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Doyle v. Hogan

United States District Court, D. Maryland

August 1, 2019

CHRISTOPHER DOYLE, LPC, LCPC, Individually and on behalf of his clients



         Plaintiff Christopher Doyle (“Plaintiff”) initiated the instant action against Defendants Lawrence J. Hogan, Jr. in his official capacity as Governor of the State of Maryland and Brian E. Frosh in his official capacity as the Attorney General of the State of Maryland (collectively, “Defendants”) on January 18, 2019.

         The complaint alleges that § 1-212.1 of the Health Occupations Article of the Maryland Code violates Plaintiff's: (1) right to freedom of speech under the First Amendment (ECF No. 1 ¶¶ 144-163); (2) clients' First Amendment rights to receive information (id. ¶¶ 164-172); (3) right to free exercise of religion under the First Amendment (id. ¶¶ 173-189); (4) “right to liberty of speech under Articles 10 and 40 of the Declaration of Rights of the Constitution of Maryland” (id. ¶¶ 190-210); and (5) “right to free exercise and enjoyment of religion under Article 36 of the Declaration of Rights of the Constitution of Maryland” (id. ¶¶ 211-227). Plaintiff seeks (1) “a preliminary injunction enjoining Defendants and Defendants' officers, agents, servants, employees, and attorneys, and all other persons who are in active concert or participation with them . . . from enforcing [§ 1-212.1][;]” (2) “a permanent injunction enjoining enforce[ement] of [§ 1-212.1;]” (3) “a declaratory judgment declaring unconstitutional [§ 1-212.1] and Defendants' actions in applying [§ 1-212.1] under the United States Constitution and Constitution of Maryland[;]” (4) “nominal damages for the violation of [his] constitutional rights[;]” (5) “actual damages in an amount to be awarded at trial[;]” (6) a declaration that “the rights and other legal relations with subject matter here are in controversy so that such declaration shall have the force and effect of final judgment[;]” (7) the court's continued jurisdiction after finding in Plaintiff's favor “for the purpose of enforcing th[e] [c]ourt's order[;]” and (8) “reasonable costs and expenses of this action, including attorney's fees, in accordance with 42 U.S.C. § 1988[.]” (ECF No. 1, at 42-45). Presently pending are: (1) Plaintiff's January 18, 2019 motion for preliminary injunction (ECF No. 2); (2) Defendants' March 8, 2019 motion to dismiss for failure to state a claim (ECF No. 26); (3) a motion for leave to file an amicus curiae brief in support of Defendants' motion to dismiss and opposition to Plaintiff's motion for preliminary injunction (ECF No. 28) filed by FreeState Justice, Inc. (“FreeState”) on March 15, 2019; (4) a motion for leave to file an amicus curiae brief in support of Defendants' opposition to Plaintiff's motion for preliminary injunction (ECF No. 31) filed by The Trevor Project on March 15, 2019; (4) Plaintiff's April 11, 2019 motion to compel (ECF No. 44); and (5) Plaintiff's May 16, 2019 motion for leave to file surreply in opposition to Defendant's motion to dismiss (ECF No. 58).

         A hearing is scheduled for August 5-6 and will focus on some aspects of the motion to dismiss, and the motion for a preliminary injunction. Some of the other pending motions, preliminary issues, and some of the arguments raised in the motion to dismiss will be resolved in this memorandum opinion, without a hearing. For the following reasons, FreeState's motion for leave to file amicus curiae will be granted, The Trevor Project's motion for leave to file amicus curiae will be granted, Plaintiff's motion for leave to file surreply will be granted, and Plaintiff's motion to compel will be denied without prejudice.

         I. Background

         Defendant Hogan signed Senate Bill (“Senate Bill or SB”) 1028 on May 15, 2018. The law was codified as § 1-212.1 of the Health Occupations Article of the Maryland Code and took effect on October 1, 2018. (ECF No. 1-1, at 1, 6). § 1-212.1(b) prohibits mental health or child care practitioners from engaging in conversion therapy, defined by § 1-212.1(a)(2)(i) as “a practice or treatment . . . that seeks to change an individual's sexual orientation or gender identity[, ]” with minor clients. § 1-212.1(a)(1)(2)(ii) states that “‘conversion therapy' includes any effort to change the behavioral expression of an individual's sexual orientation, change gender expression, or eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender.”

         Under § 1-212.1, mental health and child care practitioners may practice therapy with minors that “provides acceptance, support, and understanding, or the facilitation of coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices.” However, such therapy may not “seek to change sexual orientation or gender identity.” Md. Code, Conversion Therapy, § 1-212.1(a)(1)(2)(iii). § 1-212.1(c) states that practitioners in violation of the statute “shall be considered to have engaged in unprofessional conduct and shall be subject to discipline by a certain licensing or certifying board.”

