Here is the explanation for why New Jersey objects – somewhat – to the federal government joining the NFL, NCAA, and three other sports leagues in their oral argument before a dozen U.S. Third Circuit Court of Appeals judges in Philadelphia on Wednesday.

"Defendant-Appellants [Governor] Christopher J. Christie, [Division of Gaming Enforcement chief] David L. Rebuck, and [Racing Commission leader] Frank Zanzuccki hereby enter their qualified opposition to the United States' motion for leave to participate at the en banc oral argument to be held in this case on February 17. Defendant-Appellants [state Senate President] Stephen M. Sweeney, [Assembly Speaker] Vincent Prieto, and the New Jersey Thoroughbred Horsemen's Association (combined, "Appellants") join this qualified opposition.

"Appellants object to the motion of the United States to the extent the United States intends, or otherwise wishes to reserve the right, to present arguments different from those presented in its amicus brief filed in this case.

"When the United States inquired as to Appellants' position on the United States' motion, the United States flatly refused to include in its motion a representation that it wishes to argue the positions stated in its amicus brief. Appellants can infer from that refusal only that the United States wishes to preserve flexibility to present arguments that range beyond those in its amicus brief. That would be inappropriate, particularly at this late date.

"Appellants have no objection to the United States advancing at oral argument the positions taken in its amicus brief on the terms set forth in the United States' motion (i.e., taking ten minutes from Appellees' 30 minutes). Appellants object to the extent the United States would present arguments not stated in its amicus brief. Accordingly, Appellants respectfully submit that the United States' motion should be granted in part, viz., granted only to the extent the United States wishes to present the arguments set forth in its amicus brief in this case."

(This was submitted by Acting Attorney General John Hoffman in his waning days on the job, and renowned lawyer Ted Olson who will speak for the state next week.)

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REPLY IN SUPPORT OF MOTION TO PARTICIPATE IN ORAL ARGUMENT BY AMICUS CURIAE THE UNITED STATES OF AMERICA

"The United States of America should be permitted to participate in oral argument, without qualification. If permitted to participate, the United States intends to argue positions consistent with its amicus brief, but the condition that appellants seek to impose on the United States – that the United States not be permitted to address points beyond those in its amicus brief – is extraordinary and unnecessarily restrictive.

"In seeking appellants' consent for this motion, counsel for the United States explained that the government intended to focus on positions in its amicus brief, but should be entitled to the same flexibility at oral argument that all participants enjoy.

"The United States does not want to forego or limit its ability to respond to any questions from the Court; to fully address arguments raised by other parties at the en banc hearing; or to reference positions that the United States or other parties advanced at earlier points in this litigation or in Christie I.

"Appellants' insistence on preventing the United States from addressing matters beyond its amicus brief is unfair and prejudicial: the United States' amicus brief was filed prior to the panel opinion, and prior to the briefing on appellants' petition for en banc review. Like the other participants, the United States should be in a position to address the panel's analysis, as well as the arguments advanced by the parties regarding the court's opinion. For these reasons, the United States' motion to participate in oral argument should be granted without qualification."

Respectfully Submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant
Attorney General

PAUL J. FISHMAN
United States Attorney

SCOTT R. McINTOSH
Appellate Staff, Civil Division

/s/ Peter J. Phipps
PETER J. PHIPPS
Senior Trial Counsel
U.S. Department of Justice

This is a reprint from blog.northjersey.com. to view the original, click here.