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.
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.