F.F. On Behalf of Y.F. v. State, 4108-19

• Decision Date: 03 December 2019
• Docket Number: 4108-19
• Citation: 66 Misc.3d 467,114 N.Y.S.3d 852
• Parties: F.F. ON BEHALF OF her minor children, Y.F., E.F. Y.F.; M. & T. M. on behalf of their minor children, C.M. and B.M.; E.W., on behalf of his minor son, D.W.; Rabbi M., in behalf of his minor children I.F.M., M.M. & C.M.; M.H. on behalf of W.G.; C.O., on behalf of her minor children, C.O., M.O., Z.O. and Y.O.; Y. & M. on behalf of their minor children M.G., P.G., M.G., S.G., F.G. and C.G.; J.M. on behalf of his minor children C.D.M. & M.Y.M.; J.E., on behalf of his minor children, P.E., M.E., S.E., D.E., F.E. and E.E.; C.B. & D.B., on behalf of their minor children, M.M.B. and R.A.B.; T.F., on behalf of her minor children, E.F., H.F. and D.F.; L.C., on behalf of her minor child, M.C.; R.K., on behalf of her minor child, M.K.; R.S. & D.S. on behalf of their minor children, E.S. and S.S.; J.M. on behalf of her minor children, S.M. & A.M.; F.H., on behalf of her minor children, A.H., H.H. and A.H.; M.E. on behalf of his minor children, M.E. & P.E.; D.B., on behalf of her minor children, W.B., L.B. & L.B. ; R.B., on behalf of her minor child, J.B.; L.R., on behalf of her minor child, E.R.; G.F., on behalf of his minor children, C.F. & A.F.; D.A., on behalf of her minor children, A.A. & A.A.; T.R., on behalf of her minor children, S.R. and F.M.; B.N., on behalf of her minor children, A.N., J.N. & M.N.; M.K., on behalf of her minor child, A.K.; L.B., on behalf of her minor children, B.B., A.B. & S.B.; A.V.M., on behalf of her minor children, B.M. and G.M.; N.L., on behalf of her minor children, H.L. and G.L.; L.G., on behalf of her minor children, M.C. and C.C.; L.L., on behalf of her minor child, B.L.; C.A., on behalf of her minor children, A.A., Y.M.A., Y.A. and M.A.; K.W., on behalf of her minor child, K.W.; B.K., on behalf of her minor children, N.K., S.K., R.K. and L.K.; W.E. and C.E., on behalf of their minor Child, A.E.; R.J. & A.J., on behalf of their minor Child, A.J.; S.Y. and Y.B., on behalf of their minor children, I.B. and J.B.; T.H., on behalf of her minor child, J.H.; K.T., on behalf of her minor children, A.J.T. & A.J.T.; L.M., on behalf of her minor child, M.M., D.Y.B., on behalf of her minor child, S.B.; A.M., on behalf of her minor child, G.M.; F.M., on behalf of his three minor children, A.M.M., D.M.M. and K.M.M.; H.M., on behalf of her minor child, R.M.; M.T. & R.T., on behalf of their minor child R.T.; E.H., on behalf of her minor children M.M.S.N. and L.Y.N., Rabbi M.B. on behalf of his minor child, S.B. and S.L. & J.F. on behalf of their minor child C.L., A-M.P., on behalf of her minor child, M.P.; R.L., on behalf of her minor children, G.L., A.L. and M.L.; N.B., on behalf of her minor child, M.A.L.; B.C., on behalf of her minor child, E.H. and J.S. and W.C., on behalf of their minor children, M.C. and N.C., S.L., on behalf of his three minor children, A.L., A.L. and A.L., L. M., on behalf of her two minor children, M.M. and M.M., N.H., on behalf of his three minor children, J.H., S.H. and A.H., on their own behalves and on behalf of thousands of similarly-situated parents and children in the State of New York, Plaintiffs, v. STATE of New York; Andrew Cuomo, Governor; Letitia James, Attorney General, Defendants.
• Court: New York Supreme Court

