Judge denies request for SB277 preliminary injunction – vaccines win

SB277 preliminary injunction

On August 26, 2016 Judge Dana M. Sabraw of the federal district court in San Diego rejected the request of a group of plaintiffs to issue a preliminary injunction putting SB277 – the law that removed the personal belief exemption (PBE) to California’s school immunization requirements – on hold. Judge Sabraw’s decision is carefully reasoned, powerful, upholds existing caselaw and protects children. While plaintiffs are likely to appeal, this denial of the SB277 preliminary injunction will be hard to overturn.

The practical meaning of the decision is that SB277 remains in force while the case is being litigated, and unvaccinated children who are starting kindergarten or seventh grade may not attend public or private schools unless they have a medical exemption or, in some cases, an individualized education plan, or IEP.

There are four elements to the question of whether to grant a preliminary injunction: whether the plaintiffs are likely to succeed, whether plaintiffs would suffer irreparable harm without an injunction, whether the balance of equities supports the plaintiffs – the harm to plaintiff is more than the harm, in this case, to the state from giving the injunction, and whether an injunction is in the public interest. The bar is high: a preliminary injunction is an unusual remedy.

The judge focused almost completely on whether the plaintiffs are likely to succeed, and found they are not, which does not bode well for their final case. He did make one comment about their harm.

If there is a place the decision could have been made stronger, it is by going deeper into the other elements. Specifically, discussing the public interest element would have bolstered the decision, since there is a clear public interest in letting a measure designed to prevent disease take effect.

But the decision already has the argument that preventing disease is a compelling state interest, by implication, making this case. Continue reading “Judge denies request for SB277 preliminary injunction – vaccines win”

California SB277 vaccine law preliminary injunction hearing

SB277 vaccine law

Today I attended the hearing for a preliminary injunction in the Whitlow suit, one of the lawsuits against California’s SB277 vaccine law. I arrived early to try and get an impression of the judge, and because I was worried that there would be no room in the court (in the end, everyone who wanted got in). I sat in the court from 11am, and after the courtroom was cleared for lunch break stood in line until it was opened, around 1:15.

Below are my impressions. Since Judge Sabraw ordered that all electronic devices be off during the hearing, and I did not bring a legal pad, I could not take notes, so this is based on my recollections – and I apologize to the lawyers on either side if I misremembered their points. I’ll be happy to be corrected on any details.

In this hearing, the question was whether plaintiffs should get a preliminary injunction, an order putting the SB277 vaccine law on hold until the case is decided.

The standard for a preliminary injunction is a four part standard that looks at:

  1. chances of winning on the merits;
  2. whether there will be irreparable harm to the plaintiffs without the injunction;
  3. how the balance of equities falls – whether the harm to the plaintiffs is larger than the harm to the defendants from granting the injunction;  and
  4. whether an injunction is in the public interest. In the hearing, most of the focus was on the legal merits, though there was some discussion about the potential harm to the plaintiffs.

I admit that my impression was that on almost every issue the state had a better argument, with stronger case law supporting it. However, I am – obviously – a supporter of the SB277 vaccine law, and that may bias my views. It was a long hearing, and I’m no doubt not covering every detail.  Continue reading “California SB277 vaccine law preliminary injunction hearing”

California SB277 vaccination law – litigation update 2

California SB277 vaccination law

Note: there are two suits against the California SB277 vaccination law. The first one, which we’ll call “Buck” for the main complainant, and the second, “Whitlow“, for the first named plaintiff. The State of California has asked that these two cases be combined and switched to Federal Court, but no decision has been made to combine the two cases. However, both are in Federal Court. 

Professor Dorit Rubinstein Reiss, author of this article, is trying to keep the readers informed with updates and interpretations of current activities. It’s fluid, so the updates are here to keep the reader current. 

Originally, my plan was to just put the updates with each the original articles for each case, but that got unwieldy really fast. Thus, I made a decision to keep each update to the point at hand, hoping that readers will click on the original articles to get the background information. 

Again, Professor Reiss and I will update as necessary. I will repost the article whenever there’s a significant update to the lawsuit.
Continue reading “California SB277 vaccination law – litigation update 2”

California SB277 vaccination law – litigation update 1

California SB277 vaccination law

Note: there are two suits against the California SB277 vaccination law. The first one, which we’ll call “Buck” for the main complainant, and the second, “Whitlow“, for the first named plaintiff. The State of California has asked that these two cases be combined and switched to Federal Court, but no decision has been made to combine the two cases. However, both are in Federal Court. 

Professor Dorit Rubinstein Reiss, author of this article, is trying to keep the readers informed with updates and interpretations of current activities. It’s fluid, so the updates are here to keep the reader current. 

Originally, my plan was to just put the updates with each the original articles for each case, but that got unwieldy really fast. Thus, I made a decision to keep each update to the point at hand, hoping that readers will click on the original articles to get the background information. 

Again, Professor Reiss and I will update as necessary. I will repost the article whenever there’s a significant update to the lawsuit.
Continue reading “California SB277 vaccination law – litigation update 1”

California SB277 lawsuit – updated, but still baseless

California SB277 lawsuit

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. Continue reading “California SB277 lawsuit – updated, but still baseless”

California SB277 lawsuit analysis – anything there?

California SB277 lawsuit analysis

California enacted SB277 on 1 July 2015. This new law removed the “personal belief exemption” (PBE) to vaccines required for school entry.  The law went into effect 1 July 2016.  One group filed a suit against SB277 in California courts in May; I discussed that complaint in previous article. This California SB277 lawsuit analysis is about new litigation against SB277 filed in the state. (Note, there is an update to this case, California SB277 vaccination law – litigation update 1.”)

