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Author: Richard Jaffe

As Expected, The Seventh Circuit Court of Appeals Denied the Injunction Request of the Indiana University Students against the COVID Vaccine Mandate

As Expected, The Seventh Circuit Court of Appeals Denied the Injunction Request of the Indiana University Students against the COVID Vaccine Mandate

As predicted, the federal appellate court denied the request for an injunction pending appeal of the IU students lawsuit against the COVID mandate. Hey, it’s an appellate court and it is bound by Jacobson.

The decision is only a few pages, but it did mention an issue raised by a commenter about wanting to force a university to have remote learning. The court of appeal said no can do. The university gets to make that call, not the courts.

Here is the decision. Nothing really surprising in it.

Bopp 7th Appeal Denial(1)

I have to believe that the lawyers knew they were going to lose and didn’t so much care. Now they will file a petition with Justice Barrett to seek a temporary injunction pending appeal.

Per my previous post, I don’t think they’ll get it, and I don’t think the Supreme’s will take it up because it’s not the hot button issue for the conservative members of the court which is infringement on religious practices. But you never know.

It would really throw a monkey wrench into public health determinations by state and local governments if they did not have the ability to issue vaccine mandates during what most people believe is a new wave of the pandemic, and that is why I have said that I expect the Supremes to punt for now. We will see.

Rick Jaffe, Esq.

My Advice to UC Students (and their Parents) and UC Employees About the Mandate

My Advice to UC Students (and their Parents) and UC Employees About the Mandate

I am repeatedly asked by parents and UC students what they should do about the UC mandate and what about the legal challenges. Ditto by/from UC employees.

I am actually aware of only one filed legal challenge and that is the federal lawsuit recently filed in Riverside County federal court by the Frontier doctor group. That lawsuit does not cover all UC students, but only those who have had COVID, under the theory that if you’ve had the disease (and presumably you still have the antibodies) you don’t need the vaccine.

I keep hearing about a general lawsuit challenging the general mandate on behalf of UC students but I haven’t seen the papers, nor can I confirm that it has been filed.

Here is my advice:

I think you should assume that no legal challenge, filed or to be filed against the UC will stop the mandate from going into effect in August, and no lawsuit will stop the mandate for any part of the upcoming school year. I have some freedom to say this because I am not involved in any such case and I don’t want to be because I don’t think there’s a snowball’s chance in hell that a district or superior court is going to stop the UC mandate for a vaccine intended to stop the spread of the pandemic virus.

Like it or not (and I know you all hate it), Jacobson is the law of the land, and the law allows state and local governments to impose what they think (and the courts will agree) are reasonable rules including vaccine mandates (as opposed to actually forced vaccination which is a completely different issue).

All trial courts and appellate courts are required to follow Jacobson until the U.S. Supreme Court says otherwise. And yes, the Jacobson constitutional test (reasonably relationship) is outdated and now we have the three levels of scrutiny. However, I think the district judge in the Indiana University case got it right when he held that IU’s policy is governed by the lowest level of scrutiny (rational relationship, which is barely a test/requirement). I know the plaintiffs in these cases are arguing for strict scrutiny, but I don’t think that will fly (and it’s not much of a prediction on my part since the Indiana judge rejected it).

I know that the plaintiffs are also trying to wrap themselves in the mantel of the Supreme Court’s Cuomo case (which struck down religious restrictions during the pandemic). The judge in the IU case rejected it. I predict that the court of appeals will reject it also (and the denial of the preliminary injunction is up on appellate review). The plaintiffs will then seek emergency review with the Supreme Court. My crystal ball is a little foggy about whether they’ll get a review by the Supremes, but I’m vaguely seeing that the application will be turned down, which would not be a substantive rejection.

I’m going with that because I don’t think there will be four judges who want to deal with this kind of case in the middle of what I think all nine justices think is a very dangerous public health crisis (and I know most of you don’t agree with that assessment). Therefore, the best move for the Supremes is to punt and let the case come up through normal channels and time frames (like a couple of years) in large part so the state public health officials and governments can deal with the crises.

I think that’s a simple and easy call because let’s face it, they’re not lining people up and injecting them yet. If and when they start doing that, I think the Supremes will weigh in quickly, and that’s a case I would be extremely interested in, in part because I think the Supremes would be happy to overturn the actual precedent that allowed the government to do that (and that would be Buck v Bell, and O.W. Homles infamous jingle that “three generations of idiots are enough” which he said to justify forced sterilization). Like I said, for that case, count me in, and I can assure you all that is a case where the courts (and even the lower courts) will apply strict scrutiny.

But in these current and future UC cases, I am not seeing a fundamental right for any student or worker to study or work at the UC, which means a rational relationship, which means the plaintiffs get tossed out of court.

This is my legal opinion as to why I think you should assume that none of the lawsuits against the UC will succeed. Therefore, all UC students and employees are going to have to get vaccinated, get an accommodation/exemption (and you can forget about a medical exemption because ME’s like the ones given under SB 277 will not be accepted, the short of it being, no contraindication (or precaution) no exemption, period), or find someplace else to study or work.

