SB 277 – First Amended Complaint For Declaratory, Injunctive And Other Relief…

Keeping Our Healthy Children in School…

By Consumer Advocate Tim Bolen 

The Starting Point…

On July 1^st, 2016 a lawsuit was filed in a San Diego Federal Court asking the court to declare infamous California Senate Bill 277 unconstitutional, and prevent its enforcement.  It was an excellent read.  Its filing compared, in war terms, to the June 6^th, 1944 “D-Day” Invasion of Normandy.  The “good guys” were on the beach beginning the counterattack against the forces of evil.

The news traveled across Planet Earth like a soothing spring rain.

Then, yesterday and today, July 14^th and 15^th, 2016, new filings are appearing starting with what is called, simply enough, a “- FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE AND OTHER RELIEF.”  And, although I liked the first filing VERY MUCH, and said so.

I like these legal filings even more.

Before I show them to you, and explain, in simple terms, what is actually going on there are TWO important points I need to make.  They are::

(1)  This whole event, these legal actions, and all of the investigations and sorting of material leading to all of this legal action is the work of a giant, secret, army who managed to work quietly, and unobtrusively, gathering and sorting, making new alliances, for the express purposes surrounding the issues so carefully, and powerfully, explained in the legal papers.  Look around.  There they are.  There YOU are…  

Here WE are…  The doors are open.  Come and play.

(2)  So MUCH is happening with this First Amended Complaint that I am going to break the explanation of it all into separate parts – so, after this article, there is MUCH MORE good stuff coming.  You WILL love this….

What’s New and Different?

(1)  Where in the first filing there were ten Plaintiffs, now there twenty-one.  I will show you every one of them.  You can read, in detail, why each of them are standing up for the rest of humanity.  If you see them on the street, look them in the eye, smile at them, say “Thank You,” then hug them.

(2)  Where in the first filing there were ten Defendants, there still are…

(3)  Where in the first filing there were six Claims, now there are sixteen.

(4)  Where in the first filing there was a “Statutory Schemes” section which explained the details of the case, now there is a much-enlarged section called “General Allegations.”  Take the time to read it word-for-word.

Why an Amended Complaint?

Happens all of the time.  My guess is that, here, the original Complaint generated a tidal wave of interest which, in itself, generated more Plaintiff issues, sources of information, cooperation, and resources for the legal team.  From here I can see the groundswell – and I like it very much…

So, Let’s Get Started With Important Details…

Take your time reading what’s going on – for the people that put this together GET the issues…

 

FIRST AMENDED COMPLAINT Case No. 3:16-cv-01715-DMS-BGS Plaintiffs complaint of Defendants and allege:

Case Introduction…

(1)  More than 45 years ago, the California Supreme Court recognized that education is “the bright hope for entry of the poor and oppressed into the mainstream of American society,” Serrano v. Priest, 5 Cal.3d 584, 609 (1971), and that “society has a compelling interest in affording children an opportunity to attend school.” Id. at 606 (citation omitted).

(2)  But today, as a result of the enactment of Senate Bill (“SB”) 277, the State of California denies tens of thousands of children access to its schools and daycares and relegates them to the separate-and-unequal position of learning in isolation, in permanent quarantine.

(3)  In the midst of the media frenzy surrounding a measles outbreak at Disneyland, at the intersection of irrational panic and special-interest politics, the California Legislature enacted SB 277 to abolish personal belief exemptions (“PBEs”) from California’s school vaccination requirements.

(4)  In the name of public health, SB 277 permanently bars from all public and private schools and daycares any child who, absent a physician-provided medical exemption, is not fully vaccinated with 30 to 38 doses of vaccines for ten different illnesses ranging from generally mild childhood illnesses like measles and chickenpox, to a blood-borne disease like hepatitis B, to a non-communicable infection like tetanus.

(5)  The justification for permanently barring children with PBEs from school and daycare has been the desire to keep schools “safe from dangerous contagions.” The unfortunate mischaracterization of children with PBEs as contagious and dangerous vectors of disease has resulted in extreme bias and prejudice against thousands of innocent children who are, in actuality, neither infectious nor contagious. Nor are these children capable of transmitting diseases they do not have. Yet SB 277 forever exiles them from schools and daycares, in a dramatic departure from California’s long-standing history of unwavering protection of every child’s right to a free, equal and public education.

(6)  Education is a fundamental right in California, guaranteed to all children by the State Constitution. Cal. Const., art. IX, §§ 1 and 5. Indeed, “education is so important that the state has made it compulsory.” Serrano, 5 Cal.3d at 610 (citation omitted). The California Supreme Court minced no words when it declared that “[i]n light of the public interest in conserving the resource of young minds, [courts] must unsympathetically examine any action of a public body which has the effect of depriving children of the opportunity to obtain an education.” Id. at 607 (citation omitted).

(7)  Additionally, both State and federal laws prohibit discrimination against and disparate treatment of children based on suspect classifications such as race, religion, national origin, disability or socioeconomic status. SB 277 is in irreconcilable conflict with the aforementioned State and federal laws. Therefore, to preserve and protect their rights under those laws, Plaintiffs bring this action pursuant to, inter alia, 42 U.S.C. §1983; the First, Fifth and Fourteenth Amendments to the United States Constitution; the Individuals With Disabilities Education Act, 20 U.S.C. § 1400, et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Americans With Disabilities Act of 1990, 42 U.S.C. §12132, et seq.; and Article 9, §§ 1 and 5, Article 1, §§ 7(a) and 15, and Article 4, § 16(a) of the California Constitution, to enjoin, preliminarily and permanently, all enforcement of SB 277 and any other California statutes, regulations, policies or practices that seek to exclude children from school.

