[00:00:00] Speaker 01:
We proceed to the last matter on calendar for argument. And that's Jane Doe versus Ventura United School District. And I think we have some of the same parties. And it's 10 minutes each side.

[00:00:15] Speaker 04:
May I have a brief moment?

[00:00:17] Speaker 01:
Sure. Yes. I'm not that mean.

[00:00:21] Speaker 01:
You can go to council table and change your file.

[00:00:26] Speaker 01:
My kids might not agree that I'm not that mean, but I'm really not.

[00:00:32] Speaker 01:
Okay. If you're ready, we're ready for you.

[00:00:37] Speaker 04:
May it please the court, Cameron Atkinson on behalf of Jane Doe. The district court erred in denying her pseudonymity in this case.

[00:00:50] Speaker 04:
This is a case where she faced criminal charges for asserting her religious beliefs and holding firm on those religious beliefs.

[00:01:06] Speaker 04:
Courts across the country have additionally found that beliefs such as the one as Jane Doe espouses in this case have drawn severe or have threatened severe harm to people like Jane Doe and have granted immunity in that. With respect to this court's factors in the advanced textile case, the district court erred in assessing the severity of the harm here.

[00:01:43] Speaker 01:
So is the standard of review abuse a discretion?

[00:01:47] Speaker 04:
Yes, Your Honor.

[00:01:48] Speaker 01:
Okay. So what's your strongest argument that the district court abused its discretion when it denied Doe leave to proceed anonymously?

[00:01:58] Speaker 04:
I'm not sure if I'm going to say this case name right, but the Kamaha case reversed or stated it was air for a district court to simply rely on the normal presumption that parties use their real names in litigation.

[00:02:20] Speaker 01:
An actual analysis is needed, and I believe advanced... Well, but doesn't it... But when you're claiming that you're going to be, you know, that bad things are going to happen to you in the district court, I think what the district court said, there are many other cases in which plaintiffs using their names challenged the constitutionality of California's vaccination laws and nothing happened to them, so how's her situation different?

[00:02:49] Speaker 04:
I take the point. I think what distinguishes Jane Doe's case at this point is she faced a criminal prosecution. Yes, that criminal prosecution was dropped, but she's already enduring the harm.

[00:03:06] Speaker 01:
The criminal prosecution isn't isn't Judge Barat's fault, right? No, it's not. Okay, and so that would be public anyway, right?

[00:03:16] Speaker 04:
No, it was never docketed. So the police officer did issue Jane Doe a criminal citation. It went to the Ventura County prosecutor's office, and somewhere along the way, a decision was made not to fully go through it, but there was an action by a police officer to criminally cite Jane Doe. There was an action to...

[00:03:46] Speaker 04:
directed at the direction of a prosecutor who was at this meeting.

[00:03:51] Speaker 02:
Can I ask, is the interest that you don't want that criminal citation to become public or is the fear that she could be prosecuted again?

[00:04:00] Speaker 04:
Well, I neither, and I say that at this point because I accept counsel for the Ventura district attorney's office's representations that they are not going to prosecute her again. and I represent that as an officer of the court today.

[00:04:21] Speaker 02:
I think... So then how does that criminal prosecution play into the anonymity request?

[00:04:28] Speaker 04:
These folks are representatives of the community, and if they had the reaction to Jane Doe asserting her religious beliefs, stating... staying firm in her religious beliefs, that we're not going to say we agree to disagree and we're going to go our separate ways. We're going to escalate this to the level of a criminal prosecution. That speaks volumes about what the community's attitude is going to be towards Jane Doe at this point.

[00:05:01] Speaker 03:
Let me ask you a few questions. So when I read your papers...

[00:05:06] Speaker 03:
I thought the whole concern about anonymity was that if her name is disclosed publicly, that there was concern over the potential harm to her child, even though her child is listed as a DOE plaintiff, correct?

[00:05:29] Speaker 03:
And that there would be harassment of the child and potential bullying of the child and whatnot in school. And I thought that was a concern. All this business about prosecution and whatnot, I don't find that at all.

[00:05:47] Speaker 03:
I don't think that that would overcome the district court's exercise of discretion here. But the concern is with the third-party child.

[00:05:57] Speaker 04:
Yes, that's very much...

[00:05:58] Speaker 03:
Right. Is that what your argument rests on?

[00:06:03] Speaker 04:
It's an additional and co-equal argument, Your Honor. The child, if his identity is exposed to the broader community, is potentially going to be carrying negative reactions from this case for the rest of his life. Additionally, he's still got... Let me ask you this.

