By Consumer Advocate Tim Bolen
I have here, on my desk, a DRAFT copy of the lawsuit to be filed tomorrow, Friday, July 1st, 2016 against SB277 in California. I can’t show you a copy of the final version until the exact moment it is filed. I am sworn to secrecy.
This is the lawsuit I wrote about earlier.
But, There ARE some things I can tell you right now:
(1) My friend Diane Miller JD, sometime Author for the BolenReport, and the head of the Health Freedom Congress, is flying in from Minnesota tomorrow to attend, and speak at, the Santa Monica Rally organized by Wendy Silvers. She will speak on the details of the lawsuit. Go there to hear what she has to say.
(2) I can tell you the names of the attorneys involved and tell you what I know about them. You will be pleased.
(3) I can tell you the basic outline of the case – what the points are, and why the attorneys are going in THOSE SPECIFIC directions. Once again, you will be pleased.
(4) I can tell you WHY there was so much secrecy in the organization of the case – and why I agreed with that tactic.
(5) I can tell you where I think this is going.
The Attorneys: There are three named on the face page of the First Day copy of the lawsuit: Jim Turner, Betsy Lehrfeld, and Carl Lewis. Why these three? Yes, there are a lot more attorneys involved. There is a tactic, and strategy at play here. For instance Bob Moxley, of Wyoming, is playing a major role, but his name is not on the first day filing for the simple reason that the case needs his personal signatures – and he is not immediately available.
In the background are many more attorneys. There is an advisory team beyond that.
First Day Attorneys…
James S. Turner is a partner in the Washington, DC law firm of Swankin and Turner, formed in 1973. He is also Board Chair of Citizens for Health, the consumer voice of the natural health community; President of the National Institute for Science, Law & Public Policy; and President of Voice for HOPE (Healers Of Planet Earth).
In 1968, Mr. Turner came to Washington, DC to work with Ralph Nader. He wrote The Chemical Feast: The Nader Report on Food Protection at the FDA (Grossman, 1970), and co-authored Making Your Own Baby Food (Workman, 1974) and Voice of the People: The Transpartisan Imperative in American Life (DaVinci Press, 2008).
As an attorney, Mr. Turner represents consumer, environmental and public interest groups, as well as businesses and individuals, on a wide variety of regulatory and other legal matters concerning foods, drugs, health, the environment, and product safety. He has served as Special Counsel to the Senate Select Committee on Food, Nutrition, and Health, and to the Senate Government Operations Subcommittee on Government Research. He has also been a policy consultant to major corporations in the food, pharmaceutical, and telecommunications industries, including Kraft Foods, The Quaker Oats Company, Hoffmann-LaRoche, and AT&T.
Mr. Turner represented a consumer coalition that successfully opposed a Federal Trade Commission effort to ban the words “organic,” “natural,” and “health food” from commerce, and was lead attorney on a successful petition to the FDA to reclassify acupuncture needles from Class III to Class II medical devices, thereby permitting their legal importation and distribution.
He is a 1969 graduate of The Ohio State University Moritz College of Law and served as a gunnery officer in the United States Navy.
(2) Betsy Lehrfeld – Betsy E. Lehrfeld, a principal in the Washington, DC law firm Swankin & Turner, focuses on health care, health-specialty certification, and contract, corporate and tax matters for businesses and nonprofit organizations. She has appeared before the Food and Drug Administration and has served as general counsel to numerous nonprofits.
A graduate of the University of California at Berkeley School of Law (Boalt Hall), she currently serves as executive director of the National Institute for Science, Law, and Public Policy, and as a board member of Voice for HOPE (Healers of Planet Earth).
(3) Carl Lewis – Dedication to the protection of individual rights and those of small business owners has been the focus of the firm’s practice since 1985. Mr. Lewis excels in tenacious representation of clients at all stages of the litigation process including trial courts, appellate courts and the Supreme Courts of California and the United States in matters involving a variety of claims.
Admitted to Practice in the Following Courts:
United States Supreme Court, First Circuit Court of Appeals, Ninth Circuit Court of Appeals, United States District Court, Southern District of California, United States District Court, Central District of California, United States District Court, Eastern District of California, State of California, All Courts.
Based in San Diego, California, Mr. Lewis practices in the areas of civil litigation and appeals and has represented clients before a number of California appellate courts, the Supreme Court of California, the U.S. Courts of Appeals for the Ninth and Eleventh Circuits and the Supreme Court of the United States,. His practice includes representation of individuals in the areas of employment, discrimination and civil rights.
