Escondido/DHS Appellate Hearing/Opinion Due Soon
by Jeff Green
August 12, 2005

Expectations for the Appeals Court decision on the fate of the years-long Constitutional complaint filed by citizens of Escondido against City of Escondido and California Department of Health Services for selection, permitting and injection of hydrofluosilicic acid into the public water supply?

Short answer:

The Appellate Court did not issue any opinion. Their web site provides notice that their opinion is due on November 8, 2005. One criminal case and one civil case, that were classified as expedited along with ours and were heard on the same day just before us, had their rulings issued and noticed today. I would be surprised if the ruling on our case is not also released soon.

Judging by the tone, innuendos, expressions of grossly unwarranted assumptions, and the panel's expressed distaste for the Plaintiffs filing a Constitutional complaint that would allow a jury to decide between Plaintiffs' expert witnesses and what a panelist termed, "the elaborate scheme of assurances that the water will be safe", it was obvious to most observers that the Appellate Panel has already entrenched themselves in the opinion that Plaintiffs should have begged the Department of Health Services to act through an administrative action, despite legal references which show settled law that precludes any administrative agency to determine Constitutional issues.

In a setting where Appellate Courts are uniquely situated to assure that Constitutional issues are not taken lightly and abused by lower courts, this hearing was an extreme exception, with the words disdain and sneering the operative descriptions. In Plaintiffs' attorney Norman Blumenthal's first moments of addressing the Court, the presiding judge confirmed that their opinion, though not released, has already been written (a common practice.)

Next steps:

The next steps will be better determined after reviewing the actual language of the Appellate ruling to come. In order to rule as we expect they will, it is our opinion that the Court will have to dance around the key issues of our appeal, and/or make some fairly grandiose assertions about restrictions on filing Constitutional complaints.

A first step on the part of attorneys for the citizens of Escondido may be a motion for reconsideration (unlikely to prevail, as it will conflict with the Presiding Judge who chaired the Appellate panel.)

A second step may be a request for a hearing by the California Supreme Court. The likelihood of their accepting the case will revolve around the application of the issues to other public interests, and especially upon whether the Appellate Panel is willing to take the risk of publishing their opinion so that it applies to all cases heard in the the Fourth Appellate region and the rest of California if there not any other Appellate rulings to the contrary, and thus also more likely to be heard by the higher court.

And a third step, for which new Plaintiffs have already come forward and we have already planned, may be a filing in Federal Court where the "State scheme of determining safety" is not held sacrosanct and above the Constitution.

Discussion

On Wednesday, August 10, the Fourth Appellate Court, District 1 of California, led by the presiding justice of the Appellate Court and two hand-picked panelists, heard oral arguments made by the attorney for citizens of Escondido and the attorneys representing the City of Escondido and the California Department of Health Services.

From the beginning moments of the panel's confirmation that they had already written their opinion, the Court made abundantly clear that they had no interest in assuring that the merits of the complaint filed by Escondido citizens, which claimed that the actions and permitting of the use of contaminated hydrofluosilicic acid would infringe upon their fundamental right "...to preserve their health from such government-imposed practices as may prejudice or annoy it," will be heard in court.

At no time did the panelists address the reversal of rulings in favor of the Plaintiffs in 4 demurrers (specialized motions for dismissal) by the initial judge hearing the case, and two rulings on motions for dismissal by Judge Stern before she reversed her own legal opinions.

One panelist expressed her annoyance in questioning Blumenthal, attorney for the citizens, that, if they sent the case back to the lower court to be heard, whether he really intended that a jury make a decision about whether the DHS elaborate scheme of assuring safety, or the expert witness testimony presented by the Plaintiffs, was accurate.

The same panelist also scrutinized Blumenthal about why he didn't simply meet with the DHS and provide them with his information and let them make the decision to take the hydrofluosilicic acid substance off of the approved list.

Blumenthal replied that the Defendants have already admitted that they are adding arsenic and lead, and that government risk assessments show that the concentrations of arsenic in hydrofluosilicic acid can cause one in a thousand persons in Escondido to suffer from lung and/or bladder cancer; and that DHS has no directive to determine Constitutionality, but is focused instead on obtaining a substance at a low cost.

Both in the legal references contained in the citizens' briefings, and in his direct response to the Appellate Panel, Norman Blumenthal clarified that neither the administrative processes, nor the Department of Health Services, have the authority to rule on the Constitutionality of actions, and specifically on the applied actions of the City.

Blumenthal cited a recent well-publicized California Supreme Court ruling involving Attorney General Lockyer and the Mayor of San Francisco, wherein the Court ruled that a Mayor, despite his personal beliefs that the laws prohibiting same sex marriages is unconstitutional, does not have the power to ignore the laws and deem them unconstitutional, asserting that power is reserved for the courts.

It was clear from the distorted follow-up question to Blumenthal, asking was he certain that DHS did not have the discretion to take "it" off the list, rather than was he certain they did not have the authority to determine the Constitutionality of the City's actions, that the Panel intended to support the Defendants' contention that there is no right of a citizen to protest the harm that may come to the Plaintiffs in the context of drinking water.