[00:06:23] Speaker 03:
How do we know that if...

[00:06:29] Speaker 03:
mother's name has to be disclosed that that will lead to you know discovery that her child is the plaintiff, is also a plaintiff. What is it, a small community, schools? I mean, is she well-known as being somebody who's trying to avoid vaccinating her child or what?

[00:06:52] Speaker 04:
So she's not well-known in the community, but again, in our modern age, I can go on Google and I can locate virtually anybody and connect virtually anybody to anybody. If Jane Doe's name becomes available, a simple Google search is going to bring up her. There's a high potential that a Google search.

[00:07:16] Speaker 01:
Does she have the same name as her child?

[00:07:18] Speaker 04:
Yes, sir.

[00:07:21] Speaker 03:
So the child is protected by the federal rules. The child's name is Doe, is listed as Doe. Why isn't that sufficient?

[00:07:32] Speaker 04:
Because if you can link mom to child, then that's an issue that's going to follow the child for the rest of his life. It's a stigma that is going to attach to him given that attitudes aren't necessarily tolerant. of his and his mother's beliefs. Additionally, at this point, he's out of school. He needs to be able to pursue an education.

[00:08:01] Speaker 04:
He and his mother need to lean on communal support. How old is he today?

[00:08:07] Speaker 04:
I believe he is 15. Okay.

[00:08:14] Speaker 04:
So we'd ask you to find that the district, and we would note that across the country, courts have granted anonymity in these cases.

[00:08:27] Speaker 04:
This is not speculative harm. This is something that has been dealt with in the intersection of with the abortion issue puts an additional element of hostility in that because that's still an issue that is very much being debated in our society.

[00:08:52] Speaker 04:
And all in all...

[00:08:55] Speaker 04:
The district court should have granted immunity. And then the last point I will make is the district court, I'm not sure.

[00:09:10] Speaker 01:
Hypothetically, if you lose on the other case and we say we don't have jurisdiction and we dismiss it, what's left?

[00:09:18] Speaker 04:
This case, it's a separate appeal. Okay. There's still a state action down at the district court. I have to go back to the drawing board and figure out what to do with that. But there's still the issue of if I intend to attempt to do something with the district.

[00:09:41] Speaker 01:
Is that going to be affected by the other cases that we argued earlier?

[00:09:45] Speaker 04:
Well, my hope is if you grant favorable relief to the appellees and appellants in those cases, I will be able to ask Judge Berati to let our case proceed and for us to have a seat at the table in developing that strict scrutiny record that you were asking about earlier. So this is certainly... an opportunity for very much more litigation to play out.

[00:10:15] Speaker 03:
I just have one last question for you. In your pursuit of anonymity for the plaintiff, the plaintiff's mom, You're not seeking to keep her name from the defendants, are you?

[00:10:27] Speaker 04:
No, and that was going to be my final point, is in two separate places in our trial court briefing, we explicitly said we are not looking to keep the names from the... From the defendants.

[00:10:43] Speaker 03:
They would need her name.

[00:10:45] Speaker 04:
Correct. And we have no argument with that. It's just public.

[00:10:50] Speaker 04:
Just publicly correct. Okay.

[00:10:53] Speaker 04:
I would note that the, I'm not sure that that point came across to the district court. I believe the district court found that we were not willing to give it up. And I am very sure that we were clear. We're not looking to hold it away.

[00:11:10] Speaker 01:
All right.

[00:11:10] Speaker 04:
Well, you're in overtime now. I apologize.

[00:11:12] Speaker 01:
Okay. So unless there's additional questions, we'll hear from Ms.

[00:11:19] Speaker 01:
Young.

[00:11:26] Speaker 00:
Your honors, may it please the court, Jacqueline Young on behalf of Appellee Dr. Erica Pond.

[00:11:32] Speaker 00:
The law requires Jane Doe to establish that her anonymity is justified and necessary. That showing has not been made here. This court should affirm the district court's ruling because the district court did not abuse its discretion. It applied the correct legal standard, its factual findings are supported by the record, and it reasonably balanced Jane Doe's desire for anonymity with the stakes and circumstances in this litigation.

[00:11:58] Speaker 01:
So what are the findings and what...

[00:12:03] Speaker 01:
whether we agree with Judge Barad or not, what did he say? Did he actually cite anything, or did he cite things that are appropriate?

