Vivid Challenges AHF's 9th Circuit Standing in Measure B Case

PASADENA, Calif.—In papers filed yesterday with the Ninth Circuit U.S. Court of Appeals, Vivid Entertainment LLC has challenged the legal rights of AIDS Healthcare Foundation (AHF) and some of its employees and supporters to continue to litigate Vivid's lawsuit against Los Angeles County's Measure B as intervenors.

Vivid's arguments are drawn almost entirely from the U.S. Supreme Court's decision in Hollingsworth v. Perry, which said that Dennis Hollingsworth, who sued in an attempt to force California to enforce Proposition 8's ban on same-sex marriage after state authorities refused to defend it, had no standing under the U.S. Constitution's Article III to bring such a lawsuit because he had not (and would not have) "suffered a concrete and particularized injury" if gays were allowed to marry. No similar injury would be suffered by AHF or the other intervenors if Measure B were overturned, so the Hollingsworth ruling is directly on point as applied to them.

Nonetheless, last week AHF filed a motion challenging Vivid's appeal of some recent orders of U.S. District Judge Dean D. Pregerson, one of which allowed AHF to remain in the case. In that filing, AHF's attorneys engaged in what can only be described as legal gymnastics to attempt to salvage their standing—and in yesterday's filing, Vivid's attorneys put the kibosh on all of them.

"Putative Intervenors—who make no claim to Article III standing—take the radical position that, so long as at least someone has standing in a case, anyone who believes they have a stake in its outcome may also enter, as a party intervenor, with all the rights of a plaintiff or defendant," Vivid's attorneys state in their opposition brief. "The ramifications of this sweeping view are stupefying. Under that rule, so long as, e.g., a plaintiff has standing to challenge a statute, regulation, ordinance, or other law—which will always be the case as a matter of course, for a court to have jurisdiction—any member of the public who stands to benefit from the law’s operation may also enter the case as a party under F.R.C.P. [Federal Rules of Civil Procedure] 24. But, of course, that is not the law, and were there previously any question, Hollingsworth has put it to rest. It is thus no surprise that AHF relies almost entirely on authority predating Hollingsworth, while ignoring that it constitutes a significant and important change of law." [Emphasis in original]

Vivid notes that AHF claims it can appeal Judge Pregerson's ruling because the county, realizing that Measure B is unconstitutional, has thus far refused to defend it, which AHF claims gives it the right to essentially step into the county's shoes as a virtual defendant in the case—and while Vivid agrees that AHF could file briefs as an amicus ("friend of the Court"), it can have no party standing under the Hollingsworth decision.

"Putative Intervenors’ Response is undermined entirely by Hollingsworth’s simple command that 'a litigant' must show, first and foremost, that he is affected by a matter in a 'personal and individual way,' and possesses a '"direct stake" in the outcome' of a case in order to participate as a party," Vivid argues. "The Court in Hollingsworth did not say a 'plaintiff' or an 'appellant' must satisfy Article III, but rather, that a 'litigant' must do so. This nullifies AHF’s effort to draw a negative inference that Hollingsworth does not apply to appellees."

Vivid's brief goes on to note that while, prior to Hollingsworth, there had been a split in the federal circuits regarding whether a party had to have Article III standing to intervene in a case under Rule 24, the Supreme Court had "explicitly applied the Article III standing requirement to all parties who would intervene in a case" under that rule.

Much of the rest of Vivid's brief is devoted to sorting through the legal word-play that AHF used to attempt to rescue its standing in the case, most notably by challenging AHF's claim that it doesn't need standing at the district court level because the Hollingsworth decision didn't directly address that—but almost no cases get to the Supreme Court directly from the district court; they almost invariably go through the appellate circuit, and it's that court's decision that the justices use as the foundation for their opinion(s), and once settled, its rulings apply all the way down to the trial court level.

"Subsequently, of course, the Supreme Court ultimately had such significant 'questions' about the Prop 8 proponents' status that it vacated this [Ninth Circuit] Court's ruling, and held that the proponents lacked standing in the Circuit Court," Vivid argues. "And that is the crux of the issue here, and the one that Hollingsworth controls: after enactment of an initiative, its proponents like AHF cannot have party status in this Court based solely on having sponsored the measure." [Emphasis in original]

Vivid also denies that AHF is "needed" as a party because the County has not filed a defense to Vivid's appeal: "This Court is more than capable of resolving the issues Appellants raise notwithstanding the County’s election of the option to not file an answering brief."

The brief also goes into a more detailed argument regarding why AHF can't have party status simply because the appellant (Vivid) and/or the putative appellee, LA County, has standing to appeal or respond.

"Though named as Appellees, the County has expressly declined to participate in this appeal, just like the government in Hollingsworth," Vivid's attorneys write. "With no one else on their side of the case, Putative Intervenors must then satisfy Article III, under the very authorities they cite."

Vivid's final argument in the brief returns to the fact that AHF has no "protectable interest" in the case.

"AHF’s interest in Measure B is no greater than any member of the public," Vivid charges. "As with Proposition 8 in Hollingsworth, once Measure B 'was approved by the voters, the measure became a "duly enacted ... statute,"' at which point AHF had 'no role—special or otherwise—in [its] enforcement.' Putative Intervenors have 'no "personal stake" in defending [Measure B’s] enforcement ... distinguishable from the general interest of every citizen' of Los Angeles County. AHF is but a 'concerned bystander' with regard to Measure B, despite perhaps being 'deeply committed' to the law, and they accordingly lack both the 'direct stake' in this case that Article III requires, and the 'significantly protectable interest' required under Rule 24."

Even AHF's claims that it entered the case because it wanted to avoid an alleged "increased risk [of] STDs" absent Measure B, and that it wanted to "protect 'public health... of citizens [] in Los Angeles'" is not sufficient to overcome the Hollingsworth dictum, with Vivid noting that "That makes AHF's members' wish to avoid purportedly increased risks of STDs the kind of 'general interest' that is not 'distinguishable from [those] of every citizen' and which the Supreme Court expressly rejected."

It is unclear whether the Ninth Circuit will allow AHF to further respond to Vivid's filing, or even whether it will uphold the Hollingsworth decision in the very circuit to which it was directed, one possible factor being that Judge Dean D. Pregerson is the son of Ninth Circuit Judge Harry Pregerson. Nor does the Ninth Circuit have any time frame within which it must render a decision on Vivid's appeal, although the proceedings in the district court will likely remain stayed until that appeal is resolved.

Vivid's reply brief to AHF's Ninth Circuit motion can be found here.

Check back with for further developments in this vitally important case.