Ritter v. State
| Decision Date | 20 September 2022 |
| Docket Number | 119,840 |
| Citation | 520 P.3d 370 |
| Parties | Dr. Valerie RITTER, for herself as an Individual and for and on behalf of her Minor Children RR and ER; Kimberly Butler, for herself as an individual and For and on behalf of her Minor Child HB; Dr. Britney Else, for herself as an Individual and for and on behalf of her Minor Child BJ; and the Oklahoma State Medical Association, an Oklahoma Not For Profit Corporation, Plaintiffs/Appellees, v. The STATE of Oklahoma; and the Honorable Kevin Stitt in his official capacity as Governor of Oklahoma, Defendants/Appellants. |
| Court | Oklahoma Supreme Court |
Robert A. Nance, Chad C. Taylor, Oklahoma City, Oklahoma, Donald M. Bingham, Sharon K. Weaver, Tulsa, Oklahoma, for Plaintiffs/Appellees.
Bryan Cleveland, Mithun Mansinghani, Office of the Attorney General, State of Oklahoma, Oklahoma City, Oklahoma, for Defendants/Appellants.
Hilary H. Clifton, Oklahoma City, Oklahoma, Jesse L. Marks, Denver, Colorado, for American Academy of Pediatrics, and the Oklahoma Chapter of American Academy of Pediatrics, Amicus Curiae.
Jeffrey B. Dubner, Jessica Anne Morton, Democracy Forward Foundation, Washington, D.C., for American Academy of Pediatrics, Amicus Curiae.
Nick Southerland, Brian S. Wilerson, Tulsa, Oklahoma, for Oklahoma Disability Law Center, Amicus Curiae
¶1 The determinative question presented is whether Senate Bill 658, codified as 70 O.S. Supp. 2021 Ch. 15, §§ 1210-189 and 190, is an unconstitutional restriction of the ability of public schools to exercise local control of the health and welfare of students.1 We hold that 70 O.S. Supp. 2021 Ch. 15, § 1210-189 and 190 are an unconstitutional delegation of legislative authority in violation of art. 4, § 1 of the Oklahoma Constitution only to the extent that they require the Governor to declare an emergency before local school districts may make decisions regarding local health matters.2 We strike the offending provision and the remainder of the statutes remain upheld.3
¶2 The plaintiff/appellee, Dr. Valerie Ritter, is a Doctor of Osteopathic Medicine, specializing in Pediatrics. She is also the parent of two children who are under the age of twelve, and who are enrolled in the Tulsa Public School system. One of her children has a history of bronchiectasis
and hospitalizations for respirator distress and pneumonia. The plaintiff/appellee, Kimberly Butler, is the mother of four minor children also enrolled in the Tulsa Public School System. One of her children has epilepsy and Autism Spectrum Disorder. Ms. Butler, whose graduate degree is in public health, also works in the medical industry as a Senior Program Officer overseeing Maternal Child Health at the George Kaiser Family Foundation. She also serves on the Board of Directors for a Tulsa hospital and on the City of Tulsa's COVID-19 Testing Task Force.
¶3 The plaintiff/appellee, Mary Ann Martin is the parent of three minor children who are enrolled in the Norman Public School System. One of her children has serious health issues and a compromised immune system. The plaintiff/appellee, Dr. Britney Else is the parent of a minor child who is enrolled in the Broken Arrow Public School System. Dr. Else is a family-medicine and sports-medicine physician. The plaintiff/appellee, Oklahoma State Medical Association is a domestic not for profit corporation whose mission is "Better Health for Oklahoma."
¶4 On March 15, 2020, Oklahoma's Governor, J. Kevin Stitt, declared a statewide emergency due to the coronavirus pandemic and the impending threat of the spread of COVID-19 to the people of this State and their peace, health, and safety.4 As the pandemic spread, the Governor continued to issue several modifications to his state of emergency declaration, until, in an executive order issued May 3, 2021, and made effective May 4, 2021, the Governor rescinded his previous emergency declaration.5 Subsequently, the Oklahoma Legislature passed Senate Bill 658 in May of 2021, and the Governor signed it into law on May 28, 2021.
¶5 Senate Bill 658 concerns additions and amendments to school health and safety statutes 70 O.S. 2011 Ch. 15, §§ 1210.191 - 1210.194 which were enacted in 1970. The statutes concern school immunizations, exemptions from immunizations,6 and the control of contagious diseases and head lice.7 Prior to the 2021 additions/amendments, the statutes expressly listed immunization requirements for minor children to attend schools operating in the state. For example, 70 O.S. 2011 Ch. 15 § 1210.191, provides in pertinent part:
A. No minor child shall be admitted to any public, private, or parochial school operating in this state unless and until certification is presented to the appropriate school authorities from a licensed physician, or authorized representative of the State Department of Health, that such child has received or is in the process of receiving, immunizations
against diphtheria, pertussis, tetanus, haemophilus influenzae type B (HIB), measles (rubeola ), (rubella ), poliomyelitis, varicella, and hepatitis A or is likely to be immune as a result of the disease.8
Title 70 O.S. 2011 Ch. 15 § 1210.194 provides in pertinent part:
A. Any child afflicted with a contagious disease or head lice may be prohibited from attending a public, private, or parochial school until such time as he is free from the contagious disease or head lice. ...
¶6 However, Senate Bill 658 creates/adds two new sections, 70 O.S. Supp. 2021 §§ 1210-189 and 190, which work together.9 Section 1210-189 relates to vaccination
restrictions and COVID-19 mask mandates. It provides:
Section 1210-190 provides:
¶7 On August 12, 2021, the plaintiffs/appellees, the two doctors (doctors) and the two additional parents on behalf of their minor children (parents), along with the Oklahoma State Medical Association (OSMA) (collectively, doctors) filed a lawsuit in the District Court of the Oklahoma County against the State of Oklahoma, acting through the Legislature and the Governor, (collectively, the State). The doctors sought to enjoin the State from enforcing 70 O.S. Supp. 2021 Ch. 15, § 1210-189 and 190.10
¶8 They argued that the new additions to the legislation were unenforceable because:
The plaintiffs do not take issue with the minor modifications which were made to 70 O.S. 2021 Ch. 15, § 1210-191.1 by Senate Bill 658.15 Consequently, we do not review this statute for constitutional validity.16
¶9 On September 8, 2021, the trial court filed an order in which it granted, in part, the doctors' amended motion for a temporary injunction. The order states that:
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED, that Plaintiffs' Amended Motion for Temporary Injunction is granted in part. The State of Oklahoma and Governor Kevin Stitt are enjoined from enforcing certain sections of SB658 enacted in 2021 against any board of education of a public school district that has exemptions as described herein, specifically 70 O.S. § 1210.189(A)(3) prohibiting a mask mandate for unvaccinated K-12 students and 70 O.S. § 1210.190 prohibiting a board of education of a public school district from implementing a mandate to wear a mask against K-12 public schools until further order of this Court. Any mask mandate or requirement for...
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