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Author: Richard Jaffe

Super Breaking News on the UC Flu Mandate: Hearing Continued until November 4th and the UC is barred from taking any action against any employee or student for not getting the shot until the Hearing Date!

Super Breaking News on the UC Flu Mandate: Hearing Continued until November 4th and the UC is barred from taking any action against any employee or student for not getting the shot until the Hearing Date!

Because of all the paperwork flying back and forth, the Hayward Superior Court judge has rescheduled the hearing to November 4, 2020, at 1:30 PM

You might recall from a previous post that the case was previously set for November 12th. We filed a so-called “ex parte application” to move the hearing back to October (it had originally been set to be heard on October 14th by another judge). The UC attorneys objected to the reset request in large part because the UC was not going to take any action against any student or employee until the injunction hearing took place. Nonetheless, the judge reset the motion for tomorrow, October 22nd.

This is a very big deal of a case and there has been much paper flying back and forth, including many back and forths this week. Even today, the UC filed papers objecting to papers I filed on Monday which contained an email from a high UC Davis employee incorrectly telling staff that the flu mandate applied to remote workers.

The judge is obviously taking this motion very seriously, and that is a very good thing. He wanted more time to consider all the papers and write an opinion that will have enormous implications. Judge Seabolt gets to be the first judge in the country to weigh in on whether the state can mandate a vaccine during a pandemic where the vaccine doesn’t treat the pandemic disease and where there is reason to believe that the flu shot could actually increase COVID cases, hospitalizations and deaths. That’s alot to think about. It seems like he’s trying to get it right, and that is certainly extremely encouraging, since in my view, the more anyone reasonable thinks about it, the worse the mandate looks because of the lack of proper procedure in its issuance, and the lack of proof that the vaccine won’t cause much more harm than good. So I am all for the judge taking all the time he needs on this.

That all being said, since the UC attorneys had already represented that the UC would not take any action against anyone for not getting the shot until the hearing (then scheduled for Nov. 12th), the judge ordered the UC to honor its representation to the Court until the hearing on November 4th.

Here is the judge’s ruling,

“This Tentative Ruling is made by Judge Richard Seabolt Plaintiffs’ Motion for Preliminary Injunction is CONTINUED to 1:30 p.m. on November 4, 2020. The court requires additional time to review this matter.

The parties shall send courtesy copies of their papers directly to Department 521 via overnight mail no later than October 22, 2020. The parties shall comply with the form and format requirements of rule 3.1110 of the California Rules of Court.

UC shall not take adverse action against any employee or student who comes to campus who has not had a flu shot between now and when this court hears this matter. (See UC’s October 8, 2020 Opposition to Application to Reset Hearing Date in which UC committed not to do so.)”

(emphasis added).

 

THE BOTTOM LINE:

THE UC FLU MANDATE EXECUTIVE ORDERS REQUIRING COMPLIANCE BY NOVEMBER 1, 2020 IS NO LONGER IN EFFECT BY ORDER OF SUPERIOR COURT JUDGE RICHARD SEABOLT!  You now have sometime after November 4th to comply, assuming the judge denies the motion, or you won’t have to comply at all, if the judge grants the motion.

I assume that the UC will stop forthwith publicizing the November 1st deadline which has been stayed by the Court’s order.

Let’s give them a day to think about it, but if the UC keeps pressuring people to get the shot by November 1st, on pain of not being allowed on campus, shoot me an email and attach the communications because there might be consequences if the UC administration does not follow the Court’s clear directive.

Today was a good day. We didn’t lose, the deadline is now officially put off (albeit for only a few days) and the judge is giving the case a good hard think, and in this business, that’s about all you can ask for.

Rick Jaffe, Esq.

 

 

Next up, Massachusetts

Next up, Massachusetts

As some of you know, Massachusetts is the only state (so far) that has the statewide flu mandated for all students up to and including university students up to a certain age.

