Dan McCarthy v. Ozark School Dist.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

__________

No. 02-3035
__________

Dan McCarthy, as Parent and as Next *
Friend of his Minor Daughter, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
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. *

___________

No. 02-3094
___________

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, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
*
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. *

__________

No. 02-3104
__________

Cynthia Boone, Individually and as *
Next Friend of Ashley Boone, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
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, *

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Employees or Officials of the State of *
Arkansas, Department of Health, *
*
Defendants - Appellees. *

___________

No. 02-3195
___________

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, * Appeal from the United States
and Michael Jarrell, * District Court for the Eastern
* District of Arkansas
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 *

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Capacity as Director of the Arkansas *
Department of Education, *
*
Defendant. *
___________

Submitted: March 10, 2003
Filed: March 8, 2004
___________

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

1
The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
2
Ark. Code Ann. § 6-18-702 (2002), as in effect at the time of the district
courts’ decisions, provided:

(a) Except as otherwise provided by law, no infant or child shall be
admitted to a public or private school or child care facility of this state
who has not been age appropriately immunized from poliomyelitis,
diphtheria, tetanus, pertussis, red (rubeola) measles, rubella, and other
diseases as designated by the State Board of Health, as evidenced by a
certificate of a licensed physician or a public health department
acknowledging the immunization.
....
(d)(2) The provisions of this section shall not apply if the parents or
legal guardian of that child object thereto on the grounds that

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exemption violated the Establishment 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

immunization conflicts with the religious tenets and practices of a
recognized church or religious denomination of which the parent or
guardian is an adherent or member.

(Emphasis added). The State Board of Health, in cooperation with the Board of
Education, on July 27, 2000, promulgated regulations that listed Hepatitis B as one
of the designated diseases under Ark. Code Ann. § 6-18-702(a).
3
The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas (Case No. 02-3035), and the Honorable Susan Webber
Wright, United States District Judge for the Eastern District of Arkansas (Case Nos.
02-3094, 02-3104, and 02-3195).

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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 (1922); Jacobson
v. Massachusetts, 197 U.S. 11, 27-29 (1905). Accordingly, the district court
preserved the immunization requirement but severed the exemption.

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 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 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 (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.

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 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 against school
officials who fail to enforce the immunization requirements, the Morningstar and
Lake Hamilton School Districts characterized themselves as disinterested bystanders
caught in the crossfire between the Schoolchildren and the Officials. See Ark. Code
Ann. § 6-18-702(c)(2)(B) (2000) (“Any school official, parent, or guardian violating
the regulations shall be subject to the penalties imposed herein.”); Id. § 6-18-702(e)
(2000) (“any person found guilty of violating the provisions of this section or the
regulations promulgated by the State Board of Education or the division for the
enforcement hereof shall be guilty of a misdemeanor.”). The district court rejected
the motion to dismiss, finding that the Lake Hamilton and Morningstar School
Districts were proper parties to the litigation.

After obtaining jurisdiction, we entered a temporary stay to permit the non-
immunized Schoolchildren to attend school pending resolution of their appeals. After
oral arguments, we noted that the Schoolchildren had followed the district court’s
suggestion and communicated their concerns to the Arkansas legislature. As a result,
the Arkansas legislature had amended the exemption portion of the statute to omit
reference to “recognized” religions and to provide broader exemptions based on

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“religious or philosophical beliefs.” Id. § 6-18-702 (d)(4)(A) (2003).4 It appeared,

4
Ark. Code Ann. § 6-18-702 (d)(4) provides:

(A) The provisions of this section shall not apply if the parents or legal
guardian of that child object thereto on the grounds that immunization
conflicts with the religious or philosophical beliefs of the parent or
guardian.

(B) The parents or legal guardian of the child shall complete an annual
application process developed in the rules and regulations of the
Department of Health for medical, religious, and philosophical
exemptions.

(C) The rules and regulations developed by the Department of Health for
medical, religious, and philosophical exemptions shall include, but not
be limited to:

(i) A notarized statement requesting a religious, philosophical, or
medical exemption from the Department of Health by the parents or
legal guardian of the child regarding the objection;

(ii) Completion of an educational component developed by the
Department of Health that includes information on the risks and
benefits of vaccination;

(iii) An informed consent from the parents or guardian that shall
include a signed statement of refusal to vaccinate based on the
Department of Health’s refusal-to-vaccinate form; and

(iv) A signed statement of understanding that:

(a) At the discretion of the Department of Health, the
unimmunized child or individual may be removed from day care
or school during an outbreak if the child or individual is not fully
vaccinated; and

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however, that the broadened exemption was not yet in force because the Arkansas
Department of Health had not passed necessary implementing regulations and the
amended statute specifically prohibited the granting of exemptions prior to passage
of the implementing regulations. See Id. § 6-18-702 (d)(4)(D). Accordingly, it was
not clear whether any Schoolchildren would be excluded from school in the absence
of our temporary stay.

