Petition for Writ of Certiorari — Jerome Kunkel, et al., Petitioners v. Northern Kentucky Independent Health District, et al.

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Order in the Commonwealth of

Kentucky, Boone Circuit Court,

Division III

(April 2, 2019) . . . . . . . . . . . . . . . . App. 1

Appendix B O r d e r

Denying

Motion for

I nt e r l o c u t o r y R e l i e f i n t he

Commonwealth of Kentucky, Court of

Appeals

(June 26, 2019) . . . . . . . . . . . . . . App. 17

Appendix C Order Denying Petition for Cr 65.09

Relief in the Supreme Court of Kentucky

(August 29, 2019) . . . . . . . . . . . . App. 58

Appendix D U.S. Const., Amend I . . . . . . . . . App. 60

U.S. Const., Amend XIV . . . . . . . App. 60

App. 1

APPENDIX A

COMMONWEALTH OF KENTUCKY

BOONE CIRCUIT COURT

DIVISION III

CASE NO. 19-CI-00357

[Filed April 2, 2019]

_________________________________

JEROME KUNKEL, et al.

)

PLAINTIFF

)

)

VS.

)

)

NKY INDEPENDENT HEALTH )

DEPARTMENT, et al.

)

DEFENDANTS

)

________________________________ )

ORDER

The Court conducted a hearing on Plaintiffs’ Motion

for a Temporary Restraining Order/Preliminary

Injunction on April 1, 2019. The Court heard testimony

from Karen Kunkel, Jerome Kunkel, Zack Raney, Toni

Bark, M.D. and Garry Marshall, M.D. The Court

having reviewed the Plaintiffs’ Motion, Defendants’,

Northern Kentucky Independent District Board of

Health (NKIDHD), Boone County Local Board of

Health, Zack Raney and Lynne Sadler, M.D., M.P.H.,

Memorandum in Opposition, having considered the

testimony presented, and having heard argument from

App. 2

counsel, and the Court being in all ways sufficiently

advised, finds as follows:

Prior to conducting the Hearing, the Court

addressed Motions to Intervene fi led by Seante Carter,

Christina Bell, Maria Kunkel and David Kunkel as

next friends and guardians of minors. There was no

opposition to the Motions. The Court will utilize

Jerome Kunkel as the Plaintiff in the following Order,

however it will also apply to Intervening Plaintiffs.

Jerome Kunkel is requesting that this Court grant

a Temporary Restraining Order and/or Preliminary

Injunction to prevent the Northern Kentucky

Independent District Health Department (“NKIDHD”)

from enforcing its Activity Ban and School Ban on

Plaintiff. The Court may only grant a restraining order

under CR 65.03(1), or a temporary injunction under CR

65.04, if the movant sets forth through a verified

complaint or affidavit specific facts that show the

movant’s rights are being, or will be violated by the

adverse party, and that the movant will suffer

immediate and irreparable injury, loss or damage

before the adverse party or his attorney can be heard in

opposition. These forms of relief cannot be granted on

the grounds of mere anticipated danger, requiring a

reasonable probability that injury will occur if the

order is not granted. Maupin v. Stansbury, 575 S.W.2d

695, 698 (Ky. App. 1978).

Jerome Kunkel is an 18-year-old high school senior

at Assumption Academy in Walton, Boone County,

Kentucky. He has played basketball for Assumption

since 2015 and is also on the Assumption baseball

team. On February 5, 2019, Vanessa Dredger, the

App. 3

Registrar at Assumption, contacted NKIDHD to

disclose that six cases of suspected Varicella (“chicken

pox”) had been reported by students enrolled at the

school. She further reported that out of Assumption’s

approximately 240 students, only 18% of the student

body had received all of their vaccinations. In response,

Raney, the Epidemiology Manager and Carolyn

Swisshelm, Communicable Disease Nurse with

NKIDHD, informed Dredger and Assumption that they

should monitor the school and its associations of

symptoms to watch for and to request self-exclusion of

those suspected of having chicken pox. They also

drafted an advisory letter regarding outbreak safety to

be distributed to the parents of Assumption students.

which advised on the symptoms of the illness and a

course of action should their child start to exhibit

symptoms. Assumption distributed said letter to the

parents on February 5, 2019. On February 13, 2019,

Dredger emailed the NKIDHD and reported an

additional four cases. As of February 21, 2019, there

were a total of eighteen cases at the affiliated schools—

sixteen in Our Lady of the Sacred Heart Elementary

School which is located across the street, and two at

Assumption, which is located under the church.

Raney was concerned, noting a three-fold increase

in the suspected cases at one site. He and Swisshelm

met with Julie Miracle, R.N., Communicable Disease

Nurse for Kentucky, Dr. Doug Thoroughman, Kentucky

State Epidemiologist and Stephanie Vogel, NKIDHD

Population Health Manager. They learned that

Assumption was scheduled to engage in competitions,

tournaments, and other extracurricular events with

schools across Kentucky, Ohio, and Indiana in the

App. 4

following weeks, and fearing exposure that could lead

to further outbreaks, felt it necessary to limit

Assumption’s interactions with other schools. NKIDHD

drafted a second letter for distribution to the parents of

children who attend Assumption on February 21, 2019,

which reiterated the dangers of Varicella and the

appropriate course of treatment should a child have

symptoms. This letter also advised parents that, for a

period of 21 days after the onset of a rash for the last ill

student, all extracurricular events were postponed in

an effort to limit exposure to other students they may

come in contact with. This letter was sent by NKIDHD

to Assumption’s Registrar for distribution to parents

and began the “Extracurricular Restriction.”

