Yesterday afternoon, Hayward Superior Court Judge Richard Seabolt issued his formal decision denying our preliminary injunction motion. Here it is:  Kiel v. UC Regents HG20-072843 Order Denying Preliminary Injunction

Basically, he doesn’t think we made our case on the facts or the law. He reads all the lawsuits which upheld SB 277 (which removed the Personal Belief Exemption from California law) as strongly supporting the constitutionality of requiring adults to be vaccinated with a vaccine that is not related to the current pandemic. Seems like a reach to me, but, he’s the judge. On the facts, he thought the UC’s experts were more credible in some or in large part because their views are consistent with the CDC.

Also, things have gotten very bad pandemic wise since we filed the case back in August. In light of all the deaths, new cases, and increased hospitalization, it’s a tough sell to ask a judge to stop a public health effort that has the support of the public health establishment. (I know that some of you might think that the whole pandemic narrative is false or overblown, but I do not think that view is shared by the judiciary, even among those who have written opinions rejecting COVID restrictions like the majority of the Supreme Court which ruled (twice) in favor of church challenging church service restrictions: See my posts:  https://wp.me/p7pwQD-OS  and https://wp.me/p7pwQD-Pl

Technically and for whatever it’s worth, (and as the Judge pointed out) his decision is not a final decision on the merits; he’s just saying that we didn’t make our case for a preliminary injunction, based on what we presented in the motion.

We will kick around whether we go forward in some fashion with this case. But as stated, a lot has changed since we filed the case. As I previously reported, at the hearing, the Judge was quite forthcoming and candid about his feelings about people who don’t get flu vaccinated. For that reason and others, I am not seeing proceeding further litigating the case as a good use of resources. Also, much of the state is in or about to enter a shelter-in-place, and that should take at least some of the pressure off even more of the UC community opposed to the flu shot (other than health care workers who have to show up).

FWIT: The lawsuit and motion most likely caused or contributed to the UC backing down and allowing students to distance learn without taking the shot, and also allowed them to seek religious accommodations, an option which no other students in the state have regarding any vaccine. So we got something out of it.

Sometimes it’s best to take what you can get and move on to the next battle, and we all know what that will be.  (Stay tuned to my next post about what the upcoming EUA for the COVID vaccine means and what it doesn’t.)

Rick Jaffe, Esq.