         § 1-212.1(a)(3) defines “mental health or child care practitioner[s]” as physicians, professional counselors or therapists, psychologists, social workers or residential child care program professionals licensed or certified in the State of Maryland, and “[a]ny other practitioner licensed or certified under [the Health Occupations Article of the Code of Maryland] who is authorized to provide counseling by the practitioners licensing or certifying board.” According to Defendants, § 1-212.1 permits practitioners to (1) communicate with the public about conversion therapy; (2) express their views about conversion therapy to any person, including minor and adult clients; (3) recommend conversion therapy to any person, including minor and adult clients; (4) administer conversion therapy to clients over the age of 18; and (5) refer minor clients to unlicensed counselors and religious leaders for the purposes of undergoing conversion therapy. (ECF No. 26-1, at 3).

         To conclude that sexual orientation change efforts (“SOCE”) threaten the physical and psychological well-being of minors, the Maryland legislature relied on research, conclusions and statements by the American Psychological Association, American Psychiatric Association, American Medical Association Council on Scientific Affairs, National Association of Social Workers, American Counseling Association Governing Council, American School Counselor Association, American Psychoanalytic Association, American Academy of Child and Adolescent Psychiatry, American Association of Sexuality Educators, Counselors, and Therapists, Pan American Health Organization, American College of Physicians, and the Pediatrics journal. (ECF No. 1-1, at 4). Much of the information that the legislature relied on discusses the efficacy, or lack thereof, of conversion therapy and explains that the practice may lead to depression or even suicide. For example, the American Psychological Association's 2009 report on sexual orientation change efforts defines SOCE as “methods that aim to change a same-sex sexual orientation (e.g., behavioral techniques, psychoanalytic techniques, medical approaches, religious and spiritual approaches) to hetereosexual[, ]” (ECF No. 1-2, at 20 n.5) and concludes that:

sexual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people, including confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidal ideations, substance abuse, stress, disappointment, self-blame, decreased self-esteem and authenticity to others, increased self-hatred, hostility and blame toward parents, feelings of anger and betrayal, loss of friends and potential romantic partners, problems in sexual and emotional intimacy, sexual dysfunction, high-risk sexual behaviors, a feeling of being dehumanized and untrue to self, a loss of faith, and a sense of having wasted time and resources.

(ECF No. 1-1, at 1). Concerned about the negative effects conversion therapy may have on children during and after receiving the treatment, the “Maryland General Assembly passed, and the Governor signed, SB 1028 to protect Maryland children from harm[.]” (ECF No. 53, at 1).

         Plaintiff is a “psychotherapist who is licensed to practice mental health counseling in Maryland.” (ECF No. 1, at 5). Plaintiff currently acts as a mental health therapist for Patrick Henry College in Purcelville, VA, executive director for the Institute for Healthy Families in the Washington, D.C. area (the “Institute”), and clinical director and licensed counselor for Northern Virginia Christian Counseling. (ECF Nos. 53-2, at 2, p. 9 & 1, at 20). Plaintiff asserts that he “has devoted most of his professional life to providing counseling to young people and their parents who are seeking help for unwanted same-sex attractions[.]” (ECF No. 1, at 21).

         II. Motions for Leave to File Briefs as Amici Curiae

         FreeState is a legal advocacy organization that seeks to improve the lives of low-income lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) people in Maryland. (ECF No. 28, at 1). FreeState contends that it “has demonstrated a special interest in the outcome of the suit” and “represents large constituencies of individuals which have a vested interest” because it “played an integral role in advocating for the passage and subsequent enactment” of § 1-212.1. (Id., at 2) (internal quotations omitted). Similarly, The Trevor Project states that it is the nation's largest LGBTQ youth crisis intervention and suicide prevention organization. Some of the individuals The Trevor Project serves were treated with conversion therapy or belong to families interested in compelling them to undergo conversion therapy. (ECF No. 31, at 2). The Trevor Project contends that it “has a special interest in this litigation and can offer . . . an additional, unique perspective on the relevant facts and law[] based on what it has learned firsthand from the LGBTQ youth it serves.” (ECF No. 31, at 1). Both parties also point out that several other district courts analyzing the constitutionality of similar laws that ban conversion therapy have “liberally granted leave to file amicus curiae briefs[.]” (ECF Nos. 28, at 2 & 31, at 5).

