Analysis: After Supreme Court's Prop 8 Decision, AHF's Worried

PORN VALLEY—After U.S. District Judge Dean D. Pregerson's failure, at a hearing earlier this month, to consider plaintiffs' opposition to AIDS Healthcare Foundation's (AHF) continuation in the Measure B lawsuit filed by Vivid Entertainment, Kayden Kross and Logan Pierce, it's now become clear that AHF is worried about its standing in the case.

And well it should be: After the U.S. Supreme Court's ruling last month that the proponents of Prop 8, which deprived same-sex couples of the ability to marry, had no standing to defend the law in court, many observers thought it should be a foregone conclusion that AHF would be dropped from its position as an intervenor in the Measure B suit.

But at that July 11 hearing, Judge Pregerson denied plaintiffs' counsel Paul Cambria the opportunity to argue that standing issue, and on July 22, AHF filed a Memorandum in opposition to Cambria's motion to have the judge reconsider his April 16 Order to allow AHF's intervention in the case.

Trouble is, AHF doesn't have a legal leg to stand on, even after spending 33 pages trying to show that they do.

AHF makes several arguments, none of which hold water in light of the Supreme Court's decision in Hollingsworth v. Perry ("Hollingsworth"). First, AHF argues that the dismissal of plaintiff Dennis Hollingsworth from the Prop 8 case doesn't apply to them because the decision "does not change the status or propriety of Intervenors' right to intervene in this matter as it decided a much more narrow issue—that is, the authority of a particular intervenor to appeal a judgment that did not order relief from that intervenor, and where no other parties sought to appeal."

Well, duh! The Supreme Court only had the Hollingsworth case before it, so of course any decision it rendered would apply only to that case—but as is the case with many Supreme Court decisions, the text of the Hollingsworth decision set forth the legal underpinnings of that decision, and since Supreme Court rulings are the last word on any case that comes before it, the principles applied in that case are expected to be applied to any similar case currently filed or which will be filed in the future.

So how does AHF attempt to get around the Hollingsworth decision? Simple: By claiming that that decision didn't affect the original district court decision to allow Hollingsworth to defend the statute, even though he and his supporters would not be materially affected by its outcome.

"It is no coincidence that every single case on which the Hollingsworth Court based its opinion regarding Proposition 8 proponents’ standing, involved an intervenor who wished to appeal a lower court decision," AHF's attorneys Samantha Azulay and Christina Yang argue. "In none of these cases did the Supreme Court opine about the propriety of intervenor standing at the District Court level. In fact, there is no mention in the Hollingsworth opinion of the District Court’s analysis under Rule 24 of the Federal Rules of Civil Procedure, nor was there even any mention of Rule 24 itself. Thus, Hollingsworth drew no conclusions regarding an intervenor proponent’s right to participate in a case at the District Court level under Rule 24."

So, the question is, what part of this holding by the Supreme Court does AHF not understand?: "Federal courts have authority under the Constitution to answer such questions only if necessary to do so in the course of deciding an actual 'case' or 'controversy'," wrote Chief Justice John Roberts for the court. "As used in the Constitution, those words do not include every sort of dispute, but only those 'historically viewed as capable of resolution through the judicial process.' ... For there to be such a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have 'standing,' which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit." [Emphasis added; citations omitted here and below]

And surely, even AHF attorneys must know that when the Supreme Court issues a ruling, that ruling applies all the way down the "food chain," so when Hollingsworth directs that neither the Supreme Court nor the Ninth Circuit Court of Appeals can grant standing to a person or organization which has suffered no "concrete and particularized injury," as AHF clearly hasn't, then such a ruling applies equally to every district court in the land as well, no matter what that court's prior decisions (like letting Dennis Hollingsworth intervene in the Prop 8 case) have been.

