Opinion
No. 4:01CV00760 SWW
August 12, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff Susan Brock, on behalf of her children Harley Brock, Mason Brock, Katherine Brock, and Michael Jarrell, filed this 42 U.S.C. § 1983 action challenging the constitutionality of Arkansas's immunization statute, Arkansas Code Annotated § 6-18-702, asserting that the immunization requirements violate her rights under the First Amendment and Fourteenth Amendment to the United States Constitution. Plaintiff also brings a pendent state law claim pursuant to Article 2, Section 24 of the Arkansas Constitution.
Now before the Court is separate defendant Fay Boozman's motion for summary judgment [docket no. 56], plaintiffs response in opposition [docket no. 70], and separate defendants Cutter Morning Star School District and Lake Hamilton School District's joint response [docket no. 77]; separate defendant Ray Simon's motion for summary judgment [docket no. 61], plaintiff's response in opposition [docket no. 65], and separate defendants Cutter Morning Star School District and Lake Hamilton School District's joint response [docket no. 77]. Also before the Court is plaintiffs motion for summary judgment [docket no. 66], separate defendant Pay Boozman's response in opposition [docket no, 71], separate defendant Ray Simon's response in opposition [docket no. 74], separate defendants Cutter Morning Star School District and Lake Hamilton School District's joint response [docket no. 75], and plaintiffs consolidated reply [docket no. 79]. Separatedefendants Cutter Morning Star School District and Lake Hamilton School District have also filed a motion to reconsider [docket no. 53] the Court's April 16, 2002 Order [docket no. 52] finding that they are proper parties to this litigation; plaintiff has responded to the motion to reconsider [docket no. 69], and defendants have replied [docket no. 76].
Defendant Ray Simon also adopts defendant Fay Boozman's motion for summary judgment. See docket no. 61, paragraph 1.
Recognizing that the federal rules do not provide for a reply brief, plaintiff filed a motion for leave to file consolidated reply [docket no. 78] to defendants' motions for summary judgment on the same day she filed her reply [docket no. 79]. The motion for leave to file a consolidated reply is granted.
After careful consideration, and for the reasons stated below, the Court finds that the motion to reconsider must be denied, defendants' motions for summary judgment must be denied, and plaintiff's motion for summary judgment must be denied.
I. Background
Section 6-18-702(a) of the Arkansas Code Annotated provides that no child shall be admitted to school without proof of immunization from certain diseases. The Arkansas Department of Health has designated Hepatitis B as one of those diseases from which school children must be immunized.
The immunization statute states: "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." Ark Code Ann. § 6-18-702(a) (Repl. 1999).
See docket no. 23, exhibit A. The Rules and Regulations promulgated July 27, 2000 by the Arkansas Department of Health pursuant to the immunization statute provide as follows: "The requirements for entry into school, irrespective of grade, are at least three doses of Acellular Diphtheria/Tetanus/Pertussis (DtaP), Diphtheria/Tetanus/Pertussis (DTP), Diphtheria/Tetanus (DT pediatric), or Tetanus/Diphtheria (Td Adult), at least three doses of polio vaccine; two doses of Rubeola (measles) vaccine, one dose of Rubella (German measles) vaccine and one dose of Mumps vaccine. Additionally, three doses of Hepatitis B vaccine and one dose of Varicella (chickenpox) vaccine are required before entering Kindergarten. Three doses of Hepatitis B are required for Transfer students (students not in your school district last school year) and students entering the seventh grade."
Susan Brock's children, Katherine Brock (age 7), Mason Brock (age 9), Harley Brock (age 10), and Michael Jarrell (age 16), attend school in the Lake Hamilton School District and the Cutter Morning Star School District. In October 2000, the Assistant Superintendent of the Lake Hamilton School District sent a letter to parents outlining the immunization requirements and stating that children could be excluded from school for failure to provide proof of immunization. Because she opposed her children receiving the Hepatitis B vaccine for religious reasons, Susan Brock applied to the Arkansas Department of Health for a religious exemption pursuant to Arkansas Code Annotated § 6-18-702 (d)(2). That subsection provided:
All ages are as represented at the time this action was filed.
See docket no. 23, exhibits D, B, and G.
