Note: this article is an update to the baseless California SB277 lawsuit that was written about previously published on 1 May 2016. This article adds substantial new information on some of the activities surrounding the lawsuit. Stay tuned, as this situation is fluid and new information will be posted as it becomes clear. Professor Reiss and I will update as necessary. I will repost the article whenever there’s a significant update to the lawsuit.
A California SB277 lawsuit was filed by Attorney T. Matthew Phillips in the Los Angeles County Superior Court, Tamara Buck et al v State of California (pdf), or “Buck.” To remind everyone, SB277 is the California law that removed the personal belief exemption to school immunization requirements.
Although the lawsuit commenced for the plaintiffs is in theory, challenging the new statute, the complaint posted online is poorly drafted. Much of the complaint, especially the first section, does not meet the basic pleading standard in California, which requires “a statement of the facts constituting the cause of action, in ordinary and concise language. “ (CCP § 425.10)
As phrased, the complaint does not make valid legal arguments against the new statute. The complaint demands trial by jury when it is elementary law that the relief requested in the complaint would not entitle the plaintiffs to anything but a trial before a judge. The complaint fails to meet the requirement that the attorney’s signature constitutes a certification that “[t]he claims … are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.” (CCP § 128.7(b)(2).)
The complaint also contains gross factual errors, which may violate CCP § 128.7(b)(3), though those errors alone, at this stage in the proceedings, probably would not permanently damn the suit in state law at this initial stage. In assessing initial challenges to a complaint, state courts must assume that the factual claims in the complaint are true (not legal conclusions or polemical oratory), even when they are as far-fetched as the ones in this suit.
If the attorneys for the State of California were to demurrer to this complaint (file a motion requesting the court to dismiss the complaint as lacking sufficient grounds), the plaintiffs would probably be given an opportunity to correct the errors. For that reason, and since this post is already too long, I didn’t provide a detailed critique of the complaint’s shortcomings as a legal document.
Frankly, the people who donated money to this suit deserved better. The opposition to SB 277 consists of a minute fraction of California’s citizens. The opposition is misguided, but most of them are sincere in their beliefs and very, very passionate and dedicated to their cause. Many of them clearly fear vaccines and the new law. I hope the courts will protect the community and children’s health by upholding SB 277 (and to remind everyone, the vaccine-denied children of SB 277 opponents need SB277 as well – they depend on herd immunity to protect them from their parents’ error). But when opponents put their trust in a lawyer, they deserve to have their interests competently and professionally represented. This complaint does not do that.
Of course, the complainants chose the lawyer, and they may have had input into the content of the complaint. They are responsible for that choice. But it is also the lawyer’s responsibility to advise them against making serious mistakes.
It is hard to see much indication that Mr. Phillips gave his clients such advice (unless, of course, advice was offered and rejected). Frankly, the tone of the complaint and the discussion on the complainants’ Facebook page suggests that the content of the complaint was driven by Mr. Phillips or at least supported by him.
California SB277 lawsuit– sloppy
Before even getting into the content of the complaint, it’s worth noting how poorly this complaint was written. Mr. Matthews is licensed to practice in California. He can and should meet a higher professional standard than this.
Even the most professional and fastidious of lawyers may have a typo or error in a complaint at some point in his career. But this complaint has them in abundance.
Among other things:
- The complaint uses the slang terms “vaxxed” and “unvaxxed” (“If SB 277 takes effect, California will be left with a decidedly “segregated” school system — vaxxed and unvaxxed — where many children will suffer invidious discrimination based on “medical status” (a protected class under California law)”).
- The complaint is not well written. It makes somewhat strange use of quotation marks and exclamation points. It has, as already mentioned, quite a few errors. This may sound petty, but this is an officer of the court submitting a legal document for paying clients to a court of law. He owes it to them to do at least some level of proof reading so that the court will take the allegations and contentions as seriously as they can be. To provide one of many example, p. 3, lines 18-19 read: “Plaintiffs cannot understate the historical significance and sheer weight of the First Amendment.” It is pretty clear plaintiffs want to say the first amendment is important. But the line says the opposite, because the writer used “understate” instead of “overstate”.
