On September 26, 2005, the attorneys for citizens of Escondido in the case of Coshow vs City of Escondido and California Department of Health Services, concerning their selection, use and permitting of lead and arsenic-contaminated hydrofluosilicic acid added to their public drinking water in a fluoridation program, filed a Petition for Hearing with the California Supreme Court.

Noting California Fourth Appellate Court District's lip service to their being bound to the legal requirement to accept as true all claims of fact made by the Plaintiffs in matters that deal with legal pleadings that determine if the merits of the case are even heard, the Petition cites five distortions or substitutions of fact that are not supported by the record, made by the Appellate Court as a basis for their decision, that are contrary to the Plaintiffs claims and thus not permissible.

Each of these distortions or substitutions of fact were necessary for the Appellate Court to rule that all of the controlling legal authorities establishing a citizen's Constitutional right to be free from bodily intrusions do not apply when the means of exposure is the public drinking water.

Attorney Norman Blumenthal points out the absurdity of the Appellate Court's ruling that freedom from harm in the form of medication with an unapproved drug without informed consent is applicable only when delivered by pill or syringe. Blumenthal argues that under the Appellate Court's ruling the recent case denying the Department of Defense's ability to force non-FDA approved Anthrax vaccinations on military personnel without their informed consent could have been circumvented by the DoD merely adding the medication to water.

Citing the Appellate Court's Decision, the Petition for Hearing asserts, "The Court of Appeals held that "the right to be free from forced medication is not a fundamental constitutional right in the context of adding fluoride or other chemicals to the public drinking water."  Decision at p. 21. (Emphasis added.)" ... If left standing, the published Decision of the Court of Appeal in this case would surrender, as a matter of law, the power of California courts to judicially review any governmental decision to administer drugs to citizens, so long as the drug delivery system is "the public drinking water."

"The Decision opens the door to the unrestricted mass medical treatment of residents by our government via the public water supply and closes the door to constitutional scrutiny of such conduct by the judiciary.  As a result, the Decision surrenders to the prevailing politics of the legislative and executive branches the judiciary's exclusive authority and obligation to protect the public's Constitutional Rights. Without independent judicial scrutiny, the judicial branch becomes a mere rubber stamp for the executive and legislative branches in contravention of our separation of powers doctrine."

It is important to understand that this Petition for Hearing does not assert that citizens can not be medicated through the water supply, but that the Court of Appeals action, if left standing, would prevent any restraint, including provable harm, or arbitrary, capricious or other actions that fulfill no legitimate government concern.

Appellate Court's conversion of their ruling from unpublished to published

The Court of Appeals issued their ruling on August 17 as unpublished. On September 1, Blumenthal filed a Petition for Rehearing with clarification of the same issues presented to the Supreme Court.

Immediately after the ruling by the Appellate Court, the American Dental Association and DHS requested that the originally-designated unpublished ruling become published. On September 12 the Appellate Court granted the certification for publication and denied the Petition for Rehearing without addressing any of the issues presented.

Publishing the ruling establishes the decision as a precedent in other courts, and the race was on for the proponents of fluoridation to get it to the other two Appellate Courts for cases in Sacramento and Watsonville, even though the issues in the cases do not mesh. (The Appellate Court with jurisdiction over the City of Watsonville case accepted one friend of the court filing asserting that California law requires taxpayers to give approval for the expenses of fluoridation being forced upon them by the State, but denied a friend of the court filing clarifying misrepresentations of the application of our ordinance and the controlling authorities of the FDA.)

The 3rd Appellate District Court in Sacramento made no ruling concerning permission to accept the new citation, giving no opportunity for Gary Wesley, the attorney for that case, to respond, especially as the oral arguments hearing was on September 20. A panelist Judge in that hearing used it to snipe at Wesley, despite the fact that there was absolutely no corresponding issues. More on that hearing, below.

However, the 6th Appellate District Court hearing oral arguments on the City of Watsonville case denied the California Dental Associations bid to include the new citation for their oral arguments to be held on that case on October 18, based on the fact that the Request for Permission to add citations did not contain a full briefing. We cannot tell whether the Court will allow them to cure that by resubmitting or whether it is a protection for the City not being able to brief the Court as well. Watsonville City Attorney Alan Smith filed his objection several days after the Court's denial, which will hopefully prevent any resurrection.

