The citizens of Escondido who filed a Constitutional complaint against the City of Escondido and the CA Department of Health Services for selecting and permitting the use of hydrofluosilicic acid for addition to their public water supply have petitioned the California 4th District Court of Appeals for a rehearing.
The Petition for Rehearing is sent to the same judges that provided the ruling, so it is conceivable they won't even answer, or, at the most, some expect that they will deny the petition without addressing the areas of their vulnerability.
However, it is a necessary process despite its expected futility, as the CA Supreme Court will almost invariably reject their hearing the case if there is any aspect that is presented to them that was not given to the Appellate Court.
In a sense this is merely a warm-up for the Petition for Hearing to the Supreme Court that can not be filed before September 16, but must be received before September 26.
The basis for the Petition for Rehearing involved 7 issues, including:
A five point clarification of the Appellate Court error in Issue 1 stating that, "The Decision of this Court made factual findings that were contrary to the allegations of the Complaint which must be accepted as true;" enumerating the Court's error in,
"The Decision concludes factually that residents are not "forced" to consume HFSA;
The Decision concludes factually that residents are not being medicated with HFSA;
The Decision concludes factually that the residents will not be harmed by th
e use of HFSA;
The Decision concludes factually that the arsenic contamination in the HFSA is "trace";
The Decision concludes factually that HFSA will accomplish "dental protection."
For findings of law, a court must consider the law with full acceptance of the facts presented by the Plaintiff as true. The 26 page Petition points to example after example where the Court contradicts the Plaintiffs allegations and the case record of admissions from the State's own expert witnesses. The Petition asserts that the appropriate action for the Court is to remand the case to the lower court for a trial on the merits of these allegations.
Issue 3 illustrates the failure of the Court to address Plaintiff's claim that Respondent's use of an unapproved chemical to treat a disease is unconstitutional as recently affirmed in the decision on unapproved Anthrax vaccinations in Doe vs. Rumsfeld.
Issue 5 corrects the Court's error in attempting to use Maximum Contaminant Levels (MCL's) which are established to enforce standards for removing a contaminant, and Public Health Goals which establish scientifically-derived points of safety. The Court referenced the Public Health Goals but attributed their standard of safety to MCL's.
Issue 6 points out the Court's error in construing the jurisdiction of the FDA based upon the delivery method instead of the "use" of the chemical. Congressional intent and settled law have repeatedly asserted that the use of a chemical is the true test for whether a substance is a drug.