California SB277 lawsuit – state’s demurrer to Buck v Smith sustained

In 2015, California enacted into law a measure, SB277, that eliminated all non-medical vaccine exemptions to required school-entry vaccines. There were a number of factions in opposition to this law.  One faction, “Revolt, Revoke, Restore”, hired an attorney, T. Matthew Phillips, who eventually filed an SB277 lawsuit to stop the implementation of law. (Previous coverage of litigation  filed by Phillips can be found here.)

This SB277 lawsuit is called Buck v. Smith, or Buck v. California. Tamara Buck is the first of the seven plaintiffs; Karen Smith is the Director of the California Department of Public Health. The suit was first filed in July, 2016, and has been amended three times. In response, the state filed a demurrer. A demurrer is a written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the grounds that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. In this case, Basically, the court is saying “you have to show it’s unconstitutional to mandate vaccines for school before we ask if vaccines cause harm.”

On 21 October 2016, California superior court judge Gregory Alarcon in LA County sustained – accepted – the demurrer of the state and dismissed the SB277 lawsuit filed by Tamara Buck and seven other plaintiffs without leave to amend. What this means is that even after being amended three times, the complaint at the basis of the lawsuit had been found not to make a valid legal claim, and/or not to have enough facts to support a valid legal claim, or “cause of action.” Unless the trial court’s ruling is overturned on appeal, the Buck lawsuit is now dismissed and will not go forward.

There were two main reasons the complaint failed to meet the standard. First, some of the claims simply go against established jurisprudence; this is a problem any challenge to SB277 will face. Second, in this case, the complaint was not well written or argued.

Identifying the basis for the SB277 lawsuit decision

 

The SB277 lawsuit decision is very short, and simply says that “[t]he demurrer is sustained, without leave to amend, based on its page numbers 1 through 15.” The reference might be confusing, since the state filed several documents in response to the plaintiffs’ submissions. Two documents are particularly important. The first is titled “Defendant Karen Smith’s Notice of Motion and Motion to Strike Plaintiffs’ Second Amended Complaint; Memorandum of Points and Authorities.” That is not the demurrer, and not the document the decision was based on; in fact, in the decision sustaining the demurrer, the judge also ruled that “The motion to strike is ordered off the calendar as moot, in light of the ruling on the demurrer.” In other words, that document – which focuses on the safety on vaccines and says the plaintiffs’ claims that vaccines are unsafe had no merit – was not decided upon.

The second document is titled “Defendant Karen Smith’s Notice of Demurrer and Demurrer to Plaintiffs’ Second Complaint; Memorandum of Points and Authorities; Declaration of Jonathan E. Rich.” That document spells out in detail why the plaintiffs did not succeed in making a viable legal case. The only reasonable reading is that the judge sustained the demurrer based on pages 1-15 of the “Memorandum of Points and Authorities” in this document; in other words, the judge agreed with the State of California’s explanation in the Memorandum why the complaint – amended three times, at this point – still did not state a viable case.

Attorney T. Matthew Phillips, representing the plaintiffs, seems to think the case was dismissed because the court accepted the claims in the State’s Motion to Strike, and that there was an error on the judge’s part in not addressing his factual  challenge to these claims, culminating in an attempt to counter the State’s position by asking for a ruling on twelve questions. Attorney Phillips said, on his Facebook page:

In this excerpt, the State of Calif. is asking the court to remove from our lawsuit certain allegations — based on the notion they cannot possibly be true. So how did the judge ultimately rule on the state’s objections? We may never know — the judge simply dismissed our entire lawsuit!

SB277 lawsuit

 

But the judge did not address the motion to strike, and hence did not address these factual issues at all. The Judge did state that he is rejecting Attorney Phillips’ request for a “statement of decision,” because the State’s contentions in its Memorandum supporting the Demurrer were sufficient.

The focus of the demurrer hearing on the SB277 lawsuit, and the focus of the discussion at this point, was on the question whether the plaintiffs’ complaint stated a valid cause of action; the court’s focus was on whether the pleading was sufficient as a legal matter. By sustaining the demurrer the judge decided that the answer is no. By sustaining it without granting the plaintiffs leave to amend again, the judge was applying a California statute limiting the number of times plaintiffs are allowed to try to state a cause of action. Cal.Code Civ. Pro. 430.41(e).

How did the plaintiffs fail to make a claim?

Since the decision was based on the state’s demurrer, I will summarize that here.

Point 1. Acknowledged legitimacy of immunization requirements

The first point the state made – and the biggest obstacle to anyone challenging SB277 – is that for the past 100 years every court, state and federal, that discussed immunization requirements acknowledged the power of the state to protect the community against infectious diseases by mandating that school children be vaccinated. There is federal and state jurisprudence on this, from California and elsewhere, and that jurisprudence consistently supports school immunization requirements as a valid exercise of state power.

