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Announcer 0:03
Jeff, welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis,
Jeff Lewis 0:17
welcome everyone.
Tim Kowal 0:18
I am Jeff Lewis and I'm Tim kowal AS certified appellate specialist, both Jeff and I face a lot of unusual problems that come up at Trial and Appeal, and in this podcast, bringing you recent cases and guests, we expose you to the unusual. So if you find this podcast helpful, please recommend it to a colleague. Yeah,
Jeff Lewis 0:34
if you don't find it helpful, send us an email. Let's get you on a guest, and we can make it more interesting.
Tim Kowal 0:39
All right, Jeff, it's time for some some recent cases and news we've got. We're now in the middle of June, 2024 and there are a couple of cases that have come down the pike that I thought it were worthy of talking about and making our audience aware of if they're not already the first one is out of the Ninth Circuit, and it concerns the vaccine, the covid vaccine mandate. The case is health freedom Defense Fund versus Carvalho. It involves the LA united, Unified School District and the LAUSD had issued a vaccine mandate for the covid vaccine, requiring its employees to get one. It imposed the vaccine mandate. The plaintiffs sued, and then the LAUSD backpedaled on its mandate, and so the case was dismissed as moot. But then sometime later, the LAUSD reimposed its mandate, and plaintiffs sued again, and this time, the case was dismissed on grounds of Jacobson versus Massachusetts. Now for those who are not aware, Jacobson versus Massachusetts is the only United States Supreme Court case that has dealt with a vaccine mandate. That's a 1905 case. It even predated our modern tiers of scrutiny. So it's not even quite clear exactly what, what level of scrutiny would apply. Yeah, it's
Jeff Lewis 1:51
a venerable old case. Go ahead, yeah,
Tim Kowal 1:53
that's right, that's that's the word we use in in constitutional law, not old, just venerable, right? So it's a venerable case. That case involved the smallpox vaccine, and Massachusetts had imposed a smallpox vaccine mandate, or if you don't take it, face a $5 fine. The district court dismissed the case on the basis that it was barred under Jacobson, but the Ninth Circuit reversed, and there are a couple of interesting things, or an interesting mootness question before it got to the merits. So as I had mentioned, Jeff LAUSD had first imposed the mandate, then backed off of the mandate, then reimposed the mandate. And so at oral argument, the panel asked the LAUSD Council, Council, is this case you know? Are you going to is your client going to back off of the mandate again, and counsel said, basically, we vigorously defend the constitutionality of this mandate. And I can't say anything beyond that, because it's not in the record. And then reportedly, there was outside of the courtroom. As soon as oral argument finished, plaintiff's counsel submitted a declaration stating that LAUSD council had turned to him and said, So what are you going to do when we repeal the mandate that got in front of the panel after the oral argument? The majority was not happy about it. Felt that LAUSD was engaging in gamesmanship, and so when LAUSD filed a motion to dismiss the appeal as moot when it did, in fact, repeal the mandate before the decision came out, the majority panel said, No dice. This is basically Jeff. I'm not a federal court mootness expert, but I remember from law school the doctrine capable of repetition yet evading review, and that's what it sounded like to me here. There was no indication that the that the policy the LAUSD couldn't just reimpose the mandate, especially since it repealed based on the currently low case rate. And so if the if the case rate were to spike up again, there was nothing stopping LAUSD from reimposing the mandate. So I thought the panel could have just found lack of mootness on that ground. But instead, the panel took the opportunity to tear in to LAUSD Council and engaged a bad faith and engaging in the LAUSD had repealed its mandate based on litigation tactic. What's your hot take on that mootness conclusion? Jeff,
Jeff Lewis 4:17
well, a few thoughts. First of all, it's always makes me uncomfortable when things that happen outside the record are brought in to consideration in an appeal. And if I understand the procedural posture of this case correctly, the LAUSD brought a motion to dismiss the appeal, which presumably was supported by declaration, and then the other side submitted a declaration saying, Hey, this is what the school district's council said to me on the way out the door. If LAUSD had not filed a motion to dismiss that declaration about the outside of the door, conversation never would have been in front of this panel, and I don't know if absent litigation tactics, there would have been enough to revive this lawsuit. So I wonder if this motion to dismiss at. The end of the day kind of backfired. I also note that I think this was decided by three judges, maybe en banc, the Ninth Circuit, perhaps might come to a different result. Yeah,
