McCarthy v. Ozark School Dist., 02-3035.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Melloy
• Citation: 359 F.3d 1029
• Parties: Dan McCARTHY, as Parent and as Next Friend of his Minor Daughter, Plaintiff-Appellant, v. OZARK SCHOOL DISTRICT; Faye Boozman, in his Official Capacity as Director, State of Arkansas Department of Health; John Doe, 1 through 20, in their Official Capacities as Agents, Servants, Employees or Officials of the State of Arkansas, Department of Health, Defendants-Appellees. Shannon Law, as Parent and Legal Guardian of her Minor Children Joey Law, Rob Law, and Claire Law; Plaintiff, Susan Brock, as Parent and Legal Guardian of her Minor Children Harley Brock, Mason Brock, Kathrine Brock and Michael Jarrell, Plaintiff-Appellant, v. Fay W. Boozman, in his Official Capacity as Director of the Arkansas Department of Health; Cutter Morning Star School District; Lake Hamilton School District; Raymond Simon, in his Official Capacity as Director of the Arkansas Department of Education, Defendants-Appellees. Cynthia Boone, Individually and as Next Friend of Ashley Boone, Plaintiff-Appellant, v. Cabot School District; Fay Boozman, in his Official Capacity as the Director of the Arkansas Department of Health; John Doe, 1 through 20, in their Official Capacities as Agents, Servants, Employees or Officials of the State of Arkansas, Department of Health, Defendants-Appellees. Shannon Law, as Parent and Legal Guardian of her Minor Children Joey Law, Rob Law, and Claire Law, Plaintiff, Susan Brock, as Parent and Legal Guardian of her Minor Children Harley Brock, Mason Brock, Kathrine Brock, and Michael Jarrell, Plaintiff-Appellee v. Fay W. Boozman, in his Official Capacity as Director of the Arkansas Department of Health, Defendant, Cutter Morning Star School District; Lake Hamilton School District, Defendants-Appellants, Raymond Simon, in his Official Capacity as Director of the Arkansas Department of Education, Defendant.
• Docket Number: No. 02-3195.,No. 02-3035.,No. 02-3094.,No. 02-3104.,02-3035.,02-3094.,02-3104.,02-3195.
• Decision Date: 08 March 2004

359 F.3d 1029 Dan McCARTHY, as Parent and as Next Friend of his Minor Daughter, Plaintiff-Appellant,
v.
OZARK SCHOOL DISTRICT; Faye Boozman, in his Official Capacity as Director, State of Arkansas Department of Health; John Doe, 1 through 20, in their Official Capacities as Agents, Servants, Employees or Officials of the State of Arkansas, Department of Health, Defendants-Appellees.
Shannon Law, as Parent and Legal Guardian of her Minor Children Joey Law, Rob Law, and Claire Law; Plaintiff,
Susan Brock, as Parent and Legal Guardian of her Minor Children Harley Brock, Mason Brock, Kathrine Brock and Michael Jarrell, Plaintiff-Appellant,
v.
Fay W. Boozman, in his Official Capacity as Director of the Arkansas Department of Health; Cutter Morning Star School District; Lake Hamilton School District; Raymond Simon, in his Official Capacity as Director of the Arkansas Department of Education, Defendants-Appellees.
Cynthia Boone, Individually and as Next Friend of Ashley Boone, Plaintiff-Appellant,
v.
Cabot School District; Fay Boozman, in his Official Capacity as the Director of the Arkansas Department of Health; John Doe, 1 through 20, in

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their Official Capacities as Agents, Servants, Employees or Officials of the State of Arkansas, Department of Health, Defendants-Appellees.
Shannon Law, as Parent and Legal Guardian of her Minor Children Joey Law, Rob Law, and Claire Law, Plaintiff,
Susan Brock, as Parent and Legal Guardian of her Minor Children Harley Brock, Mason Brock, Kathrine Brock, and Michael Jarrell, Plaintiff-Appellee
v.
Fay W. Boozman, in his Official Capacity as Director of the Arkansas Department of Health, Defendant,
Cutter Morning Star School District; Lake Hamilton School District, Defendants-Appellants,
Raymond Simon, in his Official Capacity as Director of the Arkansas Department of Education, Defendant. No. 02-3035. No. 02-3094. No. 02-3104. No. 02-3195. United States Court of Appeals, Eighth Circuit. Submitted: March 10, 2003. Filed: March 8, 2004.

Page 1031

Robert T. Moxley, argued, Cheyenne, WY, and Matthew D. Staver, argued, Longwood, FL (Gregory T. Karber, Fort Smith, AR, Erik W. Stanley and Joel L. Oster, Longwood, FL, on the brief), for appellants.

Rick D. Hogan, argued, Little Rock, AR (Robert M. Brech, Dan F. Bufford and Brian A. Brown, on the brief), for appellees.