But AHF thinks it's found a loophole: "To interpret Hollingsworth any more broadly would essentially gut direct citizen lawmaking through the ballot initiative process, and render it empty and meaningless," they argue. "It would mean that government officials would now have the power to nullify any voter-approved ballot measure they disagree with simply by declining to defend the measure in court... Once the ballot measure is passed by a majority of the voters, all a plaintiff must do to invalidate this people’s initiative, is to challenge the initiative, making sure to shop for a federal forum. And there, the same government officials that refused to enact the legislation and refused to adopt the ballot initiative, need only decline to defend the new law. If these officials do not defend the law, and as Plaintiffs submit, proponents are not authorized to participate in this case, then most likely the law will not receive a defense."

Trouble is, sometimes the mass of people can be extremely uninformed. If one were to need evidence of this, one need only look at the number of conservative Republicans elected to Congress in recent years. And just because that mass of people manages to pass a proposition or ballot measure into law doesn't mean that that proposition or measure magically becomes a valid legal premise. Even absent Hollingsworth's lack of standing, preventing gays from marrying when hetero couples are allowed to do so is clearly unconstitutional under the First, Fifth, Ninth and Fourteenth Amendments to the Constitution.

And let's not forget, when AHF, through state Assemblyman Isadore Hall II, tried to get the barrier-mandatory AB 332 passed statewide, lawmakers in Sacramento wisely understood that it was a waste of money—minimum $150,000 worth—chasing a non-existent problem, and let the bill die in committee.

But what's even more egregious about AHF's argument is that the signature gatherers it hired to get Measure B put on the ballot materially misrepresented what the measure entailed, as noted here. Among other lies, they claimed it was to bring mainstream studios into compliance with the health code, but that was quickly shown to be bogus. They claimed it was to prevent HIV in the adult industry, but there hasn't been an HIV transmission on set in California since 2004. They claimed it was a Measure to enforce condom use, when the Measure itself clearly states that in order for a production company to keep its mandated public health certificate, it has to follow all of the requirements of Section 5193 of the California Health Code, which requires not just condoms but dental dams, rubber gloves, goggles, face shields and even hazmat suits for every sex scene.

AHF also argues that it has a right to intervene in the case because, unlike Hollingsworth, where the state's attorney general refused to defend Prop 8 because it was so clearly unconstitutional, the attorney for LA County and Health Department head Dr. Jonathan Fielding has filed an appearance in the case, and AHF thinks it can "piggyback" on that defense.

But the differences between Hollingsworth and Vivid may be far less than AHF claims. For one thing, the actual defendants have only filed two documents in the case: One, an "Answer" to Vivid's complaint which mostly says "We don't have enough information to respond" to the issues Vivid raised, and one Notice of Non-Opposition to AHF entering the case as an intervenor; that's it. From all the information AVN has been able to gather, the county doesn't think it has a defense to the lawsuit, and has presented no argument whatsoever during any of the hearings that have taken place so far. So whether that is significantly different from the state attorney general refusing to defend Prop 8 is, of course, a question for the judge—but one that would seem to have an easy answer.

But the penultimate section of AHF's Motion makes clear how poorly its attorneys understand the Hollingsworth decision. It's titled, "Intervenors Have In Fact Met Article III Standing Requirements," and even claims that they have "a concrete and particularized interest to support their standing."

And just what is that "concrete and particularized interest"? Well, you see, according to the STD statistics AHF has been using all along—statistics well-challenged by Dr. Lawrence S. Mayer in the study he did several years ago—"STDs are being transmitted during the production of [adult] films at an approximate rate of 10 times that of the ordinary population."

And how does that give AHF and its employee-intervenors standing?

"Individual Intervenors are themselves at risk of contracting STDs from these performers who engaged in sexual intercourse during the making of a film or someone who contracted one from of these performers, as they all reside in Los Angeles County. The "relevant 'injury' for [Article III] standing purposes may be exposure to a sufficiently serious risk of medical harm," they claim, referring to a 2003 Second Circuit case, Baur v. Veneman, that deals with using "downed" livestock as human food.

Of course, by that logic, every bartender in the greater Los Angeles area should be required to refuse to serve any alcohol to patrons unless they promise to use condoms and the other "protective" gear when they go home and have sex with each other, and moreover, the bar owner should pay to have inspectors standing by the bedside of those patrons to make sure they employ the equipment they promised the bartender they'd use.

