SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE

Transcription

1 JOHN KAPPOS (S.B. #) jkappos@omm.com BO MOON (S.B. #1) bmoon@omm.com TYLER H. HUNT (S.B. #1) thunt@omm.com O MELVENY & MYERS LLP Newport Center Drive, ᵗʰ Floor Newport Beach, California 0- Telephone: () 00 Facsimile: () JASON A. ORR (S.B. #0) jorr@omm.com O MELVENY & MYERS LLP 00 South Hope Street Los Angeles, California 001- Telephone: () Facsimile: () 0-0 KEVIN DÍAZ (pro hac vice forthcoming) kdiaz@compassionandchoices.org COMPASSION & CHOICES NE Halsey Street, Suite Portland, Oregon Telephone: (0) - Attorneys for Movants Matthew Fairchild, Joan Nelson, and Catherine S. Forest SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE DR. SANG-HOON AHN, et al., v. Plaintiffs, MICHAEL HESTRIN, in his official capacity as District Attorney for Riverside County, et al. Defendants. Case No. RIC 01 EX PARTE MOTION TO VACATE JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Judge: Hon. Daniel A. Ottolia Dept.: Date : May 0, Time: :0 AM

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3 TABLE OF CONTENTS I. INTRODUCTION... II. FACTUAL BACKGROUND... III. ARGUMENT... A. Movants Are Aggrieved By The Court s Judgment... Page B. The Court s Judgment Was Incorrect And Not Supported By The Law And Facts The Court Erred In Determining The End Of Life Option Act Was Not Properly Enacted During The Special Legislative Session... a. The End Of Life Option Act Improve[s] The Efficiency And Efficacy Of The Health Care System... b. The Court Erred By Interpreting The Scope Of The Special Session Narrowly... 1 c. The Legislature Specifically Addressed Whether the EOLOA Was Properly Before The Special Session... 1 d. The Governor Affirmed The Act To Be Within The Scope Of His Proclamation For The Special Legislative Session.... Plaintiffs Are Not Real Parties In Interest Qualified To Bring This Suit... C. Ex Parte Relief Is Necessary and Appropriate... IV. CONCLUSION

4 TABLE OF AUTHORITIES Page(s) Cases Blumhorst v. Jewish Family Servs. of Los Angeles, 1 Cal.App.th (0)... 1, City & Cty. of S.F., 1 Cal. App. th at... City of Cerritos v. State, Cal. App. th (1)... 1 Cloud v. Northrop Grumman Corp., Cal.App.th ()... County of Alameda v. Carleson, Cal. d 0 (1)..., Donorovich-Odonnell v. Harris, 1 Cal. App. th (1)... Howard v. Lufkin, Cal. App. d, Cal. Rptr. (Ct. App. )... Martin v. Riley, Cal. d, 1 P.d ()...,, 1, 1 Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 1 Cal.App.th 1 (0)... Rounds v. Dippolito, Cal. App. d 1, 0 P.d ()... Sturgeon v. Cty. of Los Angeles, 1 Cal. App. th ()... 1, 1 Statutes Cal. Health & Safety Code.1 (a) (d)... Cal. Health & Safety Code.1(e)... Cal. Health & Safety Code.1... California Code of Civil Procedure... Code of Civil Procedure... Health & Saf. Code.1(b)... Health & Saf. Code.1(q)

5 TABLE OF AUTHORITIES (continued) Page(s) 1 1 Health & Saf. Code.1(e)(1)... Health & Saf. Code.1(e)()... Health & Saf. Code.... Health & Saf. Code.... Health & Saf. Code.1(b)-(e)... Health & Saf. Code.(a) (c)... Health & Saf. Code.... Other Authorities 1 Cal. Legis. Serv. nd Ex. Sess. Ch. 1 (A.B. 1)... CA Assem. Jour., 1- nd Ex. Sess. Rec. No Letter from Edmund G. Brown, Jr., to Members of the California State Assembly (Oct., 1)

