Stoller SB 277 Petition for Review Denied

Stoller SB 277 Petition for Review Denied

For those families who had a revoked medical exemptions written by Ken Stoller and were hoping for some kind of relief/miracle from the California Supreme Court with our petition for review, regrettably, that’s not going to happen. The Supreme Court denied the petition for review. As is usually the case, there was no opinion or explanation.

FYI: There is basically no appeal as of right to the Cali Supreme Court for writ/civil cases. It has discretionary review powers which it rarely exercises. When it does, it does so mostly to resolve a conflict between the lower courts, or to clarify an unclear, important, and live point of law.

To recap

The core issue in Ken Stoller’s case was whether former law SB 277 allowed physicians to depart from the conventional standard of care which is to follow the ACIP/Redbook guidelines and write medical exemptions based on a physician’s judgment about the safety of continued vaccination for specific children.

(The other issue raised in Ken’s case dealt with a complementary and alternative medicine safe harbor provision which purported to allow physicians not to follow the standard of care. That argument was rejected also. I may get into that in another post, but for this post, I am going to focus on the judicial reaction to the SB 277 argument that has been made in Ken’s case, and the cases of the other two physicians who litigated their SB 277 exemptions in medical board administrative cases).

As you all know, the language of the statute and the very clear words of the bill’s sponsors said they could. However, all three of the administrative law judges who heard the three litigated cases (Ken’s case and the cases of Kelly Sutton and Ron Kennedy) disagreed.

Prior to his hearing, Ron Kennedy made the argument in two different cases in the San Francisco superior court and twice in the San Francisco appellate court. The answer was the same: SB 277 did not change the law, and did not allow physicians to write exemptions for any reason they want; physicians are required to follow the ACIP guidelines.

Apart from the Stoller and Sutton cases, I litigated the issue before the same San Francisco superior court judge that heard Kennedy’s two cases and got the same result, which is also the result I got with a Sacramento superior court judge.

In Ken’s writ of administrative mandate, the Sacramento superior court eventually acknowledged that SB 277 did create a different standard of care. But in the end, he held that physicians still had to follow the guidelines which embodied the science of vaccine safety. The Sacramento appellate court denied Ken’s writ of mandate, without issuing a decision, and California Supreme Court did the same.

That’s a lot of judges in different cities and different levels of the administrative/judicial process who have come to the same conclusion.

The other point which I think explains the Supreme Court’s decision is that SB 277 is not currently the law, and hasn’t been the law for the past two-plus years. Unless you’re a criminal, the California Supreme Court is not the court of last resort for justice in a particular case.

In the civil context, as I said, The Cali. Supreme Court resolves a lack of clarity in the law, or restates important principles which the lower courts have failed to properly address. Clearly, the Supreme Court did not think this was such a case. It is a disappointing but not a surprising result.

What’s Next for the families?

I have been asked what’s next for those families with (still and permanently) revoked medical exemptions. I am not aware of any next, other than the basic choices (which I have discussed in many previous posts). Catch up schedule, home school, or move out of state. Maybe there are a few families who have received permanent medical exemptions for all vaccines under SB 276, but I haven’t heard of them, and I think it would be a very rare occurrence.

And this time around, I think it would be wise for those who have received one of these new exemptions to keep it on the down-low for reasons which should be obvious to you all.

For posterity, general interest, and to lay out what your legislators promised, here is what I filed with the California Supreme Court. Stoller-Final Petition for Review

Rick Jaffe, Esq.

13 thoughts on “Stoller SB 277 Petition for Review Denied

  1. Criminal courts of this state! Pan is the worst and most evil!! Those aren’t choices. This state has gone to you know what …..sad

  2. Would it hurt to file an application for reconsideration based on other recent cases involving covid or mandates? I haven’t read the cases, but the dicta may be compelling.
    Any federal issues for the scotus to look at?
    Probably not difficult to get a lot of amicus support.
    I’ll be watching.

    1. I don’t think the mandate cases are helpful or relevant to the issues in a medical exemption standard of care board discipline case. The cases that did work, did so because of the mandate exceeding the authority of the entity which created it, or the religious exemption thing. Neither is the case in these board disciplinary cases.

