Judge Rules AHF Can Continue as Intervenor in Measure B Suit

Aug 4, 2013 12:30 PM PST

LOS ANGELES — The AIDS Healthcare Foundation can continue as intervenors in Vivid Entertainment’s legal fight to stay enforcement of Measure B, a federal judge ruled on Friday.

U.S. District Judge Dean Pregerson, in his order denying Vivid’s motion for reconsideration to knock AHF off the case, said that he disagreed with Vivid’s claim that the U.S. Supreme Court in Hollingsworth vs. Perry requires intervenors to show they have standing independent of the actual defendants in case, Los Angeles County.

Vivid and co-plaintiffs Kayden Kross and Logan Pierce filed their suit in January at U.S. District Court in Los Angeles, seeking to topple Los Angeles County's Safer Sex in the Adult Film Industry Act, which was approved by voters in November. The AHF was the sole sponsor of Measure B.      

Pregerson earlier this year granted AHF's motion to intervene based on the 9th U.S. Circuit Court of Appeals case Hollingsworth.

That ruling held that opponents of gay marriage behind California's 2008 Proposition 8 effort had the constitutional authority, or standing, to defend the law in federal courts after the state refused to appeal its loss at trial years earlier.

But the U.S. Supreme Court in June overturned the 9th Circuit’s Hollingsworth decision, and Vivid asked Pregerson to disqualify the AHF as intervenors.

On Friday, Pregerson denied Vivid’s motion, ruling that the U.S. Supreme Court decision “implicitly approved of the framework currently at issue” because it left the district court’s decision intact in the Hollingsworth ruling.

“At the district court level, intervention by initiative proponents is proper when the government is enforcing the initiative but refuses to defend it, regardless of whether the intervenors have standing independent of the government defendants,” Pregerson wrote.

“Additionally, as the [U.S. Supreme Court] order recognized, 9th Circuit precedent, though somewhat ambiguous, generally indicates that intervenors are not required to demonstrate Article III standing independent of the defendants,” he wrote.

(Article III allows only an entity or individual who has suffered injury itself or himself to bring a case or appeal in federal court.)

“Thus, unless [the Hollingsworth decision] undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable, the court must follow the 9th Circuit precedent,” he ruled.

Pregerson in his decision also said that denying intervention in this case would upend one of the key purposes of standing doctrine.

“One reason standing is required is to ‘sharpen the presentation of issues upon which the court so largely depends for illumination of difficult ... questions,’” he wrote.

“Even without intervenors, there would still be standing to resolve this case because the county is enforcing Measure B," he wrote. "Because the defendants refuse to defend Measure B’s constitutionality, Interveners are needed to sharpen the issues this court will be required to answer.”

Separately, Pregerson said that the court will take up Vivid’s motion for judgment on pleadings on Sept. 9

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