In an entirely expected move, yesterday October 17th, the 9th Circuit issued an order asking the parties to submit supplemental filings on whether or not SB 815 which repeals the Cali. Covid Misinformation law (AB 2098 enacted as Bus.& Prof. Code Section 2270) as of January 1st, is moot. Here is the brief order. 9th Circuit Mootness Order AB2098
If you have been reading my past posts, you know that the AG and the medical board got the message from Judge Schubb in in our Hoang and the related Hoeg cases, as well as from the shellacking they got before the 9th in the McDonald oral argument, that the 9th was going to affirm Judge Shubb and hold that the law is unconstitutional on both First and Fifth Amendment grounds.
To stop that from happening, the Legislature repealed the law. That, of course raises the mootness issue. Courts do not like deciding the constitutionality of repealed laws, something about them not wanting to waste their time. There are exceptions, and it will be up to the parties who filed the lawsuits and the appeals to convince the 9th why it should still decide the case. I think it an uphill but not completely impossible battle. But as Damon Runyon said “The race isn’t always to the swift or the fight to the strong, but that’s the way to bet.”
The mootness issue will also be raised in Hoang’s related case Hoeg v. Newsom. The Hoeg Plaintiffs have previously moved for summary judgment. The AG’s cross motion for summary judgment is due in about two weeks. No doubt they will argue the case is moot.
Our case, Hoang v. Bonta is in a different procedural posture. I elected not to file a summary judgment motion on AB 2098, because of the mootness issue. Instead, as I explained in a prior post, I am pivoting to the next battle, which is whether the Board can use its general standard of care statute to sanction physicians for the same conduct it could sanction them under the Covid misinformation law. Here is that post for the details and some tasty tidbits from the amended complaint. https://rickjaffeesq.com/2023/10/04/the-next-cali-covid-misinformation-battle-has-begun-buckle-up/
To me it’s basically the same issue, and same previously rejected legal theory that all communications between a physician and a patient are fair game for regulation/censorship/sanction. The only difference is that they are using a general statute rather than the discredited specific statute. Hopefully they won’t have any better luck this time around.
We should have our answer on our pivot at or soon after the hearing on November 13th.
Rick Jaffe, Esq.