Before HANSEN¹, Chief Judge, RILEY and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

These consolidated appeals involve the application of an Arkansas statute that requires the immunization of Arkansas schoolchildren against Hepatitis B. Ark. Code Ann. § 6-18-702(a).² The district courts³ held that the statute's religious beliefs exemption violated the Establishment

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Clause of the First Amendment because the exemption applied only to the "religious tenets and practices of a recognized church or religious denomination." Ark.Code Ann. § 6-18-702(d)(2) (2000) (emphasis added). The district courts then determined that the exemption was severable from the remainder of the statute. Construing the statute without the exemption, the district courts held that the underlying immunization requirement survived Due Process, Equal Protection, Free-Exercise, and Hybrid Rights challenges. On appeal, we do not reach the merits of the claims raised below because the Arkansas legislature rendered these issues moot when it broadened the exemption to encompass philosophical as well as religious objections. See Ark.Code Ann. § 6-18-702(d)(4)(A) (2003). Instead, we set forth the general history of these matters, explain the changes in Arkansas law, and address the issue of mootness as discussed by the parties in their supplemental, post-argument briefs.

I. Background

Because the issues in this case do not turn on the specific facts that differentiate each individual party, we forgo a detailed discussion of the individual parties and the specific facts that gave rise to their actions. Instead, we describe the parties generally by their respective roles. The first group of parties consists of Arkansas schoolchildren who were excluded from school or threatened with exclusion from school for failure to receive immunization treatments for Hepatitis B. This group also includes the parents of the schoolchildren (collectively, the "Schoolchildren"). The second group consists of the Arkansas Departments of Health and Education and various officials from these two departments, including Fay W. Boozman, the Director of the Arkansas Department of Health (collectively, the "Officials"). The final group consists of various individual Arkansas school districts (collectively, the "School Districts"). In each case, the Schoolchildren brought suit against the School Districts and/or the Officials.

The Schoolchildren in each case alleged that they held sincere religious beliefs that prevented each child from being immunized for Hepatitis B. The Schoolchildren did not belong to any recognized religion that had as one of its tenets opposition to immunization for Hepatitis B. We, like the district courts, assume for the purposes of our analysis that the Schoolchildren held sincere religious beliefs against Hepatitis B vaccination.

In Case No. 02-3035 the Schoolchildren argued that the religious beliefs exemption violated the Establishment Clause of the First Amendment by permitting exemptions only for beliefs associated with a recognized religion. They also argued that the underlying immunization requirement violated their Equal Protection and Due Process rights under the Fourteenth Amendment. The district court accepted the Schoolchildren's arguments regarding the Establishment Clause challenge, but held the religious beliefs exemption severable. The district court then rejected the Schoolchildren's Equal Protection and Due Process challenges to the underlying immunization requirement, finding that the Supreme Court had repeatedly ruled such requirements permissible. See Zucht v. King, 260 U.S. 174, 176-77, 43 S.Ct. 24, 67 L.Ed. 194 (1922); Jacobson v. Massachusetts, 197 U.S. 11, 27-29, 25 S.Ct. 358, 49 L.Ed. 643 (1905). Accordingly, the district court preserved the immunization requirement but severed the exemption.

Noting the hollow nature of the Schoolchildren's victory, the district court stated:

Our holding does not afford relief of any real value to the Plaintiff because his daughter remains subject to receiving the required shots as a condition of

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attending school within the state of Arkansas. This decision will also be of understandable concern to those who previously enjoyed the immunization exemption as adherents or members of a recognized church or religious denomination. However, the recourse of both groups is to communicate their concerns to the Arkansas Legislature, for it is within the province of the legislature and not this Court to enact a religious exemption provision that comes within constitutional boundaries.

In Case No. 02-3104, the Schoolchildren brought suit against the Officials and School Districts. The district court adopted the analysis of the earlier opinion and, in addition, set forth a separate analysis to conclude that the religious beliefs exemption was unconstitutional and severable. The district court rejected the Schoolchildren's argument that the First Amendment's Free Exercise Clause demanded a compelling interest analysis of the compulsory immunization requirement. Instead, the district court found that the statute was a neutral statute of general applicability that did not target religious beliefs. The district court also rejected the argument that other constitutional rights, such as, inter alia, a parent's right to control a child's education, reinforced the underlying Free Exercise Rights challenge and mandated the application of compelling interest review under a Hybrid Rights analysis. See, e.g., Employment Div., Oregon Dep't of Human Res. v. Smith, 494 U.S. 872, 881, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (discussing the application of compelling interest review in cases that involve alleged First Amendment violations in combination with other alleged constitutional violations). Finally, the district court rejected a Substantive Due Process challenge under the Fourteenth Amendment in which the Schoolchildren alleged that the right to refuse medical treatment was a fundamental liberty interest that mandated compelling interest review of the compulsory immunization statute.

In Case No. 02-3094, the Schoolchildren brought suit against the Officials and the School Districts and argued issues similar to those described above. In addition, the Schoolchildren argued that because the compulsory immunization statute provided individualized exemptions for secular purposes, such as medical exigencies, a general religious exemption was necessary to avoid a Free Exercise violation. The district court rejected these arguments.

Finally, Case No. 02-3195 involves a cross-appeal from two of the School Districts, the Morningstar and Lake Hamilton School Districts. The Morningstar and Lake Hamilton School Districts moved for dismissal arguing that they were involved in no justiciable case or controversy with the Schoolchildren. Pointing to the fact that the relevant Arkansas statutes and rules provide for criminal sanctions...