CASE NO.

13-4429
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

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/Appellants,
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/Appellees.
And

GARDEN STATE EQUALITY,
Intervenor-Defendants/Appellees

APPELLANTS MOTION FOR STAY OF MANDATE PENDING
PETITION FOR WRIT OF CERTIORARI

Mathew D. Staver (Lead Counsel)
Anita L. Staver
LIBERTY COUNSEL
1055 Maitland Ctr. Cmmns 2d Floor
Maitland, FL 32751-7214
Tel. (800) 671-1776
Email court@LC.org
Attorneys for Appellants
Mary E. McAlister
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 11108
Lynchburg, VA 24506
Tel. (434) 592-7000
Email court@LC.org
Attorneys for Appellants
Case: 13-4429 Document: 003111749578 Page: 1 Date Filed: 09/26/2014
INTRODUCTION
Appellants, Tara King, Ph.D., Ronald Newman, Ph.D., National Association
for Research and Therapy of Homosexuality, and American Association of
Christian Counselors (collectively Appellants), move this Court for an Order
Staying the Mandate pending determination of Appellants Petition for Certiorari
to the United States Supreme Court. Appellants make this motion pursuant to Fed.
R. App. P. 41(d).
ARGUMENT
As part of its traditional equipment for the traditional administration of
justice, a federal court can stay the enforcement of a judgment pending the
outcome of an appeal. Nken v. Holder, 556 U.S. 418, 421 (2009) (quoting
Scripps-Howard Radio, Inv. v. FCC, 316 U.S. 4, 9 (1942)). That also includes the
authority to stay enforcement of the mandate issued after an appeal while a party
seeks review of its petition for a writ of certiorari. See Fed. R. App. P. 41. Under
Fed. R. App. P. 41, a motion to stay the mandate pending a petition for a writ of
certiorari must be served on all parties and must show that the certiorari petition
would present a substantial question and that there is good cause for the stay. Fed.
R. App. P. 41(d)(2)(A). Appellants Motion satisfies this standard.
Appellants petition for a writ of certiorari will present substantial questions
concerning an unprecedented regulation of speech by counselors, which clients
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voluntarily seek, and there is good cause for granting the stay. In fact, given the
constitutional significance of the questions presented in Appellants challenge to
A3371, the divergent opinions among the various district and circuit courts to
consider this and other similar regulations of professional speech, and the distinct
split of opinion between various circuit courts concerning the proper classification
of professional speech and the appropriate standard of review for analyzing
regulations of it, Appellants petition for a writ of certiorari has significant
implications both for the right of free speech and for the regulation of licensed
professionals. There is little question that such constitutionally significant
questions are substantial and merit a finding of good cause for issuing the stay. As
such, this Court should stay its mandate pending resolution of Appellants petition
for a writ of certiorari.
I. Appellants Petition Presents Substantial Questions of Grave
Importance.

