NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Robert A. Nance, Chad C. Taylor, Oklahoma City, Oklahoma,
Donald M. Bingham, Sharon K. Weaver, Tulsa, Oklahoma, for Plaintiffs/Appellees.
Bryan Cleveland, Mithun Mansinghani, Office of the Attorney General, State of Oklahoma, Oklahoma City, Oklahoma, for Defendants/Appellants.
Hilary H. Clifton, Oklahoma City, Oklahoma, Jesse L. Marks, Denver, Colorado, for American Academy of Pediatrics, and the Oklahoma Chapter of American Academy of Pediatrics, Amicus Curiae.
Jeffrey B. Dubner, Jessica Anne Morton, Democracy Forward Foundation, Washington, D.C., for American Academy of Pediatrics, Amicus Curiae.
Nick Southerland, Brian S. Wilerson, Tulsa, Oklahoma, for Oklahoma Disability Law Center, Amicus Curiae
¶1 The determinative question presented is whether Senate Bill 658, codified as 70 O.S. Supp. 2021 Ch. 15, §§1210-189 and 190, is an unconstitutional restriction of the ability of public schools to exercise local control of the health and welfare of students.
THE PARTIES, THE ALLEGED FACTS,
AND THE PROCEDURAL HISTORY.
¶2 The plaintiff/appellee, Dr. Valerie Ritter, is a Doctor of Osteopathic Medicine, specializing in Pediatrics. She is also the parent of two children who are under the age of twelve, and who are enrolled in the Tulsa Public School system. One of her children has a history of bronchiectasis and hospitalizations for respirator distress and pneumonia. The plaintiff/appellee, Kimberly Butler, is the mother of four minor children also enrolled in the Tulsa Public School System. One of her children has epilepsy and Autism Spectrum Disorder. Ms. Butler, whose graduate degree is in public health, also works in the medical industry as a Senior Program Officer overseeing Maternal Child Health at the George Kaiser Family Foundation. She also serves on the Board of Directors for a Tulsa hospital and on the City of Tulsa's COVID-19 Testing Task Force.
¶3 The plaintiff/appellee, Mary Ann Martin is the parent of three minor children who are enrolled in the Norman Public School System. One of her children has serious health issues and a compromised immune system. The plaintiff/appellee, Dr. Britney Else is the parent of a minor child who is enrolled in the Broken Arrow Public School System. Dr. Else is a family-medicine and sports-medicine physician. The plaintiff/appellee, Oklahoma State Medical Association is a domestic not for profit corporation whose mission is "Better Health for Oklahoma."
¶4 On March 15, 2020, Oklahoma's Governor, J. Kevin Stitt, declared a statewide emergency due to the coronavirus pandemic and the impending threat of the spread of COVID-19 to the people of this State and their peace, health, and safety.
¶5 Senate Bill 658 concerns additions and amendments to school health and safety statutes 70 O.S. 2011 Ch. 15, §§1210.19170 O.S. 2011 Ch. 15 §1210.191
A. No minor child shall be admitted to any public, private, or parochial school operating in this state unless and until certification is presented to the appropriate school authorities from a licensed physician, or authorized representative of the State Department of Health, that such child has received or is in the process of receiving, immunizations against diphtheria, pertussis, tetanus, haemophilus influenzae type B (HIB), measles (rubeola), (rubella), poliomyelitis, varicella, and hepatitis A or is likely to be immune as a result of the disease.
Title 70 O.S. 2011 Ch. 15 §1210.194
A. Any child afflicted with a contagious disease or head lice may be prohibited from attending a public, private, or parochial school until such time as he is free from the contagious disease or head lice. . . .
¶6 However, Senate Bill 658 creates/adds two new sections, 70 O.S. Supp. 2021 §§1210-189 and 190, which work together.
A. A board of education of a public school district or a technology center school district, the board of regents of an institution within The Oklahoma State System of Higher Education, the governing board of a private post secondary educational institution, the Oklahoma State Regents for Higher Education, the State Board of Education or the State Board of Career and Technology Education shall not:
1. Require a vaccination against Coronavirus disease 2019 (COVID-19) as a condition of admittance to or attendance of the school or institution;
2. Require a vaccine passport as a condition of admittance to or attendance of the school or institution; or
3. Implement a mask mandate for students who have not been vaccinated against COVID-19.
B. As used in this section, "vaccine passport" means documentation that an individual has been vaccinated against COVID-19.
C. Nothing in this section shall be construed to apply to any public or private healthcare setting.
Section 1210-190 provides:
A. A board of education of a public school district or a technology center school district may only implement a mandate to wear a mask or any other medical device as provided in this subsection.
1. A board of education of a public school district or a technology center school district may only implement a mandate to wear a mask or any other medical device after consultation with the local county health department or city-county health department within the jurisdiction of where the board is located and when the jurisdiction of where the board is located is under a current state of emergency declared by the Governor.
2. The mandate shall explicitly list the purposes for the mandate.
3. The mandate shall reference the specific masks or medical devices that would meet the requirements of the mandate.
4. Any mandate to implement wearing a mask or any other medical device shall be reconsidered at each regularly scheduled board meeting. (Emphasis supplied.)