- The complaint –especially the first section–is written as a polemic, not as a legal argument. It simply does not read as a well-reasoned legal document, as required by statute and custom.
Here is one paragraph embodying several of these problems:
[infobox icon=”quote-left”]Science cannot explain “why” vaccines kill, nor can science predict “who” will next suffer vaccine injuries or “when.” Under a simple cost-benefit analysis, the “costs” associated with vaccines clearly outweigh any “benefit” — because vaccines come with no immunization guarantee and instead carry the very palpable risk of death.[/infobox]
Aside from the strange use of quotation marks, this is a collection of anti-vaccine tropes that do not really make a coherent argument which is well grounded in law and fact. Even assuming the factual assertions here have evidentiary support, what is the legal implication? Why does it matter?
California SB277 lawsuit – poor legal claims
As written, the complaint does not really make a coherent legal argument against the bill. Let’s examine its arguments.
The bill’s goal is total immunization. Since that’s unachievable, the bill can’t stand. It’s unachievable because vaccines don’t guarantee complete immunity.
Analysis – the language of “total immunization” that the complaint seems to focus on did not originate with SB 277. The clauses in the California Health and Safety Code addressing school immunization requirements included, before SB 277 was enacted, the following language:
[infobox icon=”quote-left”]120325. In enacting this chapter, but excluding Section 120380, and in enacting Sections 120400, 120405, 120410, and 120415, it is the intent of the Legislature to provide:
- A means for the eventual achievement of total immunization of appropriate age groups against the following childhood diseases:[/infobox]
This language, again, predates SB 277 – it’s the goal of school immunization requirements generally. Since the provisions included a medical exemption, and before SB 277 also a personal belief exemption along with this language, it’s pretty clear the legislature was not literally saying “total immunization of all children now.”
Seeing the language as setting an immediate operational goal is simply a misreading of this provision. We can see the language as aspirational. Alternatively, the language can be read to mean that school immunization requirements aim to protect and cover the age group as a whole against the disease.
That goal does not require 100% coverage – and there will always be a small number of children who cannot be vaccinated for medical reasons, which is why medical exemptions are important. Nor does that goal require that vaccines be 100% effective. If enough children are vaccinated, herd immunity will protect the few that cannot be vaccinated, and the few that suffer vaccine failure from diseases. That is how polio was eliminated in the United States, as was rubella, even though we have never had 100% coverage and neither vaccine is 100% effective.
The goal of SB 277 was to remove the personal belief exemption – advancing the purpose of improving immunization rates and achieving herd immunity, protecting the community from disease. SB 277 certainly advances that goal, and the complaint makes no argument to rebut that.
The bill denies “California children their fundamental right to go to school,” based, apparently, on article 9, section 5 of the California Constitution. The complaint cites Serrano v. Priest, saying:
[infobox icon=”quote-left”]…the California Constitution, which guarantees the fundamental right to free, public education. [Calif. Const., Art. 9, Sec. 5] The California Supreme Court stands firmly on this fundamental right, stating: “[S]ociety has a compelling interest in affording children an opportunity to attend school.” [Serrano v. Priest, (1971) 5 Cal. 3d 584, 606, 487 P.2d 1241, 1257].[/infobox]
All I will say at this point – addressing the claim of discrimination below – is that SB277 certainly offers children an opportunity to attend school, as long as they meet the state’s health and safety requirements. School attendance has always been contingent on meeting reasonable health and safety requirements set by the state. Once met, there is nothing stopping the children from attending any school of their choice. As a legal matter, children are offered an opportunity to attend school on compliance with regulations.
As a practical matter, children whose parents are unwilling to comply with the state’s health and safety regulations may choose one of several available options for children to be educated, including registering as a private home school or attending independent study programs.