On or about February 22, 2019, Father Muscha, the

Principal and Priest for Assumption Academy

contacted Raney to clarify the terms of the restriction.

Raney explained that the restriction applied to all

extracurricular activities in which “students from

Assumption are going into other schools/public areas or

the public/other schools are coming to Assumption.”

Shortly after their conversation ended, Father Muscha

contacted Raney again to discuss the restriction,

inquiring if the boys’ basketball team could somehow

compete in the state tournament despite the

restriction. None of the team members had received a

Varicella vaccination and were, therefore, presumed to

be nonimmune and potential carriers for the disease.

However, the NKIDHD staff came to an agreement

with Father Muscha that each member of the

basketball team could undergo a Varicella titer test

and provide the results to the NKIDHD. If the test

indicated that a player was immune, he would be

App. 5

permitted to compete. The test results indicated that

only two of the team’s members were nonimmune. One

of those was Jerome Kunkel and, therefore, he was not

permitted to play in the tournament. He agrees he has

not received the vaccine, opposing it on the religious

ground that it is derived from aborted fetal cells.

On or about February 23, 2019, Kunkel was

informed he could not attend or play in any basketball

games or any other extracurricular activities involving

other schools, including upcoming baseball games or

scrimmages. At that time, he was permitted to attend

school, and was not otherwise precluded from going out

in public.

On February 25, 2019, NKIDHD staff received a

copy of an email from Julie Miracle to Bill Kunkel,

Jerome’s father, summarizing a telephone conversation

they had. She explained the rationale behind the

restriction and provided copies of the relevant statutory

and regulatory provisions authorizing NKIDHD to

enact measures to control the outbreak.

On February 26, 2019, Jerome Kunkel and his

parents met with Raney and Swisshelm to discuss the

rational and policy behind the restriction. Jerome

Kunkel alleges the NKIDHD officials made derogatory

comments regarding his religious opposition to the

Varicella vaccine, and that the extracurricular activity

ban was put in place to punish the parishioners at

Assumption and at the school for their vaccination

beliefs and not an actual concern for public health.

On March 9, 2019, NKIDHD received

documentation confirming that a student at

App. 6

Assumption who had been treated at Cincinnati

Children’s Hospital with joint pain and difficulty

moving limbs, was given a definitive diagnosis of

Varicella. This child had developed symptoms

suspected to indicate a superinfection developed

secondary to the Varicella virus. As of March 14, 2019,

Assumption’s outbreak had grown to a total of thirtytwo suspected cases, 13% of the student body, and a

68% increase in the number of suspected cases.

On March 14, 2019, the NKIDHD staff, Raney,

Vogel and Dr. Lynne Saddler requested a conference

call with State Public Health officials, Miracle and

Thoroughman, to discuss the next step to control the

outbreak at Assumption. Based on the conference,

NKIDHD drafted a third letter to Assumption parents,

informing them that the school continued to experience

an outbreak of an illness characterized by a blister- like

rash, presumed to be Varicella, and implementing an

Attendance Restriction for those students who could

not show proof that they were vaccinated or immune

from the disease. This letter was sent to the Registrar

of Assumption on March 14, 2019 for distribution. The

underlying case was filed that same day. Jerome

Kunkel argues that this attendance restriction was put

into place because of his threat to file suit.

Pursuant to CR 65.04, a temporary injunction may

be issued when the evidence shows “that the movant’s

rights are being or will be violated by an adverse party

and the movant will suffer immediate and irreparable

injury, loss, or damage pending a final judgment in the

action, or the acts of the adverse party will tend to

render such final judgment ineffectual.” The Kentucky

App. 7

Court of Appeals has interpreted this to require that

the trial court engage in a three-step process before

issuing an injunction. Maupin v. Stansbury, 575

S.W.2d 695, 699 (Ky. App. 1978).

The first step requires Plaintiff to demonstrate he

has suffered, or is suffering, irreparable injury. This is

a mandatory prerequisite to the issuance of any

injunction. Maupin v. Stansbury, 575 S.W.2d 695, 699

(Ky. App. 1978). Under CR 65.04, irreparable harm

exists only where a party has clearly shown the

likelihood of injury to a concrete personal right.

Maupin at 695. There must be a showing that the

personal right is being immediately impaired, and that

there is an urgent need for relief. McCloud v. City of

Cadiz, 548 S.W.2d 158 (Ky. App. 1977). Here, Jerome

Kunkel argues that he is missing weeks of school, and,

as it is his senior year, it may have lifelong

consequences. He is missing school, and although he is

doing homework and came to school to take a test on a

Saturday, it is affecting his ability to learn the

material. Kunkel also testified he was an important

player on the basketball team, from which he was

selected to participate in an all-star game, and in which

he was unable to play. He also testified he is a member

of the baseball team and has already missed time with

the team. In Washington v. Glucksberg, the Supreme

Court found inter alia that one of an individual’s

fundamental rights is the right to direct the upbringing

and education of one’s children. Id. 521 U.S. 702, 720

(1997), citing Meyer v. Nebraska, 262 U.S. 390 (1923).

The Court finds Kunkel has met his burden in this

prong as the Court finds the harm from being

prevented from attending school is irreparable. The

App. 8

Court’s finding on this issue does not extend however

to Kunkel’s participation extracurricular activities.