Here is the mandate. https://www.mass.gov/news/flu-vaccine-now-required-for-all-massachusetts-school-students-enrolled-in-child-care-pre

It seems like a bad idea, just as bad as the UC flu vaccine mandate. Win or lose in the UC case, Bobby Kennedy and CHD want the Mass. mandate to be the next challenge. Experts are ready. and more will be added.

If you know anyone with school-age kids or university students who don’t want to take the shot, who don’t have a strong religious objection, and want to be a part of the case, have them email me. Of course, no charge to any plaintiff, as this is a public interest lawsuit. Bobby and I will be involved under rules for non Mass. licensed attorneys (pro hac vice, for you Latin buffs). It is important that the courts be given an opportunity to weigh in on these important health public policy issues. Today it’s the flu shot, next we’ll be hearing how great the pneumonia vaccines are and how many beds can be freed up if all adults were forced to take it and all the other vaccines which will provide all the “layers of protection” during these pandemic times. The courts need to weigh in on this, and we will see if we can make that happen prior to the mandate date.

Rick Jaffe, Esq.

 

 

 

 

What Should the UC Community do about the Flu Vaccine Questionnaire?

What Should the UC Community do about the Flu Vaccine Questionnaire?

I have been receiving many emails, messages, and voice messages asking me how to fill out the vaccine questionnaire being emailed to the UC community. As per my practice, rather than answer specific requests, I am going to tell you in this post what I think you should do. It’s not complicated, and it won’t require any immediate action for most of you out there.

Here is the first and most important thing you should do now:

NOTHING. Do nothing for now.

I expect that we will know by next Thursday, October 22nd whether the judge is going to temporarily stop the flu mandate. In fact, we might even know one or two days before the 22nd, because in many cases, Superior Court judge announce what is called a “tentative decision” one or two days before the hearing.  A losing party has the right to “contest” a tentative decision in a “hearing” but in most cases, and especially a case like this where there has been much paper flying back and forth, it is next to impossible to change a judge’s mind once a tentative decision has been issued.

So, either the judge will enjoin the mandate, in which case, you won’t have to fill out the form because there is no mandate, or he won’t issue the injunction, in which case you will have to fill out the form.

So, how should you fill out the form then?

THERE IS A PLAN B

I don’t want to go into the details, but if there is a large enough group in the community and through coordinated efforts, I believe your objective can be achieved.

My advice to everyone in the UC community is to sit tight, do not complete the flu vaccine form until the judge makes his final ruling on the injunction motion, but be prepared to act quickly if need be (read, we lose the motion).

The preliminary injunction motion is just the first battle and there will be another one (if we lose) prior to November 1st, I promise.

Rick Jaffe, Esq.

 

 

 

 

 

 

 

UC Preliminary Injunction Hearing Now Set for October 22 at 1:30 PM

UC Preliminary Injunction Hearing Now Set for October 22 at 1:30 PM

We just received word that our Motion for Preliminary Injunction will be heard by the judge on October 22, 2020, at 1:30 PM. Anyone who wants to watch or listen should be able to by going to the Alameda Country Superior Court Website. I will give further instrucitons closer to the hearing date.

You will recall that the case was originally set for October 14th, but after the case was transferred to another judge it was reset to November 12th. We then asked the court to reset it prior to the November 1st flu mandate. Perhaps after reading the papers, the court agreed that the UC community had a right to have a judge look at the executive orders and issue a ruling before they go into effect. So, that’s something (and better than a stick in the eye).

On related issues, I hear that the UC press office is still pushing hard on everyone getting the flu shot asap. Please let all your friends, classmates, colleagues, and co-workers know that if they don’t want to get the shot, they should at least wait until we get a decison on the injunction motion. I doubt they will get that point of view from the UC administration.

Also, I’d like to hear about anyone’s experience in seeking or obtaining a religious exemption. I am hearing that they are not hard to get, but I am still sceptical.

Fingers crossed, may the force be with us and whatever.

Rick Jaffe, Esq.

 

 

 

UC Injunction Lawsuit Critical Update: Chaos and Confusion Continues; The Hearing Date on the Prelim. Injunction now up in the Air, but Thankfully, The UC Grants a Grace Period Until November 12th. Thank you UC!