I think your choices are that clear and that simple.

With all the crap and nonsense flying around about these lawsuits, someone has to tell people who are facing these tough choices what’s what, and since no one else seems to be stepping up to the plate, I guess I’m that guy.

Rick Jaffe, Esq.

No Decision Yet on Ken Stoller’s Case. When I know, you’ll know

No Decision Yet on Ken Stoller’s Case. When I know, you’ll know

Per the title, there is no decision yet from the Right Honorable James P. Arguelles on Ken Stoller’s appeal (writ of administrative mandate) of the Medical Board’s license revocation order. I know many of you have a lot at stake. The judge said it would take a couple of weeks. It’s only been 8 days, and there is a great deal of paperwork for him and his staff to review. So, let’s give the guy time to do his job. Trust me, I will post his decision with my initial and quick analysis very shortly after I receive it.

On a related front, I am involved in two other investigations involving the same issue. In those investigations, the Board is seeking the medical records of the physicians who wrote SB 277 medical exemptions. I filed opposition papers to the Board’s motion to compel compliance with the investigation subpoenas. Usually, these cases are losers, meaning that the courts grant the Board’s request based on a declaration from a pediatric infectious disease doctor who opines that the ME’s do not appear to comply with the “standard of care.” That’s usually enough for the courts, or so the four courts which had addressed the issue previously decided. (I was involved in one of the four cases).

But, my client wanted me to oppose the motion, so I did. I submitted a declaration from the vocal superstar clinical trials expert Jack Weiler who attacked the Board’s view of settled vaccine science. The thrust of our argument was that SB 277 created a different standard of care from ACIP guidelines, and as a result, the Board’s infectious disease expert’s declaration did not support the requisite “good cause.” (The Board can only defeat the patient’s state constitutionally protected privacy right if it establishes “good cause” for the records, which is usually done by the Board having an ID doc saying that the ME appears to be outside the “standard of care”.)

And yes, this is exactly the position we are taking in Ken Stoller’s appeal/writ, just in a different procedural context, i.e., an appeal/writ of a board order, versus a motion to compel compliance with an investigational subpoena. (basically, bookends of a board case, Stoller being the end of the case, the motion to compel is the beginning of a Board case, before a complaint (accusation is filed). But it’s the same legal issue. Our response to the motion to compel was upwards of 300 pages.

The motion was supposed to be heard yesterday, with the tentative decision coming out on Wednesday. Both this motion and Ken Stoller’s case are being heard in the Sacramento Superior court, but in different departments. There is a writ section that has a few judges who only hear writ/appeal cases, which usually involve government action. The motion to compel is being heard by the “Law and Motion” section which also has a few judges, and these judges decided all sorts of motions. (sorry for getting into the weeds, but it might be helpful context).

So, last week in Ken Stoller’s writ case, Judge Arguelles issued some written questions in advance of the oral argument which seemed to suggest that the Board used the wrong standard of care. The oral argument seemed to reaffirm this view (but you never how these things are going to turn out until you see the written decision).

The record in a writ case is much, deeper and better than the record in a mere motion, and procedurally, a writ gives the judge much more time to think about things. We have been submitting papers to Judge Arguelles since mid- March, whereas in a motion, the respondent (the doctor) has one shot. More problematical is that for each hearing day in the Law and Motion calendar, the judge has to churn out between 10 and 20 opinions on a wide variety of issues and different procedural contexts. I’m never optimistic about winning in Law and Motion on cases like this just because of the limited procedure and the assembly-line nature of the proceeding.

The judge hearing the motion to compel compliance had 18 motions on her docket to decide yesterday, and per the practice, the day before, she issued 17 substantive tentative decisions. In our case, on her own motion, she put the hearing off until August 12th, on her own motion!

I see two possible explanations: First, she needed more time to study the papers given our extensive response. Second, you guessed it; Maybe there is courthouse talk that something big is coming on this issue.

FYI about Judge Arguelles, he’s the guy giving the Governor a very hard time. He was the judge who doubled the time to obtain signatures for the recall petition. I think that was the time necessary to put the recall petition over the top to set up the recall vote.

Second, the Governor’s election lawyer made a mistake in the Governor’s submission for the recall ballot. He forgot to put in that Governor Newsom was running as a Democrat. Via a writ proceeding, the Governor sought to add that fact to the recall ballot. And you guessed it, Judge Arguelles said no, because the law was clear and there are no exceptions.

How is that relevant? Well, maybe it isn’t, but I think judges in a courthouse (same county) don’t like stepping on each other’s toes by writing inconsistent opinions which have to be cleaned up by the appellate courts. So, it is possible that between the amount of papers filed and the fact that there is another judge who is going to address the dispositive issue with a much better record, the judge on the motion to compel decided that she needs a little more time to study the papers and see what Judge Arguelles says. (and believe me, if he decides for us, I will make sure the motion judge gets a framed copy of his decision).

