First the bad news. Last week the 9th Circuit affirmed District Judge Shubb’s decision denying our preliminary injunction in Kory v. Bonta, (our physicians free speech to patients cases in California). Two of the judges found that there was no “standing” on what they, the district court, and the Attorney General’s office misdescribed as our “as applied” challenge to the Cali. medical board’s disciplinary statute. We made no such claim and our lawsuit, (and the judges hammered me on that point at the oral argument).

In a concurrence, Judge Callahan said we had as applied standing but said we didn’t make our case on showing that the district court was wrong about denying the preliminary injunction. Here is the decision.decision
The case is technically going to be sent back to the district court, but it is likely to dismiss the case in light of the 9th decision. But not so fast, given the good news.

On December 4th, Justice Clarence Thomas referred our “renewed” application for injunction to the full court and set it for conference on January 10th. This is a big development! The practice of submitting an application for injunction to another justice, after it has previously been rejected by the justice assigned to the circuit is stated in the rules to be “disfavored.” So there is a big threshold for a justice to grant the renewed request. To me the case involves a simple legal issue. Can medical boards sanction their licensees for what they say in public, Yes or no, and or whether “strict scrutiny” applies to their efforts to do so.

There are a couple of possible outcomes. They could deny the application, or grant the application and order the 9th to order the district court to reopen the case and issue the preliminary injunction, or they could convert the application into a petition for certiorari and have a full blown case, rather than a “shadow docket” opinion per the second option.
If it’s a hard no, we’ll probably hear within a day of the conference date. I think the longer it takes, the better.

Circling back to Kory. Let’s just say, I’m not giving up and I intend to bring the 9th’s decision in Kory to the Supreme Court’s attention, one way or the other, and prior to the Supreme’s conference date on Stockton. I haven’t quite figured it out yet, but I will.

It’s going to be interesting. So definitely stay tuned.

Rick Jaffe, Esq.