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 tenets and practices of a recognized church or religious denomination of which the parent or guardian is an adherent or member.
Hepatitis B is spread through contact with the blood and bodily fluids of an infected person. Methods of transmission include (but are not limited to) having sex with an infected person or injecting illegal drugs. Susan Brock, a member of St. Mary's Catholic Church, explained her religious opposition to the Hepatitis B immunization as follows:
See docket no. 23, exhibit C.
I am a Christian with a sincerely held religious belief that I am not to have my children vaccinated with the Hepatitis B immunization. . . . I believe the only protection my children need from contracting Hepatitis B is outlined in the Bible in Ephesians 6:13-14 which states, "Therefore, take up the full armor of God that you may be able to resist in the evil day, and having done everything to stand firm. Stand firm therefore, having girded your loins with truth. . . ." I believe this Scripture commands me to teach my children to live a lifestyle of sexual purity and not to be sexually promiscuous. I also believe that I Corinthians 6:19-20 admonishes me to teach my children to take excellent care of their bodies and to remain free from sexual promiscuity and drug use as a way of showing respect for the Temple of God. That verse states, "Do you not know that your body is a temple of the Holy Spirit, who is in you, whom you have received from God? You are not your own; you were bought with a price. Therefore, honor God with your body." I do not want in any way to teach my children that sexual promiscuity and drug use is an acceptable lifestyle. . . . Additionally, I believe that immunizing my children against Hepatitis B gives the appearance that my children will be sexually promiscuous or drug users. This violates my religious beliefs because I Thessalonians 5:22 commands me to, "Abstain from all appearance of evil."
See docket no. 5. Defendants do not appear to question whether Susan Brock's belief concerning immunization is based in religion and sincerely held, and this Court does not question this either. See, e.g., Thomas v. Review Board , 450 U.S. 707, 713-14, 101 S.Ct. 1425, 1430 (1981) (A belief must be rooted in religion to be protected by the religion clauses of the First Amendment, but "need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.").
On April 5, 2001, the Department of Health denied Susan Brock's application for religious exemption because it does not (or, from the perspective of the Department of Health, pursuant to Arkansas law it cannot) grant religious exemptions from immunization on the basis of personal religious beliefs, and because the information submitted by Susan Brock did not indicate that immunization conflicts with the doctrine of her church.
See docket no. 23, exhibit F.
To date, Susan Brock's children have not been excluded from school for failure to have the Hepatitis B vaccine; however, they continue to face exclusion under the immunization statute and corresponding rules and regulations. Further, although there is no evidence that any prosecution has been threatened in this case, the Court notes that immunization statute carries with it a criminal penalty for non-compliance. Ark. Code Ann. § 6-18-702(e).
The Court previously addressed the ripeness/standing issue in its Order [docket no. 52] of April 16, 2002, and will not repeat that analysis here.
II. Motion to Reconsider
On April 16, 2002, the Court entered an Order (docket no. 52] denying Cutter Morning Star School District and Lake Hamilton School District's joint motion to dismiss. Cutter Morning Star and Lake Hamilton argued that they were not proper parties to this litigation because they were not currently enforcing the immunization statute against Susan Brock's children, and even if they were, they would only be complying with the requirements of State law. This Court found that argument unpersuasive, noting that under the immunization statute, school districts bear responsibility for enforcing the immunization requirements. See Ark. Code Ann. § 6-18-702(b)(1). The Court further noted that this was demonstrated by the accompanying rules and regulations (which require schools to evaluate each student's immunization status and record immunization information in the student's permanent file), and by a letter sent to parents (including Susan Brock) in the Lake Hamilton School District explaining the new immunization requirements for the 2000-2001 school year.
See docket no. 20, exhibit B; docket no. 23, exhibit D.
In their motion for reconsideration, Cutter Morning Star and Lake Hamilton continue to argue that they are not proper parties because they are disinterested in the outcome of this litigation, and state that they will abide by this Court's rulings whether or not they are parties to this case. Cutter Morning Star and Lake Hamilton assert that because they do not have a "dog in the hunt, " they should not be exposed to or required to pay attorney's fees and costs should plaintiff prevail. The Court is unpersuaded by Cutter Morning Star and Lake Hamilton's arguments. The motion for reconsideration is denied for the reasons stated in the Court's April 16, 2002 Order and restated above. Any exposure to or responsibility for attorney's fees and costs would be more appropriately addressed at the conclusion of this litigation.