UC Injunction Lawsuit Critical Update: Chaos and Confusion Continues; The Hearing Date on the Prelim. Injunction now up in the Air, but Thankfully, The UC Grants a Grace Period Until November 12th. Thank you UC!

Folks, there is a lot going on in our injunction lawsuit regarding the UC’s Flu Mandate which was supposed to go into effect on November 1st. However, now apparently the November 1st deadline will not be enforced based on representations made by the UC to the judge hearing the case. It’s complicated, so pay close attention.

We filed the permanent injunction action on August 27th. On September 17th we filed a motion for a preliminary injunction. There are three things you have to know about Alameda County and state court civil court practice. First, you can’t just file a motion in state court. You have to first contact the clerk via email and request a hearing date and a reservation number. The clerk then sends you back a date and a reservation number. So that’s what we did, and due to the urgency of the case, we got an October 14th hearing date and that’s what our preliminary injunction papers show.

The second thing you need to understand is that in Alameda County, all cases start in a general department, department 511. At some unspecified time thereafter, all cases get reassigned to another department/judge for the duration of the case. This part 511 is like a clearinghouse and only deals with motions until a case is reassigned. After we submitted our paper and right as the defendants were finalizing theirs, (September 30th), the case was reassigned to another department, (521). Nothing happened for a while. However, earlier this week, the docket noted that department 521 on its own (and over our written request not to) reset the hearing from October 14th to November 12th, and yes that is after the November 1st flu shot deadline. This was probably due to clerical oversight, though no doubt, some of you might be thinking that something else is going on. However, fact number 3 is that the courts in general and Alameda, in particular, are operating with pandemic induced severe staff reductions, so I am still going with the clerical oversight explanation.

In situations like this, the thing to do is to submit an “ex parte” request to reset the hearing date, and that is what we did yesterday morning, marking it urgent for whatever good that may do. We are now waiting for the court to either rule on our ex parte request and reset the hearing, or tell us when there will be an argument on our request.

BUT WE’RE NOT DONE YET!

The UC defense team (which consists of three outside attorneys and two attorneys from the UC general counsel’s office) put in a response to our ex parte request, opposing it. But one of the reasons they said there wa no urgent need to move up the hearing date was because the UC was not going to enforce the November 1st deadline. Meaning you do not have to get the flu shot by November 1st according to the UC’s lawyers in this case.

Here is the language from the Defendants’ submission to the court:

“UC’s intent is not to “fire” or “expel” any employee or student for not receiving a flu shot between now and when this Court hears this matter on November 12” (page 2 lines 2-3 memo) (emphasis added).

Defendants’ lead counsel also assured the court that the UC “is committed to working with those individuals who must come to campus to find mutually agreeable accommodation. (Declaration page 3, lns 17-18)(emphasis added).

People, representations of counsel to a court is a very serious thing, and if the UC’s own lawyers are saying that you don’t have to comply by November 1st, and if you don’t, there will be no adverse consequences, and that the UC is going to work to find a “mutually agreeable accommodation” I think you can rely on these representations to the court.

In the interests of complete transparency. Here is our ex parte application and the UC’s response. Judge for yourself.

FAexparteresetPIhearingdate

Defendants Opposition to Plaintiffs Ex Parte Application.docx(1)

Declaration of Chun iso Defendants Opposition to Plaintiffs Ex Parte Application, not yet signed(1)

(And by the way, there is absolutely no reason why anyone reading this should be in contact with any of the lawyers in this case. They are professionals and are diligently representing their clients, and doing what they sincerely believe is necessary to protect the UC community. I am making a personal request in the strongest possible (non-scatological) terms that anyone considering doing so, DO NOT DO SO.  It is critical that opposing counsel be able to communicate with each with mutual respect and trust, and there would be nothing, AND I REPEAT, NOTHING more damaging to our case and our ability to advocate for your interests, than one or more yahoos doing something stupid, so please, please don’t.)