We directed the parties to submit supplemental briefs to address whether the
anticipated availability of a broadened exemption mooted the underlying challenges
to the immunization requirement. Subsequently, the Arkansas Department of Health
passed the necessary implementing regulations.5 No claims under the newly amended
exemption are before the court at this time, and no Schoolchildren claim to have been

(b) The child or individual shall not return to school until the
outbreak has been resolved and the Department of Health
approves the return to school.

(D) No exemptions may be granted under this subdivision (d)(4) until
the application process has been implemented by the Department of
Health and completed by the applicant.
5
Rules and Regulations Pertaining to Immunization Requirements, § IV(A), (C)
and (D), slip at 4-5, at http://www.healthyarkansas.com/rules_regs/immunization
_requirements_2003.pdf (promulgated in part under the authority of Ark. Code Ann.
§ 6-18-702, signed by Governor Mike Huckabee on July 31, 2003). The relevant
provisions of the new exemption requirement require religious and philosophical
objectors to complete an annual application, sign a notorized statement claiming
conflict with religious or philosophical beliefs, complete an educational component
regarding the risks and benefits of vaccination, and sign a statement of informed
consent for the exclusion of a non-immunized child from school in the event of an
outbreak.

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denied the benefit of the new exemption under the amended statute and the new,
implementing regulations.

II. Analysis

We first address the basic question of any mootness analysis: whether the
plaintiffs still hold a personal interest in the outcome of the action or whether
changed circumstances already provide the requested relief and eliminate the need for
court action. Next we address exceptions to the mootness doctrine, namely, whether
the controversy of the present cases is one that is likely to recur but evades review
and whether the Arkansas legislature’s amendment of the statute is merely a voluntary
cessation of challenged conduct that is insufficient to protect the Schoolchildren on
an ongoing basis. Finally, we do not address the Schoolchildren’s newly raised
challenges to certain procedural requirements of the new statute and regulations
because such challenges are not ripe for review.

A. Mootness

“Under Article III of the Constitution, federal courts ‘may adjudicate only
actual, ongoing cases or controversies.’” National Right to Life Political Action
Comm. v. Connor, 323 F.3d 684, 689 (8th Cir. 2003) (quoting Lewis v. Continental
Bank Corp., 494 U.S. 472, 477 (1990)). Various doctrines, including the doctrine of
mootness, provide the tools used to determine whether a plaintiff presents a
justiciable case or controversy. Our court has stated:

The Supreme Court has repeatedly described the mootness doctrine as
“the doctrine of standing set in a time frame: The requisite personal
interest that must exist at the commencement of the litigation (standing)
must continue throughout its existence (mootness).” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 538 U.S. 167, 189
(2000) (citations omitted). Thus, “[w]e do not have jurisdiction over

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 cases in which ‘due to the passage of time or a change in circumstances,
the issues presented . . . will no longer be ‘live’ or the parties will no
longer have a legally cognizable interest in the outcome of the
litigation.’” Van Bergen v. Minnesota, 59 F.3d 1541, 1546 (8th Cir.
1995) (quoting Arkansas AFL-CIO v. FCC, 11 F.3d 1430, 1435 (8th
Cir. 1993) (en banc)).

National Right to Life Political Action Comm., 323 F.3d at 691. The first question
we address, then, is whether the current litigation still presents to the Schoolchildren
an opportunity for redress or whether the Schoolchildren have received the entirety
of their requested relief from the Arkansas legislature and, therefore, no longer
possess a personal interest in the litigation.

In each of the appealed cases, the Schoolchildren sought an exemption to allow
them to attend public school in Arkansas without receiving immunization against
Hepatitis B. Review of the amended immunization statute and its implementing
regulations make clear that the statutory exemption now available to all the individual
Schoolchildren provides precisely this relief. The Schoolchildren point to no other
relief that they requested in the lower courts. Instead, they argue that an exception
to the mootness doctrine applies and that we must address the merits of their cases to
eliminate the risk that Arkansas might later repeal the newly enacted exemption
provision. Further, they argue that the new exemption provision itself is
unconstitutional because it discriminates against religious objectors and imposes
undue burdens through the exemption application process.6 These arguments,
however, do not speak to the underlying issue of mootness. Looking, as we must, at
the relief requested and the scope of the relief made available by the Arkansas

6
The Schoolchildren also argued against mootness on the grounds that, at the
time of supplemental briefing, the implementing regulations were open for comment
and, therefore, not yet effective. This argument, however, was transitory and became
irrelevant on July 31, 2003 when the governor of Arkansas signed the implementing
regulations.

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legislature, and finding no further relief that might be appropriate or available, it is
clear that the Schoolchildren no longer present a live case or controversy. Their
claims are moot.