Right there behind them…
(1) Bob Moxley – I’ve not met Bob, personally, yet. I’ve just talked to him about litigation strategies for this case. California activists will remember Bob testifying at the Sacramento SB 277 legislative hearings.
Robert T. Moxley was born in Cheyenne, Wyoming and raised in Chugwater, Wyoming, the second son of a wheat farmer. Mr. Moxley attended Chugwater schools for 11 years, and graduated in 1971 from Wheatland High School, in Wheatland, Wyoming..
Bob attended the University of Wyoming and the University of Oklahoma, and graduated from OU in 1975 with a B.A. in History. He attended the Oklahoma University College of Law from 1976 to 1978, and in 1977 attended the OU College of Law summer program in Oxford, England. He obtained his J.D. in December of 1978, passed the State of Wyoming winter bar exam in 1979, and hung out his shingle in Wheatland, Wyoming, in April of 1979.
A sole practitioner for nine years at the start of his career, Bob moved to Cheyenne in 1988, and associated with Whitehead, Gage, and Davidson. In 1990 he became a principal in Gage & Moxley, with an emphasis in vaccine compensation law. The firm of Gage & Moxley dissolved in 2006, and Mr. Moxley has been a sole practitioner in the firm of Robert T. Moxley, P.C., since that time.
Bob is a member of the Wyoming Trial Lawyers Association (WTLA) and the American Association for Justice (AAJ). He is also a longstanding member of the American Civil Liberties Union (ACLU), and has pursued religious freedom litigation in association with The Rutherford Institute. Mr. Moxley has represented successful plaintiffs in medical malpractice litigation featuring brain injury, and is experienced in personal injury litigation arising from auto accidents.
He has been active since 1979 in the practice of criminal defense, and is a member of the National Association of Criminal Defense Lawyers (NACDL). He was appointed in 1982 by Wyoming Governor Ed Herschler and served for several years as an Assistant Public Defender for Platte and Goshen Counties; during his tenure he represented an innocent man charged with murder, in the matter of State of Wyoming v. Martin Frias. Mr. Frias, initially convicted, was acquitted on re-trial in 1986, after Moxley developed forensic evidence to prove that the alleged victim committed suicide. The Frias case was featured on The West, a syndicated television magazine with John Gibson on KCRA, Channel 3 in Sacramento, California, and Bob also appeared with Mike Wallace on 60 Minutes in a lead segment featuring the case. The Frias case has also been the subject of episodes of The New Detectives on The Discovery Channel, and in Forensic Files on Court TV.
Mr. Moxley has practiced in the National Childhood Vaccine Injury Compensation Program since its inception in 1988, in the U.S. Court of Federal Claims in Washington, D.C. Mr. Moxley has been personally involved in over one hundred vaccine injury cases, including omnibus proceedings where he was lead counsel. His extensive vaccine practice has led to a Civil Rights practice as well, representing parents and families in the vindication of the right to religious and conscientious objection to mandatory vaccination.
Mr. Moxley obtained reversal in the Federal Circuit of the denial of compensation to a vaccine injured child in the case that went to the United States Supreme Court as Shalala v. Whitecotton. It was the first and only Vaccine Act case to be argued before the United States Supreme Court, until Sebelius v. Cloer, currently on review in the U.S. Supreme Court. Mr. Moxley is co-counsel for the vaccine injured petitioner in the Cloer case, and guided the attorneys fees litigation that the Supreme Court agreed to review on the government’s petition.
Mr. Moxley is admitted to practice before the Wyoming Federal and State bars, several Federal District and Circuit Courts of Appeal, the United States Court of Federal Claims, and the U.S. Supreme Court. He has practiced pro hac vice in the state courts of Colorado, Nebraska, and Ohio. Mr. Moxley is a widower, and lives in the country with his Border Collies. Mr. Moxley is an “A” rated pool player and twenty-five year member of the Cheyenne Valley Pool League. He is a long-time member of the Cheyenne Airport Golf Club.
(2) Many, many more working on this case, in the background. I’ll show them to you as they appear.
The Case Outline…
Remember that I am looking at the attorney’s Draft Copy which has notes all over it. It is NOT the final copy to be file with the Court Friday, July 1st, 2016 – but close.
(1) There are FOUR Plaintiffs. One non-profit organization, and three individuals.
(2) There are TEN Defendant groups – which include the State of California Department of Health, Department of Education, three Schools Districts, and one County Public Health Department (Santa Barbara), and their employees, some named individually, and others in a group.