Let’s get back on track because there is a problem.

It might take some time for this new UC largess to trickle-down to the various employee relations departments and the student health services and other departments overseeing the flu mandate policy. They might not get the word of the UC’s extension of the compliance date to November 12th (assuming that date remains).

Therefore, what I suggest is that

every single student, staff, or faculty member who does not want to take the flu shot, contact HR, employee relations, or your supervisor and inform them all of the new UC announced to the court delay of the implementation of the order. I think this will help facilitate the communication between the main administration which has given you these extra 11 days, and the campuses which are probably still in the dark about this grace period.

Since I started writing about this issue (like forever ago or so it seems), I have received many dozens is not several hundred emails and calls from students, employees, and faculty objecting to the mandate and wanting to know what they can do to help. So here it is.

Make sure every student, employee, and faculty member in every campus and every facility knows about this new extension and make sure that every single HR, employee relations department, all health services at every campus know about it, and insist that they take no action against any of you until the court renders it decision on the preliminary injunction. NO ONE HAS TO TAKE THE FLU SHOT UNTIL THE NOVEMBER 12th court date, because the UC isn’t going to fire or expell anyone and will work with you all!

Just like the UC appears to have reconsidered treating students differently from employees, it seems like Dr. Drake, the powers that be, perhaps through the very able assistance their inside and outside counsel, recognize your concerns and are willing to allow a court to decide your fate on this important public issue. If so, good on them, and thank you Dr. Drake!

Finally, if there is any push-back from the HR, employee relations, or student health services personnel, drop me an email with the person’s contact information, and I believe the University or its counsel will set it straight (or so I hope and expect, but if not, then our team may get involved).

For now, I am just waiting for the court to rule on our ex parte application. Stay Tuned!

Rick Jaffe, Esq.

 

 

 

Way Cool Youtube on the UC Injunction case and the Administration’s Tactical Retreat

Way Cool Youtube on the UC Injunction case and the Administration’s Tactical Retreat

Some talented person has created a  short youtube clip of our UC injunction lawsuit and my recent post announcing that under a recently revised (but still largely unpublished or still secret) Executive Order, UC students will be treated the same as faculty and other employees. That’s good news for the students.  And, although I think it was just a tactical retreat to avoid that crazy part of the executive order to drag down the rest of their defense, good on the UC for getting something right in this mess.
here is the youtube. Many thanks to the creator. You’ve got skills!
The High Priests of the Religion of Vaccinology Circle the Wagons around the UC Flu Mandate and Recite their Gospel

The High Priests of the Religion of Vaccinology Circle the Wagons around the UC Flu Mandate and Recite their Gospel

Yesterday, I gave you some good news about the UC’s tactical retreat in our lawsuit seeking to overturn the UC’s flu vaccine mandate.  Here is that post. https://rickjaffeesq.com/2020/10/01/breaking-news-uc-makes-a-tactical-retreat-with-its-new-executive-order-and-its-good-news-for-students-albeit-temporary-and-only-for-some-students/

Basically, the UC decided that treating students differently from faculty staff was an outrageous violation of the students’ equal protection and First Amendment rights as alleged in our Fourth Cause of action.  Rather than face a certain ruling of unconstitutionality from the judge in our preliminary injunction motion, I think the UC made a tactical retreat so as not to allow that dead loser drag down the rest of the flu mandate. And I would like to believe that the deciders realized how particularly unfair it was to students. If so, then good on them for letting a small amount of fairness and reason finally play a part in the decision-making process.

However, in my view, it is now abundantly clear from the declarations of Dr. Byington (provided in yesterday’s post and again here) and from the declaration of Janet Napolitano, that the decision to mandate – as opposed to recommending – the flu vaccine was based on the recommendation of just one person, that being Dr. Byington. I’ll explain that more in our reply papers which we will file on Tuesday. But if you read the two declarations together closely, you’ll be able to figure it out and be mindful of the carefully chosen, and likely highly vetted-by-attorneys language used in their recitation of events from January, and especially April until July 2020. Here they are.

byingtondeclaration

janetnapalitanodeclaration

In addition, I have reason to believe that the committee referred to in these two declarations was advised that a flu mandate would probably be struck down by the courts, and that might have been one of the reasons the committee itself did not actually recommend a mandate, but only a recommendation. (You will need to read the two declarations closely to really understand this.)