6 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Movants Matthew Fairchild, Joan Nelson, Ph.D., and Dr. Catherine S. Forest (the Movants ) move the Court to vacate the Court s judgment that the End of Life Option Act is unconstitutional. Mr. Fairchild and Dr. Nelson have terminal cancer diagnoses, and Dr. Catherine S. Forest is a physician who treats terminally ill patients. None of the Movants was aware of the potential for this lawsuit to impair their ability to seek or to provide medical aid in dying until after this Court s May 1, decision granting Plaintiffs motion for judgment on the pleadings. Movants respectfully request this Court vacate that decision, which directly, materially, and injuriously impacts their options to receive or provide for end of life health care. 1 II. FACTUAL BACKGROUND On September, 1, the California Legislature passed the End of Life Options Act ( EOLOA or the Act ), nd Ex. Sess., 1, (ABX-1); Health & Saf. Code.. The EOLOA authorizes a mentally competent, terminally ill adult to request a prescription for medication to peacefully end their suffering pursuant to the practice known as medical aid in dying. Health & Saf. Code.. Medical aid in dying is an established medical practice by which a doctor prescribes a medication that, once voluntarily ingested by the patient, will bring about his or her death to avoid suffering from their terminal disease. Id..1(b). The EOLOA creates procedures and protections by which a terminally ill patient that is, an individual who has been diagnosed with a disease that will cause death within six months, id..1(q) must make multiple requests for medical aid in dying over the course of several weeks, including a written request that is signed in the presence of two witnesses who can attest to the requester s competency and soundness of mind. See id..(a) (c). On October, 1, Governor Jerry Brown signed the Act, recognizing that it would be a comfort to be able to consider the options afforded by the EOLOA, and stating he wouldn t deny that right to others. Letter from Edmund G. Brown, Jr., to Members of the California State Assembly (Oct., 1). The Life Legal Defense Foundation filed this lawsuit on behalf of Plaintiffs in June - -

7 to invalidate the enactment of the EOLOA. Plaintiffs are physicians who claim to treat terminally ill patients, and an advocacy group called the American Academy of Medical Ethics, which purports to represent physicians and health-care professionals nationwide to promote ethical standards in the medical profession. (Compl..) Plaintiffs allegedly brought this action to protect the rights of their patients to be protected... from being assisted and abetted in committing suicide. (Id..) Plaintiffs sought a preliminary injunction from this Court on several grounds, including that the EOLOA is unconstitutional because it was passed in a special legislative session related to California s health care system. (See Compl. -.) Plaintiffs argued the scope of this special session was health care funding, and that the EOLOA s provisions related to permitting and safeguarding medical aid in dying were not sufficiently related to the declared purpose of the session. (See id.) This Court disagreed, holding that the EOLOA was sufficiently related to health care and the efficiency and efficacy of the health care system. (Declaration of John Kappos ( Kappos Decl. ) ; Ex. 1, 0// Hrg. Tr., 1:-.) Defendants then filed a motion for judgment on the pleadings, arguing that the EOLOA was constitutional because it was properly passed in the special legislative session on health care. (See Kappos Decl. ; Ex., Defendants/Intervenors Memorandum of Points and Authorities In Support Of Motion For Judgment On The Pleadings, pp. 0-.) The Court denied that motion and explained at a hearing that it had not reached the merits of whether [the Act] falls within the legislature power. (Kappos Decl. ; Ex. at 1: (Tr. from 0// Hearing on Defendants Mot. for Judgment on Pleadings).) After this Court s decision on Defendant s motion for judgment on the pleadings, Plaintiffs filed their own motion for judgment on the pleadings, again arguing that the Act falls outside the scope of the special legislative session. (See Kappos Decl. ; Ex., Plaintiff s Motion For Judgment On The Pleadings.) At a May 1, hearing on Plaintiffs motion, this Court reversed course from its ruling on Plaintiff s earlier motion for preliminary injunction and indicated that it would grant Plaintiffs motion after a period of five days that would allow Defendants to seek a writ from the Court of Appeal. (Kappos Decl. ; Ex. at 1: (Tr. from May 1, Hearing on Plaintiffs Mot. for Judgment on Pleadings).) - -