Those Incredible Plaintiffs…

(1)  Plaintiff Ana Whitlow resides with her husband and minor sons B.A.W. and D.M.F-W. in San Diego, San Diego County. Ms. Whitlow’s children B.A.W. and D.M.F-W. are legally required to attend school. Ms. Whitlow and her husband have chosen to selectively vaccinate B.A.W. and D.M.F-W. in the interest of their health and well-being and to avoid vaccines that offend their religious beliefs by virtue of certain ingredients including aborted fetal cells.

D.M.F-W. is twelve years old and due to advance to the seventh grade in the fall. As a condition for enrollment in the seventh grade, D.M.F-W. is required to show proof of vaccination for pertussis (whooping cough). Pertussis vaccination is not available separately and is given in a single syringe with the diphtheria and tetanus vaccines, called DTaP or Tdap.

To determine whether D.M.F-W. needs the vaccine, Ms. Whitlow requested a blood antibody test to check D.M.F-W.’s antibodies for whooping cough, tetanus and diphtheria. Laboratory testing based on a June 21, 2016 blood draw confirmed that D.M.F-W. has immunity to all three diseases, eliminating the need to vaccinate him. Notwithstanding his demonstrated immunity to all three diseases, D.M.F-W’s school has refused to allow D.M.F-W. to enroll in the seventh grade unless he receives the required vaccine. Ms. Whitlow sees no justification for the school’s demand that D.M.F-W. submit to a vaccination for diseases to which he has lab-confirmed immunity.

Like all medical procedures, vaccines carry risk of adverse reactions and Ms. Whitlow does not wish to subject D.M.F-W. to a medical procedure that will confer no additional benefit to him.

Ms. Whitlow seeks injunctive relief requiring the defendant state actors and agencies of the State of California to admit D.M.F-W. into the seventh grade and not deprive him of the opportunity to continue his education. Ms. Whitlow’s son B.A.W. is five years old and eligible to attend kindergarten. Ms. Whitlow observed B.A.W. experience adverse reactions to vaccination, including seizure-like spells, which B.A.W.’s physicians do not attribute to the vaccines, precluding a medical exemption for B.A.W. Ms. Whitlow is concerned that further vaccination will subject B.A.W. to the risk of adverse side effects, including seizures.

Ms. Whitlow also objects to injecting B.A.W. with vaccines derived from aborted fetal cells, including aborted fetal lung fibroblasts. If PBEs were available, Ms. Whitlow would obtain a religious exemption to enroll B.A.W. in kindergarten. Ms. Whitlow’s children do not carry any of the diseases for which vaccination is mandated, yet they are being permanently barred from school. Ms. Whitlow seeks injunctive relief prohibiting the defendant state actors and agencies of the State of California from denying admission to B.A.W. into Ocean Beach Elementary School, operated by the San Diego Unified School District.

(2)  Plaintiff Erik Nicolaisen lives with his wife and minor children A.W.N. (age 5), R.J.N. (age 3) and U.M.N (age 10 months), in Studio City, Los Angeles County. At the age of six, all of Mr. Nicolaisen’s children will be legally required to attend school. Mr. Nicolaisen and his wife attempted to enroll A.W.N. into kindergarten at Carpenter Elementary School, operated by the Los Angeles Unified School District. On June 17, 2016, the principal of Carpenter Elementary School informed Mr. Nicolaisen that A.W.N. cannot enroll in kindergarten without proof of full vaccination which, in A.W.N.’s case would require administration of more than 20 vaccine doses in less than a two-month period.

Mr. Nicolaisen and his wife have chosen to selectively vaccinate A.W.N. in the interest of A.W.N’s health and wellbeing, and in the interest of avoiding certain vaccines, including those produced using aborted fetal tissue such as fetal lung fibroblasts, given that Mr. Nicolaisen’s wife opposes abortion. Without a PBE, A.W.N. cannot attend school, which he is legally required to do when he turns six years old. Similarly, A.W.N.’s younger siblings cannot attend daycare now or school once they reach school age. Without the ability to enroll their children into school, Mr. Nicolaisen and his wife face the options of giving up successful careers and risking loss of income and employer provided health and life insurance, relocation to Oregon, or coerced abandonment of their religious convictions and health-related misgivings about certain vaccines.

Mr. Nicolaisen’s children do not carry any of the diseases for which vaccination is mandated, yet they are being permanently barred from school. Mr. Nicolaisen seeks injunctive relief prohibiting the defendant state actors and agencies of the State of California from denying A.W.N. enrollment into Carpenter Elementary School, operated by the Los Angeles Unified School District or any other school.

(3)  Plaintiff Dene Schultze-Alva is a Civil Engineer and Doctor of Chiropractic. She resides with her husband, and minor daughters S.G.A. (age 8) and S.M.A. (age 3) in Sierra Madre, Los Angeles County. Years ago, the day after receiving routine childhood vaccinations, Dr. Schultze-Alva’s stepdaughter suffered convulsions, a high fever, lethargy and seizure-like shaking. This experience and her own chiropractic training have caused Dr. Schultze-Alva to exercise caution in attend school. Mr. Nicolaisen and his wife attempted to enroll A.W.N. into kindergarten at Carpenter Elementary School, operated by the Los Angeles Unified School District.