66 Misc.3d 467

114 N.Y.S.3d 852

F.F. ON BEHALF OF her minor children, Y.F., E.F. Y.F.; M. & T. M. on behalf of their minor children, C.M. and B.M.; E.W., on behalf of his minor son, D.W.; Rabbi M., in behalf of his minor children I.F.M., M.M. & C.M.; M.H. on behalf of W.G.; C.O., on behalf of her minor children, C.O., M.O., Z.O. and Y.O.; Y. & M. on behalf of their minor children M.G., P.G., M.G., S.G., F.G. and C.G.; J.M. on behalf of his minor children C.D.M. & M.Y.M.; J.E., on behalf of his minor children, P.E., M.E., S.E., D.E., F.E. and E.E.; C.B. & D.B., on behalf of their minor children, M.M.B. and R.A.B.; T.F., on behalf of her minor children, E.F., H.F. and D.F.; L.C., on behalf of her minor child, M.C.; R.K., on behalf of her minor child, M.K.; R.S. & D.S. on behalf of their minor children, E.S. and S.S.; J.M. on behalf of her minor children, S.M. & A.M.; F.H., on behalf of her minor children, A.H., H.H. and A.H.; M.E. on behalf of his minor children, M.E. & P.E.; D.B., on behalf of her minor children, W.B., L.B. & L.B. ; R.B., on behalf of her minor child, J.B.; L.R., on behalf of her minor child, E.R.; G.F., on behalf of his minor children, C.F. & A.F.; D.A., on behalf of her minor children, A.A. & A.A.; T.R., on behalf of her minor children, S.R. and F.M.; B.N., on behalf of her minor children, A.N., J.N. & M.N.; M.K., on behalf of her minor child, A.K.; L.B., on behalf of her minor children, B.B., A.B. & S.B.; A.V.M., on behalf of her minor children, B.M. and G.M.; N.L., on behalf of her minor children, H.L. and G.L.; L.G., on behalf of her minor children, M.C. and C.C.; L.L., on behalf of her minor child, B.L.; C.A., on behalf of her minor children, A.A., Y.M.A., Y.A. and M.A.; K.W., on behalf of her minor child, K.W.; B.K., on behalf of her minor children, N.K., S.K., R.K. and L.K.; W.E. and C.E., on behalf of their minor Child, A.E.; R.J. & A.J., on behalf of their minor Child, A.J.; S.Y. and Y.B., on behalf of their minor children, I.B. and J.B.; T.H., on behalf of her minor child, J.H.; K.T., on behalf of her minor children, A.J.T. & A.J.T.; L.M., on behalf of her minor child, M.M., D.Y.B., on behalf of her minor child, S.B.; A.M., on behalf of her minor child, G.M.; F.M., on behalf of his three minor children, A.M.M., D.M.M. and K.M.M.; H.M., on behalf of her minor child, R.M.; M.T. & R.T., on behalf of their minor child R.T.; E.H., on behalf of her minor children M.M.S.N. and L.Y.N., Rabbi M.B. on behalf of his minor child, S.B. and S.L. & J.F. on behalf of their minor child C.L., A-M.P., on behalf of her minor child, M.P.; R.L., on behalf of her minor children, G.L., A.L. and M.L.; N.B., on behalf of her minor child, M.A.L.; B.C., on behalf of her minor child, E.H. and J.S. and W.C., on behalf of their minor children, M.C. and N.C., S.L., on behalf of his three minor children, A.L., A.L. and A.L., L. M., on behalf of her two minor children, M.M. and M.M., N.H., on behalf of his three minor children, J.H., S.H. and A.H., on their own behalves and on behalf of thousands of similarly-situated parents and children in the State of New York, Plaintiffs,

v.STATE of New York; Andrew Cuomo, Governor; Letitia James, Attorney General, Defendants.

4108-19

Supreme Court, Albany County, New York.

Decided on December 3, 2019

Sussman & Associates, Michael H. Sussman, of Counsel Attorneys for Plaintiffs, PO Box 1005, Goshen, New York 10924

Letitia James, Attorney General of the State of New York, Helena Lynch, of Counsel Attorneys for Defendants, The Capitol, Albany, New York 12224-0341

Denise A. Hartman, J. Plaintiffs commenced this declaratory judgment action on or about July 10, 2019, to challenge the constitutionality of legislation, enacted June 13, 2019, which repealed New York's Public Health Law provision that had allowed religious exemptions from mandatory vaccinations for children who attend public and private schools in the State. The named plaintiffs are parents of diverse religious beliefs who previously had obtained or had qualified for religious exemptions from mandatory vaccinations for their children. Plaintiffs claim that New York's legislative repeal of the religious exemption violates their rights under the Free Exercise Clause of the First Amendment of the United States Constitution and Article 1, § 3 of the New York Constitution. They also claim that the repeal violates the Equal Protection Clause of the United States Constitution and forces them to engage in compelled speech in violation of the First Amendment.