Tim Kowal 5:09
that certainly remains to be seen. This panel was Judge Nelson and judge Collins writing in the majority. They're both Trump appointees. And dissenting was Judge Hawkins, who is a George HW Bush appointee, I believe he's a longtime judge on the Ninth Circuit. He did not agree on the mootness point. He felt that the case was moot and it should be dismissed on that basis. Kind of agreed with some of your sentiments there. Jeff that, and felt that there was not evidence that this record was not sufficient to support a finding of bad faith by LAUSD or its Council. That this could be explained by simply not being aware of what LAUSD was going to do, because the board had not yet taken up a vote on that question, and it was nearing the beginning of the school year, so it was natural to expect that that would be the time that the board would take up the question, it happened to fall after oral argument. Again, the majority felt that the timing was was too coincidental to be believed, because it was just I believe 12 days after the oral argument, and it was the day after the oral argument that the that the discussions convened, and the oral argument audio was played during the discussion, so the board was acutely aware of the litigation and what the and trying to anticipate what the Ninth Circuit might do. So all of that fed into the decision that this was a was the decision was based on litigation, and on that basis was not moot, and I think all that may be valid, but I just didn't think that it was, it was fair to I thought it was maybe going a little too far to suggest that council was engaging in bad faith at oral argument.
Jeff Lewis 6:49
Yeah, no, yeah. I share those concerns. Let me and let me say this, putting aside the contents of the opinion. I've seen a lot of posts on social media from those folks who are, let's just say, suspicious of government and the restrictions and the vaccines and celebrating this decision. And I didn't, I don't really understand the celebration that one of the key passages in this opinion is we must accept plaintiff's allegations that the vaccine does not prevent the spread of covid 19 as true, and assuming it's not really a vaccine. It doesn't do anything to prevent the spread. They had to reverse the dismissal given that allegation, I'm not sure I understand the exuberance and excitement of some of the folks who are cheering this decision on,
Tim Kowal 7:33
right well, and just to cover a little bit of the merits portion of the decision, what had happened here is the plaintiffs argued in their complaint that they anticipated Jacobson. The Jacobson holding says that that basically a vaccine mandate is within the state's police power, and even though that that case predated the tiers of scrutiny it, I think experts anticipate that it's probably going to be reviewed under rational basis review and not strict scrutiny, although the that that's still to be determined that there are some hints about whether that the tier of scrutiny may be ratcheted up a bit based on how the legal arguments are presented. But the basic legal theory that the plaintiffs presented here is that the covid vaccine is not a true vaccine, in the sense that traditional vaccines provide immunity, whereas the covid 19 vaccine is more directed at mitigation of symptoms, but does not really prevent spread, is not, does not provide traditional immunity. And the plaintiff reasoned that Jacobson's the Jacobson upheld the validity of the smallpox vaccine mandate because that prevented the spread and that helps the community, whereas the covid 19 vaccine presents while it presents individual benefits, that does not present the same kind of community benefits via immunity. And as evidence of that, it pointed to the CDC change of definition of vaccine to strike the word immunity from the definition, and says, Well, this is not this is a vaccine in name only. So Jacobson doesn't really apply, because that precedent only applies to traditional vaccines. And the panel, as you said, Jeff said, Well, based on the well pleaded allegations, we have to accept that as true. It has to be minimum plausible, so that is at least a low a low hurdle. It can't, you can't just plead anything. It has to be at least plausible in the and the majority felt that it was plausible enough to go forward. But you're right, Jeff, that some journalists have trouble reading law, and so they are reporting that the Ninth Circuit has found, has has held that the covid 19 vaccine is not a real vaccine, which is not the upshot of this opinion at only the pleading stage. Yeah, in
Jeff Lewis 9:44
addition to journalists, there's a couple folks on the internet who fancy themselves lawyers. They've got access to Google Scholar, and they think that's all it takes. Yeah? And