One more data point: Also on Wednesday I had a short hearing with another Law and Motion judge on another Board investigation of another doctor who wrote SB 277 ME’s, but this was just to set the hearing date on the Board’s motion to get this other doctor’s medical records. I asked for a little more time than he would normally give and explained the situation. He gave me the extra time.

So, there are a lot of interrelated moving pieces here. I have been working on this issue now for the past three years, and I am paying very, very close attention. I know how consequential Judge Arguelles’ decision will be to many of you. Believe me, when I know, you’ll know.

Rick Jaffe, Esq.

Ken Stoller Hearing/Oral Argument/No decision yet

Ken Stoller Hearing/Oral Argument/No decision yet

It was long, well over an hour. We battled back and forth. The You tube video was up and around for awhile, but I guess the court took it down and doesn’t save it or post forever on You Tube.

Very smart guy for sure, though he seems to think that the Board gets a do over because the administrative law judge used the wrong standard and relied solely on the ACIP guidelines, which is the standard the Board argued applied! I wish I had do overs for some of the decisions and choices I made.

Now we wait.

Rick Jaffe, Esq.

Here is the Link to watch the livestream Ken Stoller Hearing Today, July 23rd

Here is the Link to watch the livestream Ken Stoller Hearing Today, July 23rd

So the hearing on Ken Stoller’s appeal (writ proceeding) is today at 10:AM PDT. You can watch it live.

Here are two links.

Here is the Department’s You Tube Channel.

https://www.youtube.com/channel/UCCQv1lZu_IYNG-kOZcRcWNA

This should work, but if you have trouble, try this link and to the link to the you tube channel address and put in July 23 as the hearing date.

https://saccourt.ca.gov/civil/calendar-search.aspx

To recap, The judge wanted the attorneys to specifically address the follow questions and they are very, very good quesitons. The only thing I don’t like about them is that I didn’t come up with them! You might particularly like the last question.

“At the time of hearing, counsel may address any issue raised in the legal briefs. In addition, counsel shall be prepared to address the following issues:
(1) With Senate Bill 277 (2015), the Legislature excised the phrase “medical condition or circumstances that contraindicate immunization” from Health and Safety Code Section 120370(a) and replaced it with the phrase “medical condition or circumstances, including, but not limited to, family medical history, for which the physician does not recommend immunization.” The ACIP Guidelines, which are virtually identical to the AAP Red Book, contain a single reference to family history in its table of contraindications and precautions. Given this, and given that SB 277 substituted the term “contraindicate” with “not recommend,” how can the subject amendments in SB 277 be construed as anything other than an enlargement of physicians’ discretion? (See State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (2008) 44 Cal.4th 230, 244 [“ ‘We presume the Legislature intends to change the meaning of a law when it alters the statutory language [citation], as for example when it deletes express provisions of the prior version…’ ”].)

(2) In Section 120370(a) as it existed before SB 277 was enacted into law, did the term “contraindicate” possess any special meaning? Specifically, is there any reason to believe that the term included or excluded “precautions” like those listed in the ACIP Guidelines?

(3) Petitioner argues that SB 277 created a stand-alone standard of care. Does Section 120370(a), as it then existed, read like other statutory standards of care? (See, e.g., Galvez v. Frields (2001) 88 Cal.App.4th 1410.) Which part of the statutory language for example, informed the physician’s determination that immunization was not considered “safe?”

(4) Assuming that SB 277 did not create a stand-alone standard of care, but that it did authorize exemptions based on conditions or circumstances beyond those supporting the contraindications and precautions in the ACIP Guidelines or the AAP Red Book, what standard governed the physician’s determination that a vaccine was unsafe for the patient?

(5) Respondent’s Accusation against Petitioner did not refer to Section 2234.1, but Petitioner’s First Amended Notice of Defense did refer to that section. At the administrative hearing, who bore the burden in connection with Section 2234.1?

(6) Assuming that the court grants the petition on the ground that the Board applied the wrong standard of care, should the court reach any other ground for relief raised in the petition?”

Have to go now to plug into the field/force.

Rick Jaffe, Esq.

Major Update in Ken Stoller’s Medical Board Appeal, and it’s not half bad

Major Update in Ken Stoller’s Medical Board Appeal, and it’s not half bad

The judge did not issue a tentative decision in the case today because he wants an oral argument to discuss some issues. Here is what is on the judge’s mind in his own words:

“Oral argument will be conducted remotely through the Zoom Application. The court clerk will provide counsel with the Zoom ID via email. ****

At the time of hearing, counsel may address any issue raised in the legal briefs. In addition, counsel shall be prepared to address the following issues:
(1) With Senate Bill 277 (2015), the Legislature excised the phrase “medical condition or circumstances that contraindicate immunization” from Health and Safety Code Section 120370(a) and replaced it with the phrase “medical condition or circumstances, including, but not limited to, family medical history, for which the physician does not recommend immunization.” The ACIP Guidelines, which are virtually identical to the AAP Red Book, contain a single reference to family history in its table of contraindications and precautions. Given this, and given that SB 277 substituted the term “contraindicate” with “not recommend,” how can the subject amendments in SB 277 be construed as anything other than an enlargement of physicians’ discretion? (See State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (2008) 44 Cal.4th 230, 244 [“ ‘We presume the Legislature intends to change the meaning of a law when it alters the statutory language [citation], as for example when it deletes express provisions of the prior version…’ ”].)

