The U.S. Supreme Courts’ ruling Tuesday in the first controversial case decided since the death of Justice Antonin Scalia in February delivered a big victory to labor unions and previewed what could be a new feature at the court for the foreseeable future: the 4-4 tie.

When the Supreme Court deadlocks, the lower appellate court ruling that led to the high court review is affirmed and no new nationwide precedent is set.

This could be particularly interesting for cases coming out of California and other Western states. The 9th U.S. Circuit Court of Appeals, which counts California in its jurisdiction, is notorious in legal circles for being the most liberal and the one most regularly overturned by the Supreme Court. With staunch conservative Scalia gone, the 9th Circuit’s rulings likely have a better chance at earning at least a 4-4 tie, which would keep them in place.

Case in point: Tuesday’s labor union ruling. The case emerged from the 9th Circuit and dealt specifically with whether public school teachers who hadn’t joined a union could opt out of paying union fees. An appellate court panel sitting in San Francisco relied on 1977 Supreme Court precedent that allowed unions to charge nonunion employees fees for things such as collective bargaining for salary and benefits to rule in favor of labor organizations. During oral arguments at the Supreme Court in January, the 9th Circuit’s decision seemed poised for defeat as conservative justices led by Scalia attacked the unions’ position.

With Scalia’s vote gone, unions were able to stave of what could have been a crippling defeat.

“This is a major win for organized labor to not get the 9th Circuit case overturned,” said employment attorney Todd Scherwin, a partner at Fisher & Phillips’ downtown L.A. office. “A lot of union-side labor lawyers were looking at this case as a possible death sentence.”

Porn Showdown Ends

The legal battle over porn performers wearing condoms in adult films has ended after more than three years in federal court.

The fiercely contested litigation over the condom law, referred to as Measure B, which was approved by Los Angeles County voters in November 2012, was officially settled last week after the parties filed paperwork agreeing to a détente based on an earlier court ruling.

Universal City’s Vivid Entertainment sued in January 2013, claiming the measure infringed on performers’ freedom of speech and sought to enjoin the county from implementing permitting and enforcement programs.

U.S. District Court Judge Dean Pregerson ruled in August of that year that the law presented no First Amendment violations. However, the court gutted the law’s enforcement mechanism because, “Measure B would seem to authorize a health officer to enter and search any part of a private home in the middle of the night, because he suspects violations are occurring.”

An appellate court ruling upheld the lower court.

Samantha Azulay, an attorney for the AIDS Healthcare Foundation in Hollywood, said the settlement represented a win for the organization, which was the primary sponsor of Measure B.

“As part of the settlement all parties have agreed that Measure B is the law,” she said. “We believe that by admitting that, the plaintiffs have abandoned their First Amendment freedom of speech claims.”

Steven Hirsch, Vivid founder and co-chairman, countered that the judge’s ruling neutered the law.

“Pregerson stripped the county of the ability to enforce Measure B, which the county didn’t want any part of to begin with,” he said. “They took no position during the litigation.”

In a statement, the county health department acknowledged enforcement efforts would be hampered by the court’s ruling.

“The Department of Public Health has and will continue to accept permit applications,” it said in a statement. “The Department will need to determine an appropriate regulatory approach in light of the District Court’s ruling that much of the Department’s independent enforcement authority over these permits was unconstitutional.”

Karen Tynan, a Healdsburg attorney who represents adult entertainment production companies in enforcement actions brought by the state and federal Occupational Safety and Health administrations, said Measure B’s impact has been minimal.

“The stated purpose of Measure B is to force performers to wear condoms in films and that hasn’t happened,” Tynan said. “It has been a complete and utter failure.”

Legal Landscape

Lions Gate Entertainment Corp. has named Audrey Lee executive vice president and deputy general counsel. … Anthony Thomas has been elected co-managing partner at Bowman and Brooke’s Torrance office. … The Beverly Hills Bar Association has named Darrell Miller, an attorney at Fox Rothschild’s Century City office, 2016 Entertainment Attorney of the Year.

Staff reporter Henry Meier can be reached at hmeier@labusinessjournal.com or (323) 549-5225, ext. 221.

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