(3) There are, in the Draft Copy I have, THREE Counts (Causes of Action) – Violation of Constitutional Rights, Violation of California Constitution, and Violations of Federal and State Laws That prohibit Certain Uses of Medical Information.
(4) There are FOURTEEN sub-categories listed under the Violation of Constitutional Rights Count.
(5) There are EIGHT sub-categories listed under the Violation of California Constitution Count.
(6) There are FIVE sub-categories listed under the Violations of Federal and State Laws That prohibit Certain Uses of Medical Information Count.
(7) The Relief Requested has FOUR parts – a request to declare SB 277 unconstitutional, a request for injunction preventing activation of SB 277, an award of attorney fees, and other relief as the Court sees fit.
Some things you will find interesting…
(1) The arguments (sub-categories) in the Counts follow common-sense guidelines, as in:
(a)The individual Plaintiff’s children have a liberty interest in bodily integrity, and the right to be free of unconsented-to and potentially dangerous medical interventions.
(b) The individual plaintiffs, and each of them, have a liberty interest under the constitution in making the medical treatment choices for their minor children, in regulating their upbringing, in directing their education, and in exercising informed consent to medical treatment on behalf of their minor children. The individual Plaintiffs have health-related concerns regarding vaccination, including the practice of administering multiple vaccinations at once, and have acted to exempt or partially exempt their children from certain vaccines and schedules, out of concern with the known propensity of vaccinations to cause serious injuries. Plaintiffs’ medical concerns also include the fact that certain vaccine ingredients and contaminating substances present in vaccines are harmful, particularly to some children; these ingredients include aluminum, animal proteins, egg protein, formaldehyde, mercury and genetic fragments.
(c) The individual Plaintiffs have a property right in the entitlement of their children to a free public education, which right entails attending public schools, and in the alternative provides the option of purchasing education services on the open market from private sources.
(d) The individual plaintiffs, and each of them, possess a right guaranteed by the First Amendment of the United States Constitution to freely practice religion, free from intrusion by officials from the State of California, free from the application of regulatory laws or other official conduct that imposes a burden upon Free Exercise, and free from the threat of loss of public benefits, by virtue of such exercise of religion.
(d) For example, the California “mandatory” vaccination scheme conflicts in several ways with sincerely held religious belief; particularly, important vaccines including the MMR (measles mumps rubella) are manufactured from cell lines intentionally derived from aborted fetus tissue.
(e) Religious concerns for bodily integrity and purity render repugnant the injection of many of the substances in certain vaccines into the human body, contrary to sincerely held religious beliefs and practices.; prayer, and the desire for a godly lifestyle, lead many to their conscientious decisions to limit vaccination. Some individual Plaintiffs have religious concerns regarding vaccines, include the fact that certain mandatory vaccines, including the mandatory MMR, are manufactured using embryonic diploid cell lines (e.g., WI-38 and MRC-5) obtained from the abortion of a human fetus.
(f) The plaintiffs who seek exemption for reasons that do not spring from religious belief likewise have many concerns about the ingredients and circumstances of vaccinations as well; all of these concerns, religious and secular, have to do with the safety and wellbeing of the plaintiffs’ children.
(g) Certain of the named plaintiffs and/or persons represented by organizational plaintiff[s] are single working parents, or parents in two-income households, and the Amendment’s effect of forcing children to be home-schooled will interfere with the parents’ employment.
(h) Certain of the named plaintiffs and/or persons represented by organizational plaintiff[s] are not fluent in the English language, which disqualifies them from homeschooling their children under California statute.
(i) Certain of the named plaintiffs and/or persons represented by organizational plaintiff[s] are lacking sufficient education in order to be capable of homeschooling their children, as will be required when children are excluded from school for not being “fully” vaccinated.
(j) Under California law parents who are unable to homeschool their children, for lack of financial or other necessary wherewithal, will risk the loss of custody of their children for “neglect,” under the California Welfare and Institutions Code § 300.
(k) The Amendment and its ensuing regulatory scheme discriminates against poor families, who are without the ability to pay for screening of their children, and therefore less able to obtain medical exemptions on the basis of family history and other known medical concerns.
There is a Lot More…
Why was there so much secrecy? Court cases take a LOT of work to set up. There is no cookie-cutter approach. Every detail has to be thought through. This case has been months in the making.
Where is this going? I think the fun is JUST starting.
By Consumer Advocate Tim Bolen