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Kevin T. Snider, State Bar No. 170988 Counsel of record Michael J. Peffer, State Bar. No. 192265 Matthew B. McReynolds, State Bar No. 234797 PACIFIC JUSTICE INSTITUTE P.O. Box 276600 Sacramento, CA 95827 Tel. (916) 857-6900 Fax (916) 857-6902 Email: [email protected] [email protected] [email protected] Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DONALD WELCH, et al., Plaintiffs, v. EDMUND G. BROWN JR., et al., Defendants. ) ) ) ) ) ) ) ) ) Case No.: 2:12CV02484WBSKJN JOINT STATUS REPORT Date: January 22 2013 Time: 2:00 p.m. Ctrm: 5 Hon.: W.B. Shubb

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Counsel for the parties, have jointly prepared, and respectfully submit the following Joint Status Conference Report: Attorneys submitting the report: Alexandra Robert Gordon (SBN 207650) Deputy Attorney General DEPARTMENT OF JUSTICE 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5740 Fax: (415) 703-1234 E-mail: [email protected] Attorney for All Defendants Kevin T. Snider (SBN 170988) PACIFIC JUSTICE INSTITUTE P.O. Box 276600 Sacramento, CA 95827 Tel. (916) 857-6900 Fax (916) 857-6902 [email protected] Attorney for All Plaintiffs Following the conference of the parties which took place on January 4, 2013, pursuant to Rule 26(f) of the Federal Rules of Civil Procedure, and Local Rule 240, plaintiffs (herein Welch) and defendants (herein Brown) submit the following joint status report.

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(a) brief summary of the claims: A bill, SB 1172, was passed by the California Legislature and signed into law by the Governor. The bill adds three sections to the Business and Professions Code. The new law states, in part, as follows: 865. (b) (1) Sexual orientation change efforts means any practices by mental health providers that seek to change an individuals sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex. 865.1. Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age. 865.2 Any 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. A psychiatrist, a licensed counselor who is an ordained clergyman and works for a church, and a student who underwent SOCE, brought suit. Welch alleges that the bill is violative of fundamental rights to privacy, the free exercise clause, the establishment clause, freedom of speech, freedom of association, and substantive due process. (b) a statement as to the status of service upon all defendants and cross defendants: All parties were personally served on October 22, 2012 (ECF Doc. 7).
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(c) a statement as to the possible joinder of additional parties; Welch may seek to join additional parties such as a minor and a parent. In addition, depending upon attempts at enforcement by the State, Plaintiffs may add additional mental health providers. However, in that the Ninth Circuit Court of Appeals has stayed enforcement of the law pending an interlocutory appeal filed in another case, enforcement by the State is unlikely. Welch does not contemplate adding defendants. (d) any contemplated amendments to the pleadings; Plaintiffs Statement: none Defendants Statement: Defendant Governor Edmund G. Brown is immune from suit pursuant to the Eleventh Amendment of the United States Constitution and should thus be dismissed from this action. Defendant Julia Johnson is no longer a member of the California Board of Behavioral Sciences and was not a member when this action was filed. Accordingly, Ms. Johnson should be dismissed from this action. (e) the statutory basis of jurisdiction and venue; Jurisdiction: This Court has federal-question jurisdiction over Welchs claims arising under the First and Fourteenth Amendment of the United States Constitution and 42

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U.S.C. 1983. Jurisdiction is therefore proper under 28 U.S.C. 1331 (general federal question jurisdiction). Venue: Venue is proper in the Eastern District of California because some of the Defendants reside (e.g., Gov. Brown) within the District and a substantial part of the events or omissions giving rise to the claim occurred in this District. (f) a written report outlining the proposed discovery plan required by Federal Rule of Civil Procedure 26(f); Plaintiffs Statement: Pursuant to FRCP 26(f)(3) counsel for Plaintiffs proposes the discovery plan as follows: Discovery: Plaintiffs: (1) No discovery has been taken to date. (2) Anticipated discovery: Request for Production of Documents (FRCP 34) Form Interrogatories (FRCP 33) Request for Admissions (FRCP 36) Depositions (FRCP 30 and 31).

