As you all know, back in early July, I filed a lawsuit against the Cali. Medical Board for starting an unconstitutional investigation against a Cali physician based on a complaint about his public comments during a school board Zoom meeting. You’ll recall that the Federation of State Medical Board back in July, 2021 called for its member boards to pursue its licensees for speaking out against the mainstream Covid narrative. Back in February 2022, Board President Kristina Lawson, JD announced in the Board meeting that the Board is implementing the Federation’s policy (or so I and many Cali doctors understood her to say that).

Last month, I filed a motion for a preliminary injunction. Ten days ago, the Board filed its response. Last night I filed my reply. Since the paperwork is now on file, I can share it with you.
If you don’t have much time, just read the reply and score the motion for yourselves. I think the judge is going to issue the preliminary injunction, but judge for yourselves.

Another super interesting thing came out in the Board’s response.

We claimed that the Board president’s threat that the Board was going after doctors for speaking “Covid misinformation” in public was illegal because she did not have the authority to issue the policy on her own. To my surprise, the Board agreed that she doesn’t have the authority to do it. To me, the Board seems to be throwing its president under the bus. Here is how it is handling her public threat at a board meeting.

But before I get to that, I should tell you that the Board’s threshold argument was also pretty interesting. It challenged the authenticity of its minutes and claims that the minutes (published on its own website) are not authentic, are or may not be accurate, that the content of the President’s statement recorded in the minutes are disputed such that her statement recorded in the minutes cannot be considered by the judge (judicially noticed under FRE 201). Kind of a technical argument, but the big picture headline is “MEDICAL BOARD DISPUTES THE ACCURACY AND LEGITIMACY OF ITS OWN MINUTES!” Really? (“huh” emoji, if I knew how to do it in a post). One little problem: Ms. Lawson, and the Defendant Prasifka, and the Board Secretary all reviewed and signed-off on the minutes. (Oopsies)

Let’s review what the Board president said (or didn’t say if you believe the Board’s threshold defense).

“Ms. Lawson stated it is the duty of the board to protect the public from misinformation and disinformation by physicians, noting the increase in the dissemination of healthcare-related misinformation and disinformation on social media platforms, in the media, and online, putting patient lives at risk in causing unnecessary strain on the healthcare system.

“Ms. Lawson elaborated in July 2021, the Federation of State Medical Boards released a statement saying physicians spreading misinformation or disinformation risk disciplinary action by their state medical board.”

That sounds like a direct threat that the Medical Board of California is going to go after doctors who speak out in public against the mainstream Covid narrative. But maybe I am reading too much into her statement.

The Board points out that her statement was not a listed agenda item. Ok Fair enough. But here is the heart of the Board’s defense/explanation/throw-her-under-the-bus response:

“As alleged by Plaintiffs, Neither the July 2021 Federation of State Medical Board (hereinafter “Federation”) press release, nor Ms. Lawson’s statement contained in the minutes of the MBC’s February 2022 meeting, cited to by Plaintiffs, articulate with any specificity what California statute would or could be implemented to pursue possible future disciplinary actions.
[blogger’s note, that’s right because there is no statutory authority for what these yokels are doing, thus it is ILLEGAL because state agencies are creatures of statutes and can only do what the statutes say they can do.Everyone knows that, except these aforementioned yokels].

Now here is where the rubber meets the road (or in this case, where the bus and Ms. Lawson interact):

“Ms. Lawson’s brief and opaque two-sentence statement on its face is a reiteration of the Federation press release (footnote omitted), rather than a formalized Board policy. (footnote omitted). Moreover, as a matter of law, Ms. Lawson could not unilaterally set the MBC policy. The MBC is a 15-member state body and state law requires that a majority of members at a meeting must vote in favor of enacting any measure, which did not happen here.” (citation omitted).

Well, we certainly agree that Ms. Lawson did not have the statutory authority to announce a new board policy, and we said just that in our complaint. But it seems like what she was really doing was announcing in February 2022, what the Board was already doing, because we know that the Board was already investigating at least three physicians when she made announced her threat.

Obviously, what the Board is trying to do is to say that she was just shooting her mouth off without any legal authority to do so or without any effect,(or that maybe she was just kidding).

So, to try to stop from being enjoined from continuing to act illegally, the Board is saying that its president’s threat of enforcement action (based on a private organization’s entreaty which has no legal authority to set policy in California) was not consistent with the law and she did not have the authority to say it! (that being called “ultra vires” in legal latinese) And yea judge, that’s what WE said!

Anyway, strange and puzzling defense, and interesting times. The hearing is set for September 27th, but it’s possible that the court may take this on submission. That’s fine with me because I think I said what I have to say. But here are the papers, judge for yourselves.

MacKenzie v. Prosifka-Final Motion for Preliminary Injunction

Defendant’s Opposition to Motion for Preliminary Injunction

and again, I think the reply says it all.

Happy Labor day weekend! I’m beat, almost three months non-stop on this stuff.

Rick Jaffe, Esq.

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