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22-P-754 Appeals Court
CHILDREN'S HEALTH RIGHTS OF MASSACHUSETTS, INC. vs. BELMONT
PUBLIC SCHOOL DISTRICT & another.1
No. 22-P-754.
Bristol. March 2, 2023. – June 23, 2023.
Present: Vuono, Sullivan, & Singh, JJ.
School and School District. Public Health, Immunization.
Constitutional Law, Standing. Practice, Civil, Standing,
Preliminary injunction. Declaratory Relief.
Civil action commenced in the Superior Court Department on
February 16, 2022.
A motion for a preliminary injunction was heard by William
M. White, Jr., J.
Brian Unger for the plaintiff.
Megan B. Bayer for Belmont Public School District.
Nina L. Pickering-Cook for Cambridge Public School
District.
1 Cambridge Public School District. Because the name of
this defendant is unclear, we use the defendant's name as it
appears in the Superior Court complaint.
2
SULLIVAN, J. Children's Health Rights of Massachusetts,
Inc. (CHRM) appeals from an order denying its motion for a
preliminary injunction, a motion that sought to enjoin COVID-19
vaccination policies to the extent applicable to participation
in extracurricular activities in the public schools in the town
of Belmont and the city of Cambridge.2 We affirm.
Background. The allegations of the verified complaint are
as follows. CHRM is a Massachusetts nonprofit corporation whose
members include parents of children who attend the Belmont and
Cambridge public schools (school districts). In October 2021,
each of the school districts approved a policy requiring all
age-eligible students to receive a COVID-19 vaccine approved by
the Food and Drug Administration as a condition of participation
in extracurricular activities. Under each school district's
policy, students aged twelve and over who were not vaccinated
were barred from participating in extracurricular activities.
The vaccination policies included medical and religious
exemptions, as well as other exemptions.
CHRM filed its verified complaint and contemporaneous
motion seeking a declaratory judgment and injunctive relief
2 The motion was brought as a motion for a temporary
restraining order or, in the alternative, a preliminary
injunction. We treat this as a denial of a motion for
preliminary injunction for purposes of our appellate
jurisdiction. G. L. c. 231, § 118, second par.
3
pursuant to G. L. c. 231A, § 2. CHRM alleged that (1) the
school districts lacked authority to pass what it described as
vaccine mandates, (2) the policies were preempted by the
Department of Public Health's infectious disease regulatory
scheme, and (3) the policies violated parents' rights to due
process and to direct the care of their children under art. 1
and art. 12 of the Massachusetts Declaration of Rights. A judge
of the Superior Court denied the motion for the reason that,
among others, CHRM did not "identify a plaintiff member, or
child of the plaintiff's membership who was harmed by the
policies of either defendant."
Discussion. "We review the grant or denial of a
preliminary injunction to determine whether the judge abused
[his] discretion, that is, whether the judge applied proper
legal standards and whether there was reasonable support for
[his] evaluation of factual questions." Lieber v. President &
Fellows of Harvard College (No. 2), 488 Mass. 816, 821 (2022),
quoting Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 741
(2008). "A preliminary injunction will not be granted if the
moving party cannot demonstrate a likelihood of success on the
merits." Lieber, supra at 821-822.
4
The motion was decided on the verified pleadings and
affidavits submitted by the school districts.3 On appeal CHRM
asserts that it has two bases for standing. First, CHRM
contends that no showing of injury is required because it has
raised constitutional claims. Second, CHRM claims it has
associational standing because its members include the parents
of children who are subject to the school districts' policies.
"The declaratory judgment act, G. L. c. 231A, § 1,
authorizes courts to make 'binding declarations of right, duty,
status and other legal relations,'" Kligler v. Attorney Gen.,
491 Mass. 38, 44-45 (2022), and "may be used in the superior
court to enjoin and to obtain a determination of the legality of
the administrative practices and procedures of any
municipal . . . agency or official wh[en] practices or
procedures are alleged to be in violation of the Constitution of
the United States or of the constitution or laws of the
commonwealth," G. L. c. 231A, § 2. However, "[s]uch relief is
appropriate only if a plaintiff can demonstrate . . . the
requisite legal standing to secure its resolution" (quotation
and citations omitted). Kligler, supra at 44.
3 CHRM did submit affidavits, subject to a motion to strike,
as to which there was no ruling evident on the docket. The
affidavits challenged the efficacy and safety of the vaccines
but did not contain facts that showed an injury to members of
CHRM or their children.
5
"It is settled that G. L. c. 231A does not provide an
independent statutory basis for standing." Enos v. Secretary of
Envtl. Affairs, 432 Mass. 132, 135 (2000). This principle
applies with equal force to constitutional claims. "A party has
standing when it can allege an injury within the area of concern
of the statute, regulatory scheme, or constitutional guarantee
under which the injurious action has occurred." Doe No. 1 v.