         Plaintiff opposes the proposed amici curiae, arguing that their proposed briefs are neither useful nor timely. (ECF No. 37, at 2). As for usefulness, Plaintiff disputes the relevance of a study article appended to FreeState's proposed brief and argues that, based on a 2014 public statement by a FreeState's predecessor organization Equality Maryland, the organization actually believes § 1-212.1 is unnecessary. (Id., at 3-5). Plaintiff adds that The Trevor Project's discussion about the negative effects conversion therapy may have on parent-child relationships is discredited by Defendants' response to Plaintiff's request for admissions. As for timeliness, Plaintiff states that the amici curiae “proffer information months after the counseling ban” and believes acceptance of the amicus briefs “will disrupt the current preliminary injunction proceedings.” Finally, Plaintiff argues that the factual material included in The Trevor Project's proposed brief creates an “ex post facto evidentiary record to bolster Maryland's counseling ban enactment.” (Id., at 8).

         There is no Federal Rule of Civil Procedure that applies to motions for leave to appear as amicus curiae in a federal district court. District courts therefore have discretion whether to grant or deny such leave and often look for guidance to Rule 29 of the Federal Rules of Appellate Procedure, which applies to amicus briefs at the federal appeals level. See, e.g., Jin v. Ministry of State Sec., 557 F.Supp.2d 131, 136 (D.D.C. 2008); Tafas v. Dudas, 511 F.Supp.2d 652, 660 (E.D.Va. 2007); Bryant v. Better Bus. Bureau of Greater Md., Inc., 923 F.Supp. 720, 728 (D.Md. 1996); Washington Gas Light Co. v. Prince George's County Council, Civ. Action No. 08-cv-0967-DKC, 2012 WL 832756, at *3 (D.Md. Mar. 9, 2012). Rule 29 indicates that amici should state “the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.” Fed.R.App.P. 29(b)(2). As noted by Judge Davis in Bryant, “[t]he aid of amici curiae has been allowed at the trial level where they provide helpful analysis of the law, they have a special interest in the subject matter of the suit, or existing counsel is in need of assistance.” Bryant, 923 F.Supp. at 728 (citing Waste Mgmt. of Pa., Inc. v. City of York, 162 F.R.D. 34, 36 (M.D.Pa. 1995)). “A motion for leave to file an amicus curiae brief, however, should not be granted unless the court ‘deems the proffered information timely and useful.'” Id. (quoting Yip v. Pagano, 606 F.Supp. 1566, 1568 (D.N.J. 1985), aff'd, 782 F.2d 1033 (3d Cir. 1986), and aff'd sub nom. Appeal of Yip, 782 F.2d 1033 (3d Cir. 1986)).

         FreeState and The Trevor Project have each demonstrated a special interest in the outcome of the suit. The Trevor Project's memorandum provides a separate, experiential perspective of conversion therapy and the issues surrounding it and FreeState's memorandum provides a helpful analysis of § 1-212.1 as a reasonable regulation of a particular mental health treatment. Additionally, Plaintiff's arguments in opposition to the proposed amici curiae are without merit. Plaintiff's argument that FreeState actually agrees with Plaintiff's position on § 1-212.1 is speculative and, therefore, unpersuasive. To the extent that The Trevor Project's brief is undermined by Defendants' admissions, a single discrepancy fails to frustrate The Trevor Project's proposed amicus brief in its entirety. Furthermore, both proposed amici filed their briefs shortly after Defendants filed their motion to dismiss and opposition to Plaintiff's motion for preliminary injunction, providing ample time for their review and consideration. Thus, Plaintiff's timeliness objections are similarly unconvincing. The proposed amicus briefs also comply with the requirements of United States District Court for the District of Maryland Standing Order 2018-07. Accordingly, the motions for leave to file brief as amicus curiae will be granted and the amicus briefs will be considered.

         III. Motion to Compel

         Plaintiff argues that, “when [he] attempted to take Defendants' Rule 30(b)(6) deposition on March 28, 2019, Defendants either refused to answer dozens of questions on the basis of ‘legislative privilege,' or their designated witness was unprepared and could not answer any of numerous specific questions as to how Defendants interpret, apply or enforce [§ 1-212.1].” (ECF No. 38, at 1). Thus, under Fed.R.Civ.P. 37(a)(1), Plaintiff requests “an order compelling Defendants to provide a Rule 30(b)(6) deposition witness properly prepared and able to answer [his] questions concerning Defendants' positions, interpretations, understanding, application, and enforcement of [§ 1-212.1].” (ECF No. 44, at 1). Plaintiff also requests “an order compelling Defendants ...

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