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The bill ignores parents’ personal beliefs, “including their sincerely held philosophic, conscientious, and religious objections to State-mandated immunization,” apparently included in the free exercise clause in the First Amendment. The complaint reads:
[infobox icon=”quote-left”]Plaintiffs cannot understate [sic] the historical significance and sheer weight of the First Amendment; the right to “freely exercise religion” forms the very cornerstone of democracy. Plaintiffs believe The Founders placed “freedom of religion” in the First Amendment because it is the most fundamental of all rights, quite literally, the number one most cherished right of free-thinking people.
It is unfair to the plaintiff to force them to choose between their right to freely exercise their personal beliefs and the right to freely educate their children.[/infobox]
Analysis: The complaint ignores existing jurisprudence on this matter, and especially two important cases: Prince v. Massachusetts, 321 U.S. 158, 170 (1944), which expressly highlighted that the state may force vaccination on children over religiously based parental opposition and Emp’t Div. v. Smith, 494 U.S. 872, 888-90 (1990); see also Hobby Lobby, 134 S.Ct. at 2760-62 which stated that a generally applicable, facially neutral law does not violate the first amendment. The complaint provided no reason to reject that jurisprudence, upheld as recently as 2015 in Phillips v. City of N.Y., 775 F.3d 538, 540-41, 543 (2d Cir. 2015) (cert. denied).
There is simply no legal argument in the complaint on this issue. The complaint contains no language that establishes why SB 277 is actually in tension with the First Amendment.
In addition, some of what is mentioned in the complaint as protected by the First Amendment are clearly erroneous “factual” assertions that are not covered by even the broadest interpretation of the First Amendment. The complaint mentions as an example:
(“Herd immunity is fraud!”) (p. 3). Under the broad definition in Welsh v. United States, 398 U.S. 333, 337–40 (1970), “’religious’ can encompass ‘moral, ethical, or religious beliefs about what is right and wrong,’ that are “held with the strength of traditional religious convictions…” (pdf).
But the statement about herd immunity is an incorrect factual assertion – herd immunity is scientifically based, it is not a belief about morality and what is right and wrong. Therefore, the herd immunity belief is not entitled to the protection outlined in Welsh.
The bill creates a segregated school system based on medical status. Says the complaint: “Under a Brown vs. Board of Education analysis, such a bifurcated school system — vaxxed and unvaxxed — reeks of “separate-but-equal,” and thus, cannot be allowed to stand. Under California law, segregation based on “medical status” is every bit as odious as segregation based on “race,” “creed” or “color.””
Analysis: The complaint provided no legal source for the claim that medical status is a protected category in California. Further, the complaint did not explain why the choice not to vaccinate falls under medical status. Medical status may encompass someone who suffers a disability or an illness.
There are good grounds for being wary of discrimination against those with medical conditions not of their own making. But the choice not to vaccinate is not in the same category. Parents choose not to vaccinate. Imposing consequences on choice is at the heart of our legal system. Personal responsibility is the other side of autonomy. It is not segregation to treat differently those that choose to behave differently. As I explained elsewhere,
[infobox icon=”quote-left”]Refusal to vaccinate is a choice that imposes risks on others, because unvaccinated children are themselves at much higher risk of contracting preventable diseases than vaccinated children. … Acting in ways that create a risk to others is not an immutable characteristic, and regulation that treats people behaving in a manner that creates risk to others differently from those who do not create such risk does not violate equal protection. This type of distinction is not a suspect classification and thus does not trigger strict scrutiny.
In this context, parents who choose not to vaccinate are more like those who choose to drink and drive than they are those who are members of an ethnic group. They have no more claim of discrimination than does the Association Against Discriminating on the Basis of Alcohol Consumption (ADOBAC).” (citations omitted).” [/infobox]
The Complaint states that: “This lawsuit recognizes no public health crisis; rather, this lawsuit champions civil liberties, personal freedoms, and restores the rights of the individual.”
