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In the Supreme Court of the State of California

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In the Supreme Court of the State of California No. ____ In the Supreme Court of the State of California TAKING OFFENSE, Plaintiff and Appellant, v. STATE OF CALIFORNIA Defendant and Respondent. Third Appellate District, Case No. C088485 Sacramento County Superior Court, Case No. 34-2017-80002749-CU-WM-GDS The Honorable Steven Gevercer, Judge PETITION FOR REVIEW ROB BONTA (SBN 202668) Attorney General of California MICHAEL J. MONGAN (SBN 250374) Solicitor General JANILL L. RICHARDS (SBN 173817) Principal Deputy Solicitor General THOMAS S. PATTERSON (SBN 202890) Senior Assistant Attorney General SAMUEL T. HARBOURT (SBN 313719) Deputy Solicitor General PAUL STEIN (SBN 184956) Supervising Deputy Attorney General *ANNA FERRARI (SBN 261579) Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 510-3779 Fax: (415) 703-1234 Document received by the CA Supreme Court. [email protected] Attorneys for Respondents August 25, 2021 TABLE OF CONTENTS Page Petition for review ...........................................................................9 Issue presented ................................................................................9 Introduction ................................................................................... 10 Background and statement of the case ........................................ 12 A. The LGBT long-term care facility residents’ Bill of Rights ................................................................................... 12 B. Plaintiff and appellant’s facial challenge .......................... 17 Reasons the Court should grant review ...................................... 20 I. The Court of Appeal’s facial invalidation of an important LGBT anti-discrimination statute warrants this Court’s further review ................................. 20 II. The opinion’s constitutional protection of discriminatory language—provided it is out of earshot of a protected class member—conflicts with this Court’s precedent ......................................................... 23 III. This case offers an opportunity to settle and clarify a number of important legal issues related to First Amendment facial challenges ............................................ 28 Conclusion ..................................................................................... 33 Document received by the CA Supreme Court. 2 TABLE OF AUTHORITIES Page CASES Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121 ......................................................... passim Arp v. Workers’ Comp. Appeals Bd. (1977) 19 Cal.3d 395 ........................................................... 30, 31 Associated Builders & Contractors, Inc. v. S.F. Airports Com. (1999) 21 Cal.4th 352 ................................................................ 28 Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450 ................................................................. 20 Ayissi-Etoh v. Fannie Mae (D.C. Cir. 2013) 712 F.3d 572 ................................................... 24 Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141 .............................................................. 22 Beeman v. Anthem Prescription Management, LLC (2003) 58 Cal.4th 329 ................................................................ 20 Blair v. Pitchess (1971) 5 Cal.3d 258 ................................................................... 29 Bostock v. Clayton County, Georgia (2020) __ U.S. __, 140 S.Ct. 1731 ............................................. 22 Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235 .............................................................. 23 Frisby v. Schultz Document received by the CA Supreme Court. (1988) 487 U.S. 474 ................................................................... 25 Gerawan Farming, Inc. v. Agric. Lab. Relations Bd. (2017) 3 Cal.5th 1118 ................................................................ 20 3 TABLE OF AUTHORITIES (continued) Page Grimm v. Gloucester County School Bd. (4th Cir. 2020) 972 F.3d 586 ..................................................... 11 Kopp v. Fair Pol. Pracs. Com. (1995) 11 Cal.4th 607 .................................................... 21, 30, 31 L.A. Police Dept. v. United Reporting Publishing Corp. (1999) 528 U.S. 32 ..................................................................... 29 Libertarian Party v. Eu (1980) 28 Cal.3d 535 ................................................................. 20 Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264 ................................................................ 26 Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753 ................................................................... 25 Nat. Shooting Sports Foundation, Inc. v. State (2018) 5 Cal.5th 428 .................................................................. 20 North Coast Women’s Care Medical Group, Inc. v. Superior Court (2008) 44 Cal.4th 1145 .............................................................. 21 Obergefell v. Hodges (2015) 576 U.S. 644 ................................................................... 21 People v. Liu (2019) 8 Cal.5th 253 .................................................................. 23 People v. Martinez (2020) 59 Cal.App.5th 280 ........................................................ 30 People v. Mosley Document received by the CA Supreme Court. (2015) 60 Cal.4th 1044 .............................................................. 20 People v. Toledo (2001) 26 Cal.4th 221 ................................................................ 29 4 TABLE OF AUTHORITIES (continued) Page Serrano v. Priest (1971) 5 Cal.3d 584 ................................................................... 28 Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106 ................................................................ 27 State v. Casillas (Minn. 2020) 952 N.W.2d 629 .................................................. 30 Taking Offense v. State of California (2021) 66 Cal.App.5th 696 ...........................................................8 United States v. Stevens (2010) 559 U.S. 460 ............................................................. 29, 31 Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241 ................................................................ 28 Williams-Yulee v. Fla. Bar (2015) 575 U.S. 433 ................................................................... 29 STATUTES California Code of Regulations, Title 10 § 2076 ......................................................................................... 20 California Statutes 2017, Chapter 483 § 1, subd. (b) .............................................................................. 12 § 1, subd. (c) ............................................................................... 12 § 1, subd. (d) .............................................................................. 13 California Statutes 2017, Chapter 853 § 2, subd. (e)............................................................................... 11 California Statutes 2020, Chapter 181 § 1, subd. (d) .............................................................................. 12 Document received by the CA Supreme Court. 5 TABLE OF AUTHORITIES (continued) Page Health and Safety Code § 1250 ......................................................................................... 13 § 1290, subd. (c) ......................................................................... 15 § 1338.4 ...................................................................................... 13 § 1418 ......................................................................................... 13 § 1439.50, subd. (e) ................................................................... 13 § 1439.51, subd. (a) ............................................................. 13, 20 § 1439.51, subd. (a)(1) ............................................................... 14 § 1439.51, subd. (a)(3) ............................................................... 14 § 1439.51, subd. (a)(4) ............................................................... 14 § 1439.51, subd. (a)(5) ............................................... 8, 14, 15, 19 § 1439.54 .................................................................................... 15 § 1569.2, subd. (o)(1) ................................................................. 13 Welfare and Institutions Code § 9701, subd. (b) ........................................................................ 13 COURT RULES California Rules of Court Rule 8.500 .....................................................................................8 Rule 8.500(b)(1) ......................................................................... 19 Rule 8.504(b)(3) ......................................................................... 19 Rule 8.504(b)(6) ............................................................................8 OTHER AUTHORITIES 2A Sutherland, Intrinsic Aids, Statutory Construction (7th ed. 2010) § 47.38 ......................................... 31 American Psychological Assn., Guidelines for Psychological Practice with Transgender and Gender Nonconforming People (Dec. 2015) American Psychologist .............................................................. 15 Document received by the CA Supreme Court. Asimow et al., Cal. Practice Guide: Administrative Law (The Rutter Group, Dec. 2020 update) ¶ 14:250 ....................................................................................
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