Somehow, despite this legal advice, the recommended recommendation was transmogrified into a mandate, again, based on these two declarations, literally based on the advice of one person. I find that to be fairly outrageous and I hope the judge hearing the case will also think so.

And as expected, in defense of the indefensible, the UC has trotted out some of the country’s leading proponents of vaccines. I refer to them as the High Priests of Vaccinology because if you read their declarations, they sound more like religious cult leaders than scientists, because the arguments and tactics employed in the declarations are

1. argument by authority, (look who I am, what I have done, how many committees I am on, how many people and entities have praised me for my work, and did I tell you that I have worked for Bill Gates who is a really rich guy and funds vaccines all around the world, blessed be his name)

2. a dismissive attitude towards gold-standard clinical trials evidence which refutes their (religious) beliefs

3. An almost received-religious based assumption like when Moses received the 10 Commandments, that the flu vaccine like all vaccines are safe during a pandemic even though there are no high-quality studies showing that to be the case,

and lastly, an almost Calvinistic fire, brimstone, and damnation fear that because COVID 19 is so horrible unless all adhere to their Gospel of Public Heath, damnation, ruin and hospital bed shortages (and now per the revised justification, medical resource shortages in general) will rain down upon the Flu vaccine non-believers, (and everyone else) and the earth shall open up and swallow the heathens, and that means you, Mr. Superior Court Judge on the case.

I have this image in my mind of all these old guys and gals sitting at their desks in front of their computers in Puritan black robes with white doilie collars with their black high hats (with a silver buckle in the front), and it just cracks me up.  I hope the judge will think of that image as well, hmmmm.

Here are the expert declarations which the UC has submitted to the judge in opposition to our preliminary injunction motion. You all can reach your own conclusions. Feel free to share any comments you have about them in the comments section. Best comment or three might get cited in our reply papers.

 

Rick Jaffe, Esq.

 

walterorhensteindeclaration

harveyfeinbergmddeclaration

reingoldmddeclaration 

leereilydelcaration

benedettealbala

bradpollackdeclaration

bradbuchmandeclaration

courtneyocconnerdeclaration

kirstendomingomdphd

zofuchendeclaration  

bradbuchmandeclaration

 

 

BREAKING NEWS! UC MAKES A TACTICAL RETREAT WITH ITS NEW EXECUTIVE ORDER, AND IT’S GOOD NEWS FOR STUDENTS, (albeit temporary and only for some students)

BREAKING NEWS! UC MAKES A TACTICAL RETREAT WITH ITS NEW EXECUTIVE ORDER, AND IT’S GOOD NEWS FOR STUDENTS, (albeit temporary and only for some students)

As you know, Bobby Kennedy and I (with the able assistance of CHD’s chief legal guru Mary Holland, PIC’s human vaccine encyclopedia a/k/a Greg Glaser, and SD ace litigator Ray Flores) filed an injunction lawsuit to stop the UC’s executive order requiring all students, faculty and other employees to get the flu shot by November 1 on pain of not being able to work or register for class. We filed on August 27th, the executive order having been published on August 7th.

On September 17th, we filed a motion for a preliminary injunction to stop the EO. The most outrageous part of the EO and the part which befits the constitutional phrase of something which “shocks the conscience” was the fact that students were treated differently from faculty and staff in two important respects: First, unlike staff and faculty, students did not have a “religious accommodation” (and more about that later). Second, while faculty could remote teach and staff could remote work and not have to take the shot, remote learning students still had to get the stick. That seemed to me to be a textbook equal protection and First Amendment violation. Whatever idiot UC lawyer came up with that should have to take some con law CLE (continuing legal education).