The publication of the Escondido ruling is a risky action for the Appellate Court, as, if left unpublished, it would not be a precedent and would normally not be very open to scrutiny, but, also because of that, our chances for Supreme Court review were nil. With the publication of the ruling, our chances for the Supreme Court taking the case mushroomed, although we are cautious to not get our hopes too high.

The risk for the Appellate Court, in my opinion, is that they slaughtered every principle of making a determination on the pleadings of law without any court hearing evidence, abandoning their legal requirement to take all of our assertions of fact as if they are true. They substituted their own unsupported opinions of fact, ignored and did not address key citations to legal authorities, and made a brand new interpretation that Constitutional rights stop at the water supply.

Every attorney to whom I forwarded the ruling is still astonished at the lengths the Court went to protect the Defendants who had no expert witnesses left to defend their use of hydrofluosilicic acid or the addition of lead and arsenic.

As for the quality of the arguments in our Petition for Hearing, it is legally sufficient to expect a remand to the lower court for a hearing on the merits. Whether it has enough pop to get the Supreme Court to take it on, depends probably more on their willingness to take on the Constitutional question when it will mean application to fluoridation.

The amazing aspect is to see how political each and every legal decision can be when it involves government. Who really decides who is to be on which judicial panel? It appears that the presiding judge can make the decision as to whom to empanel, but short of that any judge can request he or she hear a particular case.

In the Watsonville case, it was the Presiding Judge that granted the acceptance of the Amicus filed under Nick Bulaich; and the Deputy Presiding Judge that denied our request for filing an Amicus under Paul McCain and Citizens for Safe Drinking Water after the record shows a phone call, fax, and then a letter was received from the Attorney General's office.

Oral Arguments in the California 3rd Appellate Court District concerning the legislative statute that requires that DHS implement less intrusive access to fluoride.

Unfortunately, the Courts ask for brevity, and when you give it to them, they can still reprimand you with it, and in this case it will probably allow the Court to escape a decision they evidently don't want to make, because of form rather than merit.

The oral arguments on September 20 began with the presiding appellate judge confronting attorney Gary Wesley with why they shouldn't just dismiss the case instantaneously because Wesley did not heed the procedural rules of articulating his arguments and citing to legal authorities for the Court to consider. Gary accurately, but maybe unrealistically for the Court, responded that he expected that they would fully review the lower court briefs which did contain an expanded version of his arguments, and that his submission was based on the the Court's simple determination of whether a 1971 law that mandated with "shall" after "shall" after "shall" and is used as a technical reference for a discretionary statute enacted in 1979, with both being reenacted in tandem in 1995, could possibly be supplanted by the 1979 statute; and if not, Court, please order the DHS and California counties to follow the law.

Wesley explained that the two laws distinguish themselves, by the law originated in 1971 he was filing the writ to enforce being mandatory, and the law originated in 1979 being discretionary; the 1971 law providing access to topical fluoride treatment to ALL children for 1st to 12th grades in both public and private schools, and the 1979 only to indigent families from K to 6th grade in public schools; and payment for the 1971 program able to be incorporated without limitation of available public funds as the program intended that the recipients could pay the costs; and the record of implementation of the law originating in 1979 is dismal because of lack of funding; and ultimately that the kicker was that the parents of all economic status in the program originated in 1971 would be afforded informed consent access.

The three judge panel offered the Attorney General's office a free ride by requesting which alternative they preferred - throw Wesley out of Court immediately, or argue the case on the merits (Yes, they said it that clearly). Wesley offered to submit citations and articulate what he had said in writing, but noted that the Attorney General did respond with their arguments and was not hindered by his brief. The attorney for the Attorney General's office waffled back and forth and didn't give the Presiding Judge the definitive request that he wanted.

The Court made it clear by their questions that they knew that the legal facts that Wesley expressed were accurate, but it was equally clear that if they couldn't give the DHS a win on the merits, they would give them a win on Wesley's default.

The case is winnable if argued within procedure or is heard by a court without an agenda, as neither the DHS or the Court has any supportable defense without resorting to denial of form. The case will ultimately show that the State's scheme of offering informed consent access to topical fluoride treatments IS a less-intrusive alternative to fluoridation that is already mandated by the California Legislature. Should the Court deny Wesley's writ, we will file on this issue again with the possibility of a new jurisdiction.