California Appeals Court Publishes AHF June Condom Ruling

LOS ANGELES—California’s Second Circuit Court of Appeals Friday certified for publication its June ruling in AIDS Healthcare Foundation v. L.A County Department of Health, the petition by AHF to force the county to, among other demands, force porn performers use condoms on set.  

The certification for publication has no bearing on the outcome of the case other than to ensure that the decision will be made available in print for future use, and also so that it can be cited in future cases. According to constitutional attorney Reed Lee, the delay in certifying the publication is the result of a recent trend by appeals courts to undertake greater discretion with respect to which decisions are published and which are not.

According to Lee, there are entire law libraries stacked floor to ceiling with law books that contain nothing but appeals court decisions. The number has become so staggering, in fact, that a new regime of discretion has been instituted to try and cut down on the increasing volume. Unless some new legal argument has been made in a decision, the courts are increasingly declining to certify them for publication. Lee was not well-versed enough with the intricacies of the June AHF ruling to know why it was certified for publication.

AHF has indicated that it intends to appeal the decision, which was authored by California Appeals Court Justice Richard D. Aldrich, to the California Supreme Court, so the news of the publication offers another opportunity to revisit the case in brief.

In his June coverage, AVN Senior Editor Mark Kernes characterized as “deep-sixed” the attempt by AHF to have a California court issue a writ of mandate directing L.A. County’s  health officer to enforce sections 120175 and 120575 of the County Health and Safety Code by, according to the ruling, “‘Taking all reasonable steps to stem the spread of sexually transmitted diseases in the making of hardcore pornography,’ to require that adult film producers ensure performers are vaccinated for hepatitis B, and to require condom use in the production of adult films in Los Angeles County. In the alternative, the Foundation asked the court to declare that the Department’s health officer has abused his discretion under sections 120175 and 120575 by failing to take action, and to direct the health officer to ‘cure that abuse of discretion.’”

Health and Safety Code section 120175 states, “Each health officer knowing or having reason to believe that any case of the diseases made reportable by regulation of the department, or any other contagious, infectious or communicable disease exists, or has recently existed, within the territory under his or her jurisdiction, shall take measures as may be necessary to prevent the spread of the disease or occurrence of additional cases.”

Section 120575 states, “It is the duty of the local health officers to use every available means to ascertain the existence of cases of infectious venereal diseases within their respective jurisdictions, to investigate all cases that are not, or probably are not, subject to proper control measures approved by the board, to ascertain so far as possible all sources of infection, and to take all measures reasonably necessary to prevent the transmission of infection.”  

Both the trial court and the appeals court found, “The Department’s health officer cannot be compelled to exercise his discretion in a certain manner and cannot be compelled by mandate to take “any and all other reasonable steps necessary to stem the spread of sexually transmitted diseases in the production of pornography,’ because such an order requires the exercise of discretion and is so vague it would be unenforceable.”

The appeals court ruling can be accessed here.