Opinion by Consumer Advocate Tim Bolen
What is a Preliminary Injunction Hearing?
The whole purpose of the lawsuit against SB 277 is to stop it, and its spin-off activities, from being activated.
A Motion for Preliminary Injunction is a request to the Court for an Injunction before we begin arguing the lawsuit. There will be an actual Court Hearing for this August 12th, 2016, 1:30PM in Courtroom 13A, Federal Court Building, San Diego, CA. (shown in the photo above).
What is an Injunction?
According to the Cornell School of Law it is:
An injunction is a court order requiring a person to do or cease doing a specific action. Temporary restraining orders and preliminary injunctions are temporary injunctions. They are issued early in a lawsuit to maintain the status quo by preventing a defendant from becoming insolvent or to stop the defendant from continuing his or her allegedly harmful actions. Choosing whether to grant temporary injunctive relief is a discretionary power of the court. Permanent injunctions are issued as a final judgment in a case. Failure to comply with an injunction may result in being held in contempt of court.
Getting an injunction is NOT an easy process. A US Supreme Court Decision called “Winter vs Natural Resources Defense Council” set the four-factor preliminary injunction standards that are being used today in Federal Courts.
What the court will want to be convinced of is that for the Plaintiffs:
(1) there is a likelihood of irreparable harm with no adequate remedy at law;
(2) the balance of harm favors the movant;
(3) there is a likelihood of success on the merits of the case;
(4) the public interest favors the granting of the injunction.
Now, those of you that read the case, noting how it was organized, can see that each section addressed one of these four factors – and did it very well.
But, then on top of the language in the case there was the “Plaintiff’s Motion For Preliminary Injunction” which has some interesting points of its own. Below is that language. It is short and to the point:
PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
COME NOW the Plaintiffs, by and through their attorneys, James S. Turner, Betsy E. Lehrfeld, Robert T. Moxley, and Carl M. Lewis, and move this court pursuant to Rule 65 of the Federal Rules of Civil Procedure for the issuance of a preliminary injunction, enjoining and restraining the above-named defendants, their agents, employees, subordinates and successors and all persons acting in concert with them, from the following actions:
(A) Denying the enrollment of Plaintiffs’ children into public or private elementary school or secondary schools, child care centers, day nursery facilities, nursery schools, family day care homes, or development centers, for the reason that such children are not “fully immunized” as contemplated by Section 120335 of the California Health and Safety Code as amended by SB 277.
(B) Denying the enrollment of Plaintiffs’ children into public or private elementary school or secondary schools, child care centers, day nursery facilities, nursery schools, family day care homes, or development centers, for the reason that such children have submitted a “medical exemption” to vaccination, which exemption is deemed unacceptable pursuant to Health and Safety Code section 120370(a), as amended by SB 277, or for any other reason.
(C) Denying the enrollment of Plaintiffs’ children into public or private elementary school or secondary schools, child care centers, day nursery facilities, nursery schools, family day care homes, or development centers, when such children would have been eligible for enrollment under a personal belief or religious exemption from one or more vaccinations prior to July 1, 2016.
(D) Enforcing or implementing the provisions of California Statutes in such a manner as to assume the discretion to deny medical exemptions to vaccination, made upon written application as required by Section 120370 (a) of the Health and Safety Code.
(E) Causing, by virtue of any purported exercise of statutory authority, the public schools and other public accommodations to “audit” vaccination status, and/or to deny or threaten to deny services to the Plaintiffs and other similarly situated claimants of religious exemption, personal exemption, or medical opposition to vaccination.
(F) Maintaining that previous holders of personal belief or religious exemptions to vaccination are now not entitled to be enrolled in public or private elementary school or secondary schools, child care centers, day nursery facilities, nursery schools, family day care homes, or development centers.
IN SUPPORT OF THIS MOTION, Plaintiffs state the following:
(1) The individual Plaintiffs and association Plaintiffs have filed a First Amended Complaint for injunctive and declaratory relief, seeking to remedy an ongoing infringement upon their rights under the United States and California Constitutions, and under California law.