Tim Kowal 9:53
the panel did, the majority? Did, you know, go out of its way, as they normally do on a. An appeal from a pleading motion, a motion to dismiss to say we this is not a decision on the merits. This could still go either way. We are only saying that it cannot be adjudicated on a motion to dismiss. Yeah, yeah, stay tuned. Okay, let's get to the next case. We're going to talk about arbitration, Jeff the the enemy of appellate lawyers everywhere, because it takes things out of real court. Why
Jeff Lewis 10:23
wouldn't you just do private judging? If you're gonna, if you wanted to get out of the arbitration business, go do a private judging, you still have the right of appeal, and appellate lawyers could still eat, yeah, that's
Tim Kowal 10:33
right, we should. And just to reprise our evergreen advice in your arbitration agreements, put in there a right of appeal that way it keeps Jeff and me in business. Okay? The case we're going to discuss is Hernandez versus Sonnen enterprises, which held that a late payment of your arbitration fees does not defeat arbitration despite there being a California Arbitration Act Rule to that effect, because that rule is preempted by the Federal Arbitration Act. And this is a split decision of the second district, Division five, and in dissent, Justice Jackson indicates states this the majority's opinion, rather obviously, invites a grant of review. So basically what happened here, Jeff is that this happens not not well, more than rarely, but if you ever miss an arbitration, payment has to be made in 30 days. And if you are ever, if you're just one day late, then your right of Arbitration can be revoked and you get sent back to the Superior Court. And what the majority reason here is that under the FAA. FAA has what's what's known as an equal treatment principle, which means that agreements to arbitrate enjoy no more or less respect than other agreements. They're enforceable just as other contracts. And that equal treatment principle is meant so that courts don't say, Oh, well, that's a that's just an arbitration agreement. We don't we like to construe those very narrowly because we don't like arbitration. That's why the FAA had imposes equal treatment principle to make sure that they're not given unequal treatment. But you can't give them more than equal treatment either, and that's what the California Arbitration Act does in go to civil procedure section 1281, point 97 and that that section creates a special waiver doctrine that applies only to arbitration agreements. And it says that if you ever fail to pay an arbitration fee within 30 days, then that is automatically deemed a material breach and a waiver of your agreement. Well, that waiver concept doesn't apply in other agreements, and so that violates the equal treatment principle under the FAA, and being inconsistent with the FAA, it is invalid. Held the majority. Any thoughts on that? Jeff, no, you
Jeff Lewis 12:50
learn something new every day. I had no idea about that strict state rule, and I'd never heard of a motion to withdraw a case from arbitration go back to the Superior Court. So maybe as an appellate lawyer, I just kind of buried my head as to that arbitration procedure well,
Tim Kowal 13:06
that that appealability question is a good one, that that Justice Baker makes also in his descent, where he says that, hey, look, this was an order granting a motion to withdraw from arbitration. I've never heard of that being an appealable order. And appealability is defined by statute. So point me to a statute or get out of here. This is not appealable, and that's a good point, although majority could have just reached the same result by treating it as a writ, yeah, yeah. So I'm not I'm not sure how far that goes, but it's a good point of procedure. Justice. Baker was not taken with the Equal Treatment principle, but as he said, This is ripe for review. So I would, we'll keep a bookmark on that and see if the if the California Supreme Court grants review in this case. Yeah, okay. And then the last case that I wanted to cover Jeff before we get to the the Supreme Court, mifepristone ruling this week is about one 70.6 challenges to disqualify judges. The the recent case is Lorsch versus Superior Court, and in that case, it involved a weird local rule of the San Diego Superior Court. And most, most trial attorneys probably know about this master calendar rule that says that if you normally you get you get 10 days to make a peremptory challenge. But if you are on a in a master calendar court, you basically have to make that challenge immediately. As soon as you're assigned to a judge for trial, and San Diego Superior Court got this bright idea to have a rule that deems every judge to be a master calendar judge. So basically, as soon as you are assigned to a judge, you have to make your challenge immediately. And the the appellant in this case or the petitioner in this in