COVID-19 testing and vaccinations

Court Erred in Dismissing Challenge to L.A. City Employee COVID Vaccine Mandate

From Wednesday’s California Court of Appeal decision in Firefighters4Freedom v. City of L.A., decided by Justice John Segal, joined by Justice Dennis Perluss (read the opinion itself for much more, and there’s also a discussion of a constitutional right to privacy claim that I will blog about separately):

“Judicial notice is a judicial short cut, a doing away, in the case of evidence, with the formal necessity for evidence, because there is no real necessity for it. So far as matters of common knowledge are concerned, it is saying there is no need of formally offering evidence of those things, because practically everyone knows them in advance, and there can be no question about them.” “‘Courts take judicial notice of those things which are common knowledge to the majority of mankind, or to those persons familiar with the particular matter in question. But matters of which courts have judicial knowledge are uniform and fixed, and do not depend upon uncertain testimony; as soon as a circumstance becomes disputable, it ceases to fall under the head of common knowledge, and so will not be judicially recognized.'” …

In granting the City’s request for judicial notice, the trial court … took judicial notice that the “COVID-19 vaccinations are safe and effective in protecting the health and safety of the public,” although the court did not explain what it meant by “safe” or “effective.” And the court took judicial notice the medical and scientific community had reached a consensus COVID-19 vaccination is a reasonable method to reduce the spread of the disease during the pandemic, as well as of similar statements. But because the sources cited by Firefighters4Freedom, and even some of the documents the City asked the court to judicially notice, reflected reasonable disputes about these factual statements, the trial court erred in taking judicial notice of them.

Firefighters4Freedom identified several sources that disputed the efficacy of the COVID-19 vaccines in preventing the spread of COVID-19, particularly in light of the Omicron variant. In its complaint Firefighters4Freedom cited a federal agency document published in November 2021 stating that “‘the duration of vaccine effectiveness in preventing COVID-19, reducing disease severity, reducing the risk of death, and the effectiveness of the vaccine to prevent disease transmission by those vaccinated are not currently known.'” Firefighters4Freedom also alleged both vaccinated and unvaccinated individuals have tested positive for COVID-19, including over 100 City firefighters and a Los Angeles County supervisor…. Firefighters4Freedom also cited the City’s exhibit 11, a CDC document from December 2021, which stated that “‘anyone with Omicron infection can spread the virus to others, even if they are vaccinated or don’t have symptoms.'” That document also stated: “We don’t yet know how easily [the Omicron variant] spreads, the severity of illness it causes, or how well available vaccines and medications work against it…. More data are needed to know if Omicron infections, and especially reinfections and breakthrough infections in people who are fully vaccinated, cause more severe illness or death than infection with other variants…. [B]reakthrough infections in people who are fully vaccinated are likely to occur.” And the City’s exhibit 2, “COVID-19: Vaccines to prevent SARS-CoV-2 Infection,” also questioned the ability of the COVID-19 vaccines to limit the spread of disease following the emergence of the Delta and Omicron variants.

In addition, the documents the trial court judicially noticed referred to at least two types of vaccine efficacy: the vaccines’ ability to reduce the spread of infection and their ability to reduce the severity of disease. For example, exhibit 4, a publication on the CDC website from November 2021, “Interim Public Health Recommendations for Fully Vaccinated People,” stated that “COVID-19 vaccines are safe and effective at preventing infection, hospitalization, and death.” And as stated, exhibit 11, the CDC document from December 2021, “Omicron Variant: What You Need To Know,” acknowledged the vaccines were less effective in preventing the spread of disease caused by the Omicron variant, but stated that “[c]urrent vaccines are expected to protect against severe illness, hospitalizations, and deaths.”

On the issue of the COVID-19 vaccines’ safety, the documents the trial court judicially noticed repeatedly stated the vaccines were “safe,” but they also acknowledged “common side effects” and “rare” but “serious safety problems.” And exhibit 1, the CDC publication “Safety of COVID-19 Vaccines,” stated the “CDC continues to closely monitor the safety of COVID-19 vaccines.” While the trial court could have taken judicial notice of the fact the COVID-19 vaccines satisfied the FDA’s safety standards for approval, it is unclear what the trial court’s use of the term “safe” meant in the context of evaluating whether Firefighters4Freedom alleged sufficient facts to constitute causes of action. For example, that COVID-19 vaccines are “safe” could mean they are safe for most people who receive them, for all people, or for some group of people.

More generally, the documents the trial court judicially noticed acknowledged that the virus that causes COVID-19 continues to evolve. Exhibit 5, a CDC publication titled “Variant Proportions,” stated that “SARS-CoV-2, the virus that causes COVID-19, is constantly changing and accumulating mutations in its genetic code over time” and that “new variants [were] expected to emerge.” Exhibit 4 recommended a certain testing regimen for vaccinated people “[b]ased on evolving evidence.” Exhibit 11, the December 2021 CDC publication, stated: “Scientists are working to determine how well existing treatments for COVID-19 work. Based on the changed genetic make-up of Omicron, some treatments are likely to remain effective while others may be less effective.” This CDC publication also stated: “Scientists are currently investigating Omicron, including how protected fully vaccinated people will be against infection, hospitalization, and death.”