Secretary of Educ., 479 Mass. 375, 386 (2018). While standing
under the declaratory judgment act is to be "liberally construed
and administered," G. L. c. 231A, § 9, CHRM must, for purposes
of a motion for a preliminary injunction, demonstrate a
likelihood of success on the merits that one of its members is
at actual risk of harm. Declaratory judgment "proceedings are
concerned with the resolution of real, not hypothetical,
controversies; the declaration issued is intended to have an
immediate impact on the rights of the parties." Galipault v.
Wash Rock Invs., LLC, 65 Mass. App. Ct. 73, 84 (2005), quoting
Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v.
Commissioner of Ins., 373 Mass. 290, 292 (1977). CHRM's claims
properly fall within the ambit of G. L. c. 231A, but it is
incorrect in its assertion that it need not allege or show a
particularized injury.
"Where a nonprofit organization asserts associational
standing on behalf of its members, it must establish that its
6
members would independently have standing to pursue the claim."
Statewide Towing Ass'n, Inc. v. Lowell, 68 Mass. App. Ct. 791,
794 (2007).4 Here, the sole allegation of the complaint is that
"CHRM has members in its organization who have children in the
Cambridge and Belmont Public School Districts and are subject to
the Districts' vaccine mandates." CHRM has not alleged that any
of its members' children were harmed or are at risk of harm.
There are no allegations that unwilling parents were compelled
to vaccinate their children in order that the children might
participate in extracurricular activities, that any children
were excluded from extracurricular activities due to their
vaccination status, that any parent applied for and was denied
an exemption from the vaccination requirements, that any parent
applied for and was denied a waiver of either policy, or that
any member of CHRM has a child who wants to participate in
extracurricular activities and will be prevented from doing so
by either policy.
Relying on Entergy Nuclear Generation Co. v. Department of
Envtl. Protection, 459 Mass. 319, 326-327 (2011) (Entergy), our
dissenting colleague posits that if the parents and children
here are subject to policies that the municipalities are without
4 CHRM has not claimed that it suffered a direct injury as
an entity. Cf. Service Employees Int'l Union, Local 509 v.
Department of Mental Health, 469 Mass. 323, 329 (2014) (labor
union claimed direct injury to its statutory right to bargain).
7
authority to promulgate, the parents should not be put to the
choice of vaccinating a child whom they do not wish to vaccinate
or risking the child's exclusion from extracurricular
activities. Even if we were to agree, the complaint still does
not contain even a general allegation that any member of CHRM
has a child who wants to participate in extracurricular
activities and will be prevented from doing so by either policy.5
In the absence of an allegation that there is even one child
from each municipality who is not only covered by the policy,
but wants to participate in extracurricular activities without
5 In Entergy, 459 Mass. at 326, the defendant did not
contest standing. In dicta, the Supreme Judicial Court stated
that the nuclear power plant operator had standing to challenge
a regulation asserting the authority of the Department of
Environmental Protection to regulate components of industrial
facilities that withdraw water from surface waterbodies under
the Clean Waters Act, G. L. c. 21, §§ 26–53. The court
concluded that, as a regulated entity, Entergy had standing to
challenge a regulation that "affects the party's primary conduct
even if that regulation has not been enforced against that
party," because "[p]arties clearly targeted by a regulation
should not be precluded entirely from challenging its legality."
Entergy, supra at 327. We do not think the dicta in a case
involving a highly regulated industry is applicable to the
promulgation of a school policy involving public health and
safety. Moreover, in this case, the population of children
"targeted" by the policies are those who wish to participate in
extracurricular activities. For this reason, it is appropriate
to require that the plaintiff allege that there is at least one
child of a member parent in each municipality who wants to
participate in extracurricular activities but will be prevented
from doing so by the applicable policy.
8
being vaccinated, the verified complaint failed to establish
standing.
"Persons who ask a court to 'assume the difficult and
delicate duty of passing upon the acts of a coordinate branch of
the government' must demonstrate that they suffer or are in
danger of suffering some particularized legal harm." Local
1445, United Food & Commercial Workers Union v. Police Chief of
Natick, 29 Mass. App. Ct. 554, 559 (1990), quoting Kaplan v.
Bowker, 333 Mass. 455, 459 (1956). CHRM's failure to allege any
particularized harm or risk of harm to its members bars its
claim of associational standing.
The order denying the motion for a preliminary injunction
is affirmed.6
So ordered.
6 In light of our disposition, we need not rule on the town
of Belmont's argument that, because it has suspended its policy,
the case is moot as to it.
SINGH, J. (dissenting). The plaintiff appeals from the
denial of its motion to preliminarily enjoin the Belmont and
Cambridge public school districts (school districts) from
enforcing COVID-19 vaccine policies enacted by them, while
seeking a declaration regarding the validity of those policies.
I disagree that the judge's decision must be affirmed on the
basis that the plaintiff has failed to establish standing.1
By its complaint, the plaintiff seeks a declaration that
the school districts have exceeded their authority2 in mandating
that all age-eligible school children in their districts receive
COVID-19 vaccines or else be excluded from extracurricular
activities. The Cambridge school district policy states that,
by a date certain, "all age eligible students must be
vaccinated." Both of the school district policies prohibit
unvaccinated students from participating in extracurricular
activities, which may include athletics, student government,
visual and performing arts, clubs, and social events.
