AHF Petitions Calif. Supremes to Review Mandamus Loss

SACRAMENTO—AIDS Healthcare Foundation (AHF) filed a petition with the California Supreme Court Tuesday seeking not only a review of the organization’s loss on appeal of its attempt to force the courts to compel Los Angeles County’s health officer to mandate the use of condoms on porn sets, but also a clarification of what AHF says are differing interpretations among courts of appeal regarding “the scope of a state court’s mandamus powers.”

In its petition, however, AHF takes great liberties with its characterization of the situation facing porn performers with respect to sexually transmitted diseases, calling it at various places in the document an “outbreak,” “crisis” and “epidemic” that has been acknowledged by the Los Angeles County Department of Public Health, the very same entity, by the way, that AHF claims is being derelict in its duty to address the ten year so-called “epidemic.”

Indeed, throughout this bizarre document, AHF is dependent upon statistics culled by the Los Angeles County Health Department to support its contentions regarding the STD “epidemic” in the adult industry, begging the question (never answered, by the way) why such extraordinary legal measures needed to be taken to compel the Department to enact mandatory condom policies in the first place.

As readers of AVN should know well by now, however, AHF and its head, Michael Weinstein, are pathologically myopic when it comes to condom use as the ONLY protection against the spread of STDs. That was reinforced again today, in an article in the Los Angeles Times on the launch of the new Adult Performer Health and Safety Services (APHSS) testing service for performers, in which Weinstein is quoted as saying, “The Free Speech Coalition continues to maintain that testing is a safety net. That, we disagree with.”

Such a blanket denial of even the partial effectiveness of testing as a way not only to prevent the spread of STDs but also to track impacted performers in the event of an infection, while regarding the use of condoms as more than sufficient to prevent the spread of STDs, can only be seen as selective and self-serving thinking on the part of AHF.

Compare that opinion with that of FSC, which supports and encourages the voluntary use of condoms on set by performers in tandem with a rigorous testing regime and database, and it comes quickly clear which association truly has the interests of the performers in mind. AHF, of course, does not consider adult performers to be adults capable of making their own decisions, but rather sees them as children being exploited by porn producers with no regard for the safety of the actors. In their worldview, the situation is so dire that it requires the courts to compel the County to force producers to require that performers  use "barrier protection"—condoms, dental dams, latex gloves, face shields—at all times, in every circumstance.

How bad, according to the AHF petition, is the situation?

“From April 2004 to March 2008, there were ‘'2,847 STD infections diagnosed among 1,884 performers’ in the hardcore pornography industry in Los Angeles County,” AHF claims in the petition’s statement of facts, adding, “DPH acknowledges that there have been multiple outbreaks of HIV within the hardcore pornography industry since 1995.”

As AVN has reported many times over the years, however, the County’s data with respect to industry infections and so-called outbreaks has itself been fatally flawed, the result of the Department’s own years-long campaign to paint the industry as incapable of providing an effective and reasonable regime of protection for performers, and thus a necessary candidate for oversight by the County. The County's data were called into question earlier this year by renowned epidemiologist Dr. Lawrence S. Mayer in a report prepared at the behest of FSC.

But the petition also claims that the High Court must compel the lower courts to intervene because the failure by the County to act is putting the general public at risk, as well as the target industry.

“The issues at stake affects the health of all Californians,” AHF claims with characteristic hyperbole. “The [California Health and Safety Code] statutes in question involve the duty of public health officers to protect the public from the spread of communicable diseases in general, and sexually transmitted diseases in particular. Everyone in the state will benefit from this Court's opinion on the extent to which county departments of public health are immune from judicial scrutiny with respect to the actions the agencies takes (or will not take) to fulfill their statutory duty to combat the spread of communicable diseases in the face of a widely acknowledged epidemic.”

The petitioners further rejected the lower and appeals court view that the statutes in question give the health officer “considerable discretion” regarding what measures to take to “reasonably” prevent the spread of contagious and communicable diseases in general, and prevent the spread of infectious venereal diseases in particular.

“The court concluded that mandamus will lie only to correct an asserted abuse of discretion when the agency has ‘failed to act’ and its failure is arbitrary, beyond the bounds of reason, or in derogation of applicable standards,” read the petition. “In such a case, mandamus will lie only to compel the exercise of discretion.”

Claiming that the parameters of writ of mandamus are hardly settled law, AHF claims, “Here, where a law requires a public officer to take all measures reasonably necessary to combat a public health crisis, is it the province of the court to say whether the officer's measures do, in fact, sufficiently fulfill the agency's statutory duty? Certainly courts are capable of making that determination.”

In fact, the concept of mandamus is fairly simple. Literally, "We command," it is, legally speaking, a judicial writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty.

In actuality, AHF is asking the Supreme Court to make that determination for the courts, or at least for those, such as the Second Circuit, which took a more liberal view of the discretionary authority afforded a public servant such as a health officer. However, the Los Angeles County Department of Public Health has stated that it had long ago relinquished its power over enforcement of the California Health Code to the California Division of Occupational Safety and Health (CalOSHA), and to date, the courts have abided by that agreement.

It remains to be seen, of course, whether the state Supremes agree that a serious enough impasse exists between the will of the legislature—expressed in the language of the statutes it passes—and the manner in which the statutes are being enforced by the city, county or state such that the safety of its citizens is being put at risk to such an extent that the courts need to be given additional authority to dictate their actions.

While it was apparent from the language of the appeals court ruling that it took certain offence at the hubris exhibited by AHF that it seriously expected the courts to use their authority to make the county abide by AHF’s interpretation of the law, it is equally clear from this petition that AHF in fact believes that it does in fact have the legal, statutory and moral authority to compel just about anyone or any official entity to bow to its will.

It is possible, of course, that the justices of the California Supreme Court will be so impressed by AHF’s continuing and escalating arrogance that it rules in its favor, but also unlikely. Tyranny, it should be remembered, comes in small AHF-sized packages as well as in large government-sized packages, and each is to be avoided at all costs.

In response to a request for comment, FSC executive director Diane Duke commented, "The County itself said that this is a 'nonissue' in their response to the lawsuit. Courts have twice said that LA County cannot be required to regulate adult productions. Data shows that our performers rates of STI’s are much lower than those of similar populations, and FSC comissioned a report that was entered into record with Cal/OSHA disputing AHF's claims about STI rates. AHF continues to waste valuable resources promoting their self-aggrandizing efforts" 

The AHF Supreme Court petition can be accessed here.