On June 17, 2016, the principal of Carpenter Elementary School informed Mr. Nicolaisen that A.W.N. cannot enroll in kindergarten without proof of full vaccination which, in A.W.N.’s case would require administration of more than 20 vaccine doses in less than a two-month period. Mr. Nicolaisen and his wife have chosen to selectively vaccinate A.W.N. in the interest of A.W.N’s health and wellbeing, and in the interest of avoiding certain vaccines, including those produced using aborted fetal tissue such as fetal lung fibroblasts, given that Mr. Nicolaisen’s wife opposes abortion.

Without a PBE, A.W.N. cannot attend school, which he is legally required to do when he turns six years old. Similarly, A.W.N.’s younger siblings cannot attend daycare now or school once they reach school age. Without the ability to enroll their children into school, Mr. Nicolaisen and his wife face the options of giving up successful careers and risking loss of income and employer provided health and life insurance, relocation to Oregon, or coerced abandonment of their religious convictions and health-related misgivings about certain vaccines.

Mr. Nicolaisen’s children do not carry any of the diseases for which vaccination is mandated, yet they are being permanently barred from school. Mr. Nicolaisen seeks injunctive relief prohibiting the defendant state actors and agencies of the State of California from denying A.W.N. enrollment into Carpenter Elementary School, operated by the Los Angeles Unified School District or any other school.

(4)  Plaintiff Nicole Andrade resides near Loomis, Placer County, with her husband and family, including her minor daughter I.G.A. I.G.A. is due to enter the seventh grade in the fall at Franklin Elementary School operated by the Loomis Union School District. Ms. Andrade has received two notices of school expulsion for I.G.A. for noncompliance with SB 277, even though I.G.A. is legally required to attend school.

Ms. Andrade is religiously opposed to vaccines manufactured from aborted fetal cell lines, having fully vaccinated her oldest child before she became aware that certain vaccines, including the Measles, Mumps, Rubella (“MMR”) vaccine, are manufactured using cells derived from intentionally aborted fetuses. Ms. Andrade has taken up in her prayers the question of whether to vaccinate, and believes that God would want her pro-life family to wait for more pure and safe vaccines, before vaccinating I.G.A. again. I.G.A. enjoys learning in a classroom and wants to continue going to school. I.G.A. does not carry any of the diseases for which vaccination is mandated, yet she is being permanently barred from school. Ms. Andrade seeks an order prohibiting the defendant state actors and agencies of the State of California from denying advancement of I.G.A. into the seventh grade at Franklin Elementary School, operated by the Loomis Union School District.

(5)  Plaintiff Brianna Owens resides in Petrolia, Humboldt County. She is the parent of four children, two of whom are impacted by SB 277 in the 2016-2017 school year. K.R.O.-R. is currently being denied entry into the seventh grade and J.S.W.S. is currently being denied entry into kindergarten at Mattole Elementary School operated by the Mattole Unified School District.

Ms. Owens has a family history of autoimmune disease, including Guillain-Barré Syndrome. At the age of 26, Ms. Owens suffered convulsions, hallucinations, a fever of 103.4 degrees, vomiting, headache, jaw locking, muscle tightness and loss of consciousness after receiving a vaccine for diphtheria, tetanus and pertussis (Tdap). The doctor who administered the vaccine insisted that it was impossible for her to have a reaction to the vaccine. Days later, another physician who treated Ms. Owens confirmed that Ms. Owens’ symptoms had been the result of a severe reaction to the Tdap vaccine and advised Mr. Owens never to take that vaccine again.

Ms. Owens’ reaction is listed in the manufacturer’s product insert as a potential sequelae of the vaccine. Ms. Owens’ daughter K.R.O.-R. had an adverse reaction to the DTaP (whooping cough, tetanus and diphtheria vaccine for pediatric use), which K.R.O.-R.’s pediatrician said was a “normal” response to the vaccine.

Following K.R.O.-R.’s reaction and her own severe adverse reaction to the Tdap vaccination, coupled with her family’s medical history, Ms. Owen became hesitant to continue vaccinating her children. She has requested testing to ensure that her children will not have severe adverse reactions to vaccination but no such testing has been provided by her physicians.

She has also requested medical exemptions for her children based on her own severe adverse vaccine reaction and family medical history, as allowed by SB 277. Her pediatrician declined to write medical exemptions for K.R.O.-R. and J.S.W.S., because he had received a “special class” where he was told that to qualify for a medical exemption her children would have to have a “documented anaphylactic reaction” to a particular vaccine and then may be eligible for an exemption only for that particular vaccine.

Ms. Owens’ children face immediate and imminent harm, as they are facing permanent denial of their right to attend school in the fall of 2016, although they are legally required to attend school. Ms. Owens seeks an order prohibiting the defendant state actors and agencies of the State of California from denying admission of her children K.R.O.-R. and J.S.W.S. into the seventh grade and kindergarten, respectively, at Mattole Elementary School operated by the Mattole Unified School District.

(6)  Plaintiff Veronica Delgado resides with her family in the City of Madera, Madera County. She is the parent of seven children. Two of Ms. Delgado’s children have special needs and receive special education services pursuant to Individualized Education Programs (“IEPs”). Both of Ms. Delgado’s children with special needs had adverse reactions to vaccines, although Ms. Delgado did not recognize their conditions as vaccine reactions at the time they occurred.