In fact, says the state’s demurrer, “defendant is unaware of any case in which a court has struck down a state’s mandatory school immunization law. “

Point 2. The plaintiffs have not made a valid free exercise claim

The state’s position has two parts. First, the state points out that most of the plaintiffs have personal beliefs against vaccines, not religious ones, and those are not protected by the First Amendment: personal beliefs are treated differently than religious beliefs in our system. Only two plaintiffs mentioned any religious opposition to vaccines (a third mentioned that she is Christian but does not mention any religious opposition to vaccines, specifically), based on “oppos[ing] vaccines that contain aborted fetal cells” (refuted) but, according to the state, “they fail to specify which vaccines they oppose as a matter of religion, or the religious doctrine on which their beliefs are based, and fail to specify which vaccines purportedly contain aborted fetal cells.” In other words, the only two plaintiffs who made somewhat religiously based claims did not make those claims specifically enough.

Second, and more importantly, as stated in Smith and quoted in other cases, “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”

And protecting children from disease is a rational and a compelling interest. In other words, even if the plaintiffs made a case that vaccinating violated their religious beliefs, the First Amendment would not prevent the state from mandating vaccines for school with no religious exemption: the requirement is constitutional because it is based on a compelling interest in public health.

The complaint made no reference to this jurisprudence, or acknowledgement of it – and made no attempt to argue why the court could (or even should) deviate from it. Basically, the complaint did not make a legal case for finding in the plaintiff’s favor.

Point 3. SB277 does not violate right to education

First, by preventing infectious diseases outbreak, the law protects children’s access to education, which is undermined by preventable diseases. Being sick doesn’t promote education. Safe schools are a precondition to education, and millions of California children have a right to attend schools that are safe from dangerous, preventable diseases.

Even if we thought SB277 undermined education, the law withstands strict scrutiny. Protecting public health and safety is a compelling state interest, and vaccines do that, by preventing outbreaks. SB277 is also narrowly tailored by not requiring kids get all recommended vaccines, but only those that the legislature determined are “very serious” and “pose very real health risks to children.” SB277 also exempts children with medical conditions that prevent vaccination and allows for home schooling and independent study programs as alternatives for children whose parents refuse to vaccinate and children with individualized education programs.

Point 4. Plaintiffs did not plead a valid equal protection claim

The complaint asserts that “[s]]chools must treat all children the same regardless of whether they are vaccinated” but provide no legal authority for this and make no case that being unvaccinated is a legally protected category. The law doesn’t discriminate on race, national origin, gender or any other protected category – basically, the plaintiffs didn’t make a case for their discrimination claim under the Equal Protection Clause.

This is a failure of the lawyer’s strategy in the case. First, Attorney Phillips knew or should have known that there is no jurisprudence supporting his claim that vaccination status is a protected category. Second, if he wanted to make a claim vaccination status should be treated as a protected category, he had to make an argument for it. He did not. Here – as with the Free Exercise claim – the complaint simply did not make a case. Ignoring the jurisprudence does not negate it.

Point 5. The Medical Exemption in the Statute is Clear

Plaintiffs tried, apparently, to claim that the medical exemption in the law is prohibited and unconstitutionally vague. The state’s demurrer pointed out that the exemption provision is very clear: to get an exemption, parents need:

a written statement by a licensed physician to the effect that the physical condition of the child is such, or medical circumstances relating to the child are such, that immunization is not considered safe, indicating the specific nature and probable duration of the medical condition or circumstances…

This, explains the state, makes it clear what is required for a medical exemption.

Conclusion

The state’s demurrer was based on over a century of jurisprudence supporting immunization requirements because they protect children, and on the failure of the complaint to make a case overcoming that history. The complaint was facing an uphill battle to start with; but failures of writing – including ignoring the existing jurisprudence and not supporting claims with relevant facts – also harmed the plaintiffs’ case.

Generally, an attack on SB277 has to make a case that it is invalid under the California or the U.S. Constitution. Arguing that vaccines are bad and that therefore mandating vaccines is bad policy is not, in itself, enough to constitute a case in court. If Attorney Phillips wanted to litigate vaccine safety, his first challenge was to make a valid case that he could plead facts that, if proven, would make the law unconstitutional. In sustaining the demurrer, the judge found the complaint failed to make that case, and therefore, cannot proceed.

The plaintiffs claimed they will appeal. We will have to see if they do, and if their appeal does better than this complaint.

 
 
Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law. 

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.