But the simple fact is, all heterosexual adult performers in Los Angeles County undergo monthly if not biweekly testing for just the STDs AHF is complaining about (which is more than they can say for bar patrons), and at the risk of being repetitive, there have been exactly ZERO on-set HIV transmissions between performers in the past eight years, and before that, a gap of another six years, with 1998 being the first certified on-set HIV transmissions—which transmissions were, not so coincidentally, the impetus for the beginning of the industry's comprehensive testing program through the Adult Industry Medical (AIM) Healthcare Foundation, which testing program continues to this day, despite AHF having been instrumental in the bankruptcy of AIM.

Plus, if the AHF employee-intervenors are worried that they might contract an STD from someone who had sex with someone who had sex with someone who had sex (etc.) with a (tested) porn star, then guess what? They can use condoms (and whatever other gear they want) to protect themselves! (It's personal choice, isn't it?)

AHF, however, claims to have standing not only under Article III, but also under the Ninth Circuit's Rule 24(a)(2), where they claim to have a "significantly protectable interest" in making sure porn stars, with whom none of them seem to have had personal contact, use condoms and the other rubberware.

Federal Rule of Civil Procedure 24(a)(2) permits rightful intervention by anyone—in this case, AHF and its employees—who "claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede [AHF's] ability to protect its interest, unless existing parties adequately represent that interest." In applying Rule 24(a)(2), the court requires a "significantly protectable" interest on the part of the party seeking to intervene.

But as is clear from our earlier analysis, neither AHF nor its employee-intervenors have any protectable interest, much less a "significant" one, since if the criterion for having a "protectable interest" is wanting the power to force anyone in business who might have a sexually-transmitted disease to take measures to prevent the transmission of an STD to, say, any AHF employee, then anyone who might have sex with that employee should be forced to undergo STD testing and required to use protective gear while having sex, all under the watchful eye of an inspector from the Los Angeles County Health Department! Frankly, that sounds to us like the groundwork for just the sort of internment camps that, back in the early '80s, religious conservatives wanted to put all HIV-infected gay people into!

But AHF saves its final—and most ludicrous—argument for last: "Without Intervenors, There Is No Case And Controversy To Confer Jurisdiction In This Matter." As previously discussed, Los Angeles County already seems to recognize that Measure B is a content-based unconstitutional infringement on sexual speech, and a very expensive one at that, with Dr. Fielding opining that the two-year start-up costs alone will top $580,000, with little chance that anywhere near that amount could be recouped from adult producers, many of whom have vowed to leave the county rather than pay for a law that will, at best, drive down their business, or at worst, drive them out of business.

But it's the county's very "intransigence"—some might say "wisdom"—in refusing to spend much time and effort defending Measure B that AHF thinks gives it the legal right to essentially take over the suit from the county, even though it has no standing to do so—and their argument is basically that because the county won't defend Measure B, AHF's inclusion as an intervenor is the only way there is a "case" or "controversy" regarding Measure B at all!

"In fact, courts may dismiss a case where there are no adverse parties," the AHF attorneys argue. "Here, no concrete case exists without Intervenors’ participation in the matter. Plaintiffs seek to invalidate Measure B based upon seven constitutional theories. Defendants have made clear in their Supplemental Statement of Non-Opposition to Proposed Intervenors’ Motion to Intervene that they will not defend the constitutionality of Measure B. In Defendants’ Answer to the Complaint, they fail to include any defenses to the merits of Plaintiffs’ seven constitutional claims. Rather, Defendants suggest that Intervenors are necessary parties to litigate the constitutionality of Measure B. Quite simply, Defendants and Plaintiffs are essentially on the same side. Defendants refuse to defend against Plaintiffs’ lawsuit on the merits, and therefore without Intervenors, there would be no party to defend the constitutionality of Measure B, and hence no true case or controversy."

No shit. And guess what? Without Dennis Hollingsworth and his merry band of religious fanatics, California's Prop 8, which lower courts deemed to be unconstitutional and which the attorney general had refused to defend on that basis, is likewise without a "true case or controversy." In fact, it's just bad law—exactly as Measure B is.