Ms. Delgado followed the SB 277 legislative process and understood that children with IEPs would be exempt from SB 277’s full vaccination requirements. Ms. Delgado’s child A.N.D. attends Howard School, operated by the Madera School District. Despite requiring special education services and having an IEP, A.N.D. is currently being denied enrollment into the seventh grade. Ms. Delgado has had extensive discussions with school personnel regarding A.N.D.’s special education needs under his IEP but the school continues to refuse to allow A.N.D. to enroll, although he is legally required to attend school.

In her discussions with school personnel, Ms. Delgado became aware that other children with IEPs are being denied enrollment into Howard School. A.N.D. has a younger brother with an IEP who is currently enrolling in the sixth grade. When A.N.D.’s younger brother reaches the seventh grade next fall, he will also be excluded from school, even though his special needs are more extensive than A.N.D.’s and his IEP requires the provision of a myriad special education services.

Ms. Delgado cannot homeschool her two boys with special needs, as well as care for her entire family. She will need to first acquire the skills needed to teach her children in the seventh grade and beyond. Ms. Delgado’s son A.N.D. faces imminent harm as he is being denied school enrollment and access to special education services in the fall of 2016. Ms. Delgado seeks an order prohibiting the defendant state actors and agencies of the State of California from denying admission of her children into school under SB 277.

(7)  Plaintiff Melanie Sunukjian resides with her minor daughter A.L.S. in Santa Barbara, Santa Barbara County. A.L.S. is ready to enter the seventh grade at Providence Junior High School, operated by the Santa Barbara Unified School District. A.L.S. is vaccinated, but is required to have a Tdap (whooping cough, tetanus and diphtheria) vaccine to enroll in the seventh grade. Ms. Sunukjian is concerned for the health of her daughter and has sought to have her daughter medically exempted from the Tdap that SB 277 requires A.L.S. to receive. A.L.S. has numerous diagnosed food sensitivities and allergies and a family history of autoimmune disease.

Despite these medical concerns, which Ms. Sunukjian believes are legitimate justification for a medical exemption, her doctors are unwilling to consider a medical exemption. A.L.S. does not carry pertussis or diphtheria, yet she is being denied enrollment into the seventh grade and will be denied entry into school in the fall, even though she is legally required to attend school. Ms. Sunukjian seeks injunctive relief prohibiting the defendant State actors and agencies of the State of California from denying admission of A.L.S. to any private school and public school in the State of California.

(8) Plaintiff Dawn Saunders is a widow with three children, residing in Placerville, El Dorado County. Ms. Saunders’ daughter K.S. is due to enter the seventh grade in the fall and is legally required to attend school. K.S. has an IEP as a result of a traumatic brain injury she suffered in 2014. Under the IEP, K.S. receives special education services, including speech and cognitive therapy. K.S. is eligible for meals in school.

Despite her disability and her IEP, K.S. is being denied enrollment into the seventh grade. K.S. is also currently being denied her extended school year services, resulting in severe hardship to Ms. Saunders, both personally and financially. Moreover, homeschooling is not meeting K.S. many educational and therapeutic needs. Ms. Saunders cannot continue to homeschool K.S., work the full time job she needs to support her family, and provide K.S. with the special education services she needs.

K.S. is unable to obtain a medical exemption through the MediCal provider network and is prohibited under threat of losing MediCal health benefits from seeking to obtain a medical exemption from another source, which Ms. Saunders cannot afford in any event. Ms. Saunders and K.S. are experiencing severe hardship and imminent harm because of SB 277. K.S. stands to lose her right to an education, her special education services, her school-provided meals, and her right to attend school with her non-disabled peers.

Ms. Saunders faces the cruel illusion of choice between subjecting her already-disabled child to the risks of vaccination or loss of employment and income to homeschool her child. Ms. Saunders seeks injunctive relief prohibiting the defendant State actors and agencies of the State of California from denying admission of her child and refusing classroom instruction under her IEP, in the public and private schools in the State of California.

(9)  Plaintiff Holly Crain resides with her husband and two children G.J.C. and B.G.C. in El Cajon, San Diego County. Ms. Crain has elected to follow an alternative vaccination schedule with her son G.J.C., who has previously experienced an adverse reaction to vaccination. Despite G.J.C.’s adverse reaction to vaccination, Ms. Crain has been advised summarily by her children’s pediatrician that her children do not qualify for medical exemptions under California Health & Safety Code section 120370.

Ms. Crain also holds sincere religious beliefs in her objection to the use of aborted fetal cells in the manufacture of certain vaccines. Ms. Crain’s children are healthy, they see their pediatrician regularly for checkups, and they carry no infectious diseases. Yet with the passage of SB 277, her children are barred from preschool and daycare for the 2016-2017 school year.

Ms. Crain is being constructively forced out of work by SB 277, causing hardship to her family. Ms. Crain seeks injunctive relief prohibiting the defendant State actors and agencies of the State of California from denying admission of her children to every private school and public school in the State of California for which they are otherwise eligible.

(10)  Plaintiff Tanya Sutton is a single mother residing with her son K.J.S. (age 5) in Chula Vista, San Diego County. K.J.S. currently attends Kindercare Daycare in Chula Vista and is eligible for kindergarten in the fall. Both Ms. Sutton and K.J.S.’s father work full-time jobs. Regular school and afterschool care is necessary to allow Ms. Sutton to continue working at her job to provide for K.J.S.

