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  • BKTK Strong Opp To Amicus Redacted PDF

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    himself2462
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    BKTK Strong Opp To Amicus Redacted PDF

    Încărcat de

    himself2462

    Drepturi de autor:

    © All Rights Reserved
    Descărcați ca PDF sau citiți online pe Scribd
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    din 8
    MARYLAND COURT OF SPECIAL APPEALS NO. 16-02328 AARON WALKER, Appellant, v. STATE OF MARYLAND, et al. Appellees. APPELLEES BRETT AND TETYANA KIMBERLIN’S STRONG OPPOSITION TO MOTION OF EUGENE VOLOKH FOR LEAVE TO FILE AMICUS CURIAE BRIEF Appellees Brett and Tetyana Kimberlin hereby strongly oppose Eugene Volokh’s filing of an amicus curiae brief in support of Appellant Walker challenging the constitutionality of Grace’s Law, Maryland Code 3-805(b)(2). This opposition is based on a number of reasons: first, Eugene Volokh is not filing as a friend of the Court but rather as an enemy of Brett Kimberlin and a long time legal advisor to Walker; second, there is no need for an amicus in this case since the proposed brief merely restates Walker’s legal arguments with regard to Grace’s Law and offers no unique information or perspective that has not or could not have been raised by Walker himself; ‘hird, Volokh is not a resident of Maryland and therefore has no standing or interest in how Maryland applies its laws in Maryland; fourth, the brief would unfairly prejudice Appellees; and fifth, counsel for Volokh labors under a conflict of interest in that he represented two defendants who were previously sued by Appellee Brett Kimberlin. |. LEGAL STANDARD FOR GRANTING LEAVE TO FILE AN AMICUS BRIEF “There is no inherent right to file an amicus curiae brief with the Court,” Long v. Coast Resorts, Inc., 49 F. Supp. 2d 1177, 1178 (D. Nev. 1999). Rather, the Court ultimately retains “broad iscretion to either permit or reject the appearance of amicus curiae.” Gerritsen v. de la Madrid Hurtado, 619 F.2d 1511, 1514 (9th Cir. 1987). “The vast majorit of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants’ briefs, in effect merely extending the length of the litigant’s brief. Such amicus briefs should not be allowed. They are an abuse.” Ryan v. Commodity Futures Trading Com'n, 125 F.3d 1062, 1063 (7th Cir. 1997); see also Gabriel Technolagies Corp. v. Qualcomm Inc. 2012 WL 849167, at “4 (S.D. Cal,, Mar. 13, 2012) (“An amicus brief is meant to assist the court and not merely extend the length of the litigant’s brief’). This perspective has been adopted by courts across the nation. See, e.g,, Beesley v. International Paper Co. 2011 WL 5825760 (S.D. Ill, Nov. 17,2011); JPMorgan Chase Bank, N.A. v. Fletcher, 2008 WL 73233 (N.D. Okla,, Jan. 7, 2008). There is no useful purpose in permitting an amicus curiae brief ifthe issues addressed were raised in the moving party's brief. See Williams v. Armontrout, 912 F.2d 924, 941 (8th Cir. 1990) (citing Order denying Motion for Leave to File Amicus Curiae brief.) ‘An amicus is to be a friend of the court, not a friend of a party. Ryan v. Commodity Futures Trading Com’n, supra 125 F.3d at 1063; United States v. State of Mich. 940 F.2d 143, 164-65 (6th Cir. 1991); Long v. Coast Resorts, Inc. 49 F Supp.2d 1177, 1178 (D. Nev. 1999). “When the party seeking o appear as amicus curiae is perceived to be an interested party or an advocate of one of the parties to the litigation, leave to appear as amicus curiae should be denied.” Liberty Lincoln Mercury, Inc. v. Ford Marketing Corp. 149 F.RD. 65, 82 (D.NJ. 1993). An amicus brief should only be allowed by the Court when (1) a party is not represented competently by counsel, or not represented at all; (2) when the amicus has an interest in some other case that may be affected by the decision in the present case; or (3) when 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. Ryan v, Commodity Futures Trading Com’n, supra, 125 F.3d at 1063; Re2con, LLC v. Telfer Oil Co., 2012 WL 6570902 (E.D. Cal. 2012); Community Ass'n for Restoration of Environment v. DeRuyter Bros, Dairy, 54 FSupp.2d 974 (E.D. Wash. 1999), In the instant case, Appellees have not consented to the filing of the amicus. “When a court lacks joint consent of the parties it “should go slow” in accepting an amicus. Strasser v. Dooley, 432 F. 2d 567, 569 (1st Cir. 1970). Tl, AN AMICUS BRIEF IS UNWARRANTED IN THIS CASE A. Walker is an attorney and has adequately represented himself. Volokh’s motion to file an amicus brief does not argue or assert that Appellant, who is an attorney, cannot and has not adequately represent himself in this appeal. Indeed, as noted below, Walker's arguments regarding Grace's Law --First Amendment and overbreadth—are the exact same arguments made by Volokh. There is, in short, no persuasive reason to believe that Walker's constitutional challenge cannot be fully, fairly and appropriately resolved without the proposed amicus brief. B. Volokh has not demonstrated that he has an interest in some other case that may be affected by the decision in this litigation. Volokh does not identify any pending case that may be affected by the decision in the present case. Instead, he asserts his personal concern regarding content-based laws under the First Amendment. This is insufficient under the standard