[00:12:10] Speaker 00:
Yes, Your Honor. It's apparent in the text of the order that the district court here conducted the five-factor analysis in this court's precedent of ex-textile corporation. The district court went through each factor, and it found that though he accepts Jane Doe does have fears of harm, those fears are not severe, and they're also not objectively reasonable. Judge Barra also agreed that Jane Doe is arguably vulnerable to retaliation. But as Judge Callahan, you noted and asked about with my friend on the other side, there have been other cases challenging this exact same school vaccine statute.

[00:12:46] Speaker 00:
We heard from two of those today. There's dosha that will be heard on the June 22nd.

[00:12:50] Speaker 00:
Between this round of cases, there have been nine other parent plaintiffs who are proceeding under their real names, and there's been no suggestion of harm harassment for these individuals.

[00:13:00] Speaker 03:
So let me ask you this. I think this was in their briefs.

[00:13:07] Speaker 03:
I thought the concern here was about if the mom's name is made public, it won't take much to figure out who the kid is, even though he's listed as a doe. Is that right?

[00:13:22] Speaker 03:
Is that what the argument is? Was there that argument? Isn't that in the record?

[00:13:29] Speaker 00:
What's wrong?

[00:13:29] Speaker 03:
Why isn't that? Did Judge Barat, you know, did he note that? And can you tell whether that was? He said, oh, that's just, you know, that's just speculation.

[00:13:40] Speaker 00:
Well, Your Honor, it goes back to whether the fear of harassment and the fear of harm is severe and objectively reasonable. And this goes back to the fact that not only do we have these nine other parent plaintiffs who arguably the identity of their children could be found just as easily as the child in this case.

[00:13:56] Speaker 03:
Well, maybe she's a little bit more concerned about, you know, the name of her child getting out there.

[00:14:02] Speaker 00:
Yes, Your Honor, and just one point.

[00:14:03] Speaker 03:
Maybe the child's a little more vulnerable. Maybe, you know, handles... but would not be able to handle any harassment.

[00:14:12] Speaker 02:
Isn't he disabled in this case, the child?

[00:14:16] Speaker 00:
No, Your Honor, that is not in the record. And that argument, Judge Paez first, has not been submitted by appellants. So we would argue that there's first the issue of forfeiture. Judge Bumate, in terms of disability, that has not been submitted.

[00:14:29] Speaker 03:
Why would that be forfeiture? I mean, they made the argument.

[00:14:33] Speaker 03:
That is, they argued that the district court abused its discretion. They argued that the district court didn't adequately consider harm. And I'm only saying, you know, here it strikes me as a bit odd that on the one hand, the child is listed as a DOE plaintiff. On the other hand, if the mom is not listed as a DOE, I don't know. I mean, does it take much in a community to figure out that mom, last name, Doe?

[00:15:07] Speaker 03:
Mom is the mom of Doe. Does that take much?

[00:15:12] Speaker 00:
Two points there, Your Honor. As a technical clarification, the child here is not a plaintiff. The only child plaintiff in these rounds of cases is Sharmina Grimsby's daughter.

[00:15:21] Speaker 03:
I thought she was suing on behalf of her child.

[00:15:23] Speaker 00:
She is suing on behalf of her child. Yes, Your Honor.

[00:15:28] Speaker 00:
Furthermore, Your Honor, there's no suggestion in the record or appellant's motion that her child is uniquely vulnerable compared to the other, and I would say 59 parent plaintiffs that have challenged a school vaccine statute. That would be nine with this round of litigation and 50 other parent plaintiffs and their families during the first round of litigation in 2016 when SB 277 was first enacted. That would be Whitlow, Tory Love, Love, Middleton, and Brown.

[00:15:55] Speaker 03:
And they all see it on their own behalf and on behalf of their child.

[00:15:59] Speaker 00:
Yes, Your Honor. And the same policy.

[00:16:01] Speaker 03:
Let me ask you this. Judge Bumate had a question, and I sort of jumped in.

[00:16:06] Speaker 02:
Just two questions. I think he was disabled in this case, right? That he has disabilities, that struggles with social development.

[00:16:15] Speaker 02:
Isn't that in the record?

[00:16:16] Speaker 00:
Yes, Your Honor. In the motion, appellant does state that she fears if her identity is known, then the public may get details about her son's medical condition, such as... That makes him more vulnerable than the usual child, maybe.

[00:16:34] Speaker 00:
Your Honor, that would presume that whatever those medical conditions are, that they are material and relevant to the litigation, and they are not.