Lorsch case, filed the peremptory challenge pretty much, like, like, a day or two later, I think, got noticed by via phone call, via a voice message from the clerk, and on a on a Friday afternoon, they. Made their challenge. They filed their challenge on Saturday, not that anyone at the court would read it over the weekend, but wanted to do it immediately, and the judge still said, No, it's too late. And then also made this kind of jeering comment at Council the next at the next appearance, after having read the one 70.6 and said, quote, I need to hear from plaintiff's counsel about why they dislike me so much. That's not a very kind of undermines the judicial temperament there. The The Court of Appeal said, look, they filed their their their challenge in time, and even if they hadn't this local rule that deems every judge to be a master calendar judge to defeat the ordinary rules under one 70.6 that conflicts with the statute and a local rule may not alter the true meaning of a statute. And I become aware, Jeff that, via Professor Sean Martin, that San Diego Superior Court has already changed its rule, and in fact, did so a month before the decision came out those kind of circles back to our mootness. Discussion. Was this case moot because the policy, the local rule at issue, had already been changed because of the the as applied issue? I think it was not moot, but, but just a topical it brings, brings our discussion full circle. Yeah,
Jeff Lewis 16:20
yeah, you did miss the most important aspect of this opinion you haven't recited, and that is following the issue issuance of the original opinion, the court decided not once, not twice, but three times, to delete the parenthetical notation cleaned up from the final opinion. So the original opinion had three notations of cleaned up and then the final for publication, it cleaned up, those cleaned up references, and those cleaned up references no longer appear outrageous. I
Tim Kowal 16:48
do remember you mentioned that. What was that? This? This opinion? Yeah, yeah, that was Lorsch, yeah. I was taken aback by that, that the the original opinion remind me that the original opinion was, was was it also published, or was this in the publication order that they made these changes? Yeah,
Jeff Lewis 17:05
I'm not sure. I'm not, I'm not sure. All I know is somebody decided that cleaned up needed to be cleaned up,
Tim Kowal 17:11
yeah, and deliberately went through. I think those were the only changes, just about the only changes in the in the opinion, and went through and, yeah, struck out all of the cleaned up, and instead went back and, I guess, made some, maybe made changes to the verbiage. Dirty did dirtied up the verbiage. That's right, yeah, uncleaned it up. It's, it's now the the published and untidy opinion in Lords versus Superior Court, yes,
Jeff Lewis 17:35
requires a notation, untidy in original Yeah. And
Tim Kowal 17:39
to reiterate, in our long running debate on cleaned up, I have no problem when, when judges do it, when, when appellate judges do it. In fact, that's how I prefer it. Prefer it now I, you know, if it's cleaned up, then I can just cite it that way, and I don't have to, you know, I have this little macro Jeff on my stream deck that turns all the straight quotes into curly quotes. But then when there are multiple embedded quotation marks, sometimes it word doesn't know how to do them, and they still get backward and and I struggle, should I put spaces in between? You know, the double quote and single quote, double quote, just so it's clear to the eye that these are three embedded quotations. It's it's just a mess. So I would welcome appellate courts publishing decisions that clean up those quotations. All right, Jeff, let's get to the methopristone case. Yeah,
Jeff Lewis 18:29
I call it the abortion bill case because I can't pronounce that word. We don't do politics on this show. But super interesting decision that came out by the Supreme Court on june 13, interesting for a number of reasons. First of all, it's unanimous, nine, zero. Second of all, it has to do with a very controversial topic, abortion. And most women in America who may get an abortion get it through this pill very controversial. And not only is it unanimous, but it was completely disposed of on procedural grounds, saying that the doctors in this case who brought the challenge to the approval of this pill don't have standing because none of them prescribed the pill, none of them made a credible case of showing that they have to treat people who take this pill, because there's laws that allow a doctor to abstain from treating someone if they have religious or other beliefs about about the pill. So the thing that I found super interesting, in addition to being nigh and nothing on the merits, no snarky footnotes, no snarky concurrences or dissents, is that there was no reference to the Comstock Act. And the Comstock Act is something that's brought up a lot