Yesterday was the hearing/oral argument in the first challenge to Cali AB2098, the Covid misinformation bill. The case is McDonald v Lawson which is in Federal Court in the Central Disrict of California (Los Angeles).

For such a big case, I thought the hearing was not very long and more tellingly, it focused on one issue only, standing, which is the suitability of the plaintiffs to bring the lawsuit.

And frankly, I think that says it all. If the judge were seriously considering stopping the state from “protecting the public from all these doctors endangering people by spreading misinformation and disinformation,” I think he would have asked at least a couple of questions about the merits of the claim, or whether the plaintiffs have met all of the elements of a preliminary injunction. But he didn’t. Of course, he said he read all the papers, (which I don’t think were all that great, and not up to the quality of plaintiffs’ counsel’s work in the Hoeg case which is next up in the Sacramento federal court in mid-December). But still, not a single question about anything other than the threshold issue. That’s pretty telling to me.

And it’s consistent with my initial reaction after reading the papers which was that they were going to get tossed out of court on standing, and it’s not a close case. There are two big problems with their case (and I am only mentioning this now after the case is pending a decision because it doesn’t matter what I say now). First, their case is mostly and mistakenly based on the plaintiffs’ prior public speech, not what they intended to say to their patients. Whatever was in the paperwork about future patient discussions was way, way too general, and didn’t come close to meeting the standing requirements.

And then there’s the fact that the lead plaintiff is a psychiatrist. What kind of information and professional advice does a psychiatrist need to convey to his patients about covid vaccines and treatment? The other plaintiff at least was a family practitioner. But in my view, the paperwork didn’t say enough to have him stay in a federal courthouse. The dilemma is that the plaintiffs were fearful of the board taking action against them for spreading Covid misinformation, which the board has claimed it can do even before AB 2098 takes effect. I call that a collorary to Catch-22, or the California doctors’ dilemma.

The procedural complication is that while the Attorney General’s office raised the standing issue in its response to the preliminary injunction motion, it didn’t cross move to dismiss under Rule 12 (b) (1) so that the judge could dismiss the case (and I painfully know from whence I speak because that’s what happened in the MacKenzie case which was our pre-AB 2098 challenge to public covid misinformation).

But, a federal judge has the power to determine standing and other subject matter jurisdiction issues on its own, and in fact, is obligated to do so if there is a question about it. And he has to power to dismiss on his own without a motion if he determines that the court is without subject matter jurisdiction. Still, I think the AG would have been better advised to have filed the motion to dismiss. From their paperwork, I’m guessing they either didn’t have the time, or perhaps they felt it was so obvious, they could just briefly raise the issue and the judge would do the work for them. Seems like bad practice to me.

Typically, when a federal court determines that the plaintiffs do not have standing (or any other reason why there is no subject matter jurisdiction, like ripeness), the court dismisses the case on that grounds and does not address the merits of the case, or in this case the merits of the preliminary injunction motion. And that’s what I expect District Judge Slaughter to do in the McDonald case.

Of course, anything can happen, and no one’s crystal ball is 100% accurate, but as Damon Runyon* has said “The race isn’t always to the swift or the fight to the strong, but that’s the way to bet.”

Rick Jaffe, Esq.

*For the young or literary ignorati, Damon Runyon was a way cool NY newspaperman and short story writer who wrote Guys and Dolls. He was on very good terms with horse racing and other sport betting activities. He had a very distinctive voice in his writings. The clever among you who are familiar with his work may understand how much I appreciate him.