In March of 2016, Ms. Sutton attempted to enroll K.J.S. into kindergarten for fall, 2016. K.J.S. has a medical exemption from his doctor, stating that his doctor does not feel vaccination is safe for K.J.S. When Ms. Sutton presented K.J.S.’s enrollment package, the school nurse questioned and refused to accept K.J.S.’s medical exemption. After a heated discussion between Ms. Sutton and the school nurse in front of other school personnel and parents, the school nurse said the medical exemption “was fine,” but after extensive follow-up and run-around, Ms. Sutton learned that the school nurse had flagged K.J.S.’s file because of his medical exemption, causing K.J.S. to miss out on placement opportunities at four different schools. K.J.S. is currently not enrolled in any kindergarten program due to the school nurse’s unlawful rejection of the medical exemption provided by K.J.S.’s physician.

Ms. Sutton stands to lose her job and experience severe financial hardship because K.J.S. is being denied enrollment into kindergarten. Ms. Sutton seeks injunctive relief prohibiting the defendant State actors and agencies of the State of California from discriminating against K.J.S. on the basis of his medical exemption to vaccination.

(11)  Plaintiff Suzette Loy resides with her husband and children in Vita, San Diego County. Ms. Loy has two children K.R.L. (age 4) and J.B.L. K.R.L. is selectively vaccinated and is currently being denied admission to kindergarten because she does not have all of the more than 30 vaccine doses required for kindergarten enrollment. Ms. Loy’s oldest child experienced an adverse reaction to vaccination. Ms. Loy wants all of the recommended vaccines for her other children, but wishes to follow a slow and cautious vaccination schedule in light of her older son’s reaction.

Her children’s pediatricians have denied her an alternative vaccination schedule that would allow her to carefully select the times for vaccine administration, and allow her to carefully monitor her children for potential vaccine injury along the way.

At great hardship to her family, Ms. Loy is forced to homeschool her daughter K.R.L., instead of sending her to kindergarten this year. K.R.L. is healthy and is not infected with and does not carry any of the illnesses for which vaccination is required, yet she is permanently barred from attending school.

Ms. Loy seeks injunctive relief prohibiting the defendant State actors and agencies of the State of California from denying admission of her children to every private school and public school in the State of California for which they are otherwise eligible.

(12)  Plaintiff Adriane Hoeft lives with her two minor sons, O.C. and F.C. in Roseville, Placer County. O.C. became impacted by Transverse Myelitis, leaving him with flaccid paralysis from the waist down after a round of vaccinations when he was 17 months old. O.C. requires a wheelchair. Ms. Hoeft will never vaccinate O.C. again.

When O.C. suffered his vaccine injury and became paralyzed, Ms. Hoeft believed that vaccine injuries were extremely rare – one in a million. Four months after O.C. became paralyzed from his vaccinations, his younger brother F.C. was born. Ms. Hoeft took F.C. to the doctor for routine vaccinations. Immediately following his two-month vaccines, F.C. became very weak, sick and somber for two days. Fearing a repeat of what happened to O.C. and after beginning to research vaccines, Ms. Hoeft stopped vaccinating F.C. Both O.C. and F.C. are currently in elementary school in the first grade and transitional kindergarten, respectively.

They both have PBEs which will be grandfathered until they reach the seventh grade. At seventh grade, however, both O.C. and F.C. will be permanently expelled from school and denied an education. O.C. has an IEP and, according to Amendment (h) of SB 277, should be exempt from vaccination requirements.

However, the Roseville City School District has announced publicly that regardless of Amendment (h), children with IEPs will not be allowed to attend school with other children. O.C. and F.C. are not infected with and do not carry any of the illnesses for which vaccines are required, yet they will be permanently barred from school and denied their right to an education upon reaching seventh grade.

Ms. Hoeft seeks injunctive relief prohibiting the defendant state actors and agencies of the State of California from denying admission of her children to every private school and public school in the State of California for which they are otherwise eligible.

(13)  Plaintiff Jennifer Kennedy resides with her husband and three children, C.E.K. (age 14); A.G.K. (age 11) and E.L.K. (age 7), in Pasadena, Los Angeles County. Ms. Kennedy’s family history includes adverse reactions to vaccination. A.G.K. and E.L.K. are selectively vaccinated, following a careful risk/benefit analysis. Both A.G.K. and E.L.K. currently have PBEs on file with their schools, which will expire when they reach the seventh grade. A.G.K. is entering the sixth grade at Sierra Madre Middle School. A.G.K. and E.L.K. have not been able to obtain a medical exemption to vaccination from their pediatrician.

Ms. Kennedy objects to the use of aborted fetal cell lines in any vaccines, based on her pro-life religious beliefs. Ms. Kennedy’s children are healthy. They have no infectious diseases and they are not infected with or capable of transmitting any of the illnesses for which vaccination is required under SB 277, yet upon reaching the seventh grade, they will be permanently barred from school even though they are legally required to attend school.

Ms. Kennedy seeks injunctive and declaratory relief prohibiting the defendant State actors and agencies of the State of California from denying admission of her children to every private school and public school in the State of California for which they are otherwise eligible.