8 Before this Court s May 1, decision on Plaintiffs motion for judgment on the pleadings, Movants could seek prescriptions for aid-in-dying medication to alleviate their pain and suffering, or provide counseling and prescriptions for medication according to their medical judgment. But once this Court made a determination that EOLOA was unconstitutional, Movants were directly impacted by that decision. Movant Matthew Fairchild is seriously ill. He takes dozens of medications to manage the cancer that has spread throughout his body. (Declaration of Matthew Fairchild ( Fairchild Decl. ).) Although he does not presently qualify for medical aid in dying because he has not received a six-month terminal diagnosis, he is comforted by the fact that under the EOLOA he would have the option of taking aid-in-dying medication if his pain became unbearable. (Id..) Although Mr. Fairchild is a public advocate for end-of-life care choices, including medical aid in dying, he had no knowledge of the instant lawsuit before he learned of this Court s May 1, decision on Plaintiffs motion for judgment on the pleadings. (Id..) The Court s judgment materially affected Mr. Fairchild s ability to obtain aid-in-dying medication under the EOLOA. Mr. Fairchild is devastated to learn that he may no longer be able to request and receive aid-indying medication when his suffering from his illness become too great, and he no longer has the peace of mind he had in believing that he would have such an option to make his own end-of-life choices. Movant Joan Nelson is years old and has been fighting a losing battle with cancer for the past few years. (Declaration of Joan Nelson ( Nelson Decl. ).) Dr. Nelson supported and campaigned for the passage of the EOLOA. (Id..) Although her leiomyosarcoma a particularly aggressive and rare form of cancer was in remission briefly, it later metastasized to her lymphatic system. (Id..) At this point, Dr. Nelson s physicians could offer no satisfactory treatments. (Id.) Under the provisions of the EOLOA, Dr. Nelson requested and received a prescription for medical aid in dying. (Id..) Dr. Nelson was not aware of this lawsuit before May,, when she read a headline in her local newspaper about this Court s May 1, decision. (Id..) At that point, her feelings of agency, self-respect, and self-determination were pulled out from under her, leaving her devastated. (Id., ) On May, however, she - -

9 received her aid-in-dying medication, thus restoring some of the comfort that the option of medical aid in dying brought to her. (Id..) Dr. Nelson is, however, uncertain whether she can use the aid-in-dying medication for fear of criminal prosecution against her physicians who prescribed the medication for her before this Court s judgment, or against her family and friends she would have wished to be by her side when she ingests the medication. Movant Dr. Catherine S. Forest is a Clinical Associate Professor of Family Medicine at UCSF Natividad in Salinas. (Declaration of Catherine S. Forest ( Forest Decl. ).) In her practice, Dr. Forest treats terminally ill patients and has worked with a number of patients who have sought a prescription for medical aid in dying. (Id..) Dr. Forest believes medical aid in dying is an appropriate and compassionate treatment for some patients, and wants to be able to offer it as an option to terminally ill patients consistent with the procedures afforded by the EOLOA. (Id..) Dr. Forest is outspoken in her support for medical aid in dying. While she was aware that there were legal challenges to the EOLOA, those challenges did not have direct impact on her ability to counsel patients until this Court s May 1, decision granting Plaintiffs motion for judgment on the pleadings. (Id..) Now, Dr. Forest s ability to counsel patients on available end-of-life options and prescribe aid-in-dying medication to those who request it is materially affected by the Court s judgment. III. ARGUMENT Upon motion of [a] party aggrieved, a judgment may be set aside or vacated and a new judgment entered on the ground of an [i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts.... California Code of Civil Procedure ; Howard v. Lufkin, Cal. App. d, 01 0, Cal. Rptr., (Ct. App. ). A superior court has jurisdiction on motion... to vacate a judgment as entered, which is inconsistent with and not supported by the findings of fact and to enter a proper judgment, and also to vacate such a judgment where the conclusions of law are incorrect and erroneous and not consistent with the findings of fact. Rounds v. Dippolito, Cal. App. d 1, 1, 0 P.d, (). - -