Well, it seems like the UC has finally opened its con law books (and with all its law school libraries, it’s about time).

The UC filed its response to our motion (and there are a lot of papers, but more about that later) AND GUESS WHAT?

TWO DAYS AGO, THE UC (apparently secretly so far) ISSUED A NEW EO REVISING THE MANDATE!

Here it is:

sept29EO

and guess what it doesn’t have in it?

correct, students are now treated the same as faculty and staff (sort of).

bottom line, students attending all classes online who do not live on campus do not have to get the flu shot. That is very good news for those students. Of course, if you live on campus, you still have to get the shot, at least unless and until the judge in the cases grants our preliminary injunction motion.

For perspective, this is just the opening skirmish (ok, maybe a tad bit more than that; the UC backed down probably after reviewing our fourth cause of action for equal protection violations on behalf of the students) This was a just tactical retreat for the UC. They gave up something to protect the core mandate requiring the flu vaccine for everyone who comes to the campuses.

TWO OTHER BREAKING NEWS POINTS IN THIS CASE

First, the UC is setting up in effect religious inquisition courts, but with no published court procedures

That’s right and it is just as insane as the now eliminated equal protection violations.

The UC has apparently hired outside consultants to function as judges deciding on the bona fides of people seeking a religious accommodation to the flu shot. Really, you have to appeal before some consultant to make the case that your religious beliefs are the right kind, or you have the sufficient fervor to justify the UC bestowing on you whatever it has in mind as a religious accommodation. So what are the standards these consultant judge use? I don’t think anyone knows so far. It must be some secret set of criteria. So, maybe the UC should go back to its libraries and look up the First Amendment and something called due process and do something it hasn’t done yet. Think about what you’re doing and the path you’re going down, because as stated, this is just as crazy as the discrimination against students, only it affects the entire UC community.

If anyone has gone through or is planning to appear at these religious inquisition courts, please shoot me an email, because I think the judge is really going to want to hear from you, and I don’t think he’s going to like it one bit.

Second, we now know (sort of) how this flu mandate came about and who was in charge.

One of the many declarations filed in response to our motion was from the UC head of the COVID tracing and tracking committee from which the mandate emanated. Her name is Dr. Carrie Byington who is an Executive Vice President, UC Health, and Professor of Pediatric Infectious Disease at UC SF. She has a very impressive resume and a long career in infectious disease. I am attaching her declaration. If anyone reading this post has any information about how this whole thing came about, and the statements contained in Dr. Byington’s declaration, please email me with details. Here it is  byingtondeclaration. To anyone with such knowledge, you’ll know what I am referring to. To all else, stay tuned.

 

Rick Jaffe, Esq,

rickjaffeesquire@gmail.com

 

 

 

 

 

Dr. Ken Stoller’s Medical Board hearing is over (almost), so what’s next?

Dr. Ken Stoller’s Medical Board hearing is over (almost), so what’s next?

Ken Stoller’s hearing took place Monday, September 21st until midday Thursday, September 24th. I made an opening on the first day. The Board’s attorney elected not to. The record in the case is still open because, as is not uncommon in these cases, there will be written closing arguments. The board has the burden of proof, so it will file an initial closing statement. I will then do our closing statement in response to the Board’s. The Board gets to reply to my closing, again because the Board has the burden of proof.

Timing-wise, the judge will receive the Board’s reply on November 9th and on that date, the record in the case will be officially closed, the case is deemed submitted to the judge for her to write a proposal for decision (“PFD”).

Under the applicable rules, the judge has 30 days to issue her PFD, which will include findings of fact, conclusions of law, and a recommended sanction, if a violation of the standard of care is found.

The Board has adopted and published disciplinary guidelines which it expects the ALJ’s to follow unless there are stated reasons for departing from them.  Based on the charges in the Accusation (the complaint initiating the Board’s case), the minimum sanction is stayed license revocation with probation for 5 years. The maximum penalty is license revocation. There are other terms which are usually imposed on physicians who have engaged in “extreme” departures from the standard of care, including practice monitoring, additional CME (standard) and even a requirement that the physician’s knowledge and skills be evaluated by the UC San Diego physician evaluation program which is used by medical boards to evaluate the skills of physicians whose conduct has been found to be sufficiently negligent to warrant such.