(14)  Plaintiff Michelle Veneziano, DO, is a physician in Mill Valley, Marin County. She graduated from Western University of Health Sciences in 2000 and completed her residency in family practice in 2003. In her medical school and postgraduate training, Dr. Veneziano received only cursory instruction about vaccine science and practice and was not educated regarding the potential for adverse events. Dr. Veneziano recalls being taught that adverse reactions to vaccines are extremely rare. She was not trained in recognizing, treating or reporting adverse reactions to vaccines.

Dr. Veneziano is the mother of G.S.V., age 11, entering sixth grade in San Geronimo Valley Middle School in Marin County. G.S.V. is vaccinated with all of the vaccines on California’s school vaccination schedule, except for hepatitis B, a blood-borne illness for which G.S.V. is not at risk. To advance to the seventh grade in the 2017-2018 school year, G.S.V. will need a Tdap vaccine. G.S.V. suffers from eczema, gastrointestinal distress and autoimmune disease. Dr. Veneziano has recently begun reading books and scientific studies about vaccines and has identified G.S.V.’s ailments as likely sequelae to receiving multiple rounds of childhood vaccines.

Dr. Veneziano has only recently learned about vaccine injuries, the existence of the National Vaccine Injury Compensation Program and the Vaccine Adverse Event Reporting System. Like most physicians, Dr. Veneziano’s medical training focused only on the benefits of vaccination, without acknowledgment of any risks.

Based upon her recent research into the scientific literature and books about vaccines and their benefits and risks, including recent studies by the FDA and CDC about the acellular pertussis (whooping cough) vaccine, Dr. Veneziano has determined that she will not give G.S.V. the Tdap vaccine required for G.S.V. to advance to the seventh grade. According to the most current research from the FDA, CDC and various independent researchers, the acellular pertussis vaccine given in the United States does not prevent pertussis infection or transmission and instead merely masks symptoms of the disease, creating asymptomatic carriers which is not only not beneficial, but may be detrimental to public health.

Dr. Veneziano is also concerned about some of the ingredients used in the manufacture of the Tdap vaccine and the risks associated with injection of those ingredients. Dr. Veneziano has decided to forego the Tdap vaccine for G.S.V. both to avoid the risk of worsening G.S.V.’s autoimmune status and to avoid G.S.V. becoming infected with whooping cough asymptomatically and unknowingly infecting a susceptible person with whooping cough. As a medical professional, Dr. Veneziano should be able to make healthcare decisions for G.S.V. without being deprived of the fundamental right for G.S.V. to receive a school-based education.

Dr. Veneziano seeks injunctive and declaratory relief prohibiting the defendant State actors and agencies of the State of from denying admission of G.S.V. to every private school and public school in the State of California for which she is otherwise eligible.

(15)  Plaintiff Chanda Murray resides with her six children, including her daughter S.R.M. and her son E.D.M., and her common law husband, in Sacramento, Sacramento County. S.R.M. should be entering twelfth grade at the Twin Rivers School but Ms. Murray has received written notice that the school may refuse to honor S.R.M.’s PBE, claiming that she needs DTaP and chicken pox boosters.

Twelfth grade is not a checkpoint year and there is no justification to revoke S.R.M.’s PBE and exclude her from her final year of school with her friends, jeopardizing S.R.M.’s future educational and work prospects.

E.D.M., who also has a PBE, should be a rising seventh grader at Foothill Ranch Middle School but Ms. Murray has been informed that he will not be able to attend school there this fall. Nor can he attend Westside Preparatory Charter School, recommended by his teacher and principal, because he is not fully vaccinated. E.D.M. is an excellent student and athlete. If homeschooled, will be denied the opportunity to participate in the community sports leagues in which he has excelled because the leagues require proof of enrollment in public school.

Ms. Murray’s obtained PBEs for her children, including S.R.M. and E.D.M., because her second son suffered a severe vaccine reaction at the time of his six-month vaccinations. That child suffered an Acute Disseminating Encephalomyelitis (ADEM). He is non-verbal and has significant physical and developmental challenges, including severe brain injury and visual and hearing impairments. Ms. Murray was able to obtain a medical exemption for that child based on his injury.

When SB277 was passed, she tried to obtain medical exemptions for her younger children based on their sibling’s adverse reaction but their physician refused to provide an exemption, telling Ms. Murray that immediate family history of vaccine injury is not a valid reason for exemption. If Ms. Murray has to homeschool her seventh and twelfth graders, she will have to forego employment. Neither S.R.M. nor E.D.M. carries the diseases for which the schools are claiming they need to be vaccinated and they will be denied entry to school in the fall, even though they legally are required to attend school.

Ms. Murray seeks injunctive relief prohibiting defendant State actors and agencies of the State of California from denying admission of S.R.M. and E.D.M. to any private school or public school in the State of California.

(16)  Plaintiff Douglas Mackenzie, MD, is a plastic surgeon in Santa Barbara, Santa Barbara County. Dr. Mackenzie graduated from Johns Hopkins School of Medicine in 1989. For 11 years, Dr. Mackenzie served as a lieutenant colonel, flight surgeon in the Air National Guard. He was also Chief of Professional Services for the medical unit (Channel Islands 146th), and in that capacity had oversight of the Immunology Section.