Standing to seek declaratory relief "exists where a party
alleges a legally cognizable injury within the area of concern
1 In his ruling, the judge did not mention "standing," but
did refer to the absence of identified harmed parties.
2 The verified complaint generally alleges that school
committees have only limited authority to enact student health
policies (which authority does not include imposing vaccine
requirements) and that the area of student vaccine requirements
is preempted by regulations enacted by public health agencies.
2
of the statute at issue." Entergy Nuclear Generation Co. v.
Department of Envtl. Protection, 459 Mass. 319, 326 (2011)
(Entergy). Here, the verified complaint alleges that members of
the plaintiff nonprofit corporation have children in the school
districts who "are subject to the Districts' vaccine mandates,"
and "those mandates apply to [plaintiff] members' children."
These allegations establish that the plaintiff's interest is
within the area of concern of the policy at issue. See id. at
326-327 (as party regulated by State Clean Waters Act,
plaintiff's interest clearly fell within act's area of concern).
Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-562 (1992)
(when suit is one challenging legality of government action,
nature and extent of facts that must be averred in order to
challenge standing depends considerably upon whether plaintiff
is himself object of action; if he is, there is ordinarily
little question that action has caused him injury).
The verified complaint further alleges that the COVID-19
vaccine policies adopted by the school districts violate the
parents' constitutional rights to direct the care and upbringing
of their children, including the right to make health care
decisions for their children.3 These allegations suffice to make
3 The verified complaint cites to State and Federal case law
indicating that these rights are rooted in the State and Federal
Constitutions.
3
out a legally cognizable injury. That the verified complaint
does not allege that any child of plaintiff members was excluded
from any extracurricular activity does not deprive the plaintiff
of standing to challenge the school districts' authority to
promulgate such policies. See Entergy, 459 Mass. at 327
("regulated party has standing to challenge the promulgation of
a regulation that affects the party's primary conduct even if
that regulation has not been enforced against that party"). Cf.
Abbott Labs. v. Gardner, 387 U.S. 136, 151 (1967) (plaintiffs
subject to regulation had standing to challenge it even though
Attorney General had yet to authorize criminal and seizure
actions for violation of relevant statute).
Parents of a child in a school district that mandates a
COVID-19 vaccine in order for the child to participate in
extracurricular activities are faced with a dilemma if the
parents do not believe that it is in the best interests of their
child to receive such a vaccine: allow the child to be
vaccinated against their better judgment in order to secure for
their child the full public school educational experience,
complete with athletics, student government, musical groups,
clubs, plays, dances, homecoming and prom; or maintain their
judgment not to have the child vaccinated and thereby deprive
the child of all of these experiences that their vaccinated
classmates are privileged to enjoy. If the school districts, in
4
fact, have no authority to promulgate such policies, then the
parents should not have to face this dilemma. See Entergy, 459
Mass. at 327 (court observed that, if plaintiff had no standing
to challenge regulation, it would either have to comply with
requirement it believed unlawfully imposed, potentially to its
financial detriment, or violate requirement and face penalties,
and noted that "[o]ur laws on standing are not intended to
produce such a Hobson's choice").
The standing requirement for a declaratory judgment action
is to be "liberally construed," in order to effectuate its
purpose, which is "to remove, and to afford relief from,
uncertainty and insecurity with respect to rights, duties,
status and other legal relations." G. L. c. 231A, § 9. See
Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v.
Commissioner of Ins., 373 Mass. 290, 292 (1977). "[T]he
declaration issued is intended to have an immediate impact on
the rights of the parties." Id. Here, a declaration concerning
the authority of the school districts to enact their COVID-19
vaccine policies would remove, and afford relief from,
uncertainty and insecurity with respect to these policies and
would have an immediate impact on the rights of the parties.
See Lujan, 504 U.S. at 561-562 (when suit is brought by one who
is object of challenged government action, there is ordinarily
5
little question that judgment preventing action will redress
it).
The school districts' policies at issue in this case
mandate that "all age eligible students must be vaccinated."
The targets of the policies are "all age eligible students" and
punishment for noncompliance is exclusion from extracurricular
activities. The complaint seeks to invalidate the entire
policies, and not simply the punishment. All age-eligible
students required to get the vaccine are targets of the
policies. Cf. Abbott Labs., 387 U.S. at 154 ("there is no
question in the present case that petitioners have sufficient
standing as plaintiffs: the regulation is directed at them in
particular"). "Parties clearly targeted by a regulation should
not be precluded entirely from challenging its legality."
Entergy, 459 Mass. at 327. As the plaintiff consists of members
who have children in the school districts who are subject to the
policies, and who are the very targets of the policies, the
plaintiff has standing to challenge the policies alleged to have
been enacted in an excess of authority.
I respectfully dissent.