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Author: Richard Jaffe

This Could be a Telling Week in the Legal World of Vaccine Mandates and SB 277 Medical Exemption Cases

This Could be a Telling Week in the Legal World of Vaccine Mandates and SB 277 Medical Exemption Cases

Legally/lawsuit wise, and to state the obvious, there is much going in California and around the country on mandatory vaccination and exemptions/accommodations for students and employees.

The Indiana University students who are seeking to overturn IU’s COVID mandated have filed the paperwork with the Supreme Court seeking an emergency review of the Seventh Circuit’s denial of a temporary injunction against the mandate, which the district court refused to grant (the preliminary injunction that is).

This is the same or similar procedure that had been successfully used by plaintiffs challenging the church public gathering limitations/closure orders in the Cuomo case.

(Here is my post about that case.https://wp.me/p7pwQD-OS).

This legal tactic was also used in two Supreme Court emergency appeal cases that had upheld similar restrictions when Justice Ginsburg was on the bench.

If the Supremes do not take up the case on this emergency review, well, that would be a pretty good indication that there are not four justices who think that the fundamental religious issues in play in Cuomo are at play in a vaccine mandate case. But even if the Supremes don’t take up the IU case, Cali. vaccine attorney Greg Glaser will surely file paperwork for Supreme Court review on his case against the COVID mandated on behalf of UC students and employees who have already had COVID. So there will be at least two shots at this.

Per my previous posts, I don’t think the Supremes are going to want to address the issue during what looks to be the new pandemic wave. But even if they do decide to address the issue on the minimal record that exists, what comes to my mind is the adage “be careful what you wish for.”

Anti-vaxxers are becoming the relentless target of the media (except for Fox). I think the record presented in these two legal challenges is quite weak. (One outlier academic physician whose job is unrelated to infectious disease and some other physicians who I think would have a hard time being qualified as experts on the relevant issues at an actual trial on these issues.)

But even aside from the weakness of plaintiffs’ experts, the Jacobson court addressed this precise issue of minority expert opinions who criticized the need for/safety of smallpox vaccine versus the consensus view and extensively quoted from a then-recent New York case which apparently summarized the Supreme Court’s thinking on the issue. This might help you understand why the courts DO NOT take seriously challenges by those who have a minority view, even if such challenges are supported by experts. You won’t like it, but you will understand why none of these cases go anywhere in court.

“‘It must be conceded that some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has a decided tendency to prevent the spread of this fearful disease and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people, as well as by most members of the medical profession. It has been general in our State and in most civilized nations for generations. It is
practiced with proper care on healthy subjects. . . ‘ . 4. It is highly desirable, in the interests of the health and lives of our countrymen, that vaccination should be rendered compulsory.’ ” Edwards’ Vaccination (1882).
The English Royal Commission, appointed with Lord Herschell, the Lord Chancellor of England, at its head, to inquire, among other things, as to the effect of vaccination in reducing the prevalence of, and mortality from, smallpox, reported, after several years of investigation: “We think that it diminishes the liability to be attacked by the disease; that it modifies the character of the disease and renders it less fatal, of a milder and less severe type; that the protection it affords against attacks of the disease is greatest during the years immediately succeeding the operation of vaccination.”
generally accepted in theory and generally applied in practice, both by the voluntary action of the people and in obedience to the command of law. Nearly every State of the Union has statutes to encourage, or directly or indirectly to require, vaccination, and this is true of most nations of Europe. . . .

“A common belief, like common knowledge, does not require evidence to establish its existence, but maybe acted upon without proof by the legislature and the courts. . . .
” The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their chosen representatives, practical legislation admits of no other standard of action; for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not.. Any other basis would conflict with the spirit of the Constitution, and would sanction measures opposed to a republican form of government. While we do not decide and cannot decide that vaccination is a preventive of smallpox, we take judicial notice of the fact that this is the common belief of the people of the State, and with this fact as a foundation, we hold that the statute in question is a health law, enacted in a reasonable and proper exercise of the police power.”

The bottom line to the Jacobson court was that it was not the job of the courts to second guess the decisions of the legislature (the state or its agencies) which decisions are based on consensus science, and consensus science now is that regardless of the technical EUA status of the COVID vaccines, they are safe and effective in preventing death and hospitalizations, and the fact that some experts might disagree doesn’t matter. I think it is that simple. or was to the Jacobson court.

I think that any objective (i.e., a nonpartisan non-vaccine rights) attorney understands that Jacobson is the law of the land right now anyway, at least on the vaccine mandate issue.

And I will go a step further.

If the Supremes take up one of these vaccine mandate cases, it is my opinion that the core tenets of Jacobson will be upheld, though they will put it in contemporary constitution language by holding that there is a rational relationship between the mandate and what the state schools are trying to achieve, public health-wise. To put it another way, I think the law of the land is and will continue to be as the Indiana district court articulated it in its very thorough opinion. (Of course, that is just my opinion which few if any reading this will agree with, and for sure is different from the opinions of basically all-partisan vaccine rights attorneys, but I view the views of such attorneys to be more aspirational or wishful thinking, but again, that is just my opinion).

However, there are other competing considerations in fundamental religious rights cases like the Cuomo case, which caused the new conservative majority to in effect overturn the earlier Supreme Court cases which affirmed similar restrictions on religious gatherings. However, my opinion is that the Supreme Court will not extend Cuomo to cover a pure vaccine-mandated case, and that, even with a conservative majority, Jacobson will be eventually be upheld by the Supremes when it finally gets to them. It would be very helpful for the country and especially the people against vaccine mandates to get a definitive ruling from the Supremes, one way or the other, so as to at least stop the misinformed opinions out there about what rights people have or do not have.

