Children's Health Rights of Massachusetts, Inc. v. Belmont Public School District ( 2023 )


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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.