(2) In Section 120370(a) as it existed before SB 277 was enacted into law, did the term “contraindicate” possess any special meaning? Specifically, is there any reason to believe that the term included or excluded “precautions” like those listed in the ACIP Guidelines?

(3) Petitioner argues that SB 277 created a stand-alone standard of care. Does Section 120370(a), as it then existed, read like other statutory standards of care? (See, e.g., Galvez v. Frields (2001) 88 Cal.App.4th 1410.) Which part of the statutory language for example, informed the physician’s determination that immunization was not considered “safe?”

(4) Assuming that SB 277 did not create a stand-alone standard of care, but that it did authorize exemptions based on conditions or circumstances beyond those supporting the contraindications and precautions in the ACIP Guidelines or the AAP Red Book, what standard governed the physician’s determination that a vaccine was unsafe for the patient?

(5) Respondent’s Accusation against Petitioner did not refer to Section 2234.1, but Petitioner’s First Amended Notice of Defense did refer to that section. At the administrative hearing, who bore the burden in connection with Section 2234.1?

(6) Assuming that the court grants the petition on the ground that the Board applied the wrong standard of care, should the court reach any other ground for relief raised in the petition?”

Let me just say that I discussed the issues which the judge identified above in very great detail, and my basic point is that the Board used the wrong standard of care which means it didn’t make its case because the board has the burden of proof. For sure, it’s a technical argument, but my experience is that judges have a thing about technicalities, even if (or especially when) the government is involved.

That’s about all I want to say now. Miles to go before I sleep, preparation wise for tomorrow, but I will say that I am both hopeful and encouraged that he is approaching this in a methodical and logical manner, which is all a litigant can ask for, and in my view, means it works out.

Anyone who wants to watch or listen should be able to follow it on zoom I believe.

Fingers crossed, positive energy, send a message to the field or whatever.

Rick Jaffe, Esq.

Breaking News: Indiana Federal Court Denies Preliminary Injunction to Indiana University Students Seeking to Overturn the School’s COVID Mandate

Breaking News: Indiana Federal Court Denies Preliminary Injunction to Indiana University Students Seeking to Overturn the School’s COVID Mandate

An Indiana federal district court has just denied a preliminary injunction motion by students seeking to overturn Indiana University’s covert mandate. The decision is long and well reasoned. It also covers all the big points, including emergency use authorization. The plaintiffs tried to wrap themselves in recent Supreme Court precedent overturning religious restrictions in the Cuomo case, but the District Court did not buy it.

Significantly, the District Court used a rational relationship test in its review of the IU policy. Anybody who knows anything about constitutional law knows that to be the kiss of death to a constitutional challenge. Basically, there are three different levels of scrutiny, the strictest being strict scrutiny. Once a court finds strict scrutiny, the law or regulation is overturned. Conversely, if the court makes a determination that the laws governed by a rational relationship test, that means the law will be held to be constitutional, which was the case here.

Of course, this is just one case in one federal court, and there will be others. However, consistent with my recent post, I think the parties and lawyers filing these constitutional claims are going to have a very very uphill battle and that is putting it optimistically.

Here is the court’s decision.

Indiana Order on Inj.

None of you will like it, and some of you will decide not to read it, because they do not care what the law is or think it is wrong and just don’t want to hear why the court denied relief. But for those who want to know how courts analyze vaccine mandate issues, especially in these times, this decision is an excellent piece of education on all of the relevant issues. For sure, in the coming days and weeks, lawyers will carefully go through this decision and see what the weaknesses are, and modify subsequent cases to try to counter them. That is just all part of the process, but this is now the second federal court that has denied a preliminary injunction on a covid mandate.

Rick Jaffe, Esq.

Update on the California Medical Board cases against physicians for writing SB 277 medical exemptions.

Update on the California Medical Board cases against physicians for writing SB 277 medical exemptions.

A lot is going on in this space and I will have some answers and timelines for a few of these cases, so let’s get to it.

Ron Kennedy (not my client or case)

As you know, Ron Kennedy’s license was put on probation with severe conditions a few months ago. I think many, most or all of the medical exemptions he wrote have been revoked because of the sanction order. Initially, he started to appeal the Board’s decision, but last week, the Board disclosed that Ron agreed to a voluntary surrender order, whereby he surrendered his medical license. In the order, he also agreed to terminate all of it in litigation against the Board. Since he no longer has a medical license, the other investigations disappear, which I assumed was the point of the Board continuing to investigate him. I believe he wrote a lot of the state’s medical exemptions, maybe more than anyone else in the state. Therefore, the revocation of all his medical exemptions will stand. Not good news for those families.

