CEB has my article about the 9th Cir. criticism of LAUSD’s belated reversal of its Covid-19 vaccine mandate, and distinguishing SCOTUS vaccine-mandate holding

Tim Kowal August 14, 2024

CEB has published my article, “Criticizing belated policy reversal, 9th Cir. holds fight over LAUSD Covid-19 vaccine mandate is not moot and distinguishes SCOTUS Jacobson ruling.” The article is a cautionary tale about being completely forthcoming at oral argument. And it suggests that theories attempting to distinguish a century-old SCOTUS opinion affirming a state vaccine mandate could be in play.

When the 9th Circuit panel asked counsel at oral argument whether LAUSD was going to reverse its Covid-19 vaccine mandate, counsel did not answer directly. Then walking out of the courthouse, LAUSD’s counsel turned to plaintiff’s counsel and said, “what are you going to do when we rescind the mandate?” And a few days later, it did just that. (”See how easy it is to be a government attorney!”)

That peeved the majority. When LAUSD moved to dismiss the appeal as moot, the panel in Health Freedom Def. Fund v. Carvalho, No. 22-55908 (9th Cir. June 7, 2024) denied the motion, and criticized counsel in the process. Mootness is often in the eye of the beholder, after all, and when it looks like you’re trying to manufacture mootness, count on it not working.

But Judge Collins, dissenting, thought the criticism unfair.

Here is the link to the full original post.

Kowal_NinthCircuitLAUSD Download

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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CEB has my article about the 9th Cir. criticism of LAUSD’s belated reversal of its Covid-19 vaccine mandate, and distinguishing SCOTUS vaccine-mandate holding

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"A judge is a law student who grades his own papers." — H.L. Mencken

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons