San Francisco Court Hearing on SF MGMBill

David Lane recounts the San Francisco court hearing to remove the SF MGMBill from the ballot.
San Francisco MGMBill
Vol. 9
No. 1
David Lane
Thu, 07/28/2011

There was a pretty good showing of Bay Area Intactivists outside the courthouse, which was fantastic, particularly given the media circus (more on that later).  I know that at the very least, Lloyd, Jonathon, Tina, and I were interviewed by various outlets.  I'll let someone give a more thorough rundown of the protest on the listserv, and I'll focus on the hearing because that's where I was.

Michael Kinane did a fantastic job.  He got up there--cast on his right arm and all--and in my estimation actually may have made the judge consider changing her ruling in some way, if not changing her mind completely.  I could be wrong about that, but the fact is that in order for her to do what she did (make the tentative ruling final), effectively she had to completely ignore almost everything Michael said during his oral argument.  It just was not possible to have heard his argument and not have seen the substantive problems with her ruling, as well as its internal contradictions.  Far be it from me, as an officer of the court, to accuse the judge of acting in bad faith, but I'm just telling it like I saw it.

The courtroom was packed past capacity--people were turned away and they had to set up temporary seating in the front because there was so much press (albeit it was a small courtroom).  I saw ABC news, CNN, NPR, and the Bay Area Reporter, among others.  ABC filmed the proceedings, which is interesting because it suggests that the court allowed them to bypass the rules concerning when media requests must be filed.  Too bad she couldn't find the same leniency in her heart for Doctors Opposed to Circumcision.

The judge began the proceeding by stating that the court concedes that there are "legitimate arguments on both sides" of the debate in terms of the merits of infant circumcision.  (gee, thanks for that your Honor).  The judge proceeded to refer to Lloyd's brief as "Respondent's" brief, though Lloyd is Real Party In Interest and the City and Director of Elections are Respondents.  Overall I got the feeling the judge read virtually nothing.  I got the sense that a clerk wrote her a bench memo (summary of the briefs and how she should rule).   She seemed caught off guard by Michael's argument (could just be me seeing things).

Michael began his presentation with a very cogent explanation of the fact that the initiative is not a circumcision ban, and so does not contravene 460(b), which prevents cities only from "prohibit[ing]" doctors from performing procedures that fall within the professionally recognized scope of practice.  As Michael stated, the initiative would allow doctors to perform circumcisions when medically necessary (and of course on consenting adults).  I found his argument concerning the difference between a restriction, or regulation, and a prohibition to be compelling.

Michael also explained, with respect to the argument that the State has preempted the subject area at issue (thus prohibiting cities from legislating in the same area, under the legal doctrine of preemption), that there is currently a federal law that is almost verbatim to the initiative, but protects only girls.  This argument made sense legally because it showed that the State does not, in fact, occupy the field when it comes to regulating circumcision--the feds are in on it.  And, perhaps as importantly, it gave Michael an opportunity to drive home to the judge and all of the press in the audience that there is a serious equal protection problem here.  Michael spoke very eloquently about the fact that little girls currently enjoy protection that is denied to little boys.  It was clever for Michael to narrow the area of law in question to that concerning circumcision specifically, as opposed to medicine more generally.  The judge ultimately didn't buy it, but that doesn't mean another court won't (sorry for the triple negative).

Michael took the opportunity to bring up another relevant state statute in the context of the preemption argument:

§ 124170. Educational, preventative and outreach activities focusing on new immigrant populations; establishment and implementation

The State Department of Health Services, in consultation with the State Department of Social Services and the appropriate federal agency or department, shall establish and implement appropriate education, preventative, and outreach activities, focusing on the new immigrant populations that traditionally practice female genital mutilation, for the purpose of informing members of those communities of the health risks and emotional trauma inflicted by this practice and informing those communities and the medical community of the prohibition and ramifications of Section 273.4 of the Penal Code.

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Alas, it's too bad the State doesn't give a rat's ass about the "health risks and emotional trauma inflicted by this practice" on men.  He also quoted the AAP statement on male circumcision.  Finally (and I'm sure I'm missing a lot), during his rebuttal Michael managed to insert into the record that the judge had decided at least one factual issue, though her ruling states she decided the matter on the law.  This is all good fodder for an appeal.

Michael Jacobs from Morrison Foerster argued for the other side.  He rebutted the preemption argument; went through the reasons the court should not sever the statute to save it (not that we ever suggested it should...); and also argued the 1st Amendment Free Exercise issue (i.e., if the judge does sever the statue so as to allow doctors to continue to cut, then it would apply only to religious folks and so would violate the federal Constitution).

But I have to say, both in terms of substance and style Michael far surpassed the all-powerful law firm partner.  Michael's argument was passionate, but reasonable.  He was captivating.  And there he was with his shattered wrist in a cast, and Lloyd and Rick standing stoically next to him, while on the other side there was Michael Jacobs and Francis Ho, both from MoFo; Nicole Aeschleman (no argument); at least one ACLU lawyer (no argument); and maybe a couple of other lawyers on behalf of the San Francisco "Medical" Society.  Good atmospherics, as they say, for the press if nothing else.

I almost forgot -- the City Atty, Mollie Lee, was at counsel table with Lloyd, Rick, and Michael (after all, she's on 'our side' of the lawsuit...).  She said a few words but didn't make an argument because the judge had no questions for her about the Free Exercise issue.

The judge finally spoke and basically disregarded everything Michael said, gave a summary of Petitioner's brief, and rubber stamped her tentative ruling.  I was surprised that she went out of her way to mention (1) that she had considered the Free Exercise issue and decided that Petitioners were correct (never mind non-medical doctors cutting in a non-religious context); and (2) she mentioned the fact that San Francisco is a charter city with special home rule privileges.  Petitioners brought this issue up in their initial brief, but our side never really made the argument that it was relevant.  I'm not sure whether she was sort of broadcasting to us that it might be a viable issue on appeal, or (more likely), mentioned it because she was using the table of contents of petitioners brief as a guide.

After the hearing there was a press gaggle immediately outside the doors of the courtroom.  Lloyd went first, and 'showed up' as he always does.  Abbey Porth went next and began by referring to male circumcision as a "minor surgical procedure."  I suppose it is, in the sense that it's performed on minors, but I don't think that's how she meant it and I felt compelled to let her know how I felt when the press deal was over.  So I did.

Frankly, I don't think it could have gone much better.  Michael was great both stylistically and in terms of making a good appellate record; Jacobs was mediocre; the City Atty did almost nothing; the ACLU and SF "Medical" Society didn't argue; the judge's ruling makes no sense; the press was plentiful; and the protesters showed up.  Good job by all in my opinion, although of course others should feel free to disagree.

Huge thanks to Michael Kinane.