But AHF isn't done yet. After failing to provide any convincing reason for why it should remain a party to Vivid's lawsuit, they put forth the argument that Judge Pregerson shouldn't even be deciding the case in the first place, and that it should be turned over to the California state court system—even though AHF's attempts to squelch free sexual speech is clearly a federal constitutional question that, even if it were moved to state court and AHF were to prevail, would undoubtedly wind up in the federal court system anyway!

Fortunately, the plaintiffs' attorneys, being far more legally savvy than this reporter, have made many of these same points in their "Reply In Support Of Plaintiffs' Motion For Reconsideration Of Court's Order Of April 16, 2013," that being the order that let AHF and its employees intervene in the case in the first place.

"The U.S. Supreme Court’s decision in Hollingsworth v. Perry is dispositive on the status of ballot initiative proponents in federal court," the brief, which was filed on Monday, begins, "such as that of AIDS Healthcare Foundation et al. here ('AHF'), once the measure they have sponsored is enacted: they 'have no role—special or otherwise—in [its] enforcement,' and 'no "personal stake" in defending' it that is 'distinguishable from the general interest of every citizen.' ... The blunderbuss arguments AHF offers in a desperate but ultimately futile attempt to cling to party status in this case—or to derail it from proceeding without them—cannot change the fact that Hollingsworth is a game-changer fatal to AHF’s position... The Supreme Court in Hollingsworth said it all when it summarized that, 'We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to.'"

Plaintiffs have asked for a reconsideration of Judge Pregerson's Order allowing AHF to intervene, rather than a current ruling simply dropping them from the case, with the likely reason being that if the judge retroactively prevents them from participating in the lawsuit, all of the papers filed and arguments made by AHF attorneys would likely be considered moot due to AHF's lack of standing.

Beyond that, Cambria and co-counsel spend the next 18 pages refuting AHF's arguments to remain in the case or, in the alternative, remove the case to state court, many of which arguments have been covered above.

Still, several of the arguments in plaintiffs' reply brief are worth noting.

"The belief espoused by AHF that Intervenor status can be salvaged through 'piggybacking' also relies on the misplaced notion that Hollingsworth only requires standing at the appellate level, and is incorrect for that and related reasons," the reply states. "This argument misunderstands the central thrust of Hollingsworth—that ballot initiative proponents have, upon enactment, no interest distinct from any other member of the general public. As a threshold matter, if Intervenors' view prevailed, every member of the public could intervene by 'piggybacking,' which is inconsistent with Hollingsworth and Rule 24, which Intervenors admit 'implicitly addresses' the standing requirement."

Plaintiffs also argue that AHF's role in the lawsuit is more properly that of a "friend of the court," or in legal terms, amicus, rather than as a party to the suit.

"There is also no basis for continuing AHF’s intervenor status based on further citation to Ninth Circuit authority relating to Intervenors' desire [to] 'present arguments and defenses that would not be presented without their participation,' to purportedly 'assist in informing the Court,'" the reply states. "As a threshold matter, the role AHF describes is that of amici, not of a party. In any event, the cases cited to support this desire of AHF's not only predate Hollingsworth, they cannot support continuing intervenor status."

Plaintiffs also deny that AHF's legal inability to be a party to the Vivid lawsuit has any effect on California's ballot initiative process.

"Intervenors' claim that Hollingsworth 'eviscerates' California’s initiative process also is not true as a factual matter," the reply notes. "Hollingsworth expressly does not 'question California’s sovereign right to maintain an initiative process, or the right of initiative proponents to defend their initiatives in California courts, where Article III does not apply.' Thus, initiatives can still be placed on the ballot, and passed. Many will likely garner a defense by government bodies charged with enforcement or implementation... Putting aside that such officials have a duty, first and foremost, to uphold the federal Constitution, even if that means declining to defend a law they view as unconstitutional or constitutionally suspect, any determination not to defend, for any reason, represents the judgment of politically elected and appointed officials subject to electoral processes. The same voters who pass an initiative that goes undefended are welcome to vote to replace the elected officials who opted not to defend (or who appointed those who declined to defend)."