III. Standard of Review for Summary Judgment
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As a prerequisite to summary judgment, a moving party must demonstrate "an absence of evidence to support the non-moving party's case." Celotex Corp. v. Carrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party may not rest on mere allegations or denials of his pleading but must "come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed.R.Civ.P. 56(e)).
"[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party." RSBI Aerospace, Inc. it affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587 (citations omitted). Further, summary judgment is particularly appropriate where an unresolved issue is primarily legal, rather than factual. Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995).
IV. Discussion of Motions for Summary Judgment
Defendant Fay Boozman, joined by defendant Ray Simon, seeks summary judgment asserting: (1) compulsory immunization laws are constitutional; (2) Arkansas's statutory religious exemption is constitutional; and (3) Susan Brock, on behalf of her children, is not entitled to a religious exemption from the statute. Ray Simon separately seeks summary judgment on sovereign immunity grounds. Plaintiff Susan Brock, in turn, seeks summary judgment asserting: (1) the statutory religious exemption to the immunization statute unconstitutionally asserts a preference for one religion over another; and (2) the Free Exercise Clause of the First Amendment to the United States Constitution requires that Arkansas grant her an religious exemption because the statute provides for a secular, medical exemption.
Plaintiff does not separately address or move for summary judgment on her Equal Protection claim as set forth in Count III of her amended complaint [docket no. 23], and the parties have agreed that these cross-motions for summary judgment should resolve all issues before the Court. See docket no. 80. The Court therefore assumes that plaintiff has chosen not to pursue that claim, but notes that a law which exempts the adherents of "recognized" religions, yet denies exemption on the basis of personal and sincere religious beliefs, is predisposed to deny Equal Protection of the law.
Because the parties' arguments overlap, the Court will address them by substantive category; in most cases, the parties arguments are moot. The Court also notes that Cutter Morning Star and Lake Hamilton have stated that they take no position on the merits of plaintiffs claim, on the motions for summary judgment, or on the constitutionality of the statute in question.
See docket nos. 75, 77.
A. Challenge to Statutory Religious Exemption Under the United States Constitution
In Cynthia Boone v. Fay Boozman et at., No. 4:01CV00685 SWW (E.D. Ark. 2002), this Court determined that the religious exemption provision of the immunization statute, Ark. Code Ann. § 6-18-702(d)(2) was unconstitutional, both facially and as applied, under the Establishment Clause and Free Exercise Clause of the First Amendment to the United States Constitution. The Court will not reprint that analysis here, but refers the parties to its published Memorandum Opinion and Order in that case. The Court notes that plaintiff Susan Brock makes practically identical arguments on this topic as Cynthia Boone made, as do defendants in response.
In the Boone case, Cynthia Boone, on behalf of her daughter Ashley Boone, brought a 42 U.S.C. § 1983 action challenging the constitutionality of Arkansas's immunization statute after her daughter was suspended from Cabot Senior High School because she lacked the required Hepatitis B immunization. As part of that challenge, Cynthia Boone, who was opposed to the Hepatitis B immunization on religious grounds, argued that the statutory religious exemption violated the Establishment Clause and Free Exercise Clause. This Court held that the statutory religious exemption, Ark. Code Ann. § 6-18-702(d)(2), failed the test set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105 (1971), as well as the standard expressed in Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673 (1982), and thus violated the Establishment Clause and Free Exercise Clause. The Court therefore severed the statutory religious exemption pursuant to Arkansas Code Annotated § 1-2-117, leaving the remainder of the immunization statute in full force and effect.
Because the statutory religious exemption no longer in effect, plaintiff's request for declaratory and injunctive relief on this issue must be denied as moot.
B. Free Exercise Clause — Effect of Statutory Medical Exemption
Susan Brock argues that, irrespective of the statutory religious exemption, under the Free Exercise Clause this Court is required to grant her an exemption based on her sincerely held religious beliefs. Specifically, Susan Brock asserts that because the immunization statute provides a secular exemption for medical reasons, the State's refusal to grant an exemption for religious reasons must survive strict scrutiny.
