Last we left off, the judge put off our preliminary injunction hearing until Nov. 4. Recognizing that the new hearing date was beyond the Nov.1 deadline, he instructed University of California (UC) to take no action against any UC community member who did not comply with the mandate, until he issued his ruling.
I had my doubts about whether UC would stop insisting that the community still comply with the Nov. 1 deadline, and I didn’t think they would publicize the delay, so I asked people who continued to receive UC demands to meet the Nov. 1 flu shot deadline to send UC’s communications (aka threats of adverse action for failure to comply) to me. Quite a few did, and some posted comments telling me that they still were receiving threatening emails.
Clearly, the administration is not sharing the delay of the compliance of the mandate deadline with the campuses. That seemed unfair to me, and in violation of the judge’s order, unless UC is going to take the position that it is perfectly proper for them to keep threatening action against people who don’t get the shot by Nov. 1, so long as they don’t actually carry out the threat. I guess I just don’t see it that way, and we will see what happens.
And I really do mean we’ll see in the most direct way a lawyer can say it because I have just filed a motion to hold UC’s Board of Regents and President Michael Drake in contempt of court for violating the Judge’s Oct. 21 order. I really did. My experience is that judges don’t like it when a party does not follow the letter and spirit of their orders.
There is some irony or maybe a pattern here. Recall that UC got into this pickle because both Janet Napolitano and the current president failed to follow UC bylaws and consult with the faculty senate before issuing the flu mandate executive orders. In other words, they didn’t follow their own rules. I guess they thought that the judge was making a strong recommendation as opposed to a mandate.
Hmmm. I just got a minor epiphany — maybe they are suffering from conceptual dyslexia. Only instead of numbers or letters, their malady transposes orders and recommendations, like when the contact and tracing committee decided to make the flu shot a recommendation, head committee person Dr. Carrie Byington heard “mandate,” and that’s what she conveyed to Janet Napolitano.
And when the judge issued his ruling, which most people would read as an order (i.e. mandate), UC heard, “recommendation.” Hey, it’s a common problem and could happen to anyone with the same malady.
Maybe they’ll get a note explaining it from their 10very impressive experts. They could explain how ordering 510,000,000 adults throughout the state to take the needle will resolve their conceptual dyslexia (or as it is known amongst those experts, SCATS [Sudden Conceptual Acute Transposition Syndrome]). No doubt their experts will opine from on high authority that giving the needle to so many unwilling, healthy people will offer an added “layer of protection,” you know, like the additional “layer of protection” to free up hospital beds. (Is there a head scratch emoji?)
And let’s face it, there is nothing that can free up hospital beds like injecting healthy adults with a vaccine which has already paid out $1 billion for injury claims during a pandemic when the odds are that the flu shot’s positive viral interference will cause more pandemic cases, hospitalizations and deaths. And, we’re not like South Korea where several dozen flu shot beneficiaries just dropped dead from a bad flu batch. I mean, what could possibly go wrong with this (proven by reference to authority) safe and effective, additional layer of protection against UC’s SCATS?
In any event, it will be interesting to read the response as to why the campuses are still telling everyone that they have to comply by Nov. 1, even though the judge had a different “recommendation” (in SCATS speak).
FYI: We also asked the judge to issue a TRO (temporary restraining order) ordering UC to stop misleading the community about the compliance date, and to publicly advis the community that they do not have to comply by Nov. 1st. That only seems fair.
Here is what I am proposing UC be forced to tell the entire UC community on all campuses:
“The University of California’s Flu Mandate Compliance deadline of Nov. 1, 2020, is no longer in effect as a result of an order by Alameda County Superior Court Judge Richard L. Seabolt. Further information about a flu mandate compliance deadline will be provided after a hearing in Kiel et al v. the Regents of the University of California, Case No. HG 20072843, which hearing is presently scheduled for Nov. 4, 2020.
“No action of any kind will be taken by the University of California against any student, faculty or employee, no right, privilege, or access to any service, facility or benefit will be denied for noncompliance with the flu vaccine mandate, and there will be no penalty for the failure to fill-out any questionnaire or form, or the failure to submit a medical exemption or religious accommodation, pending the decision by the Court in this matter.”
It is hard to predict what the judge will do about any of this. Normally, it can take days for these applications to get reviewed and moved along, and the preliminary injunction motion is set to be heard on the Nov. 4, which is just really a week and two days until the judge will issue his “tentative decision” on the case (the afternoon before the day of the hearing). And that is a big motion with more than a foot of paper, so he and his staff have a lot on their plate, and this is just one of a dozen or three cases he deals with every week.
Perhaps we can glean something from how quickly his office acts on our request to set a hearing, and when the hearing is set for.
Arguably, the sooner they get to it and set it, the more serious they’re taking it. And of course, if he orders some kind of remediating communication by UC to correct its miscommunications, then it might be fair to say that he’ll be pissed.
All we can do is ask and hope he listens, which so far, he seems to be doing.
Thanks to all who emailed me with UC communications. Keep emailing about campuses other than UCLA, Davis, Berkeley, Fresno, Davis and Irvine which are already covered in our contempt motion papers.