¶7 On August 12, 2021, the plaintiffs/appellees, the two doctors (doctors) and the two additional parents on behalf of their minor children (parents), along with the Oklahoma State Medical Association (OSMA) (collectively, doctors) filed a lawsuit in the District Court of the Oklahoma County against the State of Oklahoma, acting through the Legislature and the Governor, (collectively, the State). The doctors sought to enjoin the State from enforcing 70 O.S. Supp. 2021 Ch. 15, §1210-189 and 190.
¶8 They argued that the new additions to the legislation were unenforceable because:
1. They were an unconstitutional violation of equal protection and due process guaranteed by Okla. Const. art. 2, §7,
2. They were a violation of the Okla. Const. art. 5, §46 which prohibits the enactment of special laws regulating the affairs of school districts;
3. They were a violation of the Okla. Const. art. 5, §57 which requires every act of the Legislature to embrace only one section;
4. They were a violation of Oklahoma childen's right to a free education in a safe environment guaranteed by the Okla. Const. art. 1, §5.
The plaintiffs do not take issue with the minor modifications which were made to 70 O.S. 2021 Ch. 15, §1210-191.1 by Senate Bill 658.
¶9 On September 8, 2021, the trial court filed an order in which it granted, in part, the doctors' amended motion for a temporary injunction. The order states that:
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED, that Plaintiffs' Amended Motion for Temporary Injunction is granted in part. The State of Oklahoma and Governor Kevin Stitt are enjoined from enforcing certain sections of SB658 enacted in 2021 against any board of education of a public school district that has exemptions as described herein, specifically 70 O.S. §1210.18970 O.S. §1210.19070 O.S. §§1210.192
¶10 The State appealed on September 9, 2021. The doctors filed a counter-appeal on September 20, 2021. According to the doctors' counter petition in error, the result of the trial court's order is that public school districts must honor the absolute immunization "veto" by parents as to masking, but private schools are not similarly bound by such a requirement. Both parties filed motions to retain the appeal in this Court. We granted the State's motion to retain the appeal on September 15, 2021, and the doctors' motion to retain on September 23, 2021. After the expedited briefing cycle was completed, the cause was assigned on December 28, 2021, for an opinion.
TITLE 70 O.S. SUPP. §§1210-189 AND 190 ARE AN
UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE AUTHORITY
WHICH VIOLATES THE OKLA. CONST. ART. 4 §1 ONLY TO THE
EXTENT THAT THEY REQUIRE THE GOVERNOR TO DECLARE AN
EMERGENCY BEFORE LOCAL SCHOOL DISTRICTS MAY MAKE
DECISIONS REGARDING LOCAL HEALTH MATTERS. WE STRIKE
THE OFFENDING PROVISIONS AND THE REMAINDER OF THE
STATUTES REMAIN UPHELD.
¶11 The standard of review imposed for the issuance of a temporary injunction is whether the trial court abused its discretion or entered a decision against the evidence.
¶12 Title 70 O.S. Supp. 2021 §§189 and 190 do not prohibit public schools from requesting that students wear masks to school, nor do they prohibit students from wearing masks to school. Nor do they require vaccines for COVID or prohibit students from getting vaccinated. Rather, they prohibit a public school district from requiring a vaccination or proof of a vaccination before attending in-person school and from mandating masks for unvaccinated students, unless the district first consults with the local county health department or city-county health department within the jurisdiction of where the school board is located and then, only if the Governor declares a state of emergency in that same jurisdiction. If the Governor, as he has publicly indicated, will not declare a state of emergency due to COVID, then the statute acts as a state wide prohibition for masks for public schools.
¶13 The Oklahoma Governor has limited autonomous authority. The Court in Treat v. Stitt, 2020 OK 64473 P.3d 43
. . . The legislative branch sets the public policy of the State by enacting law not in conflict with the Constitution. Okla. Const. art. V, § 1. The Governor has a role in setting that policy through his function in the legislative process, but the Governor's primary role is in the faithful execution of the law. Okla. Const. art. VI, §§ 8 & 11.
¶14 Section 8 provides: "The Governor shall cause the laws of the State to be faithfully executed, and shall conduct in person or in such manner as may be prescribed by law, all intercourse and business of the State with other states and with the United States, and he shall be a conservator of the peace throughout the State." As far as the Governor's general authority goes, it is recognized that the drafters of the Oklahoma Constitution placed provisions to protect the people of the State of Oklahoma against excessive political and economic power.
¶15 Oklahoma's historical underpinnings were economically conservative. Fearing excessive power in the hands of one individual, the framers of the Oklahoma Constitution intentionally created a weak state chief executive. The Governor's authority is limited by the Constitution, because the Chief Executive may exercise only the power specifically granted by the Legislature. The Governor is without authority to exercise a discretion not validly and specifically granted by the statutory law and not within the power conferred upon the Chief Executive by the Constitution.
¶16 On the other hand, the Legislature has plenary authority to establish the public policy of the State and the Legislature has wide latitude in what it can do with public schools. The Oklahoma Constitution Preamble expressly recognizes that it was established to promote the mutual welfare of citizens.