On August 26, 2019, this Court denied plaintiffs' application for a preliminary injunction to enjoin enforcement of the legislative repeal of the religious exemption. On September 5, 2019, the Appellate Division similarly denied plaintiffs' application for a preliminary injunction. Defendants, pre-answer, now move to dismiss the complaint for failure to state a cause of action, pursuant to CPLR 3211 (a) (7). Plaintiffs oppose. For the reasons stated below, defendants' motion is granted: The challenged repeal is not unconstitutional.

Background

New York's Public Health Law mandates that every parent or guardian of a child "shall have administered to such child an adequate dose or doses of an immunizing agent against poliomyelitis, mumps, measles, diphtheria, rubella, varicella, Haemophilus influenzae type b (Hib), pertussis, tetanus, pneumococcal disease, and hepatitis B," which meet federal and state standards and specifications ( Public Health Law § 2164 [2] [a] ). The statute provides generally that a child may not be admitted or attend a "school" in this State without a certificate from a health care provider or other proof that the child has received the mandated vaccines ( Public Health Law § 2164 [5], [7] ). For purposes of the mandatory vaccination statute, "school" is defined broadly to mean "any public, private or parochial child caring center, day nursery, day care agency, nursery school, kindergarten, elementary, intermediate or secondary school" ( Public Health Law § 2164 [1] [a] ).

For decades, New York's Public Health Law provided for two types of exemptions from these vaccination requirements: a medical exemption, where a physician certifies that immunization "may be detrimental to a child's health" ( Public Health Law § 2164 [8] ); and a non-medical, religious exemption, where parents or guardians certify that they "hold genuine and sincere religious beliefs which are contrary" to the required vaccinations ( Public Health Law § 2164 [9] ). On June 13, 2019, the Legislature repealed the provision authorizing non-medical, religious exemptions (see L 2019, ch 35, § 1). Thus, all children attending schools in New York State must now receive the mandated vaccines unless they have a medical exemption.

The Complaint

The complaint alleges that plaintiffs and the class they represent hold genuine and sincere religious beliefs against vaccinating their children. Some plaintiffs are affiliated with various organized religions. Others are not affiliated with any organized religion. Their children had attended or were expected to attend public or private schools or nursery programs, unvaccinated under a religious exemption. But, now that the religious exemption is repealed, they are unable to attend unless they receive the mandated vaccines or obtain a medical exemption.

The complaint further alleges that the Legislature acted with religious animus when enacting the repeal, notwithstanding the official statements in the memoranda supporting the legislation. The complaint alleges that "[r]ather than being motivated by any serious concern for public health and despite the rhetoric of the Governor, in the public debate and discourse which preceded the passage of this repeal legislation, numerous leading proponents of the legislation expressed active hostility toward the religious exemption and ridiculed and scorned those who held such exemptions." They cite as examples the statement of the Senate majority leader that "We've chosen science over rhetoric," and other legislators who referred to those who claim religious exemptions as selfish and misguided in their views of the science regarding such vaccines. They also cite the statement of a bill sponsor that, "[w]hether you are Christian, Jewish or Scientologist, none of these religions have texts or dogma that denounce vaccines. Let's stop pretending like they do"; and of another legislator calling many people's professed religious rationale for the exemption "garbage." And they cite numerous statements by legislators who expressed their views that the religious exemption has become in effect a personal belief exemption influenced largely by disagreement with the prevailing scientific and medical views underlying mandatory vaccination.

Plaintiffs point out that neither legislative body held public hearings before enacting the repeal legislation and that, to the extent the legislation was responsive to recent measles outbreaks, the Legislature did not establish a factual basis for repealing the religious exemption when other measures are available to protect the public health. And they argue that the government's response to the prior year's measles outbreak in Rockland County demonstrates that less restrictive means are available to protect the public health, if and when outbreaks occur.

On August 26, 2019, this Court denied plaintiffs' application for a preliminary injunction. On September 5, 2019, the Appellate Division similarly denied their application for a preliminary injunction.¹ Defendants now move to dismiss the complaint for failure to state a cause of action, pursuant to CPLR 3211 (a) (7).

Analysis

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the Court "must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide the plaintiff the benefit of every possible inference" ( Metro Enters. Corp. v. New York State Dept. of Taxation & Fin. , 171 A.D.3d 1377, 1378, 98...