Dr. Mackenzie is the father of two boys, D.C.M. (20 years old) and G.J.M. (2 years old). D.C.M. had all recommended vaccines and has no obvious sequelae from them. Dr. Mackenzie did not know about risks of vaccines when D.C.M. was receiving vaccines and, like most parents, did not know which vaccines D.C.M. had received. Nor did Dr. Mackenzie know how much the CDC recommended schedule on which D.C.M. had been vaccinated differed from the schedule on which G.J.M. was expected to be vaccinated. G.J.M. is selectively vaccinated.

Dr. Mackenzie has decided to stop giving G.J.M. vaccines. G.J.M.’s pediatrician appears supportive of Dr. Mackenzie’s choice. G.J.M. currently attends preschool with a PBE, but will be denied entry into kindergarten if SB 277 remains in effect.

Dr. Mackenzie became interested in vaccines approximately four years after repeatedly observing media vilification of any doctor, politician or layperson who had questions about vaccines. Dr. Mackenzie began researching vaccines. He read books and scientific studies from the CDC, FDA, pharmaceutical companies and independent academic researchers.

What became clear to Dr. Mackenzie in his research was how little he had been taught about vaccines in his medical school and post-graduate training. Dr. Mackenzie’s medical school and residency training taught him simply that vaccines are safe and effective and they are one of the most important public health achievements of the 20th Century. He recalls no discussion about risks from vaccination and how to recognize and treat adverse events. He did not learn about the existence of the National Vaccine Injury Compensation Program or the Vaccine Adverse Event Reporting System.

Dr. Mackenzie also recalls no mention whatsoever of any controversy regarding vaccinations. Dr. Mackenzie’s research into vaccines and vaccine science led him to become concerned about potential side effects of vaccination and he has decided to stop vaccinating G.J.M.

As a medical professional, Dr. Mackenzie is capable of making sound healthcare decisions for G.J.M. without being deprived of the fundamental right for G.J.M. to receive a school-based education.

Dr. Mackenzie seeks injunctive and declaratory relief prohibiting the defendant State actors and agencies of the State of California from denying admission of G.J.M. to every private and public nursery, elementary and secondary school in the State of California for which he is otherwise eligible.

(17)  Plaintiff Victor Nuño, DO, is a physician residing with his wife, also a physician, and their fifteen-month old daughter, Z.E.N. in Vallejo, Solano County. Dr. Nuño has medical offices in the Cities of Vallejo and Redding and is an Assistant Professor at the College of Osteopathic Medicine at Touro University.

In his medical school and post-graduate training, Dr. Nuño learned about the history and benefits of vaccines. Regarding risks, he recalls being taught that serious vaccine reactions were extremely rare and that most reactions to vaccines are mild and self-limited. He was not trained in medical school to recognize, treat or report adverse reactions to vaccines.

In residency, Dr. Nuño worked with a physician who treated patients with adverse reactions to vaccination. This is when Dr. Nuño first began conducting independent research and reading textbooks and scientific studies on vaccines.

Dr. Nuño is troubled by the lack of adequate safety studies on the safety of certain vaccine ingredients and their synergistic effect on children’s health. Dr. Nuño is also troubled by the lack of adequate safety research of the dramatically expanded vaccination schedule according to which children today receive vaccines.

Finally, Dr. Nuño is concerned about the current climate among medical professionals that allows virtually no honest discussion about vaccines or acknowledgement of the indisputable fact that like all pharmaceutical products, vaccines can cause a range of adverse reactions.

While Dr. Nuño and his wife will give Z.E.N. some vaccines on a delayed and selective schedule, they do not believe that Z.E.N. needs all of the doses of all vaccines required for entry into California schools under SB 277. As medical professionals, Dr. Nuño and his wife are capable of and should be able to make healthcare decisions for Z.E.N. without being deprived of the fundamental right for Z.E.N. to receive a school-based education. Z.E.N. does not carry and cannot transmit any of the illnesses for which vaccines are required under SB 277.

Dr. Nuño seeks injunctive and declaratory relief prohibiting the defendant State actors and agencies of the State of California from denying admission of Z.E.N. to every private and public nursery, elementary and secondary school in the State of California for which she is otherwise eligible.

(18)  Plaintiff E4A Foundation is a non-profit organization under the laws of the State of Nevada, with its principal place of business in San Diego, California, whose purpose is to promote and protect equal access to public and private education.

In this lawsuit, E4A Foundation asserts claims on behalf of its members who are impacted by SB 277. E4A Foundation’s members include, but are not limited to: (a) parents whose children will be excluded from kindergarten in fall 2016; (b) parents whose children will be excluded from the seventh grade in fall 2016; (c) parents whose children will be excluded from daycare or nursery school in fall 2016; (d) parents who have moved to California and cannot enroll their children into school; (e) parents with religious objections to vaccination, including objections to using vaccines produced using aborted fetal cells; (f) parents who have concerns about the safety of vaccines and their ingredients; (g) parents of children with disabilities; (h) parents of children with special needs who have IEPs in school districts that are refusing admission to children with IEPs; (i) parents whose children have medical exemptions from vaccination that are being rejected by schools; (j) parents who object to the hepatitis B vaccine; (k) parents of children who are being denied conditional entry into school to enable them to use a delayed catch-up vaccination schedule set by the child’s physician; (l) parents who filed PBEs prior to January 1, 2016 and whose children are being denied reenrollment into the next grade because the school has lost the previously-filed PBE; (m) parents who are not fluent English speakers and, therefore, cannot homeschool; (n) single parents who do not have the financial resources to homeschool; (o) low income parents who do not have the financial means to homeschool; (p) parents whose family members have had adverse vaccine reactions, including those who have been compensated by the Vaccine Injury Compensation Program, but who cannot obtain medical exemptions for their children; (q) parents whose children have blood test results indicating sufficient antibody levels for illnesses for which they are required to vaccinate under SB 277; (r) healthcare professionals, including but not limited to physicians, nurses, physician’s assistants and emergency medical technicians who are concerned, among other things, about the safety of vaccines and the current vaccination program, the loss of rights to equal education, parental decision-making and informed consent to medical procedures.

