LOS ANGELES—In a hearing held earlier today, U.S. District Judge Dean D. Pregerson took under advisement the question of whether AIDS Healthcare Foundation (AHF) may legally intervene in the lawsuit filed by Vivid Entertainment, Kayden Kross and Logan Pierce that's challenging the constitutionality and other infirmities of Measure B.
When Judge Pregerson called counsel to the rostrum to identify themselves and whom they were representing, attorney John Ly—who represented the L.A. County defendants, including its director of health services, Jonathan Fielding—announced that the County would take no position on AHF's attempt to intervene in the lawsuit. That left attorneys Paul Cambria and H. Louis Sirkin to argue that AHF's attempt to intervene in the lawsuit was premature, in light of the fact that the question of whether a non-party can intervene in such a case is currently before the United States Supreme Court in the Prop 8 case.
Cambria paraphrased the "standing" argument in that case for Judge Pregerson, noting that one of the issues in Prop 8 was whether those who sought to uphold the anti-gay marriage amendment had standing to do so in light of the fact that the California attorney general had announced that his office would not defend the proposition.
Cambria noted that Chief Justice John Roberts had stated that "a state can't authorize anyone to proceed in federal court because that would leave the definition under Article III of the Federal Constitution, as to who ... has standing to bring claims, up to each State," and noted that Justice Sonia Sotomayor questioned how the Petitioner in the case had any more standing to bring it than any other California citizen. (Cambria might also have quoted Justice Ruth Bader Ginsburg, who noted that the Supreme Court had never before granted standing to proponents of ballot initiatives.)
Cambria asked Judge Pregerson that since the Supreme Court will render its decision in Prop 8 in late June, the judge delay deciding whether AHF could intervene until the Prop 8 decision is issued.
Judge Pregerson then questioned whether Vivid's motion for a preliminary injunction to prevent the county from enforcing Measure B should also be delayed for the same reason. Cambria seemed to agree, but his co-counsel Sirkin responded that delaying consideration of the injunction was something that would directly affect the adult industry going forward, whereas there was plenty of time for AHF to enter the case later. He also argued that the motion could be made moot if the County would agree not to enforce the Measure B ordinance until the current lawsuit had been decided, but Ly made no comment on behalf of the County defendants regarding the County's position on that issue.
Samantha Azulay and Christina Yang, representing AHF, argued that regardless of the Supreme Court argument in Prop 8, the current law in California was that interested parties could intervene in lawsuits which the state might choose not to defend, and cited as their example the Prop 8 case itself. Yang also argued that if Measure B were not enforced immediately, her clients worried that performers might be harmed during any delay in enforcement. Azulay also stated that her clients had the right to intervene, if for no other reason than that Prop 8 is the current law in California, as is Measure B, and that it appeared that no one from the County was putting on any defense of the ballot measure.
Judge Pregerson said he would take AHF's motion to intervene under advisement, but the fact that he requested that all parties, including the AHF attorneys, confer to work out a briefing schedule for advancing the lawsuit seemed to indicate that he was disposed to allow AHF to intervene in the suit.
Still, it will be interesting to see what happens if AHF is allowed to intervene here, and two months from now, the Supreme Court invalidates its standing in the case.
Check back with AVN later for more news about this vitally important legal battle.