Given the conflicting information and claims submitted by the parties about the COVID-19 vaccines’ safety and efficacy, including conflicts created by the documents the trial court judicially noticed; the continuing evolution of the virus that causes COVID-19; and the ambiguity of the terms “safe” and “effective”; the trial court abused its discretion in granting the City’s request for judicial notice. The facts the City submitted were not subject to judicial notice because the safety and efficacy of the COVID-19 vaccines are subjects of reasonable dispute and are not universally known, commonly known, or readily ascertainable and require the presentation of evidence, either on summary judgment or at trial. The scientific evidence may weigh, even heavily, in favor of one side or the other, but these issues cannot be decided on the pleadings, whose allegations we must accept as true, or a request for judicial notice, whose exhibits create factual conflicts that require evidence to resolve….

In arguing the trial court properly took judicial notice of the COVID-19 vaccines’ safety and effectiveness, the City relies on Brown v. Smith (Cal. App. 2018), which … took judicial notice of “‘the safety and effectiveness of vaccinations in preventing the spread of dangerous communicable diseases, a fact that is commonly known and accepted in the scientific community and the general public,'” as well as several documents published by the CDC and other government agencies. The vaccines at issue in Brown were mandated by state law for school children against diphtheria, hepatitis B, haemophilus influenzae type b, measles, mumps, pertussis (whooping cough), poliomyelitis, rubella, tetanus, and varicella (chickenpox), which an Assembly Committee report deemed “preventable diseases.” The plaintiffs in Brown opposed the defendants’ request for judicial notice, but offered no evidence or authority supporting their opposition….

Citing … Southern California Edison Co. v. Industrial Accident Com. (Cal. App. 1925), the court in Brown stated: “‘Where the issue pertains to medical or surgical treatment, the nature, effect, and result of which are the subjects of common knowledge, such matters are within the rule of judicial knowledge. As for instance, the court will take judicial notice of the nature, purpose, and effects of vaccination.'” … [But] the reference to the effects of vaccination in Southern California Edison concerned the smallpox vaccine, which a case cited by the court in Southern California Edison acknowledged had been required in some parts of the world since 1807, was “required in nearly all the armies and navies of the world,” and was compulsory for school children in all but a few states and cities in the United States. No such history supports judicial notice of the safety and efficacy of the COVID-19 vaccines.

The court in Brown also cited McAllister v. Workmen’s Compensation Appeals Bd. (Cal. 1968) and Gould v. Maryland Sound Industries, Inc. (Cal. App. 1995) for the proposition that a court may take judicial notice of scientific facts. McAllister and Gould are distinguishable as well. The court in McAllister took judicial notice of the fact that “smoke is visible, and that, as a matter beyond scientific dispute, smoke is visible precisely because it contains incompletely oxidized materials.” The court found this fact was “common knowledge” and readily ascertainable by reference to a dictionary or an encyclopedia.) Gould did not concern any scientific facts (it addressed whether a court could take judicial notice of an employment contract), and the court in that case merely stated that section 452, subdivision (h), gives a court authority to take judicial notice of “facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.”

In stark contrast, the documents and facts the trial court judicially noticed here did not create or reflect a consensus among experts and specialists regarding the safety and efficacy of the COVID-19 vaccines, and those facts are not “readily ascertainable” by reference to “treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.” Thus, neither Brown nor the cases it cited support taking judicial notice of the safety and efficacy of vaccines in general or of the COVID-19 vaccines in particular.

Moreover, the City never identified the “statistics about the vaccines and the ongoing COVID-19 pandemic” it wanted the court to take judicial notice of, and the court never identified which parts of the documents contained facts the court believed were subject to judicial notice…. There undoubtedly are facts concerning COVID-19 and the actions by federal, state, and local government agencies regarding the pandemic that are subject to judicial notice. For example, the court likely could have taken judicial notice of the existence of federal agency documents stating the vaccines are safe and effective for certain applications. But neither the City’s request for judicial notice nor the scope of the trial court’s order granting that request was limited to such facts….

Courts will ordinarily uphold an ordinance enacted under a city’s police powers if the ordinance satisfies two requirements: (1) “‘it is reasonably related to promoting the public health, safety, comfort, and welfare'” and (2) “‘the means adopted to accomplish that promotion are reasonably appropriate to the purpose.'” …

The vaccine mandate states its objective is “to protect the City’s workforce and the public that it serves” by reducing the risk of unvaccinated employees “contracting and spreading COVID-19 within the workplace” and “to the public that depends on City services.” … The propriety of the vaccine mandate … turns on the second part of the test: whether the mandate is “a rational curative measure” to accomplish its objectives….