In Employment Division v. Smith, the Supreme Court clarified the standard of review to be used when a law is challenged on Free Exercise grounds. See Employment Div. v. Smith, 494 U.S. 872, 110 S.Ct. 1595 (1990). After Smith, a law that is neutral and of general applicability need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice, but a law failing to satisfy the neutrality and general applicability requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 2226 (1993).
Smith has also been interpreted to stand for the proposition that heightened scrutiny should apply when the state permits secular individualized exemptions from a law but refuses religious exemptions. See Smith, 494 U.S. at 884-85, 110 S.Ct. at 1603. The source of this "individualized exemptions" jurisprudence is the Supreme Court's explanation of its historical use of strict scrutiny in Free Exercise cases challenging the denial of unemployment benefits:
The [compelling interest] test, it must be recalled, was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct. As a plurality of the Court noted in Roy, a distinctive feature of unemployment compensation programs is that their eligibility criteria invite consideration of the particular circumstances behind an applicant's unemployment: "The statutory conditions [in the unemployment cases] provided that a person was not eligible for unemployment compensation benefits if, "without good cause, ' he had quit work or refused available work. The "good cause' standard created a mechanism for individualized exemptions." As the plurality pointed out in Roy, our decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of "religious hardship" without compelling reason.
Id. at 884, 110 S.Ct. at 1603 (citing Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147 (1986) (internal citations omitted). The Supreme Court later applied this "individualized exemptions" jurisprudence in a Free Exercise case challenging municipal ordinances regulating the slaughter of animals. One ordinance prescribed punishments for "[w]hoever . unnecessarily. . . kills any animal"; this limitation was applied to prohibit the ritual slaughter of animals in religious worship but did not prohibit, for example, hunting and the slaughter of animals for food. The Supreme Court stated:
[B]ecause [the ordinance] requires an evaluation of the particular justification for the killing, this ordinance represents a system of "individualized governmental assessment of the reasons for the relevant conduct." As we noted in Smith, in circumstances in which individualized exemptions from a general requirement are available, the government "may not refuse to extend that system to cases of "religious hardship' without compelling reason." [The city's] application of the ordinance's test of necessity devalues religious reasons for killing by judging them to be of lesser import than nonreligious reasons. Thus, religious practice is being singled out for discriminatory treatment.
Lukumi, 508 U.S. at 537, 113 S.Ct. at 2229 (internal citations omitted).
Among the lower courts, the leading case in the "individualized exemptions" area, and the most analogous case to the one before this Court, is Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999), cert. denied, 528 U.S. 817, 120 S.Ct. 56 (1999). In that case, a police department policy prohibited officers from wearing beards in order to foster a uniform appearance. Fraternal Order of Police, 170 F.3d at 365-66. The no-beard policy permitted two exceptions: for medical reasons (ie. for officers suffering from the skin condition pseudo folliculitis barbae) and for undercover officers. Id. at 360. Two officers sought exemption from the no-beard policy on religious grounds — as Sunni Muslims, they believed they were under a religious obligation to grow their beards. Id. The police department refused the religious exemptions, and the officers then brought a legal challenge to the no-beard policy on Free Exercise grounds. Id. at 361.
The Third Circuit held that the categorical medical exception triggered heightened scrutiny because it raised concern that the police department had made a value judgment that secular (ie. medical) motivations for wearing a beard were important enough to overcome the police department's interest in a uniform appearance, but that religious motivations were not. Id. at 366. Correspondingly, the Third Circuit noted that the undercover officer exception did not trigger heightened scrutiny because it did not undermine the police department's interest in a uniform appearance as undercover officers are, obviously, not held out to the public as police officers. Id. The court rejected the police department's argument that this result was inconsistent with Smith, where, in the face of a Free Exercise challenge to a law criminalizing peyote, a medical prescription exception to that law did not prompt the Supreme Court to apply strict scrutiny. Id. The Third Circuit found the medical prescription exception akin to the undercover officer exception — it did not undermine the state's interest in curbing the unregulated use of dangerous drugs. Id. The undercover officer and medical prescription exceptions did not implicate a comparative judgment by the government about the relative importance of these exemptions versus a religious exemption.
