Richard Jaffe, Esq.
Very good news for all who believe that doctors should be able to publicly criticize the increasingly desperate propaganda put-out by the Covid mafia.
On September 28, 2023, Washington State Appellate Court Commissioner Hailey L. Landrus granted Dr. Eggleston’s motion for discretionary review, meaning we get to appeal the superior court’s denial of our preliminary injunction motion. And here is the best part: the stay of the Medical Commission’s disciplinary case—which she issued back in May, 15 hours before opening arguments—will be continued (most likely for a long, long time).
To recap, the Medical Commission’s (“MC”) hearing was for his heinous crime evincing “moral turpitude” of writing commentaries about subjects including Covid in a regional paper. Apparently, a reader (not a patient, because the Doc retired 10 years ago) took offense and complained. And the MC decided that it had the sacred duty to protect the Washington public from such heresy.
The case was filed back in the summer of 2022. I got involved in March 2023, two months before the hearing and about the time Doc Eggleston’s very competent counsel, the silver-tongued Todd Richardson, (https://www.myattorneytodd.com/ ) was making a motion to dismiss the case on First Amendment grounds.
Washington law flat out says that neither the administrative law judge nor the Commission members hearing the case can make constitutional rulings. The procedure was that the issue is preserved until after the Commission finds the doc guilty.
Very nice. The Commission gets to violate Doc’s First Amendment rights and then, wearing the stigma of covid misinformation moral turpitude discipline, he can ask a judge for help. Yea, good luck with that!
Well, I think that law sucked, and one of the first things I said to Messer Silver-tongue was “I don’t care what the law or the ALJ says, we take it to court, right after the motion is denied.” And that my First Amendment fellow travelers, is exactly what we did!
To back track: This was my third First Amendment physician free speech case. Two months previously, Federal California Eastern District Judge William J. Schubb had issued a preliminary injunction against California’s Covid misinformation law (AB 2098/Section 2270 of the Business and Professional Code). A few months before that, my first public speech case for a physician had gotten dismissed, but only after the CA medical board dropped its investigation of the doc a week after we filed the complaint for its First Amendment violation. So I gave myself the partial win on that one.
Rightly or wrongly, I was feeling pretty good about my chances. In some respects, the Eggleston case was better than the AB 2098 case because the speech in Eggleston (and my first case, Mac Kenzie v. Lawson) involved pure speech. I had the world’s best language from 75 years of opinions on the subject, but frankly, I hadn’t gotten a judge to buy into it yet. (Judge Schubb’s preliminary injunction was based on Fifth Amendment vagueness). So I was mighty anxious to have a judge adopt the world’s best First Amendment language. And it was already my third time writing this stuff up for judges, and maybe this was the proverbial third time’s the charm.
It only took a week or so to knock out the papers (third time and all, and maybe this time I could get it right). We filed, got a hearing before the Superior Court judge.
I rarely appear before the same judge in two different cases because I work in different parts of the country. So I might have developed a quick sense of thumbs up/down in the first few seconds. Or, maybe I can read the aura of judges or tap into the field/force (for the woo woos amongst you—like me).
Either way, I knew right quick that I was engaging in an activity against the wind, and it wasn’t landing a plane, which is always a good thing.
Our basic argument on both levels (Superior Court and the Court of Appeals) was that it didn’t matter what the statute said about preserving the constitutional claim until after the injury takes place. Statutes have to comply with the Constitution, not the other way around, which is really what the Attorney General (AG) was arguing. To us, the AG was making a ridiculous argument, kind of like bringing a knife to a gunfight, all the time insisting that the knife was a bigger gun!
Well, the superior court judge agreed with the AG, and metaphorically said that we didn’t have a gun, just a broken toothpick. I guess they didn’t think much of the Constitution, not even their own Constitution in Eastern Washington. Or maybe it was just another case of CIJDD (Covid Induced Judicial Deficit Disorder). The judge ruled against us on every point.
Now Todd Silvertongue knows a thing or three about Washington appellate procedure, so we decided that we’re not done.
The rest I have talked about before. The short of it being, Appellate Court Commissioner Landrus issued a stay. Todd and I both had the exact same reaction to the hearing before the Commissioner; it was the opposite feeling from our encounter with the Superior Court judge. And we were right. We got the stay!
Then, the three-judge appellate judge panel denied the medical commission’s motion to modify/vacate the stay. The superior court then denied the MC’s appeal to dismiss the cases (they were pretty heaved off). And now this, the Commissioner has accepted our appeal for (discretionary review which is the same thing as an appeal). An appeal schedule will be set. The appeal will take many, many months to be heard and decided. The MC can appeal again to the three-judge panel, but unlike at the superior court, I think the wind is at our backs.
And yes, finally we got a judge to judicially recognize part of the world’s greatest language supporting the free speech rights of physicians. So, it was the fourth time’s the charm.
But of course we have not won the appeal, only the right to present our appeal to the appellate court, which together with the stay of the Medical Commission’s prosecution (first time I’ve seen this in my not too few years in the field) is a pretty good result to my way of thinking.
My view is that if the three-judge panel rejects the Commission’s motion to modify/overturn the order granting the appeal, the MC is going to have to think long and hard about whether they want to risk an adverse decision for reasons beyond their injured ego of not being able to have its way with Doc Eggleston and other doctors. It has another 60 or so cases at least in part based on soapbox Covid misinformation speech.
If the Court goes our way on the appeal, there will be at least one team of lawyers who are going to try to stop and/or reverse every single one of those cases.
Here is Commissioner Landrus’ Ruling. Some of it is quite technical, and it is very, very thorough, but since you’re on our side of the issue, you will probably like it. 397319 Ruling 9-28-23
For (your) grins, I want to share two links.
First, a tweet Elon Musk just put out which is the best, funniest, and most effective vignette/montage video I have even seen explaining why people don’t trust the covid mafia anymore. https://twitter.com/elonmusk/status/1706676593261785178
Second is a short clip of a 69-year-old guy running for some office who does something which you will never, ever see a mature politician do. It’s at the end of the clip, but it’s worth it, I promise. https://www.instagram.com/p/CxqpvSGP3QN/
Published November 4, 2023
About the Author
Richard Jaffe is a health care litigator, focusing on cutting-edge medical/legal issues. He has a JD from Columbia Law School where he was a member of the Columbia Law Review and a Stone Scholar and a BA with honors from the Hebrew University of Jerusalem where he received the prize for academic excellence in the History and Philosophy of Science.
He is admitted to practice in California, Texas, and New York, but works on litigation and criminal and administrative investigations involving significant health care issues throughout the country.