Vivid: AHF Shouldn't Be Able to Intervene in Measure B Appeal

Oct 16, 2013 2:45 PM PST

LOS ANGELES — Vivid Entertainment attorneys filed court papers yesterday with the 9th U.S. Circuit Court of Appeals asking the court to dismiss the AIDS Healthcare Foundation as intervenors in the studio's appeal to effectively stop enforcement of Measure B.

Vivid, along with co-plaintiffs Kayden Kross and Logan Pierce, filed an appeal with the 9th Circuit last month after they were denied a preliminary injunction over Measure B by U.S. District Court Judge Dean Pregerson. The voter-approved measure requires the use of condoms in the production of adult movies in Los Angeles County.

Last week, Los Angeles County's appointed counsel told the clerk for the 9th Circuit that the county has chosen not to file an answering brief in the appeal over the preliminary injunction.

With the county not answering the appeal, AHF, the main supporter of the porn-condom measure and an intervenor in the lower court case, again seeks intervenor status — a status that Vivid is, again, battling against.

Vivid counsel argue in their reply brief to the 9th Circuit that the AHF must satisfy Article III of the U.S. Constitution, a statute that allows only an entity or individual who has suffered injury itself or himself to bring a case or appeal in federal court. They also argue that one party's satisfaction of Article III does not satisfy the requirement for all other participants and that the AHF lacks any protectable interest in the appeal.

Vivid attorneys said in their reply that the AHF can be only seen as a friend of the court, at best, in its appeal over the preliminary injunction.

At the lower court this past summer, Vivid was denied a motion to knock AHF off the case by Pregerson, who said that he disagreed with studio'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.

Pregerson earlier this year granted AHF's motion to intervene based on the 9th Circuit case Hollingsworth vs. Perry. 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.

But 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 in his decision that favored the AHF.

But at the federal appellate level over the questions involving the preliminary injunction, Vivid attorneys wrote that the AHF must butt out. It their latest brief, Vivid counsel said that the only point at issue on its current motion with the 9th Circuit is the AHF’s claim to full party status on appeal.

"AHF’s insistence that they are 'needed' in this case is incorrect," Vivid attorneys wrote. "This court is more than capable of resolving the issues appellants raise notwithstanding the county’s election of the option to not file an answering brief.

"AHF has no interest in this litigation sufficient to satisfy either Article III standing or intervention ... ," Vivid attorneys wrote. "[The] intervenors accordingly should be dismissed as parties to this case."

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