10 A. Movants Are Aggrieved By The Court s Judgment One who is legally aggrieved by a judgment may become a party of record and obtain a right to appeal by moving to vacate the judgment pursuant to Code of Civil Procedure section. County of Alameda v. Carleson, Cal. d 0, - (1). One is considered aggrieved if their rights or interests are injuriously affected by the judgment. Id. Any entity that has an interest in the subject matter of a judgment and whose interest is adversely affected by the judgment is an aggrieved party and is entitled to be heard on appeal. In re Clergy Cases I, Cal. App. th 1, 1, 1 Cal. Rptr. d 0, (). Movants substantial interests are injuriously affected by the Court s judgment. If the Court s judgment stands, Movants will be barred from seeking, taking, or providing the medical aid in dying that is contemplated by that Act. In the absence of the protections afforded by the EOLOA, the state could charge with a felony any physician who provides her patients with medical aid in dying. See Donorovich-Odonnell v. Harris, 1 Cal. App. th, 0 (1) ( [w]riting a prescription [for medical aid in dying] is direct participation for purposes of Penal Code 01, which makes it a felony to aid[], or advise[], or encourage[] another to commit suicide ). For Dr. Forest, this litigation and any appeal therefrom will determine whether she can lawfully treat patients consistent with her conscience and professional judgment, and provide appropriate care to terminally ill patients nearing the end of life which, in some circumstances, will involve medical aid in dying. For Mr. Fairchild and Dr. Nelson, the outcome of this action could determine whether they die on their own terms, or are deprived of autonomy and left suffer unnecessarily in their last days. These interests are direct and not consequential: Movants rights to provide or receive medical aid in dying will be determined in this lawsuit indeed, they already have been decided. See City & Cty. of S.F., 1 Cal. App. th at. B. The Court s Judgment Was Incorrect And Not Supported By The Law And Facts 1. The Court Erred In Determining The End Of Life Option Act Was Not Properly Enacted During The Special Legislative Session [W]hen the Governor has submitted a subject to the Legislature, the designation of that subject opens for legislative consideration matters relating to, germane to, and having a natural - -

11 connection with the subject proper. Any matter of restriction or limitation becomes advisory or recommendatory only and not binding on the Legislature. Martin v. Riley, Cal. d,, 1 P.d, (). [W]hen the Legislature acting under a special call, undertakes to consider subjects and pass laws in response thereto, and such laws receive the approval of the executive, courts are and should of right be reluctant to hold that such action is not embraced in such call, and will not so declare unless the subject manifestly and clearly is not embraced therein. Id. at 0. A legislation enacted in a special session will be held to be constitutional if by any reasonable construction of the language of the proclamation it can be said that the subject of the legislation is embraced therein. Id. at 0. a. The End Of Life Option Act Improve[s] The Efficiency And Efficacy Of The Health Care System The Governor s proclamation convened the Legislature for an extraordinary session [t]o consider and act upon legislation necessary to enact permanent and sustainable funding from a new managed care organization tax and/or alternative fund sources and to consider and act upon legislation necessary to... [i]mprove the efficiency and efficacy of the health care system, reduce the cost of providing health care services, and improve the health of Californians. (Kappos Decl. ; Ex..) That is exactly what the legislature did. As the legislative history of the EOLOA makes it clear, the EOLOA provides physicians immunity from civil or criminal liability from prescribing aid-in-dying medication and specif[ied] that the immunities and prohibitions on sanctions of a health care provider are solely reserved for conduct of a health care provider provided for by the bill. 1 Cal. Legis. Serv. nd Ex. Sess. Ch. 1 (A.B. 1). The EOLOA ma[de] participation in activities authorized pursuant to its provisions voluntary, and also made health care providers immune from liability for refusing to engage in activities authorized pursuant to its provisions. By making healthcare providers and physicians immune from liability based on activities specifically provided by the Act, the EOLOA improved efficiency and efficacy of the health care system by removing uncertainties associated with providing end-of-life care to individuals who desire to obtain aid-in-dying medications. - -

12 The EOLOA enables healthcare providers to provide information and prescriptions for an end-of-life option to qualified individuals within the parameters of the Act without the uncertainty of civil or criminal liability. Cal. Health & Safety Code.1 (a) to (d). The EOLOA, at the same time, allows healthcare providers to refuse to participate, and keep their employees from participating, in providing information or prescriptions under the Act, also without fear of any civil or criminal liability from refusing to do so. Cal. Health & Safety Code.1(e) &.1. By removing the uncertainty of civil or criminal liability through a narrow immunity provided by the EOLOA, and by clarifying the procedures for physicians and patients to qualify for such immunity, the EOLOA improve[s] the efficiency and efficacy of the health care system. Moreover, evidence from other jurisdictions where medical aid-in-dying is available shows that doctors redouble efforts on advising terminally ill patients about hospice and other palliative care options when they are advising these same patients about medical aid-in-dying. (Kappos Decl. ; Ex., Ganzini et al., Oregon Physicians Attitudes About and Experiences With End-of-Life Care Since Passage of the Oregon Death with Dignity Act, () J. of Am. Med. Assoc. - (01).) Thus, for this additional reason it is plain that the EOLOA has a reasonable nexus to improving healthcare for Californians, which was stated to be within the Governor s proclamation. b. The Court Erred By Interpreting The Scope Of The Special Session Narrowly Here, as noted above, the Governor called a special session to, among other matters, consider and act upon legislation necessary to... [i]mprove the efficiency and efficacy of the health care system, reduce the cost of providing health care services, and improve the health of Californians. (Kappos Decl. ; Ex. (Tr. from May 1, Hearing on Plaintiffs Mot. for Judgment on Pleadings).) As the Supreme Court in Martin explained, the proclamation should not be considered in a narrow sense. Martin, Cal. d at 0. The Governor s call open[ed] for legislative consideration matters relating to, germane to and having a natural connection with the subject of healthcare services. Martin v. Riley, Cal. d, (). Yet the Court s judgment failed to consider the full scope of the Governor s proclamation - 1 -

