESIDENT OF THE CALIFORNIA BOARD OF PSYCHOLOGY, IN HIS OFFICIAL CAPACITY; SHARON LEVINE, PRESIDENT OF THE MEDICAL BOARD OF CALIFORNIA, IN HER OFFICIAL CAPACITY. DEFENDANTS.

ORDER

On October 19, 2012, Equality California filed a Motion to Intervene as a Party Defendant in the above-captioned case, scheduled for hearing on November 30, 2012. (ECF 24.) More recently, on November 9, 2012, while the motion to intervene is pending, Equality California has submitted a Motion for Leave to File an Amicus Brief in Opposition to Plaintiffs' Amended Motion for Preliminary Injunction, also scheduled for hearing on November 30, 2012. (ECF 55.) Equality California also requests that the court grant it five minutes of oral argument time during the November 30 hearing. (Id.) On November 16, 2012, plaintiffs filed oppositions to both of Equality California's motions. (ECF 56; ECF 57.) The State defendants have not opposed Equality California's request for amicus status. In this order, the court GRANTS Equality California's Motion for Leave to File an Amicus Brief, as explained below, while maintaining the hearing previously set on the Motion to Intervene.

In their opposition to Equality California's Motion for Leave to File an Amicus Brief, plaintiffs argue that the motion violates Eastern District of California Local Rule 230(b), which requires that a motion shall be set for hearing no less than twenty-eight days after service and filing of the motion. As Equality California's motion is "related to the general subject matter" of the Motion for Preliminary Injunction and Motion to Intervene previously set for hearing on November 30, it could be timely filed until the November 16 deadline for opposition to the primary motions, assuming Equality California is subject to the same rules as a party if granted amicus status. Local Rule 230(e). As noted above, Equality California filed the instant motion, accompanied by the proposed amicus brief, well in advance of November 16. For the reasons discussed below, the court grants Equality California amicus curiae status, and deems its motion and amicus brief timely.

Plaintiffs contend that Equality California should not be allowed to participate as an amicus because it would not bring a unique perspective to the issues before court. The district court has broad discretion regarding the appointment of amici. Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); In re Roxford Foods Litig., 790 F. Supp. 987, 997 (E.D. Cal. 1991). "An amicus brief should normally be allowed" when, among other considerations, "the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide." Cmty. Ass'n for Restoration of Env't (CARE) v. DeRuyter Bros. Dairy, 54 F. Supp. 2d 974, 975 (E.D. Wash. 1999) (citing Northern Sec. Co. v. United States, 191U.S. 555, 556 (1903)). Here, as the sponsor of the legislation plaintiffs seek to enjoin, Equality California can provide information related to the legislative history that may be helpful to the court.

Plaintiffs further assert it would be inappropriate to grant Equality California amicus status because it is not a neutral party. While "[h]istorically, amicus curiae is an impartial individual who suggests the interpretation and status of the law, gives information concerning it, and advises the Court in order that justice may be done, rather than to advocate a point of view so that a cause may be won by one party or another," Cmty. Ass'n for Restoration of Env't (CARE), 54 F. Supp. 2d at 975, the Ninth Circuit has said "there is no rule that amici must be totally disinterested." Funbus Sys., Inc. v. State of Cal. Pub. Utils. Comm'n, 801 F.2d 1120, 1125 (9th Cir. 1986); Hoptowit, 682 F.2d at 1260 (upholding district court's appointment of amicus curiae, even though amicus entirely supported only one party's arguments). The court has the ability to glean any useful information from Equality California's filing without being swayed by any pure advocacy.

Because Equality California's proposed amicus brief has been on the court's docket since November 9, and in light of plaintiffs' characterization of the brief as largely duplicating the arguments made in the State defendants' papers, plaintiffs will not be prejudiced by the court's allowing formal filing of the brief.

The court hereby GRANTS Equality California's Motion for Leave to File an Amicus Brief in Opposition to Plaintiffs' Amended Motion for Preliminary Injunction, and also GRANTS Equality California's request for five minutes of argument on November 30, 2012.

Equality California is directed to file on the docket its proposed amicus brief, in the form presented on November 9, by the close of business on November 23, 2012.

20121121

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