      States have the right to define or limit medical exemptions to ACIP guidelines and most do just that.
      Many thought Cali. allowed for broader exemptions under SB 277, but the courts, without exception said no.
      And since these cases involve the interpretation of California statutes, the court of last resort on the interpretation of a state statute is the state’ highest court, not the US supreme court. That’s why I’m not seeing a cert petition in this case.
      Maybe there could be a federal challenge to the whole proceeding (and I’m giving some thought to that), but I’m not seeing a cert pet. for the above reasons.

      1. and the above also explains why I am not thinking about reconsideration. The cases are not relevant, which is the reason I didn’t mention them in any of the lower court filings, though I did talk generally about the new covid world. Beyond that, there was no decision by either the court of appeal or the supreme court, just “writ denied.” Motions for reconsideration are really just for some newly discovered fact or some new on-point authority, neither of which we have here.

        1. I totally understand. I do still believe reconsideration is harmless for a ‘throw something at the wall’ effort.
          For example see updated cdc guidelines and footnotes.

          Was the vaccine available in the United States ever actually approved? (See footnote 1).
          It appears that the US vaccine was “similar” to the approved vaccine, but not the same.

          That fact (if it is) should be enough to raise a federal due process question: can a medical board punish a doctor for not advancing a technically unapproved vaccine which has never even been available in the United States?

          Just spitballing. Good luck.

  3. Mr. Jaffe,
    Thank you for this update.
    I want to read the ACIP “guidelines”. I want to see with my own eyes where it lays out which vaccine reactions are and are not acceptable. Does ACIP say no vaccine reaction whatsoever is acceptable, or does it lay out a specific list?
    If they demonstrated the clear evidence that Dr Stoller violated ACIP guidelines, I want to see the specific section/ wording.
    Not to mention, word “guidelines” I think means guidelines. Not “mandatory medical intervention imposed on every child without exemption at penalty of revoking medical license for neglecting to do so”.
    If it doesn’t specifically say that, it’s interesting to me that that is the current result.
    My neighbor’s son experienced such severe encephalopathy within 24 hours of his dtap that his brain was popping out his soft spot like a mushroom. It’s documented. Our local hospital pediatrics where the vaccine was administered wouldn’t write an exemption. Their family doctor, who was on the brink of retirement, did. Our Mono County Health Director simply rejected it.
    Her son is now kicked out of school.
    You know our legislatures didn’t intend this when they voted for SB 277.
    Can you direct me to the evidence? The section of the ACIP guidelines that defines which reactions do and don’t qualify for medical exemption? My daughter exhibited symptoms of encephalopathy as well. So I want to see where it says encephalopathy is not acceptable and/or what exact requirements we failed to meet. Where does it say doctors should not believe their patients without documentation? I still don’t understand and just want to see this evidence of wrong doing with my own eyes.

    1. my last post on the ACIP guidelines which attaches 4.1 will answer your questions. As you can see there are a few vaccines for which encephalopathy is a contraindication. But the basic problem as stated in the post is that neither guideline nor any conventional minded Infectious disease doctor recognizes the concept of a permanent exemption from all vaccines throughout childhood, so you can’t get to that status (no more vaccines) from any recognized guideline and no academic or mainstream ID doctor would support such an exemption. What you have is some docs in other fields who support this permanent exemption thing, but they are no one outside of the anti-vaxxer and libertarian communities listens to them. At least for now.

  4. Tim is correct actually. Is that possible??
    Let’s not give up here give the recent last two years of being home schooled, depression, anxiety, suicides etc…. Those choices you/they have are NOT choices but sentences!!

  5. Tim is correct actually. Is that possible??
    Let’s not give up here give the recent last two years of being home schooled, depression, anxiety, suicides etc…. Those choices you/they have are NOT choices but sentences!!

  6. Would an exemption from a doctor licensed in a state where exemptions are valid be recognized in CA?

  7. new permanent medical exemptions from all vaccines are over in California, practically speaking because they are reviewable and revocable by the CDPH which follows ACIP which doesn’t recognize permanent, global exemptions. And the doc has to be licensed in California, which is the answer to your specific question.

    1. My autistic son who is 6 has been deemed by a non-disciplined California pediatrician as medically fragile received a permanent medical exemption this past August and it was revoked in March without a legitimate appeal. They have given us 10 days to give him 5 shots at once or be kicked out of his public school. We are completely devastated. No one has heard of a case
      like this and there is no one to talk to at CAIRs. We can’t even get a delayed vaccine schedule. How we do home school when both of us work? Isn’t there some emotional liability involved in removing an autistic kid who thrives in structured environment and making him stay home?

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