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July 27, 2011

UPDATED: S.F. court rules to remove anti-circumcision measure from ballot

http://www.jewishjournal.com/blog/item/sf_court_to_remove_anti-circumcision_measure_from_ballot_20110727/

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In a tentative ruling published this afternoon, a San Francisco Court ruled in favor of removing a controversial proposition that would have prohibited circumcision of males under 18 from the city’s November 2011 ballot.

San Francisco Superior Court Judge Loretta M. Giorgi found that because the proposition aims to enact an ordinance that “attempts to regulate a medical procedure, the proposed ordinance is expressly preempted” by an existing California State Law.

Giorgi issued her tentative ruling in advance of an already scheduled hearing for Thursday, July 28, which will go ahead as planned.

The decision was welcomed by the plaintiffs in the lawsuit, even as they acknowledged that the tentative ruling wasn’t likely to be the end of the court battle over the ballot measure.

“We expect that the other side will appeal, so we’re in this for the long haul, but this is extremely good news and will make tomorrow’s court hearing less of a nail biter,” Abby Michelson Porth, associate director of the Bay Area Jewish Community Relations Council (JCRC), wrote in an email.

The JCRC led a group of plaintiffs in bringing the lawsuit, which included Jewish and Muslim families, doctors and Jewish ritual circumcisers.

Lloyd Schofield, the ballot measure’s proponent, defended it against the lawsuit. Schofield notified the plaintiffs Wednedsay afternoon that he will appear in court on Thursday morning to oppose the ruling.

According to documents filed with the court, Schofield is acting as his own attorney. He could not be reached for comment.

“It’s a great win for San Francisco parents,” Nicole Aeschleman, an attorney representing three of the plaintiffs in the case, said of the tentative ruling. “Parents will continue to have the ability to make decisions about the health and well-being of their children in consultation with the medical professionals who will actually be performing those procedures.”

Schofield submitted over 12,000 signatures on behalf of the measure, which was certified in May to appear on the ballot in November.

Aeschleman said she believed that the language of the ballot measure had not been finalized before Wednesday’s ruling, nor had any ballot materials been printed.

“We brought this motion when we did so that it could be decided before any costs would be expended on the ballot,” she said.

Though much of the discussion—particularly in the Jewish community—has centered around the ballot measure’s lack of a religious exemption, Wednesday’s tentative ruling made no mention of religion.

The text of the ruling is below:

CPF11511370

Case Title:JEWISH COMMUNITY RELATIONS COUNCIL OF SAN et al VS. JOHN ARNTZ, IN HIS OFFICIAL CAPACITY AS DIRECTOR et al

Court Date: Jul-28-2011 09:30 AM

Calendar Matter: Notice Of Motion And Motion To Grant Writ Of Mandate And Injuinctive Relief; Compilation

Rulings: Set for hearing on Thursday, July 28, 2011, line 8, PETITIONERS JEWISH COMMUNITY RELATIONS COUNCIL OF SAN FRANCISCO, THE PENINSULA, MARIN, SONOMA, ALAMEDA AND CONTRA COSTA COUNTIES, THE ANTI-DEFAMATION LEAGUE, JEREMY BENJAMIN, JENNY BENJAMIN, LEO FUCHS, JONATHAN JAFFE, YAEL FRENKEL-JAFFE, SHEILA BARI, LETICIA PREZA, KASHIF ABDULLAH, BRIAN MCBETH, ERIC TABAS, Motion To Grant Writ Of Mandate And Injunctive Relief.

The Court finds that the proposed ballot Initiative is expressly preempted by California Business and Professions §460(b). The evidence presented is overwhelmingly persuasive that circumcision is a widely practiced medical procedure. California Business and Professions Code §460 (b) applies to medical services provided by a wide range of health care professionals. The statute speaks directly to the issue of local regulation of medical procedures and leaves no room for localities to regulate in this area. In fact, the legislative history of §460(b) confirms that the legislature intended to prevent cities and counties from regulating medical services which is a matter statewide concern. Because the proposed ballot initiative attempts to regulate a medical procedure, the proposed ordinance is expressly preempted. Moreover, it serves no legitimate purpose to allow a measure whose invalidity can be determined as a matter of law to remain on the ballot after such a ruling has been made. City of San Diego v. Dunkl, (2001) 86 Cal.App.4th 384, 389 Accordingly, the Court issues a Writ of Mandate Ordering the Director of Elections for the City and County of San Francisco to remove the measure from the ballot in its entirety. The applications to file a brief as amicus curiae, to file a brief in excess of the maximum number of pages, and for pro hac vice admission by the Doctors Opposing Circumcision are denied. These motions were filed two days before hearing and courtesy copies were not provided until the day before hearing, which is extremely untimely.

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