But as stated in earlier posts, I am guessing that will not happen with these two school mandate cases. We should hear about whether the Supremes take the IU case later this week. It will be breaking news in the media either way. It will probably take a few more weeks on the UC case to find its way to a decision on emergency relief by the Supremes. If neither case is taken up by them, then Jacobson is still the law of the land and will be followed by all federal and state courts, and challenges to the general COVID general mandates will continue to be rejected by the courts. That’s the way I see it unfolding anyway, until there is a decision by the Supremes.

So, what does that mean practically for all of you philosophically/religiously opposed to the COVID vaccine or to vaccine mandates in general?

That’s easy, and I’ve said it many times before. Get vaccinated, get an exemption/accommodation, and comply with the onerous testing, reporting, and masking requirements (and the only practical accommodation is the religious one, since a medical exemption requires ACIP compliance), or prepare to be fired/find a school that does not mandate the vaccine. Those are your only choices. There is nothing I or any lawyer can do about that.

(And, or a variety of reasons, I don’t offer medical exemption writing or review legal services, so if you try to contact me about your religious exemption or your “rights” to challenge your employer’s (state or private) vaccine mandate, sorry, but I won’t be responding. Nothing personal. I write these posts to offer some legal perspective for whatever it’s worth (and it might not be worth much to the many who are passionately opposed to vaccine mandates) but that is the extent of my involvement with this issue other than lawsuits I may pursue on behalf of and funded by organizations, and doctors I defend. And, I am not filing any challenges to the COVID mandate for adults.)

The Florida Situation

Things are getting bad in Florida and a few other Southern states, at least if you believe the news (and I do on this). Cases and hospitalizations are increasing, somewhat dramatically. I think Florida is an excellent test case. I am told that in Florida, it’s like the pandemic doesn’t exist. Up until Delta, that has worked out for the state. We will see what happens in the next 60 days. If kids start dying there (or in other places), things will get very bad for the unvaccinated.

On the legal front, last night a federal judge granted a cruise ship line’s request for a preliminary injunction barring enforcement of Florida’s vaccine passport prohibition. The cruise ships want to follow the CDC guidelines requiring vaccination and/or reporting of vaccination status, but the Florida law bars them from doing so. But now they can, pending the trial (or reversal on appeal). The more Delta progresses, the more likely the decision will be affirmed obviously.

This case was decided on first amendment grounds, not on Jacobson, which only received a passing reference. For those interested in diving into the weeds of the vaccine passport legal issue, here is the judge’s decision. It’s very good.

43_051023674708_OrderGrantingPreliminaryInjunction(1)

strong>What about SB 277?

This week could be big for me and my physician clients on the SB 277 issue and the families of the children who received SB 277 based medical exemptions. The big case is Ken Stoller’s writ mandate presently pending a decision by Judge Arguelles. He said he needed a couple/few weeks and it’s not been over two weeks, so I would think we should get a decision this week. Between his written questions to the attorney and the hearing, he seemed to understand that the law allowed physicians to write ME’s that did not comply with ACIP guidelines which the Board, its expert, and the ALJ denied (the latter at least implicitly).

If the judge stays with that view, then the Board’s order should be overturned, and either there would be a rehearing under the SB 277 standard, or the case against Ken gets tossed because the Board has the burden of proof and it chose to try the case under the wrong standard of care. (And you don’t have to guess about which result I argued hard for at the hearing). If the Board’s order is overturned, then families may have to battle it out with their children’s schools. But it’s probably best to take one step at a time. We all should be that lucky to have to deal with that problem!

I have the same SB 277 issue in another case going to hearing later this week in the context of a motion to compel compliance with an investigative subpoena for the medical records of a physician who wrote two non-ACIP based ME’s, and one more of these motions being heard early September.

In the movie script I’d write about this, we’d get Judge Arguelles’ decision today or tomorrow and the other two judges would concur with him (and in my script, we would prevail). But it may not work out that way, and the first Sacramento judge to weigh in on the SB 277 issue might be a Law and Motion judge hearing the motion to compel. I am hoping not, because there is a much deeper record in the case before Judge Arguelles. But, it’s out of my hands.

So from my perspective, this is the big stuff that is happening in the vaccine mandate world we currently live in.

Rick Jaffe, Esq.

Riverside Federal Judge Denies Frontier Doctor’s Injunction Request against the UC COVID Mandate; Mandamus in the Court of Appeals Filed

Riverside Federal Judge Denies Frontier Doctor’s Injunction Request against the UC COVID Mandate; Mandamus in the Court of Appeals Filed

On Friday, July 30, Riverside Federal Judge Jesse Bernal denied an injunction motion filed to stop the enforcement of the UC’s COVID mandate against students and employees who have previously had the disease. This was a strategically narrow lawsuit that excluded members of the UC community who have not had COVID. But narrow or not, the judge denied the injunction request. No surprises in the decision (especially if you have been reading my recent posts(Jacobson, the low to non-existent rational relationship standard, and it’s not the job of the courts to weigh challenges to accepted science, it’s the state’s call, yada, yada. Much shorter than the Indiana University district court’s opinion, but same result and reasoning. This is now the third federal district court that has rejected a COVID mandate. (The first being Houston district judge Lynn Hughes in the case against the Methodist Hospital mandate).

My friend and colleague Greg Glaser is involved and he has (amazingly) just filed for a mandamus in the Ninth Circuit Court of Appeals. Hope he does better than the IU students who lost in the Seventh Circuit. But like in that case, I think Greg is trying to put this before the Supremes, so I don’t think he’s expecting much from the Ninth Circuit, even though there are many more conservatives on the court than in the old days.

Here are Greg’s papers. The District Court’s opinion starts at around page 50 of the pdf.

AFLDS v UC – 9th Circuit Writ Filed (1)

Good Luck to you Greg!

Rick Jaffe, Esq.

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.