SB277 appeal rejected by court – California’s vaccine mandate stands

On 27 June 2018, the remaining plaintiffs in the problematic lawsuit Brown v. Karen Smith (formerly Buck v. Smith) posted a tentative ruling rejecting their SB277 appeal against the dismissal of their case. The decision is a very strong endorsement of SB277 and immunization mandates generally, and if it is adopted as the Court of Appeal’s final ruling – as it likely will be – it will become a strong barrier to future suits against SB277 unless and until the California Supreme Court deviates from it.

 Brown v. Karen Smith 

In April 2016 a group of eight plaintiffs, represented by attorney T. Matthew Phillips, brought suit against SB277. The lead plaintiff at the time was Tamara Buck, and the suit carried her name. The lawsuit was deeply flawed from the beginning, badly written, and full of implausible arguments. On 21 October 2016, a superior court judge dismissed the lawsuit. The plaintiffs appealed. The appeal was not better reasoned than the initial complaint.

Since then, two important changes occurred – A. two of the plaintiffs, including lead plaintiff Tamara Buck, dropped out, and the lead plaintiff became Sharon Brown, changing the suit’s name to Brown v. State of California. B. After a falling out, lawyer T. Matthew Phillips parted way with the plaintiffs and was permitted to withdraw from the case. However, in June 2018 the plaintiffs engaged a new lawyer, he did not have a chance to do much. The rejection of the appeal is very much a rejection of the arguments created by lawyer T. Matthew Phillips, potentially in conjunction with the plaintiffs.

Tentative SB277 appeal ruling, procedure

Brown v. Smith had a hearing scheduled for 28 June 2018. The court provided the appellants – the plaintiffs, who are appealing the lower court decision – a tentative ruling to know where the judges are leaning in preparation for oral argument. This can alert parties to where they stand, and give them an opportunity to try and change the court’s tentative views. Apparently, after reading it, plaintiffs decided not to attend the oral hearing (I will follow to see whether that changes).

If the tentative ruling becomes final, it will be the first appellate decision addressing SB277’s constitutionality. This is a big deal. This decision will be binding on all California superior courts until another appellate court rules, or until the California Supreme Court addresses the case. There is another appeal in the works – in Love, A Voice for Choice’s Case –  this one in the third appellate district. If that court – unlikely – goes the other way, superior courts would be free to choose between the decisions until the Supreme Court decides. 

The state is bound to use this decision, however, to try and persuade the other appellate court to follow suit. It is very likely that if the tentative ruling becomes final it will make a future SB277 appeal even more difficult. 

A tentative ruling is not generally shared with non-parties and becomes final no more than 90 days after the case is prepared, according to a phone conversation with the relevant division of the Second Appellate District Court of Appeals. Most tentative rulings do become final. But not all. That said, if plaintiffs don’t bother to argue against it, it’s likely to become final, possibly quicker than after 90 days. 

If the plaintiffs had not shared the ruling, I would not know its content. But they did, so I saved it as a PDF and also copied the content to a word document. 

Tentative SB277 appeal ruling, content

The tentative ruling upholds SB277, and strongly rejects plaintiffs’ arguments. Probably the strongest paragraph was:

…compulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases. As the legislative history indicates, studies have found that when belief exemptions to vaccination are permitted, vaccination rates decrease, and community immunity wanes if large numbers of children do not receive required vaccinations. We agree with Whitlow that the right of education is no more sacred than other fundamental rights that give way to the state’s interest in protecting the health and safety of its school children.

Indeed. 

To touch on the other arguments: 

  • The court took judicial notice – accepted as fact – the evidence and expert consensus on vaccines’ safety and effectiveness. 
  • The court pointed out that the lawsuit wrongly interpreted the 2011 Supreme Court case of Breusewitz v. Wyeth when it read it as saying vaccines are unavoidably unsafe. The tentative ruling says: 

Bruesewitz does not hold all vaccines are unavoidably unsafe. No doubt injuries and deaths have been caused by vaccines, and there are cases of “unavoidable, adverse side effects.’ This does not change the pertinent point, stated in Bruesewitz, that “the elimination of communicable diseases through vaccination was ‘one of the greatest achievements’ of public health in the 20th century,” and that even brief disruptions in vaccination programs can lead to children’s deaths.

In other words, while nothing is 100% safe, and everything carries risk, the court acknowledges that the risks of not vaccinating and not having a robust immunization program are greater than the very low-risk vaccines pose. No, the court did not say it that way; but that’s the best interpretation. 

  • The court pointed out that a specific claim of violation of their religious freedoms was not actually made by plaintiffs, and at any rate, Phillips v. New York and Workman v. Mingo Board of Education already upheld vaccine mandates without a religious exemption as not violating the First Amendment. 
  • The right to education is important, but Serrano – the case that made it a fundamental interest in California – was focused on the fact that their access to education was denied based on what the court saw as a suspect classification, wealth. There is no similar thing here: no suspect classification, no forbidden discrimination. And at any rate, the right to education does not trump the state’s interest in assuring the health and safety of school children: the state can protect those. 
  • There is no violation of equal protection because the distinction the plaintiffs try and draw is baseless: these are not similar groups of children. For example, vaccinated children are different from unvaccinated ones. 
  • The medical provision is not unconstitutionally vague like plaintiffs claim. In fact, it’s pretty clear what it’s looking for. 
  • Plaintiffs are clearly wrong when they try to claim a school mandate is a medical experiment without informed consent. 

In short, the tentative SB277 appeal ruling rejects the claims by plaintiffs – some simply because they are far-fetched, wrong, or not well made, but at the heart of it, the claims are rejected because decades of jurisprudence uphold immunization mandates that protect school children from disease. 

Brown post tenative ruling appeal

Tentative Opinion June 28 Brown v State of California



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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.