Analysis: With all due respect, it’s not up to complainants to recognize a public health crisis. That power has been given to state health authorities and to the state’s legislature, which do recognize such a crisis. As to civil rights, they are certainly important, but as highlighted in Jacobson v. Massachusetts, 197 U.S. 11 (1905) (another important case not mentioned in the complaint), are not unlimited. Specifically, Jacobson ruled that individual rights may be limited to protect the community, for example, from disease.
The complaint states that SB 277 fails a strict scrutiny standard, which is the appropriate standard since the law touches on fundamental rights. The state fails twice, according to the complaint:
[infobox icon=”quote-left”]The complaint claims there is no compelling interest, because “when all’s said, the State’s interest in educating children is necessarily more compelling than its interest in vaccinating them.[/infobox]
Analysis: This is obviously incorrect. Vaccines protect children from disease. Education is very, very, very important. But so are the health and lives of children. Health and life are a precondition to education: a child who contracts a disease and is killed or maimed by it loses educational opportunities.
Outbreaks, even if not deadly, certainly disrupt education. In other words, disease prevention is a compelling interest and a precondition to education. Indeed, in Workman v. Mingo Cnty. Bd. of Educ., 419 F. App’x 348, 352-357 (4th Cir. 2011) the Fourth Circuit’s Court of Appeals (pdf) said just that, acknowledging that preventing disease is a compelling state interest and upholding West Virginia’s school immunization requirement – which lacked any non-medical exemption – on that basis.
There are less restrictive means. The complaint reads:
[infobox icon=”quote-left”]Plaintiffs point out the availability of “less-restrictive means” of achieving such a goal (if indeed it be a worthwhile goal); for example, where parents are concerned about “immunization,” such parents are always free to “immunize,” if they so choose, or where parents are concerned about disease prevention generally, they are free to seek advice or treatment consistent with their own “personal beliefs” (philosophic, conscientious, and religious)…
…and where the State has legitimate concern about disease prevention, (unrelated to concerns for the national vaccine market), the State may undertake disease-prevention awareness; but ultimately, all decisions regarding whether to “immunize” must be made by the parents, not the State.[/infobox]
Analysis: These alternative means are simply inadequate and inappropriate. They do nothing to lessen the risk that non-vaccination poses.
The problem is that low immunization rates are linked to more disease outbreaks. Outbreaks put at risk those who are not fully vaccinated as well as the a small percentage of those vaccinated who suffer vaccine failure.
The measures suggested do nothing to increase rates in a way that would establish herd immunity and protect those who cannot be fully vaccinated because they are too young or have medical conditions and the few that suffer vaccine failure. In short, they are irrelevant to the problem, not alternative means at all.
In short, the complaint is wrong about the lack of compelling interest and offers no reasonable or valid alternative means at all.
The law never talks about vaccines or vaccination, but repeatedly talks about immunization. The complaint reads:
[infobox icon=”quote-left”]The term “immunization” is a conclusion that a disease-fighting shield is in effect; whereas, by contrast, the term “vaccination” refers to a one-time medical event that (ostensibly) leads to “immunization.” The language of Sacramento lawmakers is clear and unambiguous — no vaccines required! SB 277 requires only “immunization,” and Plaintiffs’ children are already naturally “immunized.””[/infobox]
Analysis: A short reading of the code makes it clear that the term immunizations in it refers to vaccines. Vaccines confer immunity from disease on the majority of those who get them, and hence the term immunization, commonly used synonymously, is appropriate. §120325 (a)(11) reinforces that by referring to “the recommendations of the Advisory Committee on Immunization Practices of the United States Department of Health and Human Services, the American Academy of Pediatrics, and the American Academy of Family Physicians.”
These are the bodies setting the schedule according to which children are vaccinated. Note that the CDC itself refers to the vaccine schedule when it speaks of immunization schedule. The Department of Health clearly understands the term to refer to vaccines. In this document (pdf), it mentions the vaccines needed to meet the immunization requirements by name.