As stated, Firefighters4Freedom alleged that the vaccine mandate “is not reasonably related to promoting public health and that the means used is not reasonably appropriate” in part because “the spread of the Omicron variant shows the COVID-19 vaccines do not prevent people from contracting or transmitting COVID-19.” Assuming, as we must, the truth of those allegations, the “‘constitutional facts'”on which the validity of the vaccine mandate depends are in dispute. Thus, the trial court erred in ruling as a matter of law that Firefighters4Freedom failed to allege sufficient facts to constitute a cause of action for declaratory relief on this theory….

The City argues that “[c]ompulsory vaccination falls squarely within the police power of a State and its local authorities” and that “[c]ourts consistently have held that vaccination mandates are a permissible use of state power to combat public health emergencies.” That may be true, at least for the first part of the test to uphold a measure under police powers. But the cases the City cites, which concern mandates for different vaccines upheld in different circumstances, do not show as a matter of law the vaccine mandate in this case is reasonably appropriate to accomplish its objectives. Four of the cases the City cites, … concerned compulsory smallpox vaccinations, and the Supreme Courts in [two of the cases] discussed the smallpox vaccine’s lengthy history of success in preventing disease….

Of course, after the parties have had an opportunity to take discovery and submit evidence, these cases (and others, including some of the cases cited by the concurring and dissenting opinion) may support the conclusion the City had the authority to issue the vaccine mandate. But, again, that is not an issue to be decided on these pleadings….

[T]he federal court cases cited by the concurring and dissenting opinion dismissing challenges to various vaccine and mask mandates were decided under federal pleading standards, which are “significantly different” and more stringent than California pleading standards…. [I]n contrast to federal law, California law requires a court “to deem as true, ‘however improbable,’ facts alleged in a pleading” … [And] while the federal rational basis test for substantive due process challenges under the United States Constitution and the state law test for police powers challenges under the California Constitution are similar, they are not the same. For example, in its most recent application of the rational basis test, the United States Supreme Court stated a legislative act “must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.” (Dobbs v. Jackson Women’s Health Organization (2022).) These statements are inconsistent with the California Supreme Court’s analysis in Birkenfeld v. City of Berkeley (Cal. 1976), which, as stated, required evidence of “the actual existence of a housing shortage and its concomitant ill effects” to justify a residential rent control ordinance under the police power….

L.A. Superior Court Judge Kristin Escalante, sitting by designation, dissented in relevant part; here’s an excerpt:

As the majority explains, a court must uphold an ordinance enacted under a city’s police powers if the ordinance is “‘reasonably related to promoting the public health, safety, comfort, and welfare'” and “‘the means adopted to accomplish that promotion are reasonably appropriate to the purpose.'” …

Legislation passes muster under this test unless there is “a complete absence of even a debatable rational basis” for the legislative enactment. “‘The courts may differ with the legislature as to the wisdom and propriety of a particular enactment as a means of accomplishing a particular end, but as long as there are considerations of public health, safety, morals, or general welfare which the legislative body may have had in mind, which have justified the regulation, it must be assumed by the court that the legislative body had those considerations in mind and that those considerations did justify the regulation.'” …

Vaccine mandates are generally within the government’s police powers…. In Jacobson v. Massachusetts (1905), the United States Supreme Court applied an early version of the rational basis test and upheld the constitutionality of a compulsory vaccination law enacted to combat a smallpox outbreak. … The standard applied in Jacobson comports with modern rational basis review under California law…. Here, the City could reasonably rely on statements by the CDC, the FDA, and the California Department of Public Health regarding the safety and effectiveness of vaccines.

During a public health emergency, government entities must act swiftly to protect public health. They must be able to rely on the guidance and expertise of public health officials in responding to such a crisis. Further, in determining whether the ordinance fell within the scope of the police power, the court can assume the City relied on the statements of the CDC and other public health officials. The statements of the CDC and the California Department of Public Health establish there is a reasonable relationship between the ordinance and the legitimate purpose of protecting the public during a public emergency….

Further, even if the statements by the public health authorities were insufficient to show there was a rational relationship between the vaccine mandate and the City’s legitimate purpose in reducing transmission of the virus, the vaccine mandate would still be rationally related to the City’s interest reducing the severity of the disease and in limiting COVID-19 hospitalizations and deaths in its employees. The City could rationally conclude that the risk of more severe illness in unvaccinated staff could contribute to absenteeism due to COVID-related illness, which in turn could affect the ability of the City to provide needed services. That is enough to support the conclusion that the ordinance was reasonably related to a legitimate government purpose.

The majority suggests that sources cited by Firefighters4Freedom may call into question the statements by the CDC and California Department of Public Health regarding the safety and effectiveness of the COVID-19 vaccines, and that the court must consider Firefighters4Freedom’s evidence before deciding the issue. In determining whether the vaccine mandate is within the scope of the police powers, the court does not weigh the strength of the evidence on each side.

John W. Howard and Scott J. Street (JW Howard/Attorneys) represent Firefighters4Freedom.

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