None of the three women justices on the panel appeared to warm to Blumenthal's addressing the history of the fundamental right to be free of harm that dates back to the 1700's, which is the heart of this Constitutional complaint that was upheld by the original Judge Sabraw, nor did they seem to want to address the recent decision of Doe vs. Rumsfeld wherein actions of coercing medication on military personnel with an un-FDA-approved substance was ruled as an arbitrary action by a government agency and unconstitutional.

One of the panelists cut Blumenthal off as he questioned what would stop the City from selecting, or DHS permitting, the insertion of Prozac, another fluoride containing product, into the water to also facilitate reduction of anxiety.

Legal references in Blumenthal's brief addressed the exemption for having to exhaust administrative remedies when there was no authority, AND, the seeking of an administrative remedy was clearly futile.

In what I would euphemistically describe as an amazing application of tunnel vision, the panelists were completely silent on Blumenthal's clarification that the merits of the case have never been heard, and that in the case of Judge Stern's decisions, and the Appellate Courts, they MUST treat all of his evidentiary and factual assertions of harm as true for the purpose of ruling upon the law.

The panelists continued their hearing as if the DHS and City had prevailed on the evidence, and that merely having an elaborate scheme was sufficient. Blumenthal's statements that a Constitutional consideration trumps regulations, no matter how legally devised, appeared to fall on the proverbial deaf ears.

Although I have stated from the beginning of this case in 2001 that I expected that politics and Court agendas would play a role in denying us a win without going all the way to at least the California Supreme Court, it is still disheartening to see the state of our judicial system which can only deny a hearing on the merits of a case of Constitutional harm by distortions of the law. In this case there are literally no expert witnesses, nor any evidence offered, to dispute the harm, or support that there is any legitimate government interest, in adding an untested, unapproved, contaminated product into the public water supply.

I would surely like to believe that my interpretation of that familiar agenda-driven mentality that we have experienced in head-strong City Councils, with nothing to back them up, is misplaced; however experience and a commitment to continue on despite the "Bad Guys" prepares me to make what I expect to be an ugly ruling available when it is rendered.

Meanwhile, we welcome the opportunity to assist in challenging the selection and permitting of harmful substances in other legal venues where Courts may be more protective of its citizenry.

The Escondido-local North County Times report is enclosed below.
___ jeff

 

Thursday, August 11, 2005
Last modified Wednesday, August 10, 2005 9:26 PM PDT
www.nctimes.com/articles/2005/08/11/news/top_stories/20_17_108_10_05.txt

Appeals Court Hears Arguments in Fluoride Lawsuit
by: Scott Marshall - Staff Writer

SAN DIEGO ---- Almost a year after the city of Escondido began adding fluoride to its drinking water, an attorney for a group of residents urged a state appeals court Wednesday to reinstate a lawsuit that claims the city's fluoridation is violating their constitutional rights to "bodily integrity."

Attorneys for the city and the state, which requires fluoridation in some cities and approved Escondido's plan, countered that Escondido is complying with all federal and state laws and the dispute is about safe drinking water, not constitutional rights.

The Statewide Fluoridation Act requires public water systems throughout California with more than 10,000 water service connections to fluoridate their water to promote dental health.

A divided Escondido City Council voted 3-2 in June 2001 to lift a 1999 city ban against putting certain chemicals in city water to begin the process of adding fluoride to the drinking water.

A group of residents filed a lawsuit in September 2001 that challenged the city's planned water fluoridation.

A trial of the lawsuit was scheduled for Oct. 12, 2004, but on that day, Superior Court Judge Jacqueline Stern made her decision to throw out the lawsuit, saying the residents had failed to provide a legal reason that Escondido's water fluoridation violated their rights.

In the tentative decision that Stern made final, she wrote that the residents were "in essence, claiming a right to safe drinking water and a toxic-free environment," neither of which has been recognized as a fundamental constitutional right.

Norman Blumenthal, the residents' attorney, told the appeals court Wednesday that the city is violating the residents' constitutional right to "bodily integrity" because it is "mass medicating the entire community" with a substance that has not been approved by the federal Food and Drug Administration.

The substance the city is using to fluoridate the water is industrial-grade hydrofluorosilic acid that contains lead and arsenic at levels that will cause cancer in 1 of every 1,000 people, Blumenthal argued.

The city's attorney, Michael Hogan, said the city is required to use a substance approved by the state Department of Health Services to add fluoride to the water.

Deputy Attorney General Karen Fried said in court Wednesday that hydrofluorosilic acid is "an approved drinking water additive" in the Safe Drinking Water Act and is used in more than half the cities of California and elsewhere in the United States and around the world.

Fried also argued that state law does not require that arsenic and lead not be present in the water, but instead sets maximum contaminant levels and detection level limits.

"The city's plan completely complies with MCL's and detection levels," Fried argued. "The city's choice of HFSA complies with all state and federal laws."

Presiding Justice Judith McConnell and Associate Justices Judith Haller and Joan Irion of the 4th District Court of Appeal in San Diego have 90 days in which to decide whether to uphold Stern's decision to throw out the lawsuit before trial or reverse that ruling.

Contact staff writer Scott Marshall at (760) 631-6623 or smarshall@nctimes.com.