(19)  Plaintiff Weston A. Price Foundation is a nonprofit, tax exempt nutrition education foundation whose members follow healthy natural approaches to health and healing. Weston A. Price Foundation has 39 local chapters and 1,836 members in California, many of whom are families with young children who would avail themselves, or may have in the past obtained, a PBE. In this lawsuit, Weston A. Price Foundation asserts claims on behalf of its members who are impacted by SB 277.

(20) Plaintiff Citizens for Health is a nonprofit, 501(c)(4) advocacy organization providing information about natural healing and laws affecting health to approximately 30,000 Californians. In this lawsuit, Citizens for Health asserts claims on behalf of its members who are impacted by SB 277.

(21) Plaintiff Alliance for Natural Health USA (ANH-USA)  is a Georgia based nonprofit corporation founded in 1992. The ANH-USA mission is to protect access to natural health options and a toxin free lifestyle, including the ability to decline vaccination or modify the vaccine schedule for one’s children. The ANH – USA consists of over 500,000 members, including 78,000 California residents, many of whom will be harmed by SB 277 because they will not be able to make their own decisions for their school age children based on their beliefs about vaccine-related harms. In this lawsuit, ANH-USA asserts claims on behalf of its members who are impacted by SB 277.

 

Defendants

The State of California is the legal and political entity with the nondelegable responsibility for educating all of California’s school children by providing a free public education under the California Constitution, Article IX, Section 5 and by assuring that all California children receive their fundamental right to an equal education under the equal protection clauses of the California Constitution, Article I, Sections 7(a) and 16(a).

Defendant Tom Torlakson, sued in his official capacity, is the State Superintendent of Public Instruction for the State of California, the Secretary and Executive Officer for the State Board of Education, and the Chief Executive Officer of the California Department of Education. He is obligated to take all necessary steps to ensure that school districts comply with the California Constitution and State laws. Pursuant to the California Education Code, he is the Director of Education in whom all executive and administrative functions of the California Department of Education are vested. He is responsible for ensuring that all children within the State of California receive a free and equal public education.

Defendant California Board of Education is responsible for determining the policies governing California’s schools and for adopting rules and regulations for the supervision and administration of all 1,022 local school districts. Pursuant to California Education Code sections 22020-22032, Defendant State Board of Education is required to supervise local school districts to ensure that they comply with State and federal laws concerning educational services. 35. Defendant California Department of Education is the department of State government responsible for administering and enforcing laws related to education.

Defendant Karen Smith, MD, MPH, sued in her official capacity, is the Director and State Public Health Officer for the California Department of Public Health. She is obligated to take all necessary steps to ensure that the California Department of Public Health and 61 local health departments comply with the State and federal laws in discharging their duties to protect public health and safety.

The California Department of Public Health is a state agency created by California statute, charged with implementing the California Health and Safety Code and regulating the statutes at issue, including, inter alia, Health & Safety Code §§ 120325, 120335, 120338, 120370 and 120375.

Defendants Takashi Wada, MD, and Charity Dean, MD, sued in their official capacities, are the Director and Health Officer, respectively, of the Santa Barbara County Department of Public Health, and are responsible for upholding, implementing and enforcing the laws at issue.

All defendants either are recipients of State and federal funds in support of the operation of schools or health departments or are responsible for and capable of ensuring that State and federal funds are spent by recipients in a nondiscriminatory manner in the State public school system.

Plaintiffs are informed and believe, and based thereon allege, that all of the Defendants are and were in some manner legally liable for the conduct at issue in this action. Plaintiffs are further informed and believe, and based thereon allege, that each Defendant was at all times acting with the implied or express direction, approval and ratification of each of the other Defendants.

Irreparable Injuries..

Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 200. Plaintiffs are now severely and irreparably injured by SB 277 – a state law that violates the Due Process and Equal Protections of the Fourteenth Amendment as well as the California Constitution.

By way of example only, Plaintiffs’ and their children’s injuries as a result of SB 277 include the deprivation of fundamental rights and the severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma caused to Plaintiffs and their children by Plaintiffs’ inability to send their children to school, and the stigma caused by the mischaracterization and marginalization of their children.

Plaintiffs’ injuries will be redressed only if this Court declares SB 277 unconstitutional and enjoins Defendants from enforcing it.

An actual and judicially cognizable controversy exists between Plaintiffs and Defendants regarding whether SB 277 violates the Constitutions of the United States and the State of California. Defendants are presently enforcing this state law to the detriment of Plaintiffs and their minor children.

General Allegations…

I am going to save the explanation of the “General Allegations” for the next article.  Why?  There is a lot of stuff readers will be thrilled to see.

To Read the entire eighty-nine (89) page Complaint right now, click on:  first amended complaint.

 

Stay tuned…

By Consumer Advocate Tim Bolen