Brown v. Smith, 070218 CAAPP2, B279936

Docket Nº:B279936
Opinion Judge:GRIMES, JUDGE
Party Name:SHARON BROWN et al., Plaintiffs and Appellants, v. KAREN SMITH, as Director, etc., et al., Defendants and Respondents.
Attorney:Law Offices of T. Matthew Phillips and T. Matthew Phillips for Plaintiffs and Appellants. Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Richard T. Waldow, Jonathan E. Rich and Jacquelyn Y. Young, Deputy Attorneys General, for Defendants and Respondents.
Judge Panel:WE CONCUR: BIGELOW, P.J., ROGAN, J.
Case Date:July 02, 2018
Court:California Court of Appeals
 
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SHARON BROWN et al., Plaintiffs and Appellants,

v.

KAREN SMITH, as Director, etc., et al., Defendants and Respondents.

B279936

California Court of Appeals, Second District, Eighth Division

July 2, 2018

          APPEAL from an order of dismissal of the Superior Court of Los Angeles County. No. BC617766 Gregory W. Alarcon, Judge. Affirmed.

          Law Offices of T. Matthew Phillips and T. Matthew Phillips for Plaintiffs and Appellants.

          Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Richard T. Waldow, Jonathan E. Rich and Jacquelyn Y. Young, Deputy Attorneys General, for Defendants and Respondents.

          GRIMES, JUDGE

         SUMMARY

         In 1890, the California Supreme Court rejected a constitutional challenge to a “vaccination act” that required schools to exclude any child who had not been vaccinated against small-pox. (Abeel v. Clark (1890) 84 Cal. 226, 227-228, 230 (Abeel).) In dismissing the suggestion that the act was “not within the scope of a police regulation, ” the court observed that, “[w]hile vaccination may not be the best and safest preventive possible, experience and observation... dating from the year 1796... have proved it to be the best method known to medical science to lessen the liability to infection with the disease.” (Id. at p. 230.) That being so, “it was for the legislature to determine whether the scholars of the public schools should be subjected to it, and we think it was justified in deeming it a necessary and salutary burden to impose upon that general class.” (Ibid.)

         More than 125 years have passed since Abeel, during which many federal and state cases, beginning with the high court's decision in Jacobson v. Massachusetts (1905) 197 U.S. 11 (Jacobson), have upheld, against various constitutional challenges, laws requiring immunization against various diseases. This is another such case, with a variation on the theme but with the same result.

         We affirm the trial court's order dismissing plaintiffs' challenge to an amendment to California law that eliminated the previously existing “personal beliefs” exemption from mandatory immunization requirements for school children.

         FACTS

         Plaintiffs Sharon Brown, Sarah Lucas, Dawnielle Selden, Serge Eustache, Tricia Eustache, and Nikki Jencen filed this lawsuit, seeking to invalidate amendments to California's public health laws governing immunization requirements against childhood diseases. These legislative changes were made by Senate Bill No. 277, approved by the Governor on June 30, 2015, effective January 1, 2016. (Stats. 2015, ch. 35.)

         Senate Bill No. 277 eliminated the personal beliefs exemption from the requirement that children receive vaccines for specified infectious diseases before being admitted to any public or private elementary or secondary school, day care center or the like.1 (Sen. Bill No. 277, § 1.) In addition to a medical exemption, 2 Senate Bill No. 277 contains exemptions for pupils in a home-based private school or independent study program who do not receive classroom-based instruction (Health & Saf. Code, § 120335, subd. (f)), 3 and for pupils previously allowed a personal beliefs exemption, until they enroll in the next grade span (id., subd. (g)(1)). Grade spans are “[b]irth to preschool, ” “[k]indergarten and grades 1 to 6, ” and “[g]rades 7 to 12.” (§ 120335, subd. (g)(2).) Also, pupils who qualify for an individualized education program are allowed access to any special education and related services required by that program. (§ 120335, subd. (h).) Otherwise, as of July 1, 2016, no pupil may be unconditionally admitted for the first time, or admitted or advanced to seventh grade level, unless immunized as required. (§ 120335, subd. (g)(3).)

         The legislative history of Senate Bill No. 277 includes an extensive analysis of the bill, the reasons the authors gave for proposing the bill, the diseases that vaccines prevent and their health risks to children, the legal considerations, and the support for and opposition to the bill. (E.g., Assem. Com. on Health, Analysis of Sen. Bill No. 277 (2015-2016 Reg. Sess.) as amended May 7, 2015, pp. 1-16; id. at p. 4 [“All of the diseases for which California requires school vaccinations are very serious conditions that pose very real health risks to children.”].)

         Among many other things, the report from the Assembly Committee on Health discusses the protective effect of community immunity, which “wanes as large numbers of children do not receive some or all of the required vaccinations, resulting in the reemergence of vaccine preventable diseases in the U.S.” (Assem. Com. on Health, Analysis of Sen. Bill No. 277, supra, p. 5.) The report explains that the vaccination rate in various communities “varies widely across the state, ” and some areas “become more susceptible to an outbreak than the state's overall vaccination levels may suggest, ” making it “difficult to control the spread of disease and mak[ing] us vulnerable to having the virus re-establish itself.” (Ibid.) Further, studies have found that “when belief exemptions to vaccination guidelines are permitted, vaccination rates decrease, ” and one analysis “found that more than a quarter of schools in California have measles-immunization rates below the 92-94% recommended by the CDC [(Center for Disease Control)].” (Ibid.) The report describes the December 2014 outbreak of measles linked to Disneyland (131 confirmed cases); states that according to the CDC, “measles is one of the first diseases to reappear when vaccination coverage rates fall”; and states that in 2014, 600 cases were reported to the CDC, the highest in many years. (Ibid.)

         As indicated above, Senate Bill No. 277 was approved in June 2015 and became effective January 1, 2016. Plaintiffs filed their complaint on April 22, 2016. The operative second amended complaint sought to “halt enforcement” of Senate Bill No. 277. The complaint alleged Senate Bill No. 277 violated four provisions of the California Constitution: the free exercise of religion (art. I, § 4); the right to attend school (art. IX, § 5); equal protection (art. I, § 7) (alleging “discrimination based on vaccination status”); and due process (art. I, § 7) (alleging Senate Bill No. 277 was “void for vagueness”). The complaint also alleged a violation of section 24175, subdivision (a) (requiring informed consent for medical experiments).

         The complaint described the plaintiffs, all of whom are parents with “sincerely held philosophic, conscientious, and religious objections to state-mandated immunization.” (Italics omitted.) The defendant named in the operative complaint is Karen Smith, sued in her capacity as director of the California Department of Public Health. The 38-page complaint consists principally of argument, alleging, for example, that plaintiffs...

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