Moving on to Ken Stoller’s case

All the paperwork in our appeal (called a writ of administrative mandate) has been filed. The hearing on the writ is set for this Friday, July 23rd. Per previous posts, we should get what is called the “tentative decision” on the afternoon of the 22nd. Judges rarely change their minds once they issue a tentative decision, so that is pretty much it, or will be it. You will recall that the judge initially denied our request for a stay of the Board’s sanction order because the judge didn’t think we would win on the appeal based on the papers we filed. So, we filed stronger papers and now the judge has the entire record of the proceeding below.

I would say the main point of the writ is that SB 277 allowed Ken and the other doctors to do exactly what they did, which is to write medical exemptions broader than the ACIP guidelines. The Board’s position was that every doctor has to follow the guidelines. The judge’s initial position was to try to find a middle ground by saying that what Ken did wrong was that he didn’t even “consult” the guidelines. In our new papers, we pointed out that there is no such thing as “consulting” with the guidelines. They are either followed or they are not followed, and that was the board’s position.

We pointed out to the judge that the strongest and irrefutable proof that doctors did not have to follow the guidelines comes from the testimony of the cosponsors of the bill at the June 9, 2015 assembly health committee. If there is any more clear way to say what Sen. Ben Allen says, then I surely do not know what that is. Here is the setup and the argument we made to the judge in the new set of papers:

” Now that this Court has reviewed the ACIP guidelines and their application under the prior law, it is in a better position to understand the concerns expressed to then Assembly Health Committee Chairman Bonta that under the then-current law people thought it was hard to get a medical exemption. We now know that was because a medical exemption was only available for anaphylaxis or the one or a few other medical conditions listed in the 4.1 table.

1. Co-sponsor Ben Allen’s statement that SB 277 is beyond the ACIP (and Red Book) guidelines and that under the bill physicians did not have to follow them

As indicated above, the members of the Assembly committee were concerned about how hard it was to get a medical exemption under the CDC’s guidelines and they were concerned that California physicians would be forced to follow them and not use their discretion to write exemptions that were not consistent with the guidelines. Member Waldon asked Senator Pan “would you say that SB 277 would still conform to the CDC guidelines regarding a medical exemption? Senator Pan assured the committee that a physician could exercise his professional judgment despite the limitations in the CDC guidelines.” (R 10-page B 647 to page 649 ln. 2).

But after hearing Senator Pan’s answer, member Waldron apparently was still unclear or unconvinced and asked the opposition witness, Barbara Loe Fisher, to respond and she said that “99.99% of children under federal guidelines do not qualify for a medical exemption.” Senator Allen then jumped in and made the following statement: “and I believe you deserve a short answer to your question. No, we would not be in CDC – in compliance with the CDC. The CDC – the committee on immunization practices, the American Academy of Pediatrics would be apoplectic about the loosening of all these guidelines and yet I do like the amendment because if the bill passes at least [there would] still be some discretion. But no, we are way out of compliance with the CDC.” Id. at page B 653 ln. 15 to page B 654 ln. (Emphasis added).”

Ok, so you tell me. Did physicians have to slavishly follow the ACIP guidelines as the Board argued in Ken’s case, or could Ken and other physicians write exemptions based on what the statute expressly refers to as “family history”?

And just to remind you what co-sponsor and pediatrician/family practitioner Senator Richard Pan represented to the same committee, in terms of examples of the kinds of medical exemptions which were authorized under SB 277,

“If the physician feels that there’s a genetic association in a sibling, a cousin, some other relative, it’s not safe for a vaccine, they can provide a medical exemption for that vaccine. There is no limitation on a physician from doing that other than their own professional judgment, their own knowledge, and expertise about what they believe is safe for the patient.”

So, what did the sponsors intend with SB 277? to constrain physicians to write only medical exemptions which comply with ACIP guidelines? I think not, but then, what I think doesn’t matter.

If the judge does change his mind and he could either send the case back for another hearing or throw the case out entirely. Probably under either scenario, the revocations of Ken’s medical exemptions should be reversed. On the other hand, if the court stays with its earlier view, essentially that it cannot interfere or does not want to substitute its own judgment for the Board’s, then obviously the revocations of Ken’s medical exemptions will continue.

The current plan is to appeal if the judge denies the writ, funding permitting. It should take between eight months and 14 or 15 months for an appellate court decision on this case.

Kelly Sutton’s case

Last week, we received the Board’s written closing argument. We have until midish August to put in our responsive closing. Essentially, like above, our case is that the language of SB 277 and the clear statements of the bill’s authors, prove that physicians in California did not have to follow the ASIP guidelines. The board only offered testimony indicating that none of the exemptions complied with these guidelines. They offered no evidence about any other standard of care. Therefore, if we are right, then the Board’s case fails as a matter of proof i.e., the board does not have any. We also had three amazing expert witnesses testify in our case who explained Kelly’s concerns about continuing the vaccine program with these kids could cause them further problems.