during oral argument. It's this older law that basically says, Hey, you can't send obscene materials through the US mail. And there's some arguments out there that perhaps this old law could be used to ban nationwide the mailing of the abortion pill. And so when this was brought up during oral argument, everybody thought, if it wasn't, at least going to be decided on this basis, at least some of the folks on the conservative side would drop a footnote forecasting or hint. Saying that that would they would be receptive to such an argument, or, on a liberal side, suggesting why that argument wouldn't fly. It was nothing totally silent, which suggests to me, perhaps, after the Dobbs decision, perhaps the Supreme Court is feeling a little shell shocked and doesn't want to take the heat of another abortion decision. They just really nine, oh, issued a lengthy decision about standing. That's the only reason I want to bring that case up. Yeah, well, I
Tim Kowal 20:25
think, I think that's partly true that, well, I thought the purpose of the majority's purpose in Dobbs was to get the Supreme Court out of the abortion business. And so, yeah, I'm not, not surprised that the conservative justices didn't want to take up the Comstock Act, although it may have done so to say, I don't know why they couldn't get a majority to agree that, yeah, that that argument doesn't fly. But someone didn't, didn't want to go along with it. Maybe that's the, you know, that's the price of getting a unanimous opinion. Yeah, yeah.
Jeff Lewis 20:56
One other interesting thing of note, typically, Supreme Court decisions don't include a roadmap or instruction manual to Hey guys, you lost this case, but if you want to do it again, here's how you would successfully do this case. There's a paragraph where the Supreme Court basically described here's what a declaration needs to say from the doctors to have standing in this case that I'm a doctor. I treated this patient. It was related to the use of this abortion medication. It violated my religious beliefs, and here's why, federal law doesn't protect me from stepping back because of my religious beliefs. Really laid it out. It's just it was unusual for me to read an instruction manual within a Supreme Court opinion. Yeah,
Tim Kowal 21:41
yeah. I was left surprised after reading. I just read the syllabus in this one, but I was left surprised that that the Fifth Circuit had found that there was standing, because I, to the extent that I could understand any of the creative arguments for standing, they they didn't seem strong to me. Yeah. And then I'm
Jeff Lewis 21:59
not throwing you a curveball. Tim's not in our notes, so I'm just gonna throw one curveball. I'd be remiss if I didn't bring up this other story about a little case going on in Fulton County, Georgia, not involving a former president. There's a video making the rounds of a criminal trial going on in Fulton, Georgia and a prominent criminal defense attorney videos of him trading barbs with the trial judge, and the issue that they were trading barbs about related to allegedly, this judge overseeing a criminal trial met in private with a key witness and the prosecution, and no member of the defense was there. No member of the defense was notified, and all of a sudden, this witness, who was reluctant to testify, all of a sudden, became willing to testify in this criminal case. And so this, this criminal defense attorney. His name's Brian Steele. Nerves of steel, found out somehow about this meeting, and he called the court out on the carpet, in public, on this videotape trial, and says, Judge, how could you do this? And the judge says, Forget. How could I do this? How did you find out what happened to my chambers. What happens in my chambers is secret, and we go back and forth, back and forth, until the judge says, you tell me who told you? Judge and attorney, Steele says, Nope, I'm not going to tell you. Held in contempt. He was taken away, held in contempt. Ultimately, he was brought back out and told he could serve contempt on weekends until he discloses his source. And ultimately, Steel's wife filed a petition with the either court of appeal or the Georgia Supreme Court, and was able to get out on bond until this issue could be looked at a little closer. But boy, having a all sorts of things about this come to mind a secret meeting in the judges chambers, somebody leaking it, and a defense attorney in the middle of a high profile criminal murder trial being taken away in handcuffs. Unbelievable. Did you watch these videos? Tim,
Tim Kowal 23:43
no, I've got a bookmark to watch it, but I but just looking at the summary of the case and hearing your summary just now, I was gobs backed by this story, and I appreciate Mr. Steele's willingness to stick to his guns there, and I would, I would happily file an amicus brief or do whatever I can to you know, you can't throw us all in jail. You know, that sort of mentality.