(2) The Plaintiffs and all similarly situated parties will suffer irreparable injury, for which they have no adequate remedy at law, unless a preliminary injunction is entered, enjoining the defendants, their agents, subordinates, employees and all persons acting in active concert or in participation with them, from denying enrollment of the children of Plaintiffs and other similarly-situated parties in public or private elementary or secondary schools, child care centers, day nursery facilities, nursery schools, family day care homes, or development centers.
(3) There is a substantial likelihood that Plaintiffs will prevail on the merits of their pending Complaint.
(4) There are sufficiently serious questions going to the merits to make them fair ground for litigation.
(5) The balance of hardships tips decidedly toward the Plaintiffs.
(6) A memorandum of points and authorities in support hereof is filed of even date.
(7) No bond should be required of Plaintiffs because Defendants would incur no additional expense from the relief sought herein of restoring the status quo ante.
(8) Counsel for Plaintiffs has conferred with counsel for Defendant California Department of Public Health and requested that Defendants voluntarily stipulate to a stay of the actions sought to be enjoined herein pending resolution of this matter on the merits and Defendant refused to enter into such stipulated stay. Set. Declaration of James S. Turner, Esq. attached as Exhibit A.
Conversations With the Defendant’s Attorney…
Attorneys for both sides talk to each other. Just below is a record of some of those conversations. I am including it so you can see behind the curtain, so-to-speak. It is this, from lead attorney Jim Turner:
(6) I am lead counsel for the plaintiffs in this action.
(7) On July 1, 2016 I and my co-counsels filed a complaint in this action for injunctive and declaratory relief, a motion for a temporary restraining order, and a memorandum of points and authorities in support of the motion, seeking an immediate stay of the implementation of SB 277.
(8) On that same date I spoke with California Deputy Attorney General Jonathan Rich, who has since noticed his representation of defendant California Department of Public Health and Dr. Karen Smith, its director.
(9) Attorney Rich and I discussed the possibility, and Attorney Rich emphasized that it was only a possibility, of a stipulation in which the state would consider agreeing to limit enforcement of some narrow aspects of SB 277, in order to resolve the issue of the temporary restraining order.
(10) On July 5, Attorney Rich requested by email that plaintiffs enter into a stipulation that his client have until July 15 to file a responsive pleading to plaintiff’s motion and that the parties ask the court to set a hearing date of July 18.
(11) On July 5, the court denied plaintiffs’ motion for a temporary restraining order.
(12) On July 7, I sent a letter to Attorney Rich by email, setting forth the plaintiffs’ requests for a stipulation agreeing to a stay of implementation of SB 277 pending a determination of the case on the merits or in the alternative an expedited briefing schedule for a motion for preliminary injunction. A true and correct copy of that letter is attached hereto as Exhibit 1.
(13) On July 11, Attorney Rich denied plaintiffs’ requests for a stipulated stay and expedited briefing schedule.
Memorandum of Points and authorities…
You can read the whole document by clicking on the red button above an to the right labled “SB277 Court Docs.” But for simplicity I am including a few excerpts. See just below:
In a few short weeks, all California students will be returning to classrooms, except some students with previously-valid Personal Belief Exemptions (“PBEs”) to California’s school vaccination requirements, and those who would have exercised PBEs. Effective July 1, 2016, Senate Bill (“SB”) 277 permanently bars these children from every public and private school in the State, in a dramatic and unprecedented departure from California’s long-standing history of unwavering protection of every child’s right to an equal education. Without injunctive relief, in SB 277’s first year of implementation alone, approximately 33,000 children, including many with disabilities, are barred from classrooms and deprived of an equal education or, for some children, any education at all. Every day throughout the State, schools are closing their doors to children who want and deserve to go to school, depriving them of fundamental rights and subjecting them to severe humiliation, prejudice, stigma and emotional distress.
How about several thousand people on the Courthouse Steps August 12th?…
Opinion by Consumer Advocate Tim Bolen