The claim that plaintiffs’ children are “naturally ‘immunized’” against the ten diseases in question is both false and potentially harmful to the children. There is no natural immunity to tetanus. And chances are that thanks to living in a first world country where most people vaccinate — offering the protection of herd immunity to vaccine-deprived children — they have never been exposed to diphtheria, polio, hib and hepatitis B. And in spite of the measles outbreak, rates are still high enough that the chances of them being exposed to measles are quite small.
And no, I am not suggesting that the plaintiffs seek to confer natural immunity to these diseases on their children (to remind readers, you get natural immunity by getting the pathogenic disease, with its inherent risks). I hope herd immunity continues to stand for these and other vaccine-deprived children and protect them from these dangerous diseases.
Vaccines maim and kill children and there are limits on suing manufacturers. Vaccines are unavoidably unsafe, and without protection manufacturers would be driven from the market. The complaint says:
[infobox icon=”quote-left”]The popular media pretends that vaccines are “safe and effective,” but this is a blatant falsehood; as a matter of law, all vaccines are “unavoidably unsafe,” and for this reason alone, parents are wise to opt-out of mandatory immunization because sometimes, indeed, all too often, vaccines go wrong.[/infobox]
Analysis: Nothing is without risks. Vaccines are no exception, though luckily, the risks of modern vaccines are very, very small, with serious harms from them very rare.
But the tiny risk of vaccine injury is not a reason not to protect schools from disease outbreaks. It is likely not even to be a reason to strike down a direct requirement that children be vaccinated. After all, in some circumstances a child could be trapped in a car seat and worse off in an accident, and airbags and seatbelts can sometimes harm. But the benefits are so dramatically larger that mandating is deemed appropriate.
Similarly, we require that parents feed their children in spite of the small risk of food poisoning or choking because the risks of not feeding a child are much greater. The balance of risk is no less favorable in the case of vaccines.
Since SB 277 does not require vaccination, instead imposing consequences – limits on the ability to send a child to school – on parents who do not vaccinate, the claim is even less valid.
As to unavoidably unsafe, the term is misunderstood. Here is a discussion:
[infobox icon=”quote-left”]The message comes through clearly: these products are beneficial enough that society wants to encourage their manufacturing. Therefore, while strict liability would be applied to most products, a manufacturer that prepared a drug or vaccine carefully and warned consumers of its risks should not have to pay for the side effects of a drug or vaccine whose benefits outweigh the risks unless that manufacturer can be shown to have been negligent.[/infobox]
In other words, “unavoidably unsafe” is the opposite of “unreasonably dangerous” in the Restatement’s categorization. It justifies a more favorable treatment because of those products’ extraordinary benefits.
Full complaint can be found here: Lawsuit SB277 Phillips.
Update, 29 June 2016
Attorney T. Matthew Phillips filed an amended complaint. It suffers from many of the problems already discussed. It repeats many of the claims – the total immunization claim, the segregation claim, and so forth. It does not offer any more viable least restrictive means.
What it does do is delve deeper into extreme anti-vaccine claims, for example, speaking at length about natural immunity as a substitute for vaccinating. The complaint seems a little confused about the term. It suggests that it can be achieved by “clean, health living.”
In actuality, natural immunity refers to the immunity derived after one got – and survived – the actual disease. To get natural immunity to the diseases covered by California’s immunization requirements, plaintiffs’ children will have to be infected with chicken pox, diphtheria, hepatitis B, hib, measles, mumps, polio, pertussis, rubella. They cannot get natural immunity to tetanus, since it doesn’t confer it. Hepatitis B can be chronic. Pertussis does not usually provide life long immunity.
In other words, choosing natural immunity, as the complaint suggests, means choosing for your child to get many dangerous diseases. It’s not a viable, good alternative to vaccinating – and if the plaintiffs do which to have their children infected this way, it’s even more justified to wish to have these children kept away from others, especially vulnerable, immune compromised children.
Much of the rest of the amended complaint really tries to rewrite vaccine science, drawing on anti-vaccine lore. Plaintiffs and their lawyer, believing these claims, may think it makes their case stronger, but their ability to put up reliable expert witnesses on this is questionable, while the state has easy access to many experts who can state what the science shows in tens of thousands of peer reviewed articles and in medical textbooks: vaccines are very, very safe and effective, with benefits that far outweigh their very small risks.