The second step evaluates “whether a substantial

question has been presented,” Maupin at p. 699. This

requires a substantial possibility that the Plaintiff will

ultimately prevail in the instant action. Norsworthy v.

Kentucky Board of Medical Licensure, 330 S.W.3d 58

(Ky. 2009). Jerome Kunkel argues that he is likely to

succeed as his constitutional rights under both the

United States Constitution and the Kentucky

Constitution have been violated. He further argues

that the NKIDHD has acted outside their statutory

authority, and that they acted in retaliation for his

exercise of his religious beliefs. NKIDHD disagrees.

They argue that the Non-Attendance Order was

rendered in response to the outbreak of Varicella and

was not in retaliation for Kunkel’s exercise of his

religious freedom not to receive the vaccination, and

further that the Order does not infringe upon Kunkel’s

Constitutional rights. NKIDHD further argues that

Kunkel does not have a Constitutional right to

participate in extracurricular activities.

The Court will first address Kunkel’s argument that

there has been no laboratory diagnosis of Varicella, and

as such the NKIDHD has not taken the necessary

diagnostic confirmation steps required by statute and

administration regulation to be able to take the actions

it has taken at Assumption, up to and including the

school ban. The Court does not find there is a

substantial probability that Kunkel will succeed on this

claim. The Statutes and Administrative Regulations

applicable to the instant matter do not require a

App. 9

laboratory diagnosis. Additionally, one of the effected

students at Assumption sought treatment for

complications at Children’s Hospital and was

diagnosed with Chicken Pox.

The Court will next address Jerome Kunkel’s

retaliation claim that the NKIDHD only issued the ban

on school attendance based on his exercise of his

religious right not to receive the vaccination. After

hearing the testimony at the Hearing, as well as a

review of the timeline of the steps taken and the

meetings/discussions held among members of both the

NKIDHD and the State and correspondence to and

from both Assumption and the Kunkels regarding the

different steps, the Court does not find there is a

substantial probability that Kunkel will succeed on this

claim. Additionally, as agreed to by both parties, the

NKIDHD is not mandating that Jerome receive the

vaccine. K.R.S. 214.036 allows that no child shall be

required to be immunized if the child’s parents, or in

this case the individual, as Jerome is now 18 years old,

are opposed to medical immunization against disease,

and who object by a written sworn statement to the

immunization of such child on religious grounds. Karen

Kunkel signed the Commonwealth of Kentucky Parent

or Guardian’s Declination on Religious Grounds to

Required Immunizations form on behalf of Jerome as

he was not yet 18 years of age when the school year

began. The form notes “In the event that the county

health department or state health department declares

an outbreak of a vaccine-preventable disease for which

proof of immunity for a child cannot be provided, he or

she may not be allowed to attend childcare or school for

up to three (3) weeks, or until the risk period ends.”

App. 10

Jerome Kunkel also argues the ban is not necessary

as allowing the “wild” strain of the virus to progress

through the community is more beneficial as the

immunity achieved by contracting the virus in this

manner provides longer lasting and more powerful

immunity. Both Dr. Bark, who runs the Center for

Disease Prevention in Evanston, Illinois, and whose

practice focuses on pediatrics, and Dr. Marshall, who is

the Chief of Pediatric Infectious Disease at the

University of Louisville, School of Medicine, agree that

Varicella is very contagious and that there is a

prodromal period of approximately two days during

which an individual can spread Varicella before being

aware they have been infected. Dr. Bark testified that

Varicella is not a serious public health threat and that

the current situation at Assumption does not sound

like an outbreak. Additionally, in her experience, the

incidence of Shingles, a disease that normally occurs

later in life in an individual who has had chicken pox

and is caused by the same virus, is increasing in a

younger population because the younger population has

received the vaccine and immunity received from it is

not as potent as that from the “wild” strain. She

testified that in her opinion, the NKIDHD’s actions

including the school ban were not necessary and that

the individuals affected could voluntarily stay away

and that would be sufficient in this case. Dr. Marshall

disagrees, testifying that Varicella is a highly

contagious disease that can have very serious

complications up to and including death. He disagrees

that the vaccine is not appropriate and further that the

attenuated or weaker strain of the virus in the vaccine

will create more severe cases of Shingles. He testified

that the NKIDHD’s actions were appropriate in that

App. 11

certain juveniles cannot take the vaccine for medical

reasons and that exposure to a pregnant mother can

cause great harm to her unborn child. The Court does

not find there is a substantial probability that Kunkel

will succeed on this claim.

Jerome Kunkel also argues the NKIDHD’s school

ban is not narrowly tailored to achieve its goal of

reducing the spread of the Varicella outbreak at

Assumption. The students who are prevented from

attending school, are not prevented from interacting

with each other outside of school and are still going out

into the community and interacting with the general

public. Additionally, he argues that the individuals are

not prevented from church activities, including

Confessions and attending Mass, where they receive

Communion on the tongue, which could also lead to the

spread of the Varicella. He cites to 446.350, which

provides that “Government shall not substantially

burden a person’s freedom of religion. The right to act

or refuse to act in a manner motivated by a sincerely

held religious belief may not be substantially burdened

unless the government proves by clear and convincing

evidence that it has a compelling governmental interest

in infringing the specific act or refusal to act and has

used the least restrictive means to further that

interest. A ‘burden’ shall include indirect burdens such

as withholding benefits, assessing penalties, or an

exclusion from programs or access to facilities.” Kunkel

argues that when a restriction is placed on an

individual’s First Amendment Rights, that restriction

must be narrowly-tailored in proportion to the interest

served, citing Kiser v. Kamdar, 831 F.3d 784 (2016),

App. 12

and that the school ban is not narrowly-tailored to do

so.