13 under Martin. Instead, the Court considered only what it called the plain reading of the proclamation. (Kappos Decl. ; Ex. at :1-.) And based on that plain reading, the Court determined that the Act ha[s] nothing to do with healthcare funding for Medi-Cal patients, the developmentally disabled, or in-home supportive services, and does not fall within the scope of access to healthcare services, improving the efficiency and efficacy of the healthcare system, or improving the health of Californians. (Id. at :1-.) In short, the Court s ruling was based on a narrow and limited reading of the proclamation, without any consideration of the full scope of the subject matter the Governor s proclamation opened up to the legislature. Sturgeon v. Cty. of Los Angeles is instructive. Sturgeon v. Cty. of Los Angeles, 1 Cal. App. th, (). Sturgeon involved a challenge to legislation that allowed counties to control certain supplemental benefits to judges. The legislation was enacted in a special session of the legislature called by the Governor s proclamation. The proclamation convened the Legislature in pertinent part: To consider and act upon legislation to address the economy, including but not limited to efforts to stimulate California s economy, create and retain jobs, and streamline the operations of state and local governments. Sturgeon, 1 Cal. App. th at. The challenged legislation provided that Judges of a court whose judges received supplemental judicial benefits provided by the county or court, or both, as of July 1, 0, shall continue to receive supplemental benefits from the county or court then paying the benefits on the same terms and conditions as were in effect on that date. Id. Like the plaintiffs in this case, Sturgeon argued that the legislation was beyond the scope of the Governor s special session proclamation. Id. at 0. The Court of Appeals rejected that argument, and explained the Governor s call opened up the subject of the operations of state and local governments. Id. at (citing Martin v. Riley, Cal.d at 0 1). Whether the legislation in fact streamlined those operations is not of concern to [the Court]: the Governor s proclamation gave the Legislature the power to legislate in the area of state and local government operations. Id. The legislation, because it manifestly dealt with the operations of superior courts, their relationship with the county governments where they are located and the Legislature s duty to prescribe judicial compensation, was squarely within the area of state and local government operations and - 1 -

14 hence within the scope of the Governor s proclamation. Id. As in Sturgeon, Governor Brown s call for the special session to consider and act upon legislation necessary to... [i]mprove the efficiency and efficacy of the health care system, reduce the cost of providing health care services, and improve the health of Californians opened up the subject of healthcare for the legislature to consider. See Sturgeon, 1 Cal. App. th at. Whether the EOLOA in fact improve[d] the efficiency and efficacy of the health care system, reduce[d] the cost of providing health care services, and improve[d] the health of Californians should not have been of concern to this Court. Id. The Governor s proclamation gave the Legislature the power to legislate on the operation of the healthcare system. The EOLOA, which regulates the conduct of healthcare providers and provides for immunity from civil and criminal liability (either for providing an aid-in dying prescription, if done in accordance with the requirements of the Act, or from refusing to provide a prescription to those who request it) is in the area of healthcare. 1 The Act plainly deals with the operation of healthcare systems relating to end-of-life care options available to patients, the steps required for obtaining certain end-of-life care options, and the limits of protection from liability to healthcare providers. Thus, the Act was within the scope of the Governor s proclamation. c. The Legislature Specifically Addressed Whether the EOLOA Was Properly Before The Special Session In deciding whether the EOLOA was within the scope of the Governor s proclamation, this Court should have presume[d] that the Legislature understands the constitutional limits on its power and intends that legislation respect those limits. City of Cerritos v. State, Cal. App. th, (1) (citations omitted). The Legislature s awareness and respect for the constitutional limitations on its power was evident by the fact that the propriety of considering the EOLOA during the special session was challenged during the special session. The Assembly then 1 The Act did not decriminalize assisted suicide, as Plaintiffs have argued. Penal Code Section 01 is still the law in California. Instead, the Act provides that when a mentally competent, terminally ill adult requests a prescription for medication to peacefully end their suffering and a doctor prescribes medication that, once voluntarily ingested by the patient, will bring about his or her death due to a terminal disease, such practice is not a suicide and therefore is exempt from Penal Code Section