The Third Circuit noted that the exemption's categorical, rather than individualized, character implicated even more strongly the Supreme Court's concern over the prospect of the government deciding that secular motivations are more important than religious motivations. Fraternal Order of Police, 170 F.3d at 365.
In this case, plaintiff bases her Free Exercise challenge on the categorical medical exemption to the immunization statute, which provides:
If, in the discretion of the health authority having jurisdiction or of any physician licensed to practice by the Arkansas State Medical Board, any person to whom this section applies shall be deemed to have a physical disability which may contraindicate vaccination, a certificate to that effect issued by the health officer may be accepted in lieu of a certificate of vaccination, provided that the exemption shall not apply when the disability shall have been removed.. . . Furthermore, the provisions of this section requiring pertussis vaccination shall not apply to any child with a sibling, either whole blood or half blood, who has had a serious adverse reaction to the pertussis antigen, which reaction resulted in a total permanent disability.
Ark. Code Ann. § 6-18-702(d)(1)(3). Assuming that the interest furthered by the immunization statute is the protection of the health and safety of the public, the Court must consider whether the medical exemption undermines that interest. This Court believes that it does not. Both the statute as a whole and the medical exemption protect the health and safety of the public — the immunization statute by providing for the vaccination of school children against disease, and the medical exemption by not requiring children to undergo vaccination which may seriously injure or disable them. The Court notes further that a neutral law of general applicability does not cease to be so simply because the State refuses to enforce it in situations that would endanger the health and safety of its people.
For example, individuals who have had a life-threatening allergic reaction to baker's yeast or to a previous dose of the Hepatitis B vaccine (it is administered in three doses) are advised not to take the Hepatitis B vaccine. See docket no. 23, exhibit C.
However, even if the Court considers the medical exemption as undermining" the protection of the public health and safety because it leaves some children unvaccinated, this is not a case that warrants invocation of the individualized exemption jurisprudence. The individualized exemption cases have as their central concern the prospect of the government making a value judgment in favor of secular motivations but not religious motivations. See Lukumi, 508 U.S. at 537-38, 113 S.Ct. at 2229; Fraternal Order of Police, 170 F.3d at 365-66. Providing a medical exemption to compulsory immunization is not a value judgment, it is simply what the law requires of the State. Cf. Fraternal Order of Police, 170 F.3d at 365 (argument that police department, in granting medical exemption, was simply complying with ADA not persuasive because Title VII imposes parallel obligation on employers to accommodate religion). In Jacobson v. Massachusetts, the seminal case in which the Supreme Court upheld compulsory vaccination, the Supreme Court stated:
[T]he police power of a state, whether exercised directly by the legislature, or by a local body acting under its authority, may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression. . . . It is easy, for instance, to suppose the case of an adult who is embraced by the mere words of the act, but yet to subject whom to vaccination in a particular condition of his health or body would be cruel and inhuman to the last degree. We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it was so intended, that the judiciary would not be competent to interfere and protect the health and life of the individual concerned.
Jacobson v. Massachusetts, 197 U.S. 11, 38-39, 25 S.Ct. 358, 366 (1905). That the General Assembly enacted an immunization statute containing a medical exemption reflects the General Assembly's understanding that to do otherwise would constitute an arbitrary and oppressive exercise of its police power, leading to injustice, oppression, and absurd consequence; the medical exemption is not a simple comparative value judgment in favor of secularism as plaintiff suggests. Accordingly, plaintiffs Free Exercise challenge to the immunization statute does not require strict scrutiny.
See, e.g., 1983 Ark. Acts 150 ("An Act to Amend Section 3 of Act 244 of 1967 to Exempt from the Mandatory Pertussis Immunization Requirements for School Children, with Siblings, Either Whole Blood or Half Blood, Who Have Had Serious Adverse Reactions to Such Immunizations Which Reaction Resulted in a Total Permanent Disability; and for Other Purposes."). Section 3 of that Act provided: "Emergency. It is hereby found and determined by the General Assembly that in some rare instances children have serious adverse reactions to the mandatory pertussis immunizations required for admittance into public and private schools of this State; that in such cases, for fear of an hereditary factor being involved, the siblings of such children should not be required to risk such serious adverse reactions by submitting to the pertussis immunizations; that present law does not make a provision for such rare occurrences; and that this Act is immediately necessary to protect the health of such children."