NKIDHD argues its actions were appropriate

pursuant to its required duties and obligations under

Kentucky Statutes and Administrative Regulations as

applied to the facts at hand. K.R.S. 214.020 provides in

part that when the Cabinet for Health and Family

Services believes that there is a probability that any

infectious or contagious disease will invade this state,

it shall take such action and adopt and enforce such

rules and regulations as it deems efficient in

preventing the introduction or spread of such infectious

or contagious disease or diseases within this state, and

to accomplish these objects shall establish and strictly

maintain quarantine and isolation at such places as it

deems proper. 902 KAR 2:030 mandates the Cabinet

for Human Resources to implement a statewide

program for the detection, prevention and control of

communicable diseases. This administrative regulation

insures delineation of authority and responsibility for

proper investigation and control of communicable

diseases throughout the Commonwealth. Section 1(2)

Control Procedures provides in part that Local Health

Departments or the Cabinet for Human Resources

shall: (a) Make or cause to be made such investigations

as may be necessary for the purpose of securing data

regarding clinical diagnosis, reservoir, and time, place

and source of infection and contacts. (b) Establish and

maintain quarantine, isolation or other measures as

required by law or by administrative regulations of the

Cabinet for Human Resources relating to

communicable disease control... 902 KAR 2:050

provides in part and mandates in Section 1 that

App. 13

whenever any private or public property has been

implicated as a possible reservoir or possible source of

infection of any communicable disease, the local health

department or the Cabinet for Human Resources shall

take such measures as are necessary to secure

adequate cleaning, disinfection, or other control

procedures necessary to insure cessation of

transmission. Additionally, Section 2 provides that

whenever any person has been implicated as a possible

reservoir or possible source of infection of any

communicable disease, the local health department or

the Cabinet for Human Resources shall employ such

measures as are necessary to secure adequate isolation,

restriction of employment or other control procedures

that may be necessary to insure cessation of

transmission of infection.

NKIDHD argues it took measured steps to control

the outbreak of Varicella at Assumption, a duty

required of it by Statue and Administrative Regulation.

The initial activities’ ban and the subsequent school

ban were the required steps taken. They cite to Phillips

v. City of New York, wherein the United States Court

of Appeals, Second Circuit, addressed the issue of

students that were excluded from school after another

student was diagnosed with chicken pox. The state has

a statutory vaccination requirement and a state

regulation allowing unvaccinated children to be

excluded from public school based on an outbreak of a

vaccine-preventable disease. The students had received

religious exemptions from receiving the vaccine. The

Court held that the statute did not violate substantive

due process rights, did not violate the Free Exercise

App. 14

Clause and the parents failed to meet an equal

protection claim. 775 F.3d 538 (2015).

The Court does not find Kunkel is likely to prevail

on this claim. K.R.S. 214.020 requires the NKIDHD to

take such action and adopt and enforce such rules and

regulations as it deems efficient in preventing the

introduction or spread of the Varicella and to

accomplish this, it is required to establish and strictly

maintain quarantine and isolation at such places as it

deems proper. Additionally, NKIDHD was required to

make or cause to be made such investigations as may

be necessary for the purpose of securing data regarding

clinical diagnosis, reservoir, and time, place and source

of infection and contacts regarding the Varicella

outbreak. The Administrative Regulations also require

that whenever any private or public property has been

implicated as a possible reservoir or possible source of

infection of any communicable disease, NKIDHD shall

take such measures as are necessary to secure

adequate cleaning, disinfection, or other control

procedures necessary to insure cessation of

transmission. Also, whenever any person has been

implicated as a possible reservoir or possible source of

infection of any communicable disease, NKIDHD is

required to employ such measures as are necessary to

secure adequate isolation, restriction of employment or

other control procedures that may be necessary to

insure cessation of transmission of infection.

The third step in the analysis requires the Court to

weigh the equities involved. Maupin at p. 699. Jerome

Kunkel argues that there is no harm implicated if the

Court enters the injunction, basing this argument on

App. 15

the opinions of Dr. Bark that there is no public health

threat in enjoining/prohibiting the NKIDHD’s

extracurricular activities and school ban, as it is

sufficient to have infected students pulled from school

during the pendency of their infection and symptoms.

Furthermore, the extracurricular ban does not

meaningfully advance public health when the

supposedly seriously at-risk students still have

significant public interactions. NKIDHD argues that

granting the injunction will harm the public by placing

individuals at risk of exposure to a serious infectious

disease and, therefore, the injunction will have adverse

consequences to public health. They argue that they

have implemented a narrowly crafted, stepped, and

scientifically-justified set of measures to advance a

compelling government interest—prevention of the

spread of an infectious disease that has serious public

health risks. They further argue that the issuance of an

injunction not only endangers public health, but also

undermines the authority to protect communal health

afforded to the Cabinet for Health and Family Services

and local health departments by Kentucky’s

Legislature. The Court does not find that an injunction

would be equitable.

IT TS HEREBY ORDERED AND ADJUDGED

that Plaintiffs’ Motion for a Temporary Restraining

Order/Preliminary Injunction is DENIED.

DATED this 2nd day of April, 2019.