Update, 8 July 2016
The hearing on whether to grant a preliminary injunction is set for 4 August 2016. On 8 July 2016. Attorney T. Matthew Phillips filed his Motion for Preliminary Injunction, asking the court to stay SB277 until the case is decided.
For some reason, the motion focuses only on one of the plaintiffs’ children – Tamara Buck’s daughter. While if the act is found unconstitutional it would affect many children, the motion never explains why if there is irreparable harm only to this child – even among the plaintiffs’ children – more than an injunction ordering the school to allow her to attend until the case is decided is given. And that is not the only problem with the motion.
To get a temporary injunction the motion needs to show there is grave and irreparable harm to plaintiff. Let’s assume, for the purpose of this discussion, that the claimed harm – Ms. Buck feeling forced to reallocate since she is unwilling to protect her daughter from disease and is unable to both homeschool and work – is grave and severe. Of course, forced reallocation is a big deal, but in this case, it’s the mother choosing to do so rather than protect her daughter from disease or availing herself of one of the alternatives, for example, an independent study program.
As an aside, the Motion is incorrect in its statement about Bruesewitz v. Wyeth LLC, (2011) 562 U.S. 223, 131 S. Ct. 1068 (pdf). The Motion claims that “The Supreme Court has already ruled that all vaccines are “unavoidably unsafe,”” – but the motion cites a statement of the dissent in that case (emphasis added). The majority of the Court in Breusewitz rejected the unavoidably unsafe argument, and certainly did not support the claim that vaccines are unsafe or very dangerous.
Even putting aside the problems in the section describing Tamara Buck’s harm, however, the motion is problematic. In discussing the balance of equities, the motion simply does not correctly describe the harm from staying SB277.
First, as stated above, the motion is not asking to allow Ms. Buck alone to attend school. So if granted, other exempt children will be allowed in. The reason for SB277 is that increasing rates of exemptions undermined herd immunity and put schools at risk of outbreaks of dangerous preventable diseases. Staying it will keep that risk.
A vaccine-deprived child like Ms. Buck is especially vulnerable if the risk materializes, since she is not protected against the diseases. In other ways, staying SB277 leaves children in school at risk, including the vaccine-deprived children – and at a risk that could cost them their lives. However painful relocating or missing participating in school activities is, a disease outbreak would potentially cause more harm to more people. In other words, claiming the balance of equities supports an injunction ignores the risks of doing so.
The only thing the motion says about this is that Ms. Buck will be in contact with children outside school – but casual contacts are less of a risk than the close interaction in schools: schools are areas of high transmission.
The motion simply makes no argument to counter the potential harm of staying the act. Ignoring that harm doesn’t negate it and doing so does not make a case under the balance of equities.
In terms of likelihood of success, after expressing confidence in their constitutional claims – the first, freedom of religion, one repeatedly rejected by courts, state and federal, and the second, the right to education, not well made and not reflective of the jurisprudence – the motion refers to a completely unfounded theory that sees vaccines as a medical experiment. Obviously, thoroughly tested and licensed vaccines are not experimental: they have undergone extensive testing.
The other claims have already been addressed above. This is not a strong complaint.
We can never tell what a court will decide. But the motion does not make a good case for staying SB277 altogether – it does not have good arguments for the balance of equities or chances of success. Nor does the grave harm it claims justify more than allowing Ms. Buck in.
Update, 13 July 2016
On 12 July 2016 the Attorney General of California moved the Phillips lawsuit – including all its appendices and the request for preliminary injunction – to the Federal court in LA and asked for a change of venue to unite it with the other SB277 lawsuit.
Attorney Phillips said he will oppose the move to San Diego, although, as of this date, it is still in Federal Court.
Further information about vaccines and liability can be found here: Medical Advice and Vaccinating: What Liability? By Amanda Naprawa and Dorit Reiss.