Jeff Lewis 24:04
In fact, he had, I guess, like 25 other lawyers. I don't know if they were from his office or from a related office or something, but apparently there were 25 lawyers in the hallway waiting to back him up and argue further on his behalf. But one other footnote to this story, this is an ongoing trial. He's got to prepare his case, he asked the judge, or the judge agreed, Your Honor, could I be housed with my client over the weekend so I can help him prepare for trial, continue working throughout the weekend from jail? The judge said, Okay, well, yeah, I'll talk to the sheriff about that. So he's not all bad. Tim, there's
Tim Kowal 24:35
always a silver lining, isn't there? Yeah, that, yeah, that. Again, gobs backed by that. I hope that there is a good app. I hope that, do you? Do you anticipate, Jeff, that the Court of Appeals there in Georgia is going to step in and bring some order to this chaos? Yeah.
Jeff Lewis 24:49
So first of all, for some procedural rule, the California the Georgia Supreme Court grabbed jurisdiction from the appellate court. There's some rule that says anything basically touching a murder case has to go to the Supreme Court. And the Georgia Supreme Court by granting bond, or the Super cedious, I think, has hinted which way they are leaning, and I suspect they will act quickly in this case. Yeah, is
Tim Kowal 25:08
there anything that you read in the story, Jeff, that that shines a light on the prosecutors? I mean, what the judge did was, I mean, that's the main story, but the prosecutors, I mean, these are Brady violations, or, I don't know if, in state court, it's a different, different name for the violation. If there's exculpatory evidence, or if there's relevant witnesses, they have to be disclosed, and the prosecutor is liable for that as well, for that violation. I mean, again, the judge, for the judge to have gone along with this and then to double down and throw the throw. The defense attorney in jail for it is the main story. But, prosecutors, I think, need to protect, uh, protect a good name as well. Yeah, I
Jeff Lewis 25:44
haven't seen anybody cover that angle, uh, but it's a huge conflict between a lawyer's professional duty not only to zealously, uh, protect their client, but also to keeping confidence anything you learn during the representation of a client, there's that they have duties of candor and professionalism to the court and to the tribunal. Yeah, it's a tangled mess that that case. If you want to watch these videos, by the way, go to Twitter or X, whatever it's called now, and and put in the search term Brian Steele and contempt, and you'll see some videos that will
Tim Kowal 26:15
blow your mind. Yeah? Well, again, these, the judge will have immunity. So I hope that the Supreme Court uses brings to bear whatever weight it can to make sure this judge does not try this again. Yeah,
Jeff Lewis 26:30
I concur. I offer a concurring opinion, sir.
Tim Kowal 26:33
Okay, all right, well, that's going to wrap us up for this week. If you have any suggestions for future episodes or guests that we should have on the podcast, please email us. You can email either Jeff or myself or email us at [email protected] in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial. See you next time
Announcer 26:54
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