Ugly Ruling From Appellate Court
by Jeff Green
August 18, 2005

The Appellate Court has issued an ugly ugly ruling on the case of Escondido citizens against the City of Escondido and the California Department of Health Services, affirming the lower courts dismissal of the case.

The Plaintiffs will appeal to the California Supreme Court.
 

North County Times newspaper report follows discussion below.

Short description: The Appellate Court treated all rhetoric from DHS and lower court as fact, when they are required to take all Plaintiff's allegations as fact for the purpose of their review; substituted its own opinions as fact when it suited their conclusion; weaved an arduous path back to the public policy of fluoridation when they couldn't make the grade on the hydrofluosilicic acid substance; and conjured up non-conforming legal theory to replace the flawed decision by the lower court. Other than that, it is nice that it is only 29 pages, so that the inane drivel stops someplace.

Although there are other reasons why Appellate decisions are issued as unpublished, as this case is, and restricted from use and citations for other cases (and thus not precedent setting.) It is also frequently a means for reducing accountability for what one observing attorney described as, "a whack job on the issues."

Discussion (all bolding in quotes are mine):

As expected from the tone of oral arguments on the already-written opinion on August 10, the California Fourth District Court of Appeals delivered its rubber stamp of the Department of Health Services version of how court decisions should be made, using the points argued in DHS briefs, which were once denied by the original court, as a template for their ruling to affirm the decision of the lower court to dismiss the case.

Explaining away how the lower court could use an already exhausted motion process to blow it up to summary judgement that completely reverses the Court's own rulings: "Indeed, a court has complete power to change its decision until judgment is entered." The Court never addresses the merit or error in the original rulings that prevailed in the case for three years.

As early as page 9 of the 29 page opinion, on explaining their standard of review: "We independently review the trial court's ruling on a motion for judgment on the pleadings to determine whether the complaint states a cause of action. In so doing, we accept as true the plaintiff's factual allegations and construe them liberally."

However, from that point forward the Court ignored this premise, and proceeded to offer its own version of the facts when the DHS version or the lower court' version was not sufficient. The sentence following their statement of acceptance declares the Court's intent: "If a judgment {by the lower court} on the pleadings is correct upon ANY theory of law applicable to the case, we will affirm it regardless of the consideration used by the trial court to reach its conclusion." And they did. But they went even further.

As Plaintiff's attorney Norm Blumenthal articulated to Judge Stern of the lower court, the legal process allows him to state his Plaintiff's claim, and the burden at trial is first for him to prove this claim. If he does not prove this claim, we are sent packing. If he does prove the claim, the Defendants have a right to prove that there is a benefit from their actions that exceeds the harm. If the Defendants can not prove the benefit exceeds the harm, the Plaintiffs prevail. If the Defendants prove there is greater benefit than harm, the Plaintiffs bear an additional burden of showing that there are less harmful alternatives. And ultimately there is a test of whether the offending actions are reasonably related to a legitimate government interest.

In this case Judge Stern of the lower court, and this Appellate Court, rule as if the appearance of a defense constitutes a reason to abrogate their responsibility and stated intent to, " ... accept as true the plaintiff's factual allegations and construe them liberally."

Instead of hearing the merits of the Plaintiffs claim of harm at trial, or as must be accepted as factually true to consider the pleadings only on the law, the Court inserts its own opinion that there can be no harm because there is an elaborate system to prevent harm.

It then leaps to the conclusion that Constitutional protections do not apply to substances added to water because there is a legislative scheme to assure you are not harmed.

And then, AS MATTER OF LAW, they conclude that hydrofluosilicic acid is safe because the elaborate scheme to prevent harm says so.

The Court then asserts that the standard of harm is the point of remediation incorporated in Maximum Contaminant Levels, without any attention to Plaintiff's weight of evidence from state and federally mandated risk assessments.

The Court further rejects Plaintiff's judicial notice of documents that prove that the fluoridation chemicals are drugs, and asserts as fact the DHS version of FDA jurisdiction rather than Congressionally-mandated responsibilities and authorities of the FDA.

The list goes on for 29 pages worth of distortions. But the core issue, upon which the Court has relied for its grandiose ruling, and for which the Court supplies its own opinion as if it is a matter of law, is whether each person receiving public drinking water contaminated with hydrofluosilicic acid and its attendant lead and arsenic is truly free to choose not to be exposed.

Plaintiffs will file a request that the case be heard by the California Supreme Court.
 

Thursday, August 18, 2005
Last modified Wednesday, August 17, 2005 11:53 PM PDT
www.nctimes.com/articles/2005/08/18/news/top_stories/21_26_258_17_05.txt

Appeals court OKs Escondido's water fluoridation

by: SCOTT MARSHALL - Staff Writer
NORTH COUNTY ---- A state appeals court ruled Wednesday that the way the city of Escondido is adding fluoride to its drinking water does not violate the constitutional rights of its residents and that the city's conduct does not violate state law.

As a result, the 4th District Court of Appeal in San Diego declined to reinstate a lawsuit in which a group of Escondido residents alleged that the city's fluoridation of the water violated their constitutional right to "bodily integrity."

The city, which began putting fluoride in its water more than a year ago while the lawsuit was pending, is pleased with the court's decision, Assistant City Attorney Jennifer McCain said.

Norman Blumenthal, an attorney for the residents, said he and his clients "respectfully disagree" with the appeals court and will ask the state Supreme Court to hear the case.

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. Escondido has 25,000 service connections that serve about 130,000 people, stated an appeals court opinion issued Wednesday.

The 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. The residents appealed.

Attorneys for the city and the state, which approved Escondido's plan, argued to the appeals court that the city is complying with all state and federal laws. The substance used to fluoridate the water, hydrofluorosilic acid, is approved in the Safe Drinking Water Act and is used elsewhere in California, across the country and around the world, the state's attorney argued.

Blumenthal argued, however, that the city is "mass medicating the entire community" with a substance that has not been approved by the federal Food and Drug Administration and that the hydrofluorosilic acid contains lead and arsenic at levels that will cause cancer.

Associate Justice Judith Haller, writing for the appeals court, stated in a 29-page opinion that laws and regulations allow "fluoridating agents" like hydrofluorosilic acid to contain contaminants like lead and arsenic as long as they comply with maximum contaminant levels and detection levels.

McCain said the city is complying fully with the law.

"We've had no problems with our detection levels, and everything is safe," McCain said.

Haller wrote that the Escondido residents in the lawsuit were trying to "establish a right to public drinking water of a certain quality or, more specifically, a right to drinking water uncontaminated" with the acid, but no such right exists. State and federal constitutions do not guarantee an environment free of contaminants.

Courts across the country have "uniformly upheld the constitutionality of adding fluoride to the public water supply," but no court has recognized a legal claim entitling citizens to drinking water more pure than what federal and state standards require, Haller wrote.

Haller also wrote that the residents involved in the case are not compelled to drink the fluoridated water and that they retain the right to choose not to drink water with hydrofluorosilic acid.

Blumenthal described the appeals court decision as a "real slippery slope" that could allow governments to put barbiturates in the water to control unruly people or amphetamines to counteract laziness and argue that residents don't have to drink the water.

"To say that you can avoid drinking water is naive," Blumenthal said.

Haller also wrote for the court that the residents' challenge to the use of hydrofluorosilic acid involved a legislative process that the court did not have authority to perform. The residents should have raised their concerns and information about hydrofluorosilic acid with the state at the "administrative level" before the state approved a permit allowing the city to fluoridate the water, Haller wrote.

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