Hepatitis B is a serious disease which can cause chronic illness leading to liver damage, liver cancer, and death. Approximately 1.25 million people in the United States have chronic Hepatitis B infection, and each year it is estimated that 200,000 people, mostly young adults, get infected with Hepatitis B. The CDC has determined that the Hepatitis B vaccine can prevent Hepatitis B. Immunization of school children against Hepatitis B has a real and substantial relation to the protection of the public health and safety. The Court therefore finds that requiring school children to be immunized against Hepatitis B is a reasonable exercise of the State's police power and is constitutionally permissible even though it affects plaintiffs religious practice. Further, it is rational, reasonable, and permissible for the State, in the exercise of its police power, to allow medical exemptions to the immunization requirement when it does not allow religious exemptions. See Cude v. Arkansas, 377 S.W.2d 816, 818-20 (Ark. 1964) (upholding the State's power to require compulsory immunization of school children over religious objections); Jacobson, 197 U.S. at 38-39, 25 S.Ct. at 366 (noting the need for a medical exemption).
See id.
See id.
See id.
C. Challenge Under Arkansas Constitution's "Religious Liberty" Provision
Plaintiff asserts a pendent State law claim in this case, challenging the statutory religious exemption under the Arkansas Constitution's "Religious Liberty" provision, which states:
All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can, of right, be compelled to attend, erect or support any place of worship; or to maintain any ministry against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship above any other.
Ark. Coast. Art. 2, § 24. Defendant Ray Simon, sued in his official capacity as Director of the Arkansas Department of Education, argues that plaintiffs pendent state law claim under the Religious Liberty provision of the Arkansas Constitution must be dismissed on sovereign immunity grounds. Having dismissed plaintiff's federal constitutional claims, the Court declines to exercise supplemental jurisdiction over plaintiffs pendent State law claim pursuant to 28 U.S.C. § 1367 (c)(3). See Thomas v. Dickel, 213 F.3d 1023, 1026 (8th Cir. 2000) (federal courts should exercise judicial restraint and avoid state law issues whenever possible). Therefore, defendant Ray Simon's sovereign immunity argument is moot, and this Court need not consider it.
Defendant Ray Simon states correctly that although 28 U.S.C. § 1367 (a) gives the federal district courts supplemental jurisdiction over state law claims if those claims "form part of the same case or controversy under Article II," pursuant to Eleventh Amendment sovereign immunity principles a federal court may not exercise supplemental jurisdiction over a state law claim against a state official in his official capacity, even if the plaintiff seeks only prospective injunctive relief. Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 119-231 104 S.Ct. 900, 918-20 (1984).
V. Conclusion
THEREFORE, separate defendants Cutter Morning Star School District and Lake Hamilton School District's motion to reconsider [docket no. 53] is hereby DENIED.
FURTHER, plaintiffs motion for leave to file consolidated reply [docket no. 78] to defendants' motions for summary judgment is hereby GRANTED.
FURTHER, plaintiff's motion for summary judgment [docket no. 66] is hereby DENIED AS MOOT to the extent Ark. Code Ann. § 6-18-702(d)(2) has already been declared unconstitutional and is no longer in effect, and is DENIED as to all other grounds; the Court declines to exercise supplemental jurisdiction over plaintiffs pendent State law claim.
FURTHER, separate defendant Fay Boozman's motion for summary judgment [docket no. 56] is hereby DENIED AS MOOT; Ark. Code Ann. § 6-1 8-702 (d)(2) has already been declared unconstitutional and is no longer in effect, and the remainder of the immunization statute has already been declared constitutional and valid.
FURTHER, separate defendant Ray Simon's motion for summary judgment [docket no. 61] is hereby DENIED AS MOOT because, having declined to exercise supplemental jurisdiction over plaintiff's pendent State law claim, the Court need not reach issues of Eleventh Amendment sovereign immunity.
Judgment shall be entered accordingly.
JUDGMENT
In accordance with the Memorandum Opinion and Order entered this date, this case is hereby dismissed as to plaintiffs federal claims, and dismissed without prejudice as to plaintiffs State law claim; the relief sought by the plaintiff is denied.