Self-Dismissal of SB 277 Lawsuit: Smartest thing they’ve done so far: Is it a one-of or are they on a roll?

Self-Dismissal of SB 277 Lawsuit: Smartest thing they’ve done so far: Is it a one-of or are they on a roll?

 

I’ve been very skeptical of the federal SB 277 lawsuit and preliminary injunction motion, for technical legal and substantive reasons. (See my prior posts:

http://rickjaffeesq.com/2016/06/10/cali-anti-vaxer-friends-heres-probably-unwanted-possibly-useful-advice/

http://rickjaffeesq.com/2016/06/14/190/

http://rickjaffeesq.com/2016/08/21/time-get-real-sb-277-real-battle-will/

http://rickjaffeesq.com/2016/08/26/shocker-sb-277-preliminary-injunction-motion-denied/)

Well the powers-that-be finally did something smart; they voluntarily dismissed the case before the state had a chance to file a dismissal motion and before the judge terminated the case for good, or in legal parlance, “with prejudice.”

So what’s next? Based on Tim Bolen’s recent post, http://bolenreport.com/sb-277-lawsuit-case-dismissed/#more-4880, it looks like the case will be refiled with factual allegations on the two points which I (and any other experienced federal civil litigator) would deem necessary to try to allege a valid claim, namely, challenging herd immunity, and the alleged severe harm and danger of vaccines to significant numbers of recipients. (Which is not to say there is any realistic chance of success, but whatever chance there is has to involve these two factual contentions.)

Looking into my crystal ball, here is what’s going to happen, (or what’s not going to happen.)

  1. Think you’re getting rid of Judge Sabraw by refiling, think again.

Now that the federal lawsuit has been dismissed, it’s over, meaning, someone has to file a new lawsuit, pay another filing fee, serve the defendants again, and the rest. Normally, judges are assigned on a random basis, and there are a number of federal judges in the southern district, so one might think the odds favor getting another judge on the new case.

However, if the new case is filed on behalf of some of the same plaintiffs, and the defendants will be the same, and the same lawyers, then it’s a related case, and probably should be so designated in the initial filing, but even if not, the state will probably point that out right quick. Related cases go to the judge hearing or who heard the other case. Call it judicial efficiency or not allowing judge shopping.

So, prediction number 1 is that if the case is filed again in the southern district, it will end up with the same judge, and we already know what he thinks about whether there is any set of circumstances in which the beliefs or rights of the few can supersede the rights and health of the many.

Hint: The only way to make sure the same judge won’t hear the new case is to file in another California district court. There are three others, and Santa Barbara isn’t in the Southern District. Sure, you might be accused of forum shopping, and all the judges read the same law books, so it probably won’t matter, but if the goal is to get a different judge, a different district is the way to go.

  1. Preliminary Injunction? fugetaboutit! That ship has sailed.

The dismissed lawsuit was filed before the school year started in the first year SB 277 effected kids. So there was at least an arguable urgency, which is a prerequisite for the extraordinary remedy of a preliminary injunction. However, by the time the new case is filed (supposedly by October 1st) vaccination decisions for this school year have already been made, thereby eliminating the urgency of an expedited decision.  Any other arguable urgency would just be a pretext and won’t fly.  And even the impending school year didn’t work because the urgency was self-inflicted or a tactical decision (which is what the judge said).

Further, the whole “preserve the status quo ante” crap in the prior injunction is a joke and a non-starter in a public health case. Why? Justified or not, SB 277 was a legislative response to one very well publicized disease outbreak (and there were supposedly others).  No judge in his right mind is going to “preserve the status quo ante” by stopping a law specifically designed to prevent future disease outbreaks, not even if Jesus Christ shows up and argues for it.

Anyone who doesn’t understand this is either too close to the vaccine issue or has spent too much time doing field research on the medical marijuana issue.

And let’s not forget that a judge has already denied a preliminary injunction motion involving all or some of the same plaintiffs, defendants and lawyers. The idea that the same or even a different judge is going to reach a different outcome because of some new alleged facts in a complaint is, let’s just say, naïve.

  1. How about a Jury Trial? Not a Chance

Bypassing all the abstruse jurisprudence, there is no 7th Amendment jury trial right when you’re trying to overturn a statute. Those decisions are made by a federal district judge.

  1. So what’s Going to Happen in the New Lawsuit(s)

I get that the vaccine concerned community has a strongly held belief against vaccines, that they are toxic, hurt thousands of people and that vaccines haven’t been proven effective by scientific standards of controlled clinical trials. I also get that they think that the herd immunity concept is unproven superstition.  I am neither an anti vaxer nor pro all vaccines. Also,  I’m not a vaccine lawyer,  and there is no point for a guy like me wading into the scientific dispute or pseudo dispute since I’m just an outsider looking into this controversy. But I have spent my entire professional career litigating cutting-edge and novel legal/medical issues. In that (depressingly long) time, I’ve been thrown out of some of the finest federal courts, and have even prevailed once in a while. So on the litigation part, I’ve very confident about my ability to understand and predict litigation outcomes.

My crystal ball tells me that no federal (or state) judge is going to stop SB 277 because of any complaint or declaration (sworn statement)  supporting the complaint that may be filed. To think otherwise, in my opinion, is based on a non-objective/uncritical view of the case law, and/or a misunderstanding of the limited role of judges in matters of public health, even in the face of an alleged scientific controversy and a minority view of the overall danger of vaccination, even if that minority view eventually turns out to be true and accepted.

Further, none of these cases will ever see a bench trial and all will be dismissed under Federal Rule 12 b.

Bottom line, I do not believe that there is any viable direct legal challenge to SB 277. Indirect, maybe, where the two concepts are successfully challenged in a court case, but relief in such a suit won’t be the judicial overturning of the law. That will only come when there is some recognition/validation of the vaccine concerned’s position on the two key issues of herd immunity and vaccine harm/schedule.

In law, there are just some alleged wrongs or government actions which don’t have a judicial remedy. For the last hundred years, unfettered freedom from vaccination has not been recognized by the judiciary and will not be so recognized given the current view of vaccine science/safety, however wrong the VC community thinks the mainstream consensus view is.

So guys, file away. It’s sometimes important to empower a community even if the boost/feeling is short-lived. The vaccine concerned will certainly feel good about the new filings, and will feel that their heartfelt beliefs are being considered, and that could be a good thing and the lawyers filing these cases will be viewed as heros, (for awhile anyway).

But at the end of the day, the result will be the same as in all of the other cases. And there will be more of the same kind of explanations/excuses or different explanations/excuses, or fulminations about how we live in a police state and there will be more fragmentation of the VC community as they point fingers at eachother assessing blame for failed strategy. But none of those explanations or heartfelt beliefs or fingerpointing is going to change the “established” scientific facts or the law, until there is a change in the worldview, but I’ve said that before.

Rick Jaffe

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