The judge will get the case for a decision in early October and has 30 days to send her proposed decision to the board. The Board then reviews the decision most likely at the next Board hearing which is mid to late November. I would expect that a decision in the board would come by the end of November. However, we will get a pretty good indication of where we are in the case, for better or for worse, with the decision in Ken’s writ proceeding, because the issues are essentially the same.

We are still short of funds to cover the legal expenses in Kelly’s case, so if you haven’t contributed and the issue is important to you, please contribute. Here is the link to the funding site.

https://gogetfunding.com/kelly-sutton-mds-legal-defense-fund-to-save-her-medical-exemptions/

Other cases/investigations

I have two other cases involving Northern California doctors. In one case, there is an accusation, but there has not been much movement lately. The other case is before the Superior Court but is still in the investigation stage. The board has requested medical records from a physician for two patients who received medical exemptions. However, the families refused to release their childrens’ records which precipitated the Board filing a special proceeding to force the doctor to turn over the records The hearing, in that case, is at the end of July. We are making essentially the same arguments about SB 277 as we are making in Ken’s and Kelly’s cases. For better or worse, we are going to have two Superior Court judges taking a look at SB 277 and what it means. Alas, we’re in pandemic times, and in pandemics people are afraid, and judges are people. And in these times, judges are going to be fearful of overturning decisions of the public health establishment for what one judge has recently called the “vaccine preferences” of some people. If these cases were before a computer judge program, I would say we have a slam dunk winner. However, with human institutional players like judges, who might not be completely receptive to physicians who advise people that vaccines are unsafe or that their children should not be vaccinated, well, let’s just say that there are contextual/current events challenges.

So there you have it. Fingers crossed.

Rick Jaffe, Esq.

So the UC covid vaccine mandate came out, now what? (revised)

So the UC covid vaccine mandate came out, now what? (revised)

Okay, the UC vaccine COVID mandate came out. One commenter put it succinctly: “get vaccinated, get an exemption , or get fired.” That says it all.

Anyone who has been reading my posts knows that I been saying this for weeks and months, that the mandate is going to take effect under emergency use status. It just does not make any sense any other way, i.e. to wait until full approval/licensure.

What is surprising to me is that there are people who are surprised and shocked that this happened. Really? comments to some prior posts had questioned whether we were (then) still in the pandemic. The answer to that is clearer now than it was a month or two ago, and I fear it will become even clearer in the next 60 days.

You can’t expect public health officials to do nothing as the cases ramp up again (except if you live in South Dakota(or North, I forget which ) where the Governor’s operating procedure is to mandate nothing. So, if you feel that strongly about all these issues, that is the place for you. But if you continue to live in California, you can expect the mask requirements to continue, as well as continued pressure on people to get vaccinated, and that would include school children if or once the vaccines are EUA approved for kids, but that will be another battle, I assume, if the EUA based mandate comes.

Will the UC mandated be challenged in Court?

I do not have any firsthand information about that, but secondhand, I have heard that there will be at least two lawsuits. One lawsuit, by the state chapter of a national organization involved in the vaccine (and other) issues. I hear it will be a general lawsuit against the mandate. I heard that a lawyer who was involved in some of the public restaurant restriction cases is involved. The other lawsuit I heard about is a more narrow one and when I think that actually might have a chance, but that only is challenging the mandate for people who have already had the disease.
That is what I have heard anyway, and I would expect the lawsuits to be filed next week, as I believe they have been in the works for some time, but that is just my guess.

What are the odds of success and what you should you do if you work at the UC system and haven’t had COVID?

Although none of you agree with the law, the law is clear that mandatory vaccination is constitutional, starting with Jacobson of course but continuing on, with essentially every single case upholding mandatory vaccination laws. Lower courts are obligated to follow precedent of higher courts, and the precedent, including the two state appellate court decisions on the SB 277 cases (Brown and Love) will be relied upon in these COVID challenges, as will the San Diego federal district court decision upholding SB 277.

Well what about the fact that these vaccines are all “experimental”, doesn’t that matter? How can the government force me to take an experimental product? Does not that violate my rights of informed consent?

Arguably technically, maybe the issue of compelling an EUA product has not been specifically addressed by the courts. But I am aware of at least two cases where the issue was raised, and in both cases, the judges failed to issue preliminary injunctions despite the asserted experimental nature of the vaccine (Judge Lynn Hughes of Houston Federal District Court) and a mask case in New York back in the winter). At least one if not both of the impending UC lawsuits will raise these issues.

Frankly, I am sceptical about these arguments for two basic reasons. First, vaccine mandates are matters of state, not federal law. It is not clear to me constitutionally why a state can not mandate a product which does not have full federal government approval. Ultimately I suspect the courts will say that EUA approval is approval enough in a pandemic.

Second, I think people asserting the argument are misappling the experimental term, or that’s how I think the courts will look at it. (if they were to specifically address the issue and they might not).

