Ninth Circuit affirms Measure B condom requirement

More than nine months after oral argument, the Ninth Circuit has issued its decision in Vivid Entertainment v. Fielding, a challenge to Los Angeles's Measure B (PDF), which, among other things, requires performers in pornographic films to wear condoms.

I wondered earlier if Prop 8 litigation may have undermined governmental defense of certain ballot initiatives, given that Los Angeles County urged intervenors to participate in the litigation so that it would not have to defend the measure. After challengers to the measure largely lost, they appealed, arguing, among other things, that the defendant-intervenors could not serve as appellees, because defendant Los Angeles County refused to continue to defend the measure.

Here's what the Ninth Circuit held regarding jurisdiction:

Citing Perry, Plaintiffs argue that we lack jurisdiction over this appeal, because Intervenors lack Article III standing. We disagree with their reading of Perry and with their contention that Intervenors must have standing for this appeal to proceed.
The Supreme Court has held that a party must have Article III standing both to initiate an action and to seek review on appeal. Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997). But an intervenor who performs neither of those functions and no other function that invokes the power of the federal courts need not meet Article III standing requirements. Yniguez v. Arizona, 939 F.2d 727, 731 (9th Cir. 1991), vacated by Arizonans for Official English, 520 U.S. at 80, as recognized in League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1305 n.5 (9th Cir. 1997); see also Perry, 133 S. Ct. at 2661 (citing Art. III, § 2) (holding that “any person invoking the power of a federal court must demonstrate standing to do so” (emphasis added)). Nothing in Perry, which concerned the question whether an intervenor who sought to appeal had Article III standing, affects that conclusion. Plaintiffs have standing, and it is they alone who have invoked the federal courts’ jurisdiction. For that reason, we need not and do not decide whether Intervenors satisfy the requirements of Article III standing.

Jurisdiction, then, exists--but not obligation, apparently, exists for the government to defend a publicly-enacted ballot measure that the government officials may not agree with, or simply deem too sticky to provide a public defense. The Ninth Circuit went on to largely affirm the district court and, accordingly, upheld enforcement of much of Measure B.