¶17 The Legislature goes to great lengths and devotes great resources to curtail the spread of infectious diseases. The necessity of curtailing the spread of contagious diseases is also well-grounded and authorized by the Oklahoma Legislature through statutory authority.Fair School Finance Council of Oklahoma, Inc. v. State, 1987 OK 14746 P.2d 113570 O.S. 1981 §18-101Fair, supra at ¶45.
¶18 Public health codes "in a clear and compelling fashion" articulate a well-defined, firmly established, state public policy.
¶19 At the heart of the legislation in this matter is local control usurped or impeded by requiring the Governor to declare or not declare a state of emergency. The statutes remove the school board's authority to act independently and exercise the authority granted to the school board and it grants that authority to the Governor -- who has neither constitutional nor statutory authority over the operation of schools.
¶20 This is an impermissible delegation of authority. One branch of government may neither directly or indirectly control another branch -- nor subject it to coercive influence.
¶21 The statutes go far beyond a delegation of rulemaking authority. A school board is prohibited from deciding to implement any mask mandate, even after consulting local health department experts. Instead, that decision is controlled by a separate, independent action by the Governor. This allows the Governor to alter the implementation of the law without any legal authority to do so, even though the Governor does have the statutory authority, in limited circumstances, to issue executive orders declaring a state of emergency.
¶22 The question in this cause is whether the Governor's limited ability to declare an emergency can serve as the basis for a legitimate exercise of authority over public school decisionmaking. It cannot because the clause in the statutes does not merely grant the Governor the authority to declare an emergency, but instead, it requires the Governor to exercise legislative authority over school boards, and, as such, is impermissible.
¶23 In some circumstances an invalid portion of a statute may be stricken, while the remainder of the statute remains enforceable. This is the case when the valid provisions are separable, or are capable of being executed in accordance with the legislative intent of the statute as enacted.
CONCLUSION
¶24 The Okla. Const. art 4, §1 prohibits one branch of the government from exercising powers properly belonging to another branch.
APPEAL PREVIOUSLY RETAINED;
ORDER OF THE DISTRICT COURT VACATED.
DARBY, C.J., KAUGER, WINCHESTER, EDMONDSON, GURICH, ROWE, KUEHN, JJ., concur.
FISCHER, S.J., with whom COMBS, J., joins: concurs in part, dissents in part.
KANE, V.C.J., recused.
FISCHER, S.J., with whom COMBS, J., joins, concurring in part; dissenting in part.
¶1 The Plaintiffs challenge the constitutionality of two statutes, 70 O.S. Supp. 2021 §§ 1210.189
¶2 With respect to section 1210.190, I concur with the Majority. That statute contains an impermissible delegation of Legislative power to the Governor. When the offending provision is stricken, the remainder of the statue is enforceable.
¶3 However, there is no similar delegation of Legislative authority in section 1210.189, nor does that statute mention the Governor. Section 1210.189 concerns the authority of the governing body of any public school to require a vaccination for one disease, Coronavirus disease 2019, as a condition of admittance to school. But the Legislature has already specified the nine vaccinations which are required for school admission in a separate statute, 70 O.S. Supp. 2021 § 1210.191Id. A vaccination against Coronavirus disease 2019 is not listed nor is it required to attend school in Oklahoma.
¶4 Further, only the State Commissioner of Health "may alter the list of immunizations required . . . ." 70 O.S.2011 § 1210.19170 O.S.2011 § 5-117
¶5 In my view, severing the impermissible delegation to the Governor of Legislative power in section 1210.190 does not save section 1210.189, because section 1210.189 is a special law regulating public schools prohibited by Article 5, § 46 of the Oklahoma Constitution: "The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law . . . Regulating the management of public schools. . . ." Section 1210.191 specifies all of the vaccines required for all students attending every school in Oklahoma. In contrast, section 1210.189 addresses only one vaccine, the Coronavirus disease 2019 vaccine, and one group of students, those who attend a public school. "A statute is a special law when part of an entire class of similarly affected persons is segregated and targeted for different treatment." Beason v. I. E. Miller Services, Inc., 2019 OK 28441 P.3d 110770 O.S. Supp. 2021 § 1210.191
¶6 In addition, section 1210.189 conflicts with section 1210.190, the statute which the Majority holds is constitutional. For example, pursuant to 70 O.S.2011 § 1210.194
¶7 Nonetheless, section 1210.189(A)(3) would prohibit the school board from implementing such "a mask mandate for students who have not been vaccinated against COVID-19." Infected but unvaccinated students would either be prohibited from attending school pursuant to the board's authority in section 1201.194, or allowed to attend without wearing a mask. As a result, infected and vaccinated students who follow the board's mask mandate would be permitted to attend school while infected but unvaccinated students would be "segregated and targeted for different treatment." Beason v. I. E. Miller Services, Inc., 2019 OK 28
¶8 I my view section 1210.189 violates Article 5, § 46 of the Oklahoma Constitution. I respectfully dissent from that portion of the Majority Opinion holding that section 1210.89 is constitutional.