State Appeals Court Deep-Sixes AHF Petition on Condoms

LOS ANGELES—You've got to give AIDS Healthcare Foundation (AHF) credit: What they haven't been able to accomplish as quickly as they'd like—a universal requirement for the use of condoms, dental dams, etc. on porn sets—by petitioning the California Division of Occupational Safety and Health (Cal/OSHA), they're perfectly willing to try to sneak in through the back door by asking a judge to force the LA Department of Public Health to do it anyway. Fortunately, they failed, when California Appeals Court Justices Richard D. Aldrich, Joan D. Klein and Patti S. Kitching saw through the scheme.

AHF, which normally trumpets its anti-adult industry actions on its website, somehow failed to mention its filing of the petition for writ of mandamus that's the subject of the recent appeals court decision in its "In The News" section of the site, and it's unclear when its original petition was filed. That petition called upon the Los Angeles court system to compel the Health Department's health officer—presumably the department's local director, Dr. Jonathan Fielding—to "discharge its ... duty to combat an acknowledged epidemic of sexually transmitted diseases stemming from the production of hardcore pornography in Los Angeles County."

"The Foundation asked the court to issue a mandate directing the Department's health officer to require 'all performers to use condoms in the making of hardcore pornography,' or to take 'any and all other reasonable steps necessary to stem the spread of sexually transmitted diseases in the production of pornography in Los Angeles County'," the court recapped regarding the original AHF petition. "Following a successful demurrer [a form of dismissal]  filed by the Department in which it contended the health officer's statutory duties under sections 120175 and 120575 [of the California Health Code] are discretionary, the Foundation filed a verified amended petition."

But AHF's amended petition is a mass of false and misleading statements.

"Sections 120175 and 120575 expressly charge the Department's health officer 'with a duty to take steps to stem any known outbreak of communicable diseases'," Justice Aldrich's recounting of the amended petition states. Trouble is, no "known outbreak of communicable diseases" has been traced to the adult industry since the three-person "outbreak" caused by performer Darren James in 2004.

"The practices of the hardcore pornography industry in Los Angeles County have led to recurrent outbreaks of sexually transmitted diseases, including 'HIV/AIDS, gonorrhea, syphilis, chlamydia, hepatitis, genital human papillomavirus infection, and genital herpes'," the amended petition continues. "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. There also have been multiple outbreaks of HIV within the hardcore pornography industry, the most recent outbreak in 2004."

Leaving aside the misleading "factoid" that "multiple outbreaks of HIV within the hardcore porn industry" number exactly two—the 2004 Darren James situation and the 1998 Marc Wallice incident which took place before near-universal PCR-DNA testing was introduced with the founding of AIM—the statistics cited in the petition must be looked at—and possibly were looked at by the three-justice panel—in light of the findings of Dr. Lawrence S. Mayer of Johns Hopkins University, who not only found the health department statistics quoted in the AHF petition to be unreliable, but also called into question whether STD infection rates within the adult performer community were in fact substantially higher than infection rates in the general population.

Similarly, AHF's statement that "The Department's health officer ... attributes the 'epidemic of sexually transmitted diseases in the hardcore pornography industry to a lack of protective equipment for performers, including condoms,'" is equally unreliable, given that, as Dr. Mayer notes, the data on the number of performers testing positive for an STD (whatever that actual number may be) comes from the fact that the vast majority of them were tested on a monthly basis by AIM or a similar facility, while the overwhelming majority of Los Angeles citizens have never been tested for STDs, and their actual infection rates (or "epidemic") may be the same or greater than those of performers.

Hence, AHF's claim—that "The Department's health officer allegedly has taken no effective steps to reduce the risk of infection to adult film performers and their nonindustry sexual partners," and that, "The Department's efforts to work with state agencies, including the state's Division of Occupational Safety and Health (CalOSHA) and the state legislature to pass state-wide laws governing the adult film industry, have produced no positive results"—is equally false and/or misleading.

The appeals court, however, didn't base its ruling on any of that factual data, but rather focused on whether the court, through AHF's petition for writ of mandamus, could legally compel the "health officer" to take more action than he already has, agreeing with the trial court that, "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." [Internal quote marks removed]

Justice Aldrich's eight-page opinion goes on to specify that a writ of mandamus "does not lie [act] to compel a public agency to exercise discretionary powers in a particular manner, only to compel it to exercise its discretion in some manner," and that AHF's claim that sections 120175 and 120575 require the health officer to take specific actions to stamp out an "epidemic" (which STDs in the adult industry clearly are not) is simply false.

"These statutes impose a mandatory duty on a health officer to take measures to prevent the spread of contagious and communicable diseases, in general, and specifically to prevent the transmission of infectious venereal diseases," the panel writes. "The Foundation maintains, however, that the health officer's mandatory duty includes taking 'all measures,' to control the spread of sexually transmitted diseases. Since the Department's health officer has acknowledged the widespread epidemic of sexually transmitted diseases in the adult film industry and admitted that the use of condoms would effectively prevent the spread of sexually transmitted diseases, the Foundation contends the Department's health officer must be compelled to issue a regulatory order mandating condom use. As we have explained, the measures to be taken are qualified by reason, only those measures 'reasonably necessary' or 'may be necessary' must be taken for disease control and prevention. The Legislature has used these phrases to signal the exercise of discretion to carry out a mandatory duty, and whether the Department's health officer has acted 'unreasonably' is not a question of whether he or she has failed to perform a ministerial act, for which mandamus will lie." [Citations omitted here and below]

The panel goes on to cite a number of cases where the health officer used a wide exercise of discretion in dealing with a variety of health-related issues, concluding, "The Health and Safety Code does not require the Department to issue a regulatory order mandating condom use for performers in the adult film industry. Even if the Foundation believes the Department's efforts are not effective, the Foundation cannot obtain mandamus relief for this alleged violation. The decision on what steps to take to control the spread of sexually transmitted diseases is entrusted to the Department."

The panel then goes on to excoriate AHF for attempting to place its judgment of what's effective in controlling STDs—condoms and required Hepatitis B vaccinations—above that of state health officials.

"In other words, the Department's abuse of discretion arising from its 'failure to act,' is based upon the Foundation's belief that the Department's actions are ineffective, or have failed and are not aggressive enough, and only a mandate by this court will compel the Department to act in a different manner," Justice Aldrich summarized. "We cannot compel another branch of the government to exercise its discretion in a particular manner. We do not read the allegations in the petition as alleging the Department failed to take any action in conformity with its statutory authority. Thus, the petition fails to state a cause of action."

"The Department has not failed to act; based upon the allegations in the petition the Department has failed to act in the manner the Foundation believes is effective to stem the spread of sexually transmitted diseases," the panel distinguished. "We cannot compel the Department to implement the Foundation's agenda. The Foundation's public policy advocacy is better directed at lawmakers to change the laws and workplace regulations. The demurrer to this cause of action was properly sustained. The judgment of dismissal is affirmed."