Unvaccinated Students v. President James Ryan
74 U.Va 18 (2022)
PETERSON, J delivers the opinion of the COURT.
Facts
This appeal follows a ruling on the merits from the District Court of Petty Complaints in favor of respondent, President Jim Ryan. At trial, appellants claimed that respondent, in violation of the 14th Amendment, instituted a vaccine mandate unconstitutionally requiring appellants to be vaccinated, depriving them of their liberty without due process. Appellants sought a declaratory judgment[1] from the lower court to enjoin respondent from acting upon that requirement.[2]
On January 28th, 2022, while this case was pending appeal, the Virginia State Attorney General (AG), Jason Miyares, issued an advisory opinion stating that vaccine mandates were unconstitutional.[3] On January 31st, respondent Ryan, relying on this advisory opinion, declared the case moot. See E-mail from James Ryan, Pres. of the Univ. of Va., to Student Body (Jan. 31, 2022, 16:35 EST) (on file with author). He now raises this argument on appeal, claiming this Court no longer has jurisdiction to hear the case. Ryan further argues that, if the case is not moot, the State has a compelling interest in the health of its citizenry, so it may nonetheless pursue this goal without violating the Due Process Clause of the 14th Amendment.
Appellants predictably raise the arguments they brought before the lower court. Appellants also argue that the case is not mooted by the AG’s advisory opinion. Appellants misunderstand both mootness and due process. However, it has come to the attention of this Court that it was improper for the lower court to reach the merits of this case at all. Appellants, regardless of mootness, lack standing. Nonetheless, this court will analyze the mootness question, because who doesn’t love unnecessary dicta?
Mootness
A case may typically be considered moot when the complainant receives, or is no longer capable of receiving, any of the remedies they originally sought. See generally Defunis v. Odegaard, 418 U.S. 903 (1974) (holding a case moot when complainant, who was seeking admission to law school, was already in his third year by the time the appeal reached the Court); Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021) (holding that a claim for nominal damages sufficed to avoid mootness). However, there are two exceptions which may render an otherwise moot case reviewable. The first arises when an alleged violation is capable of repetition yet evades review. This exception occurs if the challenged action is, in its duration, too short to be fully litigated prior to its cessation or expiration and there is a reasonable expectation that the same complaining party will be subjected to the same action again. See generally United States v. Sanchez-Gomez, 138 S. Ct. 1532 (2018).[4]This exception is inapplicable to the present case, as the requirement that one be vaccinated is certainly not too short in its duration to be fully litigated prior to its cessation.
The second exception to mootness arises when a defendant claims that a case is moot because they no longer can, or will, engage in the challenged action. Such is the situation at hand. Respondent, upon learning of the AG’s advisory opinion, determined that it would no longer require vaccinations. This was both in reliance on the AG’s opinion and because the student body was already highly vaccinated. However, voluntarily choosing to no longer pursue the previously enforced vaccination program does not necessarily moot the case. Respondent is required to meet the “formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Trinity Lutheran Church of Columbia v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017). Jim does not meet this standard.
The school has shown itself to be susceptible to the political whims of the state of Virginia. Just days before, when the previous AG’s advisory opinion, which declared the mandates constitutional, was still in effect, Ryan and the school believed such action to be within the administration’s power. What changed? Was a new law enacted? Was the Constitution amended? Did vaccines become more dangerous? No. A new Governor was appointed. It is reasonable to believe that, were the next Governor to fall on the other side of this constitutional question,[5] the Unvaxxed Students may once again be subject to this requirement. As such, the case cannot be said to be moot. Ryan’s declaration was simply incorrect.
However, it is a truism that plaintiffs must have standing to be heard in court in the first instance. If not, the Court does not have jurisdiction over the case. While neither party has raised, or briefed, the standing issue, it is the duty of the Court to ensure its own jurisdiction at every step of the trial. Accordingly, the Court may raise this issue sua sponte, as it now does. It has become apparent that Unvaxxed Students do not have constitutional standing to try this case.
Standing
To show constitutional standing, plaintiffs must be able to identify a concrete and particularized injury in fact, causation, and redressability. Unvaxxed Students have failed to show that vaccinations pose a “substantial risk” of harm. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158. According to a cursory Google search, “for every one million doses of vaccine that were distributed, 1 individual was compensated.” Ramon Rodriguez, III & Elizabeth M. Muldowney, How Common Are Vaccine Injuries?, Sands Anderson Vaccine Injury Legal Team (Jan. 14, 2019).[6] This seems to suggest that the likelihood of suffering harm from a general vaccination is 0.0001%. Certainly, even accounting for the fact that the vaccines in today’s case are not considered within this sample, such a number cannot rise to the level of a “substantial risk.” If these Unvaxxed Students are truly so scared, it would perhaps be more prudent of them to cut up their driver’s licenses, go vegetarian, and avoid dogs like the plague.[7]
Conclusion
Because the plaintiffs are unable to show a concrete injury due to the probabilistic nature of the harm they claim to have suffered, this Court has no choice but to dismiss the case for lack of standing.
Case dismissed, with prejudice.
Tonseth, C.J. Emeritus, concurring.
“Although I agree that the judgment of the [District Court of Petty Complaints] must be reserved, I do not join the Court’s opinion because I am not sure what it means.”[8] I presume Justice Peterson is relying on the first Petty Rule of Civil Procedure in that we do what we want, see Law Weekly v. CoPA Copiers 369 U.Va 96 (2019), but you don’t need to whip your dicta around unnecessarily. The Court is a shadow government itself, and thereby we should have dismissed this case through our shadow docket.
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tp4bw@virginia.edu
pjt5hm@virginia.edu
[1] It is unclear whether Ryan qualifies as a state official for the purposes of this suit. If so, appellants would be required to pursue this suit through the doctrine of Ex Parte Young, 209 U.S. 123 (1908). However, the Court need not engage in this analysis to dispose of this case.
[2] The record is unclear as to why appellants object to the vaccine. As such, the Court assumes it is a simple, childlike phobia of needles.
[3] While it would be unconstitutional for a federal court to issue a similar advisory opinion, this issue is not raised in the present case.
[4] This exception is often applied in abortion cases because the typical length of a pregnancy is too short to accommodate a court schedule.
[5] One which has shown itself to be surprisingly malleable in the hands of interpreters.
[6] It is fair to note that this source was published prior to the immunization program present in this case. However, I refuse to do more than a cursory search.
[7] The lack of such corroborative action indicates that plaintiffs are simply overly-litigious whiners who likely received participation trophies as children. In short: snowflakes.
[8] Edwards v. Arizona, 451 U.S. 477 (1981).