So what can the Board do with the ALJ’s PFD?

Under the law there Board has five options:

It’s best to state the options as set forth in the statute:

CA Govt Code § 11517 (2017)

***

“(c) (1) If a contested case is originally heard by an administrative law judge alone, he or she shall prepare within 30 days after the case is submitted to him or her a proposed decision in a form that may be adopted by the agency as the final decision in the case. Failure of the administrative law judge to deliver a proposed decision within the time required does not prejudice the rights of the agency in the case. Thirty days after the receipt by the agency of the proposed decision, a copy of the proposed decision shall be filed by the agency as a public record and a copy shall be served by the agency on each party and his or her attorney. The filing and service is not an adoption of a proposed decision by the agency.

(2) Within 100 days of receipt by the agency of the administrative law judge’s proposed decision, the agency may act as prescribed in subparagraphs (A) to (E), inclusive. If the agency fails to act as prescribed in subparagraphs (A) to (E), inclusive, within 100 days of receipt of the proposed decision, the proposed decision shall be deemed adopted by the agency. The agency may do any of the following:

(A) Adopt the proposed decision in its entirety.

(B) Reduce or otherwise mitigate the proposed penalty and adopt the balance of the proposed decision.

(C) Make technical or other minor changes in the proposed decision and adopt it as the decision. Action by the agency under this paragraph is limited to a clarifying change or a change of a similar nature that does not affect the factual or legal basis of the proposed decision.

(D) Reject the proposed decision and refer the case to the same administrative law judge if reasonably available, otherwise to another administrative law judge, to take additional evidence. If the case is referred to an administrative law judge pursuant to this subparagraph, he or she shall prepare a revised proposed decision, as provided in paragraph (1), based upon the additional evidence and the transcript and other papers that are part of the record of the prior hearing. A copy of the revised proposed decision shall be furnished to each party and his or her attorney as prescribed in this subdivision.

(E) Reject the proposed decision, and decide the case upon the record, including the transcript, or upon an agreed statement of the parties, with or without taking additional evidence. By stipulation of the parties, the agency may decide the case upon the record without including the transcript. If the agency acts pursuant to this subparagraph, all of the following provisions apply:

(i) A copy of the record shall be made available to the parties. The agency may require payment of fees covering direct costs of making the copy.

(ii) The agency itself shall not decide any case provided for in this subdivision without affording the parties the opportunity to present either oral or written argument before the agency itself. If additional oral evidence is introduced before the agency itself, no agency member may vote unless the member heard the additional oral evidence.

(iii) The authority of the agency itself to decide the case under this subdivision includes authority to decide some but not all issues in the case.

(iv) If the agency elects to proceed under this subparagraph, the agency shall issue its final decision not later than 100 days after rejection of the proposed decision. If the agency elects to proceed under this subparagraph and has ordered a transcript of the proceedings before the administrative law judge, the agency shall issue its final decision not later than 100 days after receipt of the transcript. If the agency finds that a further delay is required by special circumstance, it shall issue an order delaying the decision for no more than 30 days and specifying the reasons therefor. The order shall be subject to judicial review pursuant to Section 11523.

(d) The decision of the agency shall be filed immediately by the agency as a public record and a copy shall be served by the agency on each party and his or her attorney.” (emphasis added)

(Repealed and added by Stats. 1999, Ch. 339, Sec. 2. Effective January 1, 2000.)

What does the Board want to do in this case?

For many reasons, including pressure from the CDPH, I believe that the Board wants to issue some sanction against Dr. Stoller and the other doctors who wrote these broad SB 277 exemptions. That means if the ALJ’s proposed decision exonerates Dr. Stoller, the Board can just reject the PFD and make its own decision, but it will have to comply with the process set forth in E (i) through (iv).  That will take some time, and I would not think that process could not be completed until early next year.

