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Johnetta J. v. Municipal Court for San Francisco Judicial District3/20/1990
rict 27 Comm. School v. Board of Educ. (1986) 130 Misc.2d 398 [502 N.Y.S.2d 325] [blanket exclusion of HIV-infected students violates equal protection]; Phipps v. Saddleback Valley Unified School Dist. (1988) 204 Cal. App. 3d 1110 [251 Cal. Rptr. 720] [upholding injunction against exclusion of HIV-infected student].) Other cases note that mandatory AIDS testing cannot be imposed as a condition upon rights or privileges otherwise available but bearing no relationship to HIV status. (See, e.g., Doe v. Roe, supra, 526 N.Y.S.2d 718 [testing in child visitation case]; Jane W. v. John W. (1987) 137 Misc.2d 24 [519 N.Y.S.2d 603] [same]; People ex rel. Glass on behalf of Ryan v. McGreevy (1987) 134 Misc.2d 1085 [514 N.Y.S.2d 622] [negative AIDS test cannot be a prerequisite for release on bail].)
These decisions recognize that the mere fact a person is infected with AIDS cannot be used to remove them from their occupation or the society of others because of some unjustified fear of an infection incapable of transmission by casual contact. Indeed, in both the 1986 and 1988 elections the voters of this state soundly defeated proposed measures for the quarantine of AIDS sufferers. That same electorate, however, has enacted a statute which, in certain narrowly defined situations, permits testing of a person charged with assaultive conduct in order to further the significant state interest of public safety employees.
Proposition 96 is not a blanket exclusion of AIDS sufferers from the comforts of human society and the normality of schooling or occupation; it is rather a legislative determination that under certain defined circumstances a minimal intrusion for blood testing is reasonable to further a specific, special societal interest.
Petitioner also argues Proposition 96 violates the California Constitutional right of privacy. She correctly notes that the California right of
privacy is a fundamental right, explicitly added by the voters to the state Constitution in 1972. (Central Valley Chap. 7th Step Foundation v. Younger (1979) 95 Cal. App. 3d 212, 234-235 [157 Cal. Rptr. 117]; see In re Lifschutz (1970) 2 Cal. 3d 415, 431-432 [85 Cal. Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1].) As we have previously noted in another context, however, the California right of privacy is "not absolute" and may be subordinated to a compelling state interest. (Boler v. Superior Court (1987) 201 Cal. App. 3d 467, 473 [247 Cal. Rptr. 185]; see Planned Parenthood Affiliates v. Van de Kamp (1986) 181 Cal. App. 3d 245, 279 [226 Cal. Rptr. 361].) Here the electorate has enacted a statute that finds public safety officers at risk from anxiety and fatal infection in the course of their duties. In the unique circumstances of the AIDS epidemic, medical opinion cannot rule out the possibility of HIV transfer to an officer suffering a bite. The assailant's blood is tested under the statute in a medically approved manner, test results are subject to limited disclosure, and a blood test of the assailant is highly useful to treatment of the assaulted officer. Under these circumstances, the state's interest is sufficiently compelling to overcome petitioner's right of privacy against what we have already concluded is a minimal intrusion. We do not, of course, intimate any opinion on the application of the California right of privacy to broader testing measures not involving peace officers and assaultive conduct, and other measures of exclusion against AIDS sufferers, such as those discussed
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