On November 4, 1986, the voters of the State of California rejected a ballot initiative, fostered and promoted by Lyndon LaRouche, that would have required all persons with Human Immunodeficiency Virus (“HIV”) to report their condition to the state Department of Health, regardless of whether or not they had symptoms of Acquired Immune Deficiency Syndrome (“AIDS”). The initiative’s proponents stressed that the initiative, known as Proposition 64, was created with the explicit purpose of protecting the public from the dreaded disease. Who could disagree with such a noble goal?
The means proposed to accomplish this purported goal, however, were not as lofty as the goal itself. The initiative would have activated a number of existing provisions of California’s health code and mandated their application to persons carrying the AIDS virus, HIV. As a result, persons carrying HIV stood to lose their anonymity, confidentiality, privacy, educational opportunities, and, in some cases, their jobs, through the application of health provisions that presuppose the air-borne, food-borne, or casual transmissibility of HIV.
According to the ballot argument, the initiative was designed to “keep AIDS out of our schools [and] out of commercial food establishments.” In truth, the initiative was designed as a tool for discrimination. It merely provided a legal justification for irrational decisions based on fear and intolerance. It was, in reality, a poorly disguised anti-homosexual measure.
Proposition 64 was defeated. It did not lose, however, because of its blatant discriminatory nature any more than a judicial challenge to the statute, had it been enacted, would have been successful for that reason. The key to the initiative’s defeat was the irreconcilability of the scientific, medical and public health evidence with the operative provisions of the proposed law. In other words, in the context of medical fact and California law, the initiative was irrational; the voters recognized that its provisions were counter-productive to its stated purpose.
Had the voters passed the initiative, the planned judicial challenge would also have been based primarily upon the proposition’s inherent irrationality. The fact that the initiative was internally inconsistent as well as inconsistent with the established body of existing substantive and procedural law, provided a powerful indicator ofjust how irrational the proposition was. The initiative was unconstitutional as a violation of substantive due process even under the lowest standard of judicial scrutiny. Arguably, however, the measure demanded more rigorous judicial review. The impact of the proposed measure on the fundamental rights of Californians, such as the right of privacy, the right to pursue a lawful occupation, and the right to an education, provided the additional weight necessary to compel a “strict scrutiny” examination within the larger context of an irrationality analysis.
The Petition for Extraordinary Relief was designed as a safety net to the educational campaign to defeat the initiative at the ballot box. In preparing the legal challenge, our first reference was to existing state law. The California Legislature has been a pioneer in the examination of AIDS-related information. Thus, the petition section of the pleading contains numerous allegations based upon legislative findings embodied in statutory law, allegations which are further buttressed in the body of the Memorandum of Points and Authorities with expert declarations and with the leading scientific studies. The strength of the “facts” acknowledged by leading experts, scientific journals,and the legislature cannot be overemphasized.
Additionally, the state law we examined was not limited to codified statutes. Administrative rules and regulations, which in California often have the force and effect of legislative enactments, also provided a rich reservoir of ammunition against the initiative.
As to the form of the petition, it should be noted that final approval of some of the plaintiffs was not received prior to the initiative’s defeat. Therefore, some names which would have otherwise been included have been deleted from the petition. The descriptions of the parties contained in the petition, however, indicate the types of plaintiffs whose interests the appellate courts might find compelling. Additionally, the entire Petition for Extraordinary Relief, including the declarations attached thereto, is a penultimate draft. If the brief had been needed, it would have undergone some additional editing and formatting. Lastly, it should be noted that the citation style used in the pleading conforms to California rather than federal standards.
As of January 1988 an initiative in basically the same form and substance as the LaRouche Initiative qualified for inclusion on the June 1988 statewide ballot.
Special acknowledgment must be given to Thomas F. Coleman, Laurence R. Sperber, and Mickey J. Wheatley, for their crucial assistance in the preparation of the pleading, and to Susan McGrievy, whose vision as well as her knowledge of the massive body of AIDS-related scientific data have been invaluable in most all the litigation on related issues in California and the nation.
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