The reply brief makes short work of AHF's newly-stated reason for intervening in the case. After noting that it's improper for AHF to raise this new "standing" issue—that is, the idea that adult performers might infect AHF employees with STDs absent Measure B—at this late date, the brief states, "This claim fails as a factual matter because, as Plaintiffs have shown repeatedly, any notion that Measure B will protect the population of Los Angeles County is unfounded, given Intervenors' position that adult films can simply shoot just outside the County without complying with Measure B, then return to intermingle with County residents. Even more importantly for present purposes, these claims of residence in Los Angeles County and purported risk of STD exposure from sex with adult film performers means Intervenors face the same purported risks as every other resident of Los Angeles County. In other words, their 'concrete and particularized interest' is exactly the same as that of every member of the general public—Measure B itself says as much." [Emphasis added]

However, plaintiffs' counsel makes an important point that is easily lost in the fact that the county has filed virtually no paperwork in defense of Measure B.

"AHF cannot hedge their bets by arguing that if (because) they lack Article III standing and thus cannot remain Intervenors, the case cannot continue without them," the plaintiffs' attorneys argue. "Intervenors' entire argument in this vein, based on supposed lack of a case and controversy in their absence, rests on the fallacious claim that 'Defendants and Plaintiffs are essentially on the same side.' To the contrary, from the beginning of this case, the County has steadfastly refused to stay enforcement of Measure B while this matter is pending. Rather, shortly after Measure B’s enactment the County indicated Measure B will be enforced, set a provisional permit fee, and promised a permanent fee schedule would be forthcoming. All the while, Plaintiffs remained subject to Measure B’s mandates, and must either risk enforcement by the County and penalties for filming without complying, or must take onerous steps to avoid running afoul of the law. And the County has taken these steps despite acknowledging the importantly constitutional issued Measure B raises."

Indeed; as some producers have been shocked to discover, it is now impossible to get a FilmLA shooting permit in the county without having applied for the public health permit required by Measure B and having presented the provisional permit which the county is supplying while it gets its Measure B enforcement regime trained and in place!

"Insofar as Defendants suggested Intervenors were proper parties, that was before Hollingsworth clarified Article III requirements for standing, which require Intervenors’ dismissal from this action," the reply brief notes. "If reconsideration is granted and Intervenors are dismissed, it is unknown if Defendants’ position and strategy will change. But bottom line, Measure B remains the law in Los Angeles County, Defendants are charged with implementing and enforcing it, and they have refused to stay their discharge of those responsibilities, all of which absolutely places Plaintiffs and Defendants in an adversarial position. Accordingly, even without Intervenors as parties, there will still be adverse parties in this action, and the Court will continue to have jurisdiction."

And speaking of jurisdiction...

"No valid grounds exist for this Court to abstain from exercising jurisdiction over this matter, notwithstanding Intervenors’ invitation to do so," plaintiffs' counsel state. "It is well-settled that 'there is little or no discretion to abstain in a case which does not meet traditional abstention requirements.' Rather, 'discretion must be exercised within the narrow and specific limits prescribed by the particular abstention doctrine involved.' Abstention is particularly inappropriate here as the belated abstention defenses were waived when Defendants failed to raise them in the Answer or in any subsequent pleading. As the Ninth Circuit has made clear, if the defendant waives abstention defenses, a third-party intervenor cannot raise them after the fact."

The brief then goes on to deal with the specific cases AHF cites as reasons why Judge Pregerson should ditch his own responsibilities and turn the case over to state courts, but such an argument is too little, too late—as are most of the arguments AHF attorneys make in their ill-founded attempt to deprive adult content viewers of the sexually explicit material they wish to consume.

The full text of AHF's Memorandum can be found here. The full text of Plaintiffs' Reply can be found here.

According to both of these briefs, the hearing on the "standing" issue will be held on August 14, and AVN will be present to provide the lowdown on both the arguments presented and, if possible, the court's reaction to them.