15 voted on whether the EOLOA was properly before it in the special session before voting on the measure. In a vote separate from the vote approving the Act, the Assembly specifically rejected the argument that Plaintiffs make in their complaint and found that the EOLOA pertained to health care. After losing in the Assembly, Plaintiffs now seek a second bite at the apple. In the special session, Assemblyman James Gallagher of the rd State Assembly District stated that the EOLOA was not properly before this extraordinary session, as it is not consistent with the purpose stated for the extraordinary session. (Kappos Decl. ; Ex., Transcription of the Assembly proceedings on the End of Life Option Act at :-.) Speaker Pro Tempore Kevin Mullin responded to Mr. Gallagher s concern by stating that the Chair has addressed the issue and the Rules Committee has approved consideration of the EOLOA in the special session. (Id. at :-.) Speaker Mullin repeated the Rules Committee s determination that the EOLOA is germane to health care. (Id.) Mr. Gallagher then called for a vote on the ruling in order to appeal the decisions of the Chair and Rules Committee. (Id. at :-1.) Mr. Gallagher was given two minutes to state the reasons for his appeal, and set forth the exact arguments that Plaintiffs make in this case: Mr. Speaker, members, again, and I will be brief. It's important that we follow the procedures established for this body. This extraordinary session was called for the specific purpose of finding funding for MediCal, and other healthcare issues for the developmentally disabled. This bill is not consistent with the subject of this extraordinary session. And I think it's incumbent upon all of us to ensure that we follow proper procedure. This bill did go through in our regular session, and it didn't make it through the Committee process. We need to respect that decision. In the decision that was made in Health Committee and not allow the rules to be circumvented. And so I would encourage all of you to overrule this ruling. So that we can get back to the business that we've been working on and we can get back to the proper business of this extraordinary session. Thank you. (Id. at :-:.) In rebuttal, Speaker Mullin stated that the EOLOA was properly referred by the Rules Committee and that it is germane to health. (Id. at :-1.) He identified the point raised by Mr. Gallagher as procedural and opened the rolls for a vote. (Id.) The Assembly voted 1 to uphold the Chair s determination that the EOLOA was germane to health and properly before the special session. (Id.) This Court should not disrupt that determination by the State Legislature

16 d. The Governor Affirmed The Act To Be Within The Scope Of His Proclamation For The Special Legislative Session Perhaps the most telling evidence that the EOLOA was relating to, germane to, and having a natural connection with the subject of the Governor s proclamation was the act of Governor Brown himself. Martin v. Riley, Cal.d at. After the legislature passed the EOLOA, the Act was submitted to Governor Brown so that he could either sign or veto the EOLOA. Governor Brown signed the EOLOA to law, with a specific signing message. The Governor stated that [he had] carefully read the thoughtful opposition materials presented by a number of doctors, religious leaders, and those who champion disability rights. (Kappos Decl. ; Ex., CA Assem. Jour., 1- nd Ex. Sess. Rec. No.. He considered the theological and religious perspectives as well as letters of those who support the bill.... Id. In the end, he signed the EOLOA, stating that the Act deals with life and death and that if [he] were dying in prolonged and excruciating pain... it would be a comfort to be able to consider the options afforded by the bill. Id. Article IV, section (b) of the California Constitution gave Governor Brown the power to cause the Legislature to assemble in special session by proclamation that defines the scope of the special session. And pursuant to that Constitutional power, Governor Brown wrote the proclamation. If Governor Brown considered the EOLOA to be outside the scope of his proclamation, he had the power to veto the Act. Instead, he signed the act with a specific acknowledgement that the Act dealt with pain, suffering, and the comfort of having the health care options afforded by the Act. The fact that Governor Brown, the very person who was constitutionally empowered to define the scope of the special session by proclamation, interpreted the EOLOA to be within the scope of his proclamation shows that the Act is relating to, germane to and having a natural connection with the subject of the Governor s proclamation. This fact alone should dispose of the challenge raised by Plaintiffs.. Plaintiffs Are Not Real Parties In Interest Qualified To Bring This Suit A litigant s standing to sue is a threshold issue to be resolved before the matter can be - -