This second lawsuit, with a different group of plaintiffs, including Ana Whitlow, was filed in a federal district court on 1 July 2016. The suit was brought by several individual plaintiffs and a number of organizational plaintiffs. It contained both state and federal claims, claims on constitutional grounds, and claims that focused on implementation of the act.

As the complaint states, California has had a personal belief exemption from its school immunization requirements since at least the 1960s. The complaint does not note that between 1996-2010, California’s exemption rate increased 380%, from 0.5-2.3%.  The increase continued until at least 2014.

While the number never went over 3%, the exemption rate was not evenly distributed: some areas and some schools had much higher rates of PBEs than others, making them hot spots for outbreaks. In 2010, California experienced a dramatic outbreak of pertussis in which ten babies died. Pertussis has continued to circulate at a higher rate than in the past.  While the pertussis outbreak was partly the fault of a less effective vaccine, studies repeatedly found that areas with high rates of exemptions were more vulnerable to outbreaks.

In 2014, California had the highest rate of measles since 1994, and the famous 2015 measles outbreak caused even higher numbers. This background led the California Legislature to reconsider its immunization policy – already tightened once, in 2012 – and to decide to remove the personal belief exemption.

Understandably, those influenced by anti-vaccine claims were distressed by the new legislation. These parents evidently feel trapped, caught between a reluctance to vaccinate their children and their desire for their children to access educational opportunities, now closed to them by the new law’s provisions. Hence the lawsuit.

This complaint does not suffer from the lack of professionalism and the severe problems of the previous claim, filed by a different attorney in state court.

Nevertheless, while you can never be certain how a court will decide, my best assessment is that the plaintiffs’ constitutional claims have very low chances of success. While some of the statutory issues call for interpretation, they won’t lead to the law being struck down. And several of their implementation claims suffer from serious procedural problems.

Note that the discussion here refers both to the content of the complaint itself and the content of the memorandum submitted in support of the Temporary Restraining Order – both together present the plaintiffs’ arguments.

The complaint also tries to reframe the narrative drawing on anti-vaccine factual claims that are either misleading or downright incorrect. My focus in this post is on the legal claims, but I will touch on a few of the counter-factual assertions. Continue reading “California SB277 lawsuit analysis – anything there?”

SB 277 lawsuit – baseless anti-vaccine complaints

There have been several updates to the lawsuit, and subsequently to this article. This article has been republished with the updates. Comments for this article have been closed, but you can comment at the updated version.

An anti-SB 277 lawsuit, Tamara Buck v State of California (hereinafter known as “Buck”) was filed by Attorney T. Matthew Phillips in the Los Angeles County Superior Court. 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. Continue reading “SB 277 lawsuit – baseless anti-vaccine complaints”

Selective vaccine exemptions – measles and schools

vaccine exemptions

The best way to increase immunization rates and protect a community from outbreak is anything but settled. Serious, thoughtful, provaccine policy scholars and policy makers disagree on whether it’s better to remove all non-medical vaccine exemptions, tighten exemptions, and so forth. A new proposal takes the discussion in a different direction.

In a recent article in Pediatrics, Douglas J. Opel et al. made a case for limiting non-medical exemptions for the measles vaccines only. The authors explained that, “Our goal is simple: to see as many children immunized as possible.”

However, they don’t think removal of nonmedical exemptions is the way to get there. While acknowledging alternatives – making non-medical exemptions harder to get, or enforcing current laws better – their contribution is to offer a new alternative: allowing non-medical exemptions to all vaccines except measles vaccines, and removing non-medical exemptions for those.

This post examines their arguments. For each argument it explains the authors’ claims, the response editorial’s rebuttal, and adds some thoughts. In short, while the proposal is interesting and enriches the debate, its drawbacks, in my view, far outweigh its benefits.

Why do Opel et al. think removing non-medical exemptions from measles vaccines only is a good idea, superior to removing all non-medical exemptions?  Continue reading “Selective vaccine exemptions – measles and schools”

Legal rights of children to vaccination

Legal rights of children to vaccination

We sometimes, in the arguments about vaccines, forget about the legal rights of children to vaccination – yes, this is a right. Dorit Rubinstein Reiss discussed how the child’s rights to good health care –including vaccinations–can take precedence over the wishes of parents (another article by her can be found here).

There is a belief amongst the antivaccination crowd that the parents have the absolute right to manage the healthcare of their children. Except for the fact that this has never been true – courts, as Dr. Reiss discussed, can intervene whenever parental healthcare choices (or lack thereof) harm the child. That’s how it works not only in the USA, but in most of the developed world.

Since children don’t have the ability to make their own healthcare choices, we assume that parents have that ability. But if the parents don’t, or make bad choices like not vaccinating, then courts and government officials have to make those choices. Continue reading “Legal rights of children to vaccination”

Parental and children’s rights – vaccination mandates

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.

On September 23, 2015, Lauren Stephens filed a “Parental Rights and Responsibilities” initiative with the California Attorney General. This initiative provides a chance to reflect on the tension between parental rights, the rights of a child and the role of the state.

Who is Lauren Stephens? She is involved in the attempt to get a referendum on the ballot regarding SB 277, the bill removing personal belief exemptions to school immunization requirements, sometimes referred to as a vaccination mandate, in California, along with being associated with efforts to recall several representatives who supported the bill, including Senator Richard Pan,

This article proceeds in three parts. First, it sets out the general framework of parental rights and a child’s rights. Second, it explains the initiative – and how it applies, or more probably doesn’t, to the authors’ target, vaccination mandates in SB 277. Third, it explains why the initiative, and similar statutes, are a problematic idea and the potential harm to children from those. Continue reading “Parental and children’s rights – vaccination mandates”