As reported on CHS a lawsuit was filed in California on July 1 challenging the validity of California’s Senate Bill [SB] 277: Massive Lawsuit Just Filed To Overturn US Compulsory Vaccination Laws [California]
SB 277 is in effect a law to introduce compulsory vaccination indirectly.
The lawsuit included an application for an immediate but temporary order without the Defendants and their Attorney’s being notified and present at a hearing and to restrain implementation of SB 277 until there is a hearing.
Under US law this can be done with evidence of immediate and irreparable injury, loss, or damage and of efforts to notify the Defendant and why the order should be granted without the Defendants being present and heard in Court.
San Diego Federal Judge Dana M. Sabraw has denied the application for the immediate restraining order without notice writing in her decision:
there are no allegations that any child is currently enrolled in a school and has been expelled or would face immediate expulsion if SB 277 is enforced”
However, that is clearly the nature and effect of SB277. A judge can and in fact must take judicial notice of the law and can take judicial notice of the fact that California has children who are of school age and who do attend school. The feared harm seems an inevitable consequence of the law for those who have not satisfied its requirements.
On the other hand, to grant such an immediate temporary order without a hearing is a draconian step, so one might have some sympathy with the Judge not wanting to be appealed if an order were granted without there being evidence of specific individuals and their circumstances in support.
Not all applications for temporary restraining orders are made or heard without the Defendants or their Attorney’s being present. More often they are made following a hearing. In those rarer cases where there is extreme urgency and immediate risk of irreparable harm an application for an immediate order can be made and succeed without the Defendants being present or even knowing of the application.
However, in such cases, a hearing is normally held very soon after for the Defendants to be present and heard to decide if the order is to continue or not until there has been a full trial of the case.
Similarly, a temporary order can still be made at a hearing with the Defendants notified and with their Attorneys present.
According to the Bolen Report, the Plaintiffs Attorneys will be pursuing the application for the temporary restraining order which obviously means filing the relevant evidence and confirmation of certifications required by law: Fed Judge Denies SB 277 TRO – Wants More Info…
That is likely to be at a hearing with all parties and their Attorneys present.
Here is the text of the Court’s decision:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ANA WHITLOW, et al.,
STATE OF CALIFORNIA, DEPARTMENT OF EDUCATION, et al.,
Case No. 16-cv-1715 DMS (BGS)
ORDER DENYING PLAINTIFFS’ EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER
This matter comes before the Court on Plaintiffs’ ex parte motion for a temporary restraining order (“TRO”) to prevent Defendants from proceeding with a foreclosure sale of Plaintiffs’ property.
Federal Rule of Civil Procedure 65(b)(1) allows for issuance of a TRO: without written or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1). Plaintiffs here have not served a copy of their motion on Defendants and have not claimed that they made any efforts to do so.
Plaintiffs are minors and corporations challenging the validity of California’s Senate Bill (“SB”) 277, which closes previously available personal belief exemptions (“PBEs”) to the general requirements that students seeking to enroll in California schools must be vaccinated. According to Plaintiffs, SB 277 violates their constitutional guarantee of the free exercise of religion under the First Amendment, in addition to other fundamental rights, without a compelling government interest. Additionally, they claim that even if the government shows a compelling interest, SB 277 is not narrowly tailored or the least restrictive means of achieving that interest.
Plaintiffs seek injunctive and declaratory relief from SB 277 to prohibit the enforcement of SB 277.
The purpose of a temporary restraining order is to preserve the status quo before a preliminary injunction hearing may be held; its provisional remedial nature is designed merely to prevent irreparable loss of rights prior to judgment. See Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974) (noting a temporary restraining order is restricted to its “underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer”). Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). A party seeking injunctive relief under Federal Rule of Civil Procedure 65 must show “‘that
he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.’” Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20).
Here, the Court need not reach the merits of Plaintiffs’ request, as it is facially and procedurally defective. In support of their motion, Plaintiffs state that “special education students in year-round IEP Programs face immediate expulsion.” Upon reviewing the motion, complaint, and attached affidavits, there are no allegations that any child is currently enrolled in a school and has been expelled or would face immediate expulsion if SB 277 is enforced. TROs are intended as a remedial measure to prevent harm before an adverse party can respond to a request for preliminary injunction. Here, there appears to be no harm to any plaintiff until the fall semester.
Additionally, Plaintiffs have failed to certify any efforts to serve the TRO or a preliminary injunction on Defendants. Without evidence of either frustrated attempts to notify Defendants or reasons why such notice should not be required, Plaintiffs have failed to comply with the plain language of Rule 65(b)(1). In addition, in the absence of an immediate and irreparable injury, Plaintiffs are not entitled to a temporary restraining order.
For these reasons, Plaintiffs’ ex parte motion for a temporary restraining order is denied.
IT IS SO ORDERED.
Dated: July 5, 2016
The Honorable Dana M. Sabraw
United States District Judge