App. 16

/s/ James R. Schrand

JAMES R. SCHRAND, JUDGE

BOONE COUNTY COURT

CC: ALL ATTORNEYS AND PARTIES OF RECORD

App. 17

APPENDIX B

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-000575-I

[Filed June 26, 2019]

___________________________

JEROME KUNKEL, ET AL. )

MOVANTS

)

)

v.

)

)

NORTHERN KENTUCKY )

INDEPENDENT HEALTH )

DISTRICT, ET AL.

)

RESPONDENTS

)

__________________________ )

ON MOTION FOR INTERLOCUTORY RELIEF

FROM THE BOONE CIRCUIT COURT

HONORABLE JAMES R. SCHRAND, JUDGE

CIVIL ACTION NO. 19-CI-00357

ORDER

DENYING MOTION FOR INTERLOCUTORY

RELIEF

** ** ** ** **

BEFORE: ACREE, LAMBERT, AND NICKELL,

JUDGES.

App. 18

This cause comes before the Court on Movants’

motion for interlocutory relief under CR1 65.07 from an

order of the Boone Circuit Court denying their motion

for a temporary injunction. Movants have also moved

the Court for an oral argument. Finally, Respondents

moved the Court to supplement their brief to address

the issue of mootness. Having reviewed the record, and

being otherwise sufficiently advised, IT IS HEREBY

ORDERED that Respondents’ motion to supplement

their brief is GRANTED. IT IS FURTHER ORDERED

that Movants’ motion for interlocutory relief shall be,

and hereby is, DENIED. The motion for oral argument

is DENIED.

I. BACKGROUND

Movant Jerome Kunkel (“Jerome”) is an 18-year old

who, in spring 2019, was a senior at Assumption

Academy, a private, Catholic school in Walton,

Kentucky (“the school”).2 Jerome filed a lawsuit in

March 2019 alleging Respondents violated his right to

freedom of religion, equal protection, and procedural

and substantive due process of law under the United

States and Kentucky Constitutions. The remaining

1

2

Kentucky Rules of Civil Procedure.

The school consists of an upper school, Assumption Academy, and

a lower school, Our Lady of the Sacred Heart Elementary school,

which is across the street from Assumption Academy. The upper

and lower school are collectively referred to herein as “the school,”

but will be distinguished where necessary for clarity.

App. 19

Movants3 are parents of other children attending the

school, which serves grades K-12, who joined in the

lawsuit.

The school has a student body of 240 students.

Eighty-two percent of the students are not vaccinated

against varicella (commonly known as “chickenpox”).

The parents4 of the unvaccinated children each signed

a document titled “Parent or Guardian’s Declination on

Religious Grounds to Required Immunizations” under

which they exercised their right to a religious

exemption from vaccination under KRS5 214.036. The

form provides:

In the event that the county health department

or state health department declares an outbreak

of a vaccine-preventable disease for which proof

of immunity for a child cannot be provided, he or

she may not be allowed to attend childcare or

school for up to three (3) weeks, or until the risk

period ends.

Movants’ Complaint stems from a series of actions

undertaken by the Northern Kentucky Independent

Health District (“Health Department”) beginning on

February 5, 2019. On that date, the Health

3

We refer to Movants collectively herein, but we will distinguish

between Movants, Jerome, and his parents, the Kunkels, when

necessary.

4

Mrs. Kunkel signed a form on Jerome’s behalf before he turned

18. Each of the remaining parents also executed a form on behalf

of their children.

5

Kentucky Revised Statutes.

App. 20

Department required the school to send a letter to

parents and guardians informing them of a suspected

outbreak of varicella among the students. When the

illness continued to spread, the Health Department, on

February 21, 2019, required the school to cancel all

school events until 21 days after the onset of rash for

the last ill student (“the activities ban”).

On February 26, 2019, Jerome and the Kunkels met

with Mr. Zack Raney (“Mr. Raney”), an epidemiologist

with the Health Department. Movants allege that

during the February 26 meeting, Mr. Raney

“confirmed . . . that the activities ban did nothing other

than mete out punishment to a religious group that Mr.

Raney disagreed with.” On cross-examination at the

hearing, Mr. Raney was asked whether the March 7

email threatening suit made him “mad,” to which he

replied, “no.” Movants’ attorney then played a portion

of a recording6 of the February 26 meeting between the

Kunkels and Mr. Raney, specifically, the following

exchange:

Mr. Kunkel:

The best you guys can come

up with is I have the right to

say this kid does not get . . .

one of your virus shots.

Mr. Raney:

That is correct.

[unintelligible]

6

The Kunkels recorded the meeting without Mr. Raney’s

knowledge.

App. 21

Mr. Raney:

That’s within your right.

But, as a result of that

decision, we are here.

Mrs. Kunkel:

So we’re penalized.

Mr. Raney:

Unfortunately – if –

Thereupon, Movants’ counsel stopped the recording.

The remainder of the statement made by Mr. Raney at

the February 26 meeting was not introduced into

evidence at the hearing. After Movants played the

excerpt from the recording, the following colloquy

occurred:

Movants’ Counsel: Okay. So you told him the

exercise of his right not to

be vaccinated is why we’re

here?

Mr. Raney:

Yes, that’s right.

Movants’ Counsel: Okay, and you told them

that they’re being penalized

for exercising that right,

correct?

Mr. Raney:

No.

Movants’ Counsel: Do I need to play it again?

Here. [Movants’ counsel

plays the recording excerpt

a second time].

App. 22

Movants’ Counsel: So in response to Mrs.