B. Exceptions to Mootness

Notwithstanding this finding of mootness, we may still decide a case on its
merits if the controversy in the case is “capable of repetition yet evad[es] review.”
Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430, 1435 (8th Cir. 1993) (en banc). One
condition that must exist before this exception applies is “a reasonable expectation
that the same complaining party will be subject to the same action again.” Van
Bergen v. Minnesota, 59 F.3d 1541, 1547 (8th Cir. 1995). The Schoolchildren argue
that this exception applies because Arkansas voluntarily ceased the challenged action
when it amended the immunization statute, and, therefore, might repeal the new
exemption provision at any time if not prohibited from doing so by court order. In
advancing this argument, however, the Schoolchildren speculate as to a mere
theoretical possibility. A speculative possibility is not a basis for retaining
jurisdiction over a moot case. Id. (“The party need not show with certainty that the
situation will recur, but a mere physical or theoretical possibility is insufficient to
overcome the jurisdictional hurdle of mootness.”).

Review of the facts makes clear the speculative nature of the Schoolchildren’s
argument. The Arkansas legislature promptly acted to provide a broadened
exemption for philosophical and religious objectors as well as objectors who claimed
medical necessity. The legislature took this action even though the outstanding
district court decisions held the existing statute constitutional even without a religious
exemption. The legislature took this action not only to protect the Schoolchildren,
but also to protect additional children not involved in this litigation who had received
exemptions under the earlier, unconstitutional exemption provision. These additional
children, like the Schoolchildren, would have been subject to exclusion from school

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under the district courts’ decisions. Simply put, the legislature acted quickly for the
benefit of the Schoolchildren and other citizens of Arkansas to replace the stricken
exemption provision with an exemption it believed would pass constitutional muster.
In providing relief for philosophical objectors as well as eliminating the requirement
that religious objectors belong to a “recognized religion,” the legislature provided
relief greater than that requested in the present litigation.

The Department of Health also acted quickly by passing regulations before the
start of a new school year. In sum, we find nothing to suggest a likelihood that
Arkansas might repeal its exemption or that Arkansas voluntarily ceased the
challenged behavior merely to thwart our jurisdiction. With no “reasonable
expectation” that the Schoolchildren will again face forced immunization for
Hepatitis B without the possibility of exemption, the exception to the mootness
doctrine does not apply.

The Schoolchildren argue not only that the general mootness exception applies,
but also that, because the state voluntarily altered its own laws, the specialized
exception for voluntary cessation applies. City of Mesquite v. Aladdin’s Castle, Inc.,
455 U.S. 283, 289 (1982) (“It is well settled that a defendant’s voluntary cessation of
a challenged practice does not deprive a federal court of its power to determine the
legality of the practice.”). This exception, however, is merely a specialized form of
the general exception discussed above and provides no basis for retaining jurisdiction
in the present case. “[T]he standard we have announced for determining whether a
case has been mooted by the defendant’s voluntary conduct is stringent: ‘a case
might become moot if subsequent events made it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.’” Young v. Hayes, 218
F.3d 850, 852 (8th Cir. 2000) (quoting United States v. Concentrated Phosphate
Export Ass’n, 393 U.S. 199, 203 (1968)). As explained above, there is no basis on
which to conclude that the challenged behavior–mandatory immunization against
Hepatitis B without the availability of an exemption–might reasonably be expected
to recur.

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 Finally, we reject the Schoolchildren’s new challenges to the procedural
requirements of the amended legislation and the accompanying implementing
regulations. These requirements include an annual exemption application,
submission of a notorized statement to request the exemption, completion of an
educational component that “includes information on the risks and benefits of
vaccination,” submission of a signed informed consent statement regarding refusal
to vaccinate, and submission of a signed statement authorizing the Department of
Health to exclude non-immunized children from school during the presence of an
outbreak of a covered disease. See Ark.Code Ann. §6-18-702(4)(A) (2003). The
Schoolchildren conceded during the course of these proceedings that a state may
exercise its police power to exclude non-immunized children from public schools
during an actual emergency, such as an outbreak. Further, none of the procedural
requirements of the amended statute and new regulations empowers Officials to
assess the merits of the Schoolchildren’s beliefs, and the requirements for religious
objectors mirror those for philosophical objectors. Finally, the basis of their
challenges to the educational components and application requirements are not
entirely clear as these requirements apply equally to philosophical objectors as well
as religious objectors.

We need not resolve these challenges, however, because any challenges to the
procedural requirements are not yet ripe. To the extent the Schoolchildren challenge
the educational component or other aspects of the application process under the new
exemption, their claims are speculative and involve no concrete injury–no
Schoolchildren have applied for nor been denied exemption under the new statute.
The purpose of the ripeness doctrine is “to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract disagreements over
administrative policies, and also to protect the agencies from judicial interference
until an administrative decision has been formalized and its effects felt in a concrete
way by the challenging parties.” Abbot Labs. v. Gardner, 387 U.S. 136, 148-49
(1967). Were we to address the newly enacted exemption statute and regulations
before first giving the Department of Health the opportunity to work with the

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Schoolchildren, we would inappropriately and prematurely entangle the court in an
abstract disagreement.

In Case Nos. 02-3035, 02-3094, 02-3104, and 02-3195 we dismiss all pending
claims as moot and all newly raised challenges as unripe for review.
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