How does this all affect the ME’s that Dr. Stoller has written?

That depends on what the ALJ does. If she finds a violation of the standard of care and issues a sanction within the guideline range, you can expect the Board to quickly adopt the ALJ’s PFD in its entirely. I suspect that will be the case even if the PFD suggests a more lenient sanction than the guideline range, like a public reprimand.

If the Board adopts any PDF mandated sanction, (even a public reprimand which is a disciplinary order), under SB 276/714, Dr. Stoller’s ME’s are voided or voidable once the school districts find out about the order. That could happen as early as mid-December, but will most certainly happen by sometime in January 2021, because of the intense pressure to get rid of all these ME’s. I am guessing it will happen in December.

If the ALJ completely exonerates Dr. Stoller, look for the Board to chose door number (E), non-adopt the ALJ’s PFD, and issue its own decision in the case, presumably following the (E) 1-4 procedure.

Regardless of what the ALJ does, if the Board sanctions Dr. Stoller (or any physician) the physician has the right to appeal to court, (via writ of administrative mandate under the arcane California writ practices) first to a superior court judge then to the Court of Appeals. There is no automatic review by the California Supreme Court for these kinds of cases.

If the ALJ exonerates Dr. Stoller and the Board non adopts, given how strong the record is in the case (we won big time on points, and we actually do have the law on our side), I think there is an excellent chance that the court of appeals would reverse the Board, and perhaps even the superior court. I would even give odds on that happening if the ALJ exonerates. This ALJ is smart and precise (and she has a masters in Genetics). That means the Board is going to have to do some very fancy footwork (including adopting the highly dubious Blumberg interpretation of Senator’s Pan’s infamous remarks to the Assembly in June 2015, which I will explain in another post) to non-adopt the ALJ’s exonerating PFD.

On the other hand, it is very, very hard to reverse the Board’s adoption of am ALJ’s sanction based on a finding of an extreme violation of the standard of care. Not impossible, but you wouldn’t want to bet the farm (or house) on it. And for the reasons stated above, even harder with this ALJ because of her acumen and background. (Caveat, since the fulcrum issue in this case is the interpretation of SB 277 and the application of Bus. and Prof. Code Section 2234.1, and these are legal matters, even if the ALJ rules against us, these matters of law could receive more and more independent judicial attention that weighing the details of a standard of care violation).

So that’s what’s next in the case.

Next for me is 1. to give you my thoughts on the evidence that was adduced in the case, so stay tuned for that, and 2. ROUND TWO. About a week ago, the Board filed an Accusation against Sacramento physician (and our expert at this hearing) Kelly Sutton, MD for …. you guessed it, writing broader than ACIP ME’s for students.

Here we go again.

Rick Jaffe, Esq.

 

 

Public Hearing Information of Ken Stoller’s Medical Board Hearing Starting Monday September 21st

Public Hearing Information of Ken Stoller’s Medical Board Hearing Starting Monday September 21st

 

The hearing in the matter of the accusation against Kenneth Paul Stoller, M.D. (MBOC No. 800-2017-034218, OAH No. 2019110039), will begin on September 21, 2020, before Administrative Law Judge Juliet E. Cox. The hearing will occur remotely. Each hearing day will begin at approximately 9:00 a.m. and will end at or before 5:00 p.m.

Members of the public who wish to listen to the hearing may do so over the Internet, by following the links below. By order of the Administrative Law Judge, no person may record any portion of this hearing.

 

Monday, September 21, 2020

Tuesday, September 22, 2020

Wednesday, September 23, 2020

Thursday, September 24, 2020

Friday, September 25, 2020 ”

The day’s links should take you directly to the Microsoft teams software.

You can still donate to the cause if you haven’t already.

https://gogetfunding.com/dr-ken-stoller-and-his-medically-vaccine-exempt-patients-need-your-help-again/

Be talking to you all on Monday!

Rick Jaffe, Esq.