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Defendants Statement:

No discovery has been taken to date. What if any discovery is appropriate in this action is dependent upon the Ninth Circuits determination of the appeals regarding the constitutionality of SB 1172 filed in this case and in Pickup v. Brown, No. 12-02497, Ninth Circuit No. 12-17681. Accordingly, Defendants filed a motion to stay proceedings in this matter pending appeal on January 2, 2013.

(A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made; Plaintiffs: none Defendants: Disclosures under Rule 26(a) should be continued until after the Ninth Circuits decision on the appeal in this action.

(B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues; Plaintiffs: In that this is a facial challenge to a law touching on fundamental rights, discovery should be focused on whether the State has evidence of a compelling state interest which is narrowly tailored.

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Defendants: Given that this action involves a facial challenge to a statute, at most, at most, only minimal discovery is appropriate. However, as stated above and in Defendants motion to stay proceedings pending appeal, appropriate subjects of discovery in this action cannot be determined until the Ninth Circuit has ruled on the appeal in this matter. (C) any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced; Plaintiffs: None known. Defendants: None known. (D) any issues about claims of privilege or of protection as trial-preparation materials, includingif the parties agree on a procedure to assert these claims after productionwhether to ask the court to include their agreement in an order; Plaintiffs: Dr. Welch holds privileges and protections under the psychotherapist-patient and clergy-penitent privileges. (FRE 501; CA Evid.C. 1010 et seq. and 1030 et seq. Dr. Duk holds privileges and protections under the psychotherapist-patient and doctor-patient privileges (FRE 501; CA Evid.C. 990 et seq. and 1010 et seq. Plaintiff Bitzer holds privileges including, but not by way of limitation, under the psychotherapist-patient and clergy-penitent privileges (FRE 501;. CA Evid.C. 1010 et seq, 1030 et seq., and 1035 et seq.
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Defendants: Defendants hold privileges, including, but not limited to, the official information privilege set forth in California Evidence Code section 1040, the deliberative process privilege, the joint defense privilege, the common interest privilege, and the mental processes principle. (E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; Plaintiffs: None Defendants: None. (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).

Plaintiffs: None Defendants: Depending on the nature of information sought by Plaintiffs, Defendants may seek a protective order. (g) a proposed cutoff date by which all discovery shall be concluded; Plaintiffs: July 1, 2013 Defendants: Six months after final disposition of the pending appeal in this matter. (h) a proposed date by which all motions shall be filed and heard; Plaintiffs: Plaintiffs proposed that the last day to file dispositive motions as September 1, 2013, and heard in accordance to the Courts calendar.
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Defendants: Nine months after the final disposition of the appeal in this matter. (i) any proposed modification of standard pretrial proceedings due to the special nature of the action; Plaintiffs: none Defendants: Defendants respectfully request that all pretrial proceedings be stayed pending final resolution of the pending appeal. (j) the estimated length of trial; Plaintiffs: five days Defendants: five days (k) a statement as to whether the case is related to any other case, including any matters in bankruptcy; Per this Courts Order (ECF Doc. 8), this case is not related to Pickup v. Brown (Case No. 2:12-CV-02497) or any other case known by Plaintiffs. (l) any other matters discussed in Local Rule 240 that may add to the just and expeditious disposition of this matter; Plaintiffs: none Defendants: none (m) a statement by any nongovernmental corporate party identifying all of its parent and subsidiary corporations and listing any publicly held company
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that owns 10% or more of the party's stock. If any nongovernmental corporate party has no parent or subsidiary corporations or no publicly held companies owning 10% or more of its stock, it shall so state in the Joint Status Report. Plaintiffs: none Defendants: none

Dated: January 4, 2013 /S/ Kevin Snider_________________ Kevin T. Snider Attorney for Plaintiffs

/S/ Alexandra Robert Gordon_______ Alexandra Robert Gordon Attorney for Defendants

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