Kunkel’s question to you

about whether they were

being penalized you said

“unfortunately,” correct?

Mr. Raney:

Yes, but I’m not sure if that

was the beginning of

another statement.

On March 7, 2019, through counsel, Jerome, a

member of the boys’ basketball and baseball teams,

threatened to file suit against the Health Department

unless the activities ban was lifted. On March 14, 2019,

the Health Department, having received additional

reported cases of varicella at the school since

February 21, required the school to send a third letter

to parents and guardians, stating:

[a]s a result of the continued increase in cases

and to prevent further spread of this illness,

beginning Friday, March 15, 2019, all students,

Grades K-12, without proof of vaccination or

proof of immunity against varicella virus will

not be allowed to attend school until 21 days

after the onset of rash for the last ill student or

staff member.7

Jerome filed suit on March 14, 2019. A Second

Amended Complaint was filed on March 22, 2019, and

an Intervening Complaint was filed on March 25, 2019.

Movants moved the circuit court for a temporary

7

The March 14, 2019 letter is referred to herein as the “school

ban.”

App. 23

injunction pursuant to CR 65.04. The circuit court

conducted a hearing on April 1, 2019. Witnesses at the

hearing included Jerome, Mrs. Kunkel, Mr. Raney, Dr.

Toni Bark (“Dr. Bark”), and Dr. Gary Marshall (“Dr.

Marshall”). On April 2, 2019, the circuit court entered

an order denying the motion for a temporary

injunction. Movants’ motion for relief under CR 65.07

followed. Respondents filed a motion for leave to

supplement their brief on June 13, 2019, asserting the

matter is moot because: 1) all restrictions on the school

expired on May 18, 2019 because there had not been a

new onset of varicella since April 27, 2019; and 2) the

school recessed for summer break as of June 1, 2019.

I. ANALYSIS

As a threshold matter, we must determine whether

Movants’ motion for relief under CR 65.07 is moot, and

if so, whether it falls within an exception to the

mootness doctrine. Movants argue the matter is not

moot because, with the exception of Jerome,8 the

remaining children will return to the school in the fall.

Movants further argue Respondents have not stated

they will not “impose the restriction in the fall when

school resumes if there is another case of reported

varicella,” asserting “[c]ases continue to occur among

the population, whether or not they happen to he

reported to the Health Department [].”

“[A] ‘moot case’ is one which seeks to get a judgment

. . . upon some matter which, when rendered, for any

8

Jerome graduated from Assumption Academy in or about May

2019. He also ultimately contracted varicella during the pendency

of this action.

App. 24

reason, cannot have any practical legal effect upon a

then existing controversy.” Morgan v. Getter, 441

S.W.3d 94, 98-99 (Ky. 2014) (citation omitted)

(emphasis original). Our jurisprudence recognizes

certain exceptions to the mootness doctrine, such as

where a matter is capable of repetition, yet evading

review.

The exception for cases “capable of repetition,

yet evading review,” has two elements: (1) the

challenged action must be too short in duration

to be fully litigated prior to its cessation or

expiration, and (2) there must be a reasonable

expectation that the same complaining party

will be subjected to the same action again.

Id. at 100.

In this case, the parents and next friends of 25

minor students also attending the school joined in the

action filed by Jerome. The Intervening Complaint filed

by Seante Carter, as Next Friend and Guardian of AC,

EC, MC, OC, NC, SC, and RC, like the Complaint filed

by Jerome, alleges Ms. Carter’s children are not

vaccinated for varicella due to religious beliefs and

were not permitted to attend school; and that “but for

the Health Department and Raney’s directive, Father

Muscha would have permitted Mr. Kunkel, and for that

matter the other students, to participate in sports and

other extracurricular activities.”

The Second Amended Complaint alleges Christina

Bell’s five children are in ninth grade or lower at the

school; that Maria Kunkel’s seven children are in

eighth grade or lower at the school; and that David

App. 25

Kunkel’s six children are in tenth grade or lower at the

school. The Second Amended Complaint alleges: “None

of the children of [these] Plaintiffs have received the

Varicella Vaccine, and all of them refuse, under

grounds of religion to do so.”

The parties agree the vaccination rate for varicella

at the school is 18%. Experts for both Movants and

Respondents have testified and agreed varicella is

highly contagious. Although the request for injunctive

relief is moot as to Jerome, we conclude it may not be

moot as to some or all of the remaining 25 students and

that even if moot, the question is capable of repetition

yet evading review. Therefore, this exception to the

mootness doctrine applies, and we turn to the merits of

the motion for CR 65.07 relief.

Under CR 65.07, this Court may grant a party

interlocutory relief where the circuit court has denied

a motion for a temporary injunction. The circuit court

reviews applications for temporary injunctive relief

under CR 65.04 on three levels.

First, the trial court should determine whether

plaintiff has complied with CR 65.04 by showing

irreparable injury. This is a mandatory

prerequisite to the issuance of any injunction.

Secondly, the trial court should weigh the

various equities involved. Although not an

exclusive list, the court should consider such

things as possible detriment to the public

interest, harm to the defendant, and whether

the injunction will merely preserve the status

quo. Finally, the complaint should be evaluated

to see whether a substantial question has been

App. 26

presented. If the party requesting relief has

shown a probability of irreparable injury,

presented a substantial question as to the

merits, and the equities are in favor of issuance,

the temporary injunction should be awarded.

However, the actual overall merits of the case

are not to be addressed in CR 65.04 motions.