for seeking leave to file an amicus brief. See, e.g,, Re2con, supra, 2012 WL 6570902. Volokh is an individual rather than an organization representing thousands of people. As such Volokh is using the amicus to advance his personal interests rather than any interest of the citizens of Maryland. Volokh is well known as a legal gadfly who tries to stick his nose in the business of people all over the country who are engaged in lawsuits that impinge on his anti- government, Libertarian philosophy. As he brags in his motion, he is a serial amici who has spent his career wasting hundreds of courts’ time with his Libertarian arguments. C.Volokh’s proposed amicus brief merely restates Walker's legal argument and does not present unique information or perspective. Volokh’s motion should be denied because the proposed amicus brief merely restates Walker's arguments. Like Walker's brief, the proposed amicus brief devotes substantial attention to a discussion of First Amendment rights. However, Volokh's brief adds nothing to the analysis already articulated by Walker. Clearly, Volokh’s brief does little more than restate the same arguments and cases highlighted by Walker, and to the extent he cites different cases, the language used by the respective courts is functionally equivalent, and the resulting argument is duplicative. Emphasis by an amicus in favor of one party's analysis of the law is of absolutely no use to this Court. See Ryan v. Commodity Futures Trading Com’n, supra, 125 F.3d at 1063. Volokh’s reiteration of Walker's interpretation of the law and analysis of the facts amounts to little more than cheerleading for one party over another, and is, improper. Further, Volokh has not shown that he possesses unique insight that is unavailable to counsel for either party or the State of Maryland that will affect the outcome of the dispute. Volokh’s insinuation that the amicus brief would provide a different perspective into Volokh’s interests is without merit, Indeed, Volokh is not even domiciled in Maryland or articulated any interest in the citizens of Maryland. Therefore, his brief amounts to carpet bagging in an attempt to foist his extreme Libertarian views on Marylanders who have a strong interest in protecting minors from sexual predators such as Walker and his ilk. IILTHE AMICUS BRIEF WOULD UNFAIRLY PREJUDICE APPELLEES Volokh does not provide this Court with an unbiased account of the law. It is clear from, inter alia, his regurgitati n of Walker's argument, and glossing over Volokh’s five-year campaign of attacks against Appellee Brett Kimberlin, some quite personal, that Volokh is merely an advocate of Walker, not a friend of the Court. See United States v. State of Mich., supra, 940 F.2d at 164-65; Liberty Lincoln Mercury, Inc., supra, 149 F.R.D. 65. Attached is just the first page from a Google search of Eugene Volokh’s articles attacking Brett Kimberlin and supporting Walker. As such, Volokh is precisely the type of amicus whose opinion provides no assistance to this Court, particularly under the circumstances relevant to Walker's appeal. Volokh is an interested party and an advocate for Walker. Moreover, many courts have made it c.ear that where an amicus brief does not ass the court in determining the outcome of the present motion, it does little more than extend the length of a party's brief. Gabriel Technologies Corp, supra, 2012 WL. 849167 at 4 (“An amicus brief is meant to assist the court and not merely extend the length of the litigant’s brief”) Clearly, Volokh’s amicus brief would place Appellees ata clear disadvantage. If the motion were granted, Walker will essentially be given ‘two bites at the apple and be represented by Attorney Michael Smith and Professor Eugene Volokh. The proposed amicus brief is twelve pages long, and the admission of this additional brief would effectively expand the argument in favor of Walker's position, where Appellees are limited to approximately thirty-five pages. Itis clear that Appellees would be unfairly prejudiced if the Motion were granted. IV. ATTORNEY MICHAEL SMITH AND VOLOKH LABOR UNDER CONFLICTS OF INTEREST Volokh’s attorney, Michael Smith, previously represented Michelle Malkin and ‘Twitchy in another action in which Brett Kimberlin was a plaintiff, and that case is currently pending before the COSA. Kimberlin v. National Bloggers Club. No . 16-825. Although Malkin and Twitchy resolved their case prior to appeal, Mr. Smith's representation in this case creates the appearance that he is continuing to litigate against Brett Kimberlin after the case was resolved, this time through or on behalf of Walker. Walker is also an Appellee in the National Bloggers appeal. Moreover, Volokh has been a long time advocate and legal advisor of Walker and Patrick Frey, both who are involved with litigation in various courts in which Brett Kimberlin is a party, including the National Bloggers case. Clearly, Smith's and Volokh’s prior actions involving Brett Kimberlin demonstrate that they are both laboring under a conflict of interest and that the amicus brief is not a friend of court but rather an adversary of Brett Kimberlin CONCLUSION For the foregoing reasons, Appellees respectfully request that this Court deny Volokh’s Motion for Leave to File Amicus Curiae Brief. Respectiilily sul Brett Kimbé4}

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