I have worked on the issue of access to “experimental” (and the technical term of art in FDA speak is “investigational”) treatments and granting access to say drugs which have passed phase 1 clinical trials (which trials are typically very small and range in numbers of dozens to a hundred or two) and for which the phase 1 data has not been reviewed by the FDA. But that is a universe far, far away from the COVID EUA approved vaccines, for which there were tens of thousand of test subjects in the initial studies, and now the vaccines have been given to what, over 300 million people.

In my view as an FDA lawyer, that is completely different, and while I understand the rhetorical value of calling the COVID vaccines “experimental”, I predict that the courts are not going to see it that way, if they even address the issue. And to that point, just because a party makes a specific argument, like EUA status, doesn’t mean judges are required to address it. Ducking the issue is something judges are very good at doing. So, it wouldn’t shock me if some of the judges hearing the UC cases fail to directly address the EUA status issue and deny the preliminary injunction motion on some other or some general grounds.

Aside from the fact that the law is against the challengers to the mandate, I think there are two other reasons why the district or Superior Court is not going to preliminarily enjoin the UC Covid mandate.

First, there is a religious exemption or actually an accommodation for everyone. I will take some credit for the religious accommodation for UC students. Some of you might recall the initial flu vaccine mandate only had a religious accommodation for employees. After we filed our lawsuit – a primary basis of which was an equal protection claim by students who did not have a religious accommodation – the UC changed its policy and offered a religious accommodation to students. That seems to be what they figured out they had to do in these cases to avoid an actually strong constitutional challenge. And in the Covid mandate, it looks like they have done just that.

Second, – and I caution that many of you won’t like hearing it – it looks like the vaccine is working and doing exactly what they said it was going to do, namely, prevent hospitalizations and deaths (though most of you will deny that is the case).

The simple of it seems to be that most of the hospitalizations now are in the unvaccinated, or so it is being reported (and I know, most of you don’t trust the mainstream media reporting). Hospitalizations and/or deaths almost exclusively in the unvaccinated,seems like a good indication that the vaccines are working. I can assure you that is exactly how the courts are going to see it. I have heard all the arguments and data points which are being used to deny what to judges will be the obvious fact that the vaccine seems to be working, and I can tell you that judges will be extremely reluctant to accept that data for a variety of reasons which I won’t get into here.

A month or two ago, maybe it was not as clear that the vaccinated seem to be escaping the hospitals and death, but now it is becoming clearer. I predict that in a few weeks or a month when the courts hear these preliminary injunction motions, it will be clearer still.

In short, it certainly appears that we are entering a public health pandemic crises of the unvaccinated, and as that view continues to take hold (and despite the fact that most of you will continue to deny it), the legal and social media pressure will increase against those who challenge the existence or character of the crises. At some point, FB and the rest are going to finish off the new top 12 list which has just started circulating in the media, the clearer it becomes that this is an unvaccinated pandemic and especially, if the hospitals start filling up and we start seeing big surges in the death rates.

It is inconceivable to me that any judge is going to stop a mandate for a vaccine during a new outbreak of a pandemic where the vaccine appears to be working and the public health crises appears to be in the unvaccinsate. In such circumstances, I believe all the cries of health freedom fighters for informed consent, my body my choice, vaccine manufacturers have no liability, Fauci is the devil, etc., well, I think all of those cries are going to fall on deaf ears with the judiciary. If you cannot see that, then respectfully, you live in a different universe, or where logic and common sense have different rules.

Something else for you UC employees to consider before you take that principled stand and draw the line in the sand

This is based on information I hear about the work situation at the UC. Many of you have been working remotely and might wish to continue to do so. I have heard indirectly that workers are being strongly encouraged to come back to work at their offices, because work efficiency is down significantly due to working at home.

In general, it is very hard to fire employees at the UC because of unions, collective bargaining and in general what I consider to be the extreme pro-worker bias or fear of workers that UC management has. This Covid mandate presents the perfect excuse for management to fire UC employees without suffering any repercussions from unions or from EEOC-related issues. So before you take that principled stand, you might think long and hard about the fact you might be playing into the hands of management who might be trying to get rid of you and people like you, and now have the perfect opportunity to do so.

In short

The short of it is that I do not think that any judge is going to stop the UC general mandate from going into effect. You will certainly feel good when you hear the news that the lawsuit(s) has (have) been filed, and you will certainly cheer those who filed and support these actions, as you should.

But let me talk now directly to the UC employees and their families, and not to the rest of the opponents to vaccine mandates, because it is you who have skin in the game. My advice to you is that you are going to need a Plan B effective as of the day the mandate goes into effect. And you won’t like it, but Plan B is either get vaccinated, get an exemption, prepare to be fired (or move to South (or North) Dakota and make your own decisions about everything)). Don’t put off thinking about it or working on Plan B until after the judges in these cases issue their rulings.

I wish I had a different opinion, but I don’t. This is how I see it playing out. Someone has to tell you straight up and not just throw back at you the pro personal freedom health mantras and fight cheers.

Rick Jaffe, Esq.