Maupin v. Stansbury, 575 S.W.2d 695, 699 (Ky. App.

1978).

The Supreme Court of Kentucky has explained:

[b]ecause the granting or denial of a temporary

injunction under CR 65.04 is addressed to the

sound judicial discretion of the trial judge[,] a

party seeking interlocutory relief from a trial

court’s decision to grant or deny a temporary

injunction bears an enormous burden . . . . And

an appellate court may not disturb a trial court’s

decision on a temporary injunction unless the

trial court’s decision is a clear abuse of

discretion. The test for abuse of discretion is

whether the trial judge’s decision was arbitrary,

unreasonable, unfair, or unsupported by sound

legal principles.

Com. ex rel. Conway v. Thompson, 300 S.W.3d 152, 162

(Ky. 2009), as corrected (Jan. 4, 2010) ( citations and

quotation marks omitted). With these principles in

mind, we turn to the instant case.

A. Irreparable Harm

A movant must show irreparable harm to obtain

injunctive relief. Maupin, 575 S.W.2d at 698. “In

App. 27

addition to showing that personal rights are at stake,

CR 65.04 further requires a clear showing that these

rights will be immediately impaired.” Id.

The circuit court determined Movants had shown

irreparable harm with respect to the school ban but not

with respect to the activities ban. We can discern no

abuse of discretion in the circuit court’s findings.

Movants do not have a right to participate in school

athletics under Kentucky law. See Thompson v. Fayette

Cty. Pub. Sch., 786 S.W.2d 879, 882 (Ky. App. 1990)

(holding where student was released from school

wrestling team for failure to maintain 2.0 grade point

average, “[t]he authorities do not support [the

student’s] claim of a property or liberty interest

infringement”); Lowery v. Euverard, 497 F.3d 584, 588

(6th Cir. 2007) (“It is well-established that students do

not have a general constitutional right to participate in

extracurricular athletics”). Although Movants have a

right to direct the education and upbringing of their

children, Washington v. Glucksberg, 521 U.S. 702, 720,

117 S.Ct. 2258, 2267, 138 L.Ed. 2d 772 (1997) (citation

omitted), “[t]he fundamental right of parents to control

the education of their children does not extend to a

right to demand that their children be allowed to

participate without restrictions in extracurricular

sports in the educational setting that the parents have

freely chosen.” Seger v. Kentucky High Sch. Athletic

Ass’n, 453 F. App’x 630, 634 (6th Cir. 2011).

On the other hand, “[w]e recognize that education is

a fundamental right in Kentucky.” Rose v. Council for

Better Educ., Inc., 790 S.W.2d 186, 206 (Ky. 1989). In

S.B. ex rel. Brown v. Ballard County Board of

App. 28

Education, 780 F.Supp.2d 560, 569 (W.D. Ky. 2011),

the Court held a student placed in alternative school

due to a narcotics violation would not suffer irreparable

harm in the absence of injunctive relief because the

alternative school “provides her with sufficient

resources to complete her regularly assigned class work

and receive additional aid should she require it.”

Contrarily, “total exclusion from the educational

process for more than a trivial period . . . is a serious

event in the life of the[] child.” Goss v. Lopez, 419 U.S.

565, 576, 95 S.Ct. 729, 737, 42 L.Ed.2d 725 (1975). In

this case, Movants were excluded from the educational

process, with the exception of collecting their

homework and taking tests, for a lengthy period of

time. The circuit court did not abuse its discretion in

finding Movants have demonstrated irreparable harm.

B. Substantial question on the merits

1. Introduction

The circuit court is not to decide the merits of the

case in ruling on a motion for a temporary injunction.

Oscar Ewing, Inc. v. Melton, 309 S.W.2d 760, 762 (Ky.

1958). Rather, the complaint should be evaluated to

determine whether a substantial question has been

presented. Maupin, 575 S.W.2d at 699. “To support a

temporary injunction, one must show that a

substantial question exists that tends to create a

‘substantial possibility’ that the [movant] will

ultimately prevail on the merits.” Norsworthy v.

Kentucky Bd. of Med. Licensure, 330 S.W.3d 58, 63 (Ky.

2009) (emphasis original).

App. 29

Movants argue the burden of showing a substantial

question was “shifted” to Respondents under KRS

446.350 “once sincerely held religious beliefs were at

issue.” However, Maupin makes clear the movant bears

the burden of showing he is entitled to the

“extraordinary remedy” of a temporary injunction. See

Maupin, 575 S.W.2d at 698-99 (“If the party requesting

relief has shown . . .”) ( emphasis added).

2. Freedom of religion

a. Kentucky Constitution

Under the Kentucky Constitution “[a]ll men are, by

nature, free and equal, and have certain inherent and

inalienable rights, among which may be reckoned . . .

[t]he right of worshipping Almighty God according to

the dictates of their consciences.” Kentucky

Constitution, §1.

KRS 446.350 provides:

[g]overnment shall not substantially burden a

person’s freedom of religion. The right to act or

refuse to act in a manner motivated by a

sincerely held religious belief may not be

substantially burdened unless the government

proves by clear and convincing evidence that it

has a compelling governmental interest in

infringing the specific act or refusal to act and

has used the least restrictive means to further

that interest. A “burden” shall include indirect

burdens such as withholding benefits, assessing

penalties, or an exclusion from programs or

access to facilities.

App. 30

KRS 446.350 applies a strict scrutiny standard of

review to a claim the government has substantially

burdened a sincerely held religious belief under the

Kentucky Constitution.

i. Sincerely held religious belief

Movants are Catholic and object to the varicella

vaccine because it “is derived from aborted fetal cells.”

