Per the title, there is no decision yet from the Right Honorable James P. Arguelles on Ken Stoller’s appeal (writ of administrative mandate) of the Medical Board’s license revocation order. I know many of you have a lot at stake. The judge said it would take a couple of weeks. It’s only been 8 days, and there is a great deal of paperwork for him and his staff to review. So, let’s give the guy time to do his job. Trust me, I will post his decision with my initial and quick analysis very shortly after I receive it.
On a related front, I am involved in two other investigations involving the same issue. In those investigations, the Board is seeking the medical records of the physicians who wrote SB 277 medical exemptions. I filed opposition papers to the Board’s motion to compel compliance with the investigation subpoenas. Usually, these cases are losers, meaning that the courts grant the Board’s request based on a declaration from a pediatric infectious disease doctor who opines that the ME’s do not appear to comply with the “standard of care.” That’s usually enough for the courts, or so the four courts which had addressed the issue previously decided. (I was involved in one of the four cases).
But, my client wanted me to oppose the motion, so I did. I submitted a declaration from the vocal superstar clinical trials expert Jack Weiler who attacked the Board’s view of settled vaccine science. The thrust of our argument was that SB 277 created a different standard of care from ACIP guidelines, and as a result, the Board’s infectious disease expert’s declaration did not support the requisite “good cause.” (The Board can only defeat the patient’s state constitutionally protected privacy right if it establishes “good cause” for the records, which is usually done by the Board having an ID doc saying that the ME appears to be outside the “standard of care”.)
And yes, this is exactly the position we are taking in Ken Stoller’s appeal/writ, just in a different procedural context, i.e., an appeal/writ of a board order, versus a motion to compel compliance with an investigational subpoena. (basically, bookends of a board case, Stoller being the end of the case, the motion to compel is the beginning of a Board case, before a complaint (accusation is filed). But it’s the same legal issue. Our response to the motion to compel was upwards of 300 pages.
The motion was supposed to be heard yesterday, with the tentative decision coming out on Wednesday. Both this motion and Ken Stoller’s case are being heard in the Sacramento Superior court, but in different departments. There is a writ section that has a few judges who only hear writ/appeal cases, which usually involve government action. The motion to compel is being heard by the “Law and Motion” section which also has a few judges, and these judges decided all sorts of motions. (sorry for getting into the weeds, but it might be helpful context).
So, last week in Ken Stoller’s writ case, Judge Arguelles issued some written questions in advance of the oral argument which seemed to suggest that the Board used the wrong standard of care. The oral argument seemed to reaffirm this view (but you never how these things are going to turn out until you see the written decision).
The record in a writ case is much, deeper and better than the record in a mere motion, and procedurally, a writ gives the judge much more time to think about things. We have been submitting papers to Judge Arguelles since mid- March, whereas in a motion, the respondent (the doctor) has one shot. More problematical is that for each hearing day in the Law and Motion calendar, the judge has to churn out between 10 and 20 opinions on a wide variety of issues and different procedural contexts. I’m never optimistic about winning in Law and Motion on cases like this just because of the limited procedure and the assembly-line nature of the proceeding.
The judge hearing the motion to compel compliance had 18 motions on her docket to decide yesterday, and per the practice, the day before, she issued 17 substantive tentative decisions. In our case, on her own motion, she put the hearing off until August 12th, on her own motion!
I see two possible explanations: First, she needed more time to study the papers given our extensive response. Second, you guessed it; Maybe there is courthouse talk that something big is coming on this issue.
FYI about Judge Arguelles, he’s the guy giving the Governor a very hard time. He was the judge who doubled the time to obtain signatures for the recall petition. I think that was the time necessary to put the recall petition over the top to set up the recall vote.
Second, the Governor’s election lawyer made a mistake in the Governor’s submission for the recall ballot. He forgot to put in that Governor Newsom was running as a Democrat. Via a writ proceeding, the Governor sought to add that fact to the recall ballot. And you guessed it, Judge Arguelles said no, because the law was clear and there are no exceptions.
How is that relevant? Well, maybe it isn’t, but I think judges in a courthouse (same county) don’t like stepping on each other’s toes by writing inconsistent opinions which have to be cleaned up by the appellate courts. So, it is possible that between the amount of papers filed and the fact that there is another judge who is going to address the dispositive issue with a much better record, the judge on the motion to compel decided that she needs a little more time to study the papers and see what Judge Arguelles says. (and believe me, if he decides for us, I will make sure the motion judge gets a framed copy of his decision).
One more data point: Also on Wednesday I had a short hearing with another Law and Motion judge on another Board investigation of another doctor who wrote SB 277 ME’s, but this was just to set the hearing date on the Board’s motion to get this other doctor’s medical records. I asked for a little more time than he would normally give and explained the situation. He gave me the extra time.
So, there are a lot of interrelated moving pieces here. I have been working on this issue now for the past three years, and I am paying very, very close attention. I know how consequential Judge Arguelles’ decision will be to many of you. Believe me, when I know, you’ll know.
Rick Jaffe, Esq.