There are substantial questions presented by Appellants forthcoming
petition for a writ of certiorari. Appellants petition will present questions that have
resulted in a circuit split concerning the classification of professional speech and
the proper level of constitutional scrutiny applicable to regulations of such speech.
This Courts decision is in contrast to decisions of professional speech in the
Fourth, Ninth, and Eleventh Circuits. See King v. Governor of State of N.J., No.
1304429, 2014 WL 4455009 (3d Cir. Sept. 11, 2014); Wollschlaeger v. Florida,
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No. 12-14009, 2014 WL 3695296 (11th Cir. July 25, 2014); Pickup v. Brown, 740
F.3d 1208 (9th Cir. 2013); Moore-King v. Cnty. of Chesterfield, 708 F.3d 560 (4th
Cir. 2013); Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). This split of authority
among the circuit courts is ripe for certiorari review. See Sup. Ct. R. 10(a) (noting
that certiorari is likely when a United States court of appeals has entered a
decision in conict with the decision of another United States court of appeals on
the same important matter).
As Judge OScannlain noted in his dissent from a denial of rehearing in
Pickup, Appellants petition presents the critical threshold issue of whether a state
may remove from the First Amendments ambit the speech of certain
professionals when the State disfavors its content or its purpose. Pickup, 740 F.3d
at 1221 (OScannlain, J., dissenting from denial of rehearing en banc). Indeed, the
answer to Appellants question will determine whether a state may engage in
legislative legerdemain and label a speech restriction or prohibition as merely a
professional regulation to remove it from First Amendment scrutiny.
A3371 set the states power to regulate licensed professionals on a collision
course with fundamental constitutional rights, and Appellants petition will ask the
Supreme Court to decide the critical question of whether a state is permitted to
prohibit an entire category or viewpoint of counselors speech on an otherwise
permissible subject matter simply by calling it conduct instead of speech.
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Appellants petition will ask the High Court to resolve this critical question that
has resulted in divergent opinions among the circuits.
Moreover, the type of free speech restriction at issue here is one that the
Supreme Court has demonstrated tremendous hostility against in other contexts.
See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2723-24 (2010); Brown
v. Entmt Merchants Assn, 131 S. Ct. 2729, 2738 (2011); Rosenberger v. Rector &
Visitors of the Univ. of Va., 515 U.S. 819 (1995); R.A.V. v. City of St. Paul, 505
U.S. 377, 382 (1992). It is beyond cavil that questions concerning the First
Amendment right to free speech are substantial, as the Supreme Court has stated
that such a right lies at the foundation of free government. Schneider v. New
Jersey, 308 U.S. 147, 165 (1939).
Appellants petition also presents the substantial question of when a state
crosses the line from permissible professional regulations to impermissible speech
restrictions. This question has similarly resulted in a split among the circuits.
Compare King, 2014 WL 4455009 at *4-8, with Pickup, 740 F.3d at 1225-29. As
Judge OScannlain noted, authoritative precedents have established that neither
professional regulations generally, nor even a more limited subclass of such rules,
remain categorically outside of the First Amendments reach. Pickup, 740 F.3d at
1218 (OScannlain, J., dissenting from denial of rehearing en banc). The
authoritative precedents to which he was referring are opinions from the High
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Court, which are in conflict with the panels determination here. See Sorrell v. IMS
Health, Inc., 131 S. Ct. 2653 (2011); Legal Serv. Corp. v. Velazquez, 531 U.S. 533
(2001); Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995); Ohralik v. Ohio State
Bar Assn, 436 U.S. 447 (1978); Bates v. State Bar of Ariz., 433 U.S. 350 (1977);
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748
(1976); Thomas v. Collins, 323 U.S. 516 (1948).
Appellants petition will also raise the substantial question of whether a
restriction on the ability of parents to seek counseling for their child consistent
with their sincerely held religious beliefs violates the fundamental rights of
Appellants to direct the upbringing and education of their children. That the
Supreme Court considers this to be a substantial question is evident from its
recognition that such a right is perhaps the oldest fundamental liberty interest
recognized in law. See, e.g., Troxel v. Granville, 530 U.S. 57 (2000); Wisconsin v.
Yoder, 406 U.S. 205, 233 (1972); Prince v. Massachusetts, 321 U.S. 158, 166
(1944); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
Appellants petition will also have significant implications for state
regulations nationwide, and potentially control the validity of regulations similar to
A3371 which have been introduced or are currently being considered in Florida,
Illinois, Maryland, Massachusetts, New York, Pennsylvania, Virginia,
Washington, Washington D.C., and Wisconsin.
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In short, Appellants petition for certiorari presents several substantial
questions of grave importance, each of which is sufficient to satisfy Rule 41. The
motion to stay the mandate should therefore be granted.
II. There Is Good Cause for Staying the Mandate.
As the foregoing discussion makes clear, Appellants petition raises critical
questions of constitutional significance in areas affecting fundamental rights and
liberties. Appellants licenses and livelihoods, as well as the health of their minor
clients, are in jeopardy under the constitutional intrusion inherent in A3371. A3371
also raises significant implications for the therapeutic alliance between the
counselors and their clients. These collaborative relationships are built upon trust
developed over a course of treatment that marries the clients goals with the
counselors methods for accomplishing those goals. These are critical components
of achieving the clients therapeutic goals. A3371 does not merely affect the
professional licenses of Appellants, but presents a substantial risk of adverse
effects on their clients health and well-being.
CONCLUSION
Because Appellants petition for a writ of certiorari will raise substantial
questions of constitutional significance, and because there is good cause shown for
issuing the stay, Appellants respectfully ask this Court to grant their motion.
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Respectfully submitted,
Mathew D. Staver (Lead Counsel) /s/ Daniel J. Schmid
Anita L. Staver Daniel J. Schmid
LIBERTY COUNSEL Mary E. McAlister
1055 Maitland Ctr. Cmmns 2d Floor LIBERTY COUNSEL
Maitland, FL 32751-7214 P.O. Box 11108
Tel. (800) 671-1776 Lynchburg, VA 24506
Email court@LC.org Tel. (434) 592-7000
Attorneys for Appellants Email court@LC.org
Attorneys for Appellants

CERTIFICATE OF SERVICE
I hereby certify that on the 26th day of September, 2014, I filed the
foregoing Motion electronically through the CM/ECF system, which caused the all
counsel of record to be served via this Courts electronic service mechanism.

/s/ Daniel J. Schmid
Daniel J. Schmid



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