Two Weeks From the UC COVID Mandate Policy and confusion is still the clearest fact

Two Weeks From the UC COVID Mandate Policy and confusion is still the clearest fact

As anyone affiliated with the UC knows, the University announced that it will issue its final covid mandate policy on July 15th. Different segments of the community have received different communications depending on what school you are your children are affiliated with and whether you are a student or employee.

I have received many requests for advice, but I tell everyone the same thing. First, I cannot give individual members of the UC advice or even those members who ask me. More importantly, I do not think anybody can give specific advice until we actually see the final policy in writing. The reason is there are still big unanswered questions.

The biggest unanswered question to me is whether or not there will be a mandate in force prior to full biological licensure of a covid vaccine. My understanding is that in the original statement by the UC indicated that the mandate would not go it into effect until there was full licensure/approval. Then there were some statements indicating that no, emergency use authorization approval is sufficient and mandates will go into effect based on EUA status.

As most of you know, the manufacturers of both of the mRNA vaccines have applied for a full biological license. I have speculated in the past that I would expect the FDA to act relatively quickly on these applications, but there really is no way of telling.

Practically speaking, I think it would be overly chaotic and hence unrealistic to condition a flu mandate based on full licensure because of the uncertainty of when that will be and the fact that there may not be simultaneous approval for the two vaccines applicants. And what about the J&J recipients? Are they going to be barred from the University or forced to take one of the approved vaccines? I’m not seeing that one bit.

Given how strongly the UC administration and the UC infectious disease community feel about the Covid vaccine, and its apparent success in the U.S. – and let us not forget this Delta variation which is scaring the beJesus out of the public health authorities (or if you are more cynical, being used as a PR pretext to force vaccination mandates), it seems like a reasonable guess that the UC final policy will be that the vaccine will be mandated based on the current emergency use authorization status. And that avoids the whole mRNA vs the EUA J&J vaccine issue, as well the complete uncertainty about when the FDA will approve/license the vaccines.

From reports from employees, it looks like they already have until July 15 to either prove they had the vaccine or seek some kind of exemption. The mandate for students, once it comes, should only go in effect for the fall semester. Though, the UC administration is forcefully communicating with students to clarify their vaccine status and strongly encourages everyone to get the vaccine.

What about the exemptions?

First, you can forget about the medical exemption, as it will be based on the ACIP guidelines, essentially meaning anaphylaxis or a severe reaction to a prior vaccine. Also, I think some places might require that the adverse reaction be worked up by a health care professional or at least documented in a medical chart.

In terms of a religious exemption or accommodation, it won’t be the miracle that you are expecting, even if you get it. The UC is not going to let un-covid vaccinated people walk around the campus like in the old days. There will be a mask requirement and an onerous testing requirement, more than you think is reasonable, the point of which is to dissuade people from requesting religious exemptions.

Enforcement might be an issue of course. I don’t know how they can enforce the mask requirement for the unvaccinated, but they can surely enforce the testing requirement by requiring the filing of the periodic testing (and I don’t think there is a HIPAA issue), and the automatic suspension of key cards if the tests are not timely filed, if they go that far. But one way or the other, you won’t like the conditions of the religious exemption, which is as I stated, the point.

There is still a legal question as to whether a state government agency (and the UC is a state agency under the law) can mandate a EUA only authorized product. As I explained in my last post, the courts have not yet seriously address the issue specifically, but have upheld mandates for emergency use products. I suppose the good news is that so far, no California court has addressed the issue. But as indicated a Texas federal judge has, and a New York federal judge did not find the experimental nature of emergency use authorization sufficiently persuasive to stop and EUA only approved PCR test.

While I think there will be several challenges to the UC policy after it comes out on July 15, it is an uphill battle, to say the least. Therefore if you are a student or an employee, you should should certainly hope for the best but prepare for the worst. And that means even if you do get a religious exemption, you are going to have to comply with the UC’s terms about it. I do not see how the courts are going to second-guess a state university that is trying to protect its community and accommodate religious exemptees. Like it or not, agree with it or not, masks are accepted by the public health officials and the infectious disease experts as being effective, regardless of what other minority opinions there are from physicians in fields not directly related to public health or infectious disease. I don’t see how a judge is going to overturn a University’s imposition of a mask requirement as a condition for a religious exemption. Bottom line, I think the mask requirement is going to stick, and I feel the same about the testing requirement for the unvaccinated, regardless of the EUA status of the test. So, in my view, you are going to have to just live with these conditions of a religious exemption, if that’s the way it shakes out on the 15th.

One thing I am completely clear about and will confidently predict is that until this pandemic is over worldwide and is in the history books, things are not going to be as they were before the pandemic for the people who chose not to take the covid vaccine, and I don’t think any of the anticipated lawsuits is going to change that basic fact. Therefore, you should be realistic about the possible benefits of these lawsuits (including the one I may file if there is sufficient community support).

We are still looking for additional support for Kelly Sutton’s Medical Board fight.

Here is the link to the gogetfunding campaign.
https://gogetfunding.com/kelly-sutton-mds-legal-defense-fund-to-save-her-medical-exemptions/

Rick Jaffe, Esq.