[00:16:42] Speaker 02:
Second, Your Honor— No, I thought it's an inquiry of whether or not he's vulnerable and that it would lead to harassment of him or abuse of him.

[00:16:50] Speaker 00:
That argument has not been put forth by appellant here. The concern is whether or not that child's privacy would be exposed.

[00:16:57] Speaker 01:
Well, okay, but if the mother's trying to get an exception for her child, then— And a medical exception for not getting vaccinated, right?

[00:17:06] Speaker 00:
No, Your Honor.

[00:17:07] Speaker 01:
What's she trying to get for her child?

[00:17:09] Speaker 00:
A religious exemption.

[00:17:11] Speaker 01:
Okay. So would the child's medical condition have any relevance to that?

[00:17:17] Speaker 00:
No, Your Honor.

[00:17:20] Speaker 00:
At no point in the record does Jane Doe state that she has sought out a medical exemption for her child, and there's no suggestion that the child's medical condition is at all relevant to this free exercise claim.

[00:17:33] Speaker 02:
Additionally, Your Honor, if we want to take a quick... Go ahead. I think the point is that because he's got these disabilities and social development problems, that being publicly exposed would be exacerbated for him. He's not like the typical kid that could handle some of this stress.

[00:17:49] Speaker 02:
Right. What's wrong with that argument?

[00:17:52] Speaker 00:
Yes, Your Honor. And the question there is, has that argument been put forth by appellant?

[00:17:57] Speaker 02:
Moreover, Your Honor, in terms of vulnerability... I didn't make it up that he was... I mean, someone said it, so... And then my second question, what is the prejudice? Everyone knows, except for maybe one defendant, who the plaintiff is, correct?

[00:18:12] Speaker 00:
Your Honor, to this day, the Department of Public Health still doesn't know.

[00:18:16] Speaker 02:
But they say that they...

[00:18:19] Speaker 02:
that they will disclose to them, correct? So if that were the case, what would be the prejudice to the parties, to the defendants?

[00:18:26] Speaker 00:
Granted, Your Honor, it is true that if appellant were to disclose Jane Doe's identity to the defendant, this would address the fourth element in the advanced textile test. Okay. However, that factor is not dispositive, and if that argument were to carry weight, then theoretically every single case a plaintiff could proceed.

[00:18:45] Speaker 03:
Let me ask you, in some of these cases, have the district courts granted anonymity to the plaintiff's parents?

[00:18:51] Speaker 00:
Yes, Your Honor. We can look to the example of Doe's 1 and 2 versus Hortrell. a New York Eastern District Court case, Doe versus Board of Regents, University of Colorado, Colorado case. Both those cases, the court stated that it was a close call, and ultimately they did grant anonymity.

[00:19:11] Speaker 03:
How about here in California? Any of our district courts grant anonymity in any of these cases?

[00:19:17] Speaker 00:
We actually can look at Doe v. San Diego Unified School District, which was discussed in detail earlier today. There, the plaintiffs saw anonymity. The school district did not oppose. The district court did note in its ruling before it went up on appeal that it felt... The five factors were not met. However, for the purposes of moving up on this appeal for this limited time, the district court would grant it anonymity. But, Your Honor, all of what these cases illustrate is this court's holding in Kamehameha, which appellants, in answering Judge Callahan's question, is their strongest and best authority here.

[00:19:54] Speaker 00:
It's that district courts are granted broad discretion when it comes to these motions. An appellant has not established that there's been an abuse of discretion, but there was a clearly erroneous finding here.

[00:20:05] Speaker 03:
I have one last question for you, and that is, do you think that in making those discretionary determinations that the district courts ought to look at and think about any potential harm to third parties like this child?

[00:20:18] Speaker 00:
Yes, Your Honor. The court can look at that with respect to how the appellants posit their claims on elements one, two, and three, the severity of the feared harms, the reasonableness of those harms, the vulnerability to retaliation. The court can certainly look at that, but the onus is on the plaintiff. The burden is on the plaintiff to submit affirmative evidence to suggest that. Here, that showing has not been made by appellants. This is why the district court's ruling should be affirmed, because it did not abuse its discretion.

[00:20:48] Speaker 03:
Okay.

[00:20:49] Speaker 00:
Thank you, Your Honors.

[00:20:57] Speaker 01:
So what was the time situation here? No time.

[00:21:03] Speaker 01:
We don't have any additional questions. All right. Thank you both for your argument.

[00:21:09] Speaker 01:
This matter will stand submitted, and the court is in recess for the week.