17 reached on the merits. Blumhorst v. Jewish Family Servs. of Los Angeles, 1 Cal.App.th, 00 (0). Standing goes to the existence of a cause of action. Id. If a court concludes that a plaintiff does not have standing to maintain the action, not having been personally damaged by the defendant s conduct, then it is improper for the court to exercise jurisdiction over the case. Id. It is well settled in California that a party suing on a claim for relief must be the real party in interest unless a specific exception applies. Code of Civil Procedure (Except as otherwise provided by statute, every action must be prosecuted in the name of the real party in interest... ); see also Cloud v. Northrop Grumman Corp., Cal.App.th, 0 (). Yet the complaint is devoid of any allegation of what interest, if any, Plaintiffs have in the prayed-for relief. Nor could they have pled any. Plaintiffs interest in this case, if any, is simply a generalized grievance and dissatisfaction with the law. The EOLOA in no way affected Plaintiffs. Plaintiffs a group of physicians and a physician lobbying organization have not been personally injured by the Act, nor do they allege otherwise. The Complaint contains no facts or allegations that show how Plaintiffs have suffered, or are about to suffer, any personal injury as a result of the Act. Plaintiffs are not required to prescribe aid-in-dying medication to any patient, or inform any patient of the availability of such options under the Act. See Health & Saf. Code.1(e)(1) ( a person or entity that elects, for reasons of conscience, morality, or ethics; not to engage in activities authorized pursuant to this part is not required to take any action in support of an individual s decision under this part. );.1(e)() ( Notwithstanding any other law, a health care provider is not subject to civil, criminal, administrative, disciplinary, employment, credentialing, professional discipline, contractual liability, or medical staff action, sanction, or penalty or other liability for refusing to participate in activities authorized under this part, including, but not limited to, refusing to inform a patient regarding his or her rights under this part, and not referring an individual to a physician who participates in activities authorized under this part. ). And if they do prescribe aid-in-dying medication, they are immune from prosecution or professional censure or discipline so long as their conduct was in accordance with the procedural requirements of the Act. (Health & Saf. Code.1, subds. (b)-(e),..). Thus, Plaintiffs have no interest in the outcome of the - -

18 suit to bring this action on their own behalf. Instead, Plaintiffs claim that they are protecting the rights of their patients. In general, a plaintiff may assert a claim on behalf of a third party only when (1) the plaintiff has suffered an injury in fact; () the plaintiff has a relationship with the third party so that it can, and will, effectively present the third party s rights; and () obstacles exist preventing the third party from asserting his own rights. Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 1 Cal.App.th 1, 1 (0). Here, Plaintiff-physicians will not suffer any personal injury under the Act as discussed above. Nor will the Act compel any of their patients to receive information regarding the option of medical aid-in-dying, or a prescription for aid-in-dying medication. The patients are also entirely free to make their own choice to receive or not to receive a prescription under the Act. In fact, the complaint does not even allege that any of the Plaintiffs have any patients who are harmed by the Act, let alone any allegation that any obstacle exists preventing any such patient asserting his or her own rights. Plaintiffs motion for judgment on the pleadings should have been denied for this additional ground. See Lee v. State of Or., F.d 1, (th Cir. ), as amended (Mar., ), as amended (Apr., ) (doctors lack standing to challenge Oregon s Death With Dignity Act because the Oregon act does not criminalize participation or non-participation in the act). C. Ex Parte Relief Is Necessary and Appropriate One who is legally aggrieved by a judgment may become a party of record and obtain a right to appeal by moving to vacate the judgment pursuant to Code of Civil Procedure, section. County of Alameda v. Carleson, Cal. d 0, - (1). Movants make this request on an ex parte basis because the Court of Appeal has already set forth a briefing schedule upon the Intervenor-Defendants Petition for Writ of Mandate and/or Prohibition. (Kappos Decl. 1; Ex., Order from the Court of Appeal on Intervenor- Defendants Petition for Writ of Mandate and/or Prohibition.) Upon timely grant of Movant s Application, Movants will be able to obtain the relief they seek without the intervention of the Court of Appeals. In addition, Dr. Nelson does not have much time her medical condition is not likely to allow her to wait for the decision by the Court of Appeals on the Intervenor-Defendants - -

19