At the hearing, Jerome and Mrs. Kunkel testified as to

their religious beliefs, and Movants produced a letter

from the Vatican dated June 9, 2005, addressing the

issue. The parties ultimately stipulated that Movants

chose not to vaccinate the children against varicella

because of their sincerely held religious beliefs.

ii. Substantial burden

KRS 446.350 applies only where the state

government “substantially burdens” a person’s freedom

of religion. Under Kentucky law, “[e]xcept as provided

in KRS 214.036, no child shall be eligible to enroll as a

student in any public or private elementary or

secondary school without first presenting a certificate

[of immunization] from a medical physician,

osteopathic physician, or advanced practice registered

nurse licensed in any state.” KRS 158.035. KRS

214.036, in turn, gives parents the option to claim

exemption from vaccination on religious grounds.

In the instant case, the religious belief is that the

varicella vaccine is morally objectionable. The religious

act or “refus[al] to act” is the failure to vaccinate the

children. There is no evidence Respondents required or

purported to require Movants to vaccinate the

App. 31

children.9 Even assuming arguendo Respondents

substantially burdened Movants’ religious belief,

Movants have not shown a substantial possibility they

will prevail on their freedom of religion claim under the

remaining elements of KRS 446.350.

iii.

Compelling interest

Movants assert: 1) the infection at issue was not

shown to be varicella, and the Health Department

could not act without a laboratory confirmation;

2) there was no “outbreak;” and 3) varicella is a mild

“infection”10 and not a public health threat. Movants

conclude the Health Department lacked a compelling

interest and was without authority to act. We address

each of these arguments in turn.

a. Was the illness varicella, and was a laboratory

confirmation necessary?

The Cabinet for Health and Family Services

promulgates the controlling regulations. KRS 214.020.

The regulations do not require laboratory confirmation

of a disease or infection before the Health Department

may act to contain it.

9

The Kunkels assert Mr. Raney stated, at the February 26

meeting, the Vatican permits or allows Catholics to receive the

varicella vaccine. Mr. Raney testified he did not recall making that

statement. But at no point has it been alleged that any officials

ordered or directed Movants to vaccinate the children.

10

The experts disagreed as to whether varicella is an “infection” or

a “disease.” We find this point to be irrelevant to our analysis.

App. 32

902 KAR11 2:050 states:

Section 1. Property. Whenever any private or

public property has been implicated as a possible

reservoir or possible source of infection of any

communicable disease, the local health

department or the Cabinet for Human Resources

shall take such measures as are necessary to

secure adequate cleaning, disinfection, or other

control procedures necessary to insure cessation

of transmission.

Section 2. Persons. Whenever any person has

been implicated as a possible reservoir or

possible source of infection of any communicable

disease, the local health department or the

Cabinet for Human Resources shall employ such

measures as are necessary to secure adequate

isolation, restriction of employment or other

control procedures that may be necessary to

insure cessation of transmission of infection.

(Emphasis added).

902 KAR. 2:030, Section 1(2) further provides:

Control procedures. Local health departments or

the Cabinet for Human Resources shall:

(a) Make or cause to be made such investigations

as may be necessary for the purpose of securing

data regarding clinical diagnosis, reservoir, and

time, place and source of infection and contacts.

11

Kentucky Administrative Regulations.

App. 33

(b) Establish and maintain quarantine, isolation

or other measures as required by law or by

administrative regulations of the Cabinet for

Human Resources relating to communicable

disease control.

(c) Provide, or cause to be provided, for the

instruction of persons affected and their

attendants in the proper methods of such

concurrent and terminal disinfection as may be

required by the Cabinet for Human Resources or

local board of health having jurisdiction.

(d) Afford all contacts of persons suffering from

those diseases for which there is a reliable and

approved means of immunization the

opportunity to be immunized.

(e) Make inquiry or investigation to see that

control measures are being properly observed

during the period of communicability.

(f) Introduce such other measures, not

inconsistent with law or the administrative

regulations of the Cabinet for Human Resources

and the local board of health having jurisdiction,

as are necessary because of widespread infection

or threatened epidemic.

(Emphasis added). Finally, 902 KAR 2:030, Section 1(2)

provides:

Uncertain diagnosis. Whenever a case of

unrecognized illness shall be reported to, or

otherwise brought to the attention of the local

health department or Cabinet for Human

App. 34

Resources which upon investigation presents

symptoms of a communicable disease but in

which sufficient time has not elapsed to render

a positive diagnosis, the local health department

or the Cabinet for Human Resources may

establish the control measures applicable in

actual cases of the suspected communicable

disease, until such time as a positive diagnosis

can be established. If the disease proves to be

noncommunicable the temporary control

measures shall be terminated at once.

(Emphasis added).

The Health Department clearly had the regulatory

authority to act without a laboratory confirmation the

disease or infection at issue was varicella. In addition,

Movants have not shown a substantial possibility they

will prevail on their claim the disease was not varicella,

but rather, a noncommunicable illness.12

In an email dated March 8, 2019, the school’s

registrar, Vanessa Dredger (“Ms. Dredger”), stated

“[a]ll parents involved assert that it is chickenpox when

I talk to them, but none took their children to the

doctor.” Therefore, the parents of the children selfreported the illness as “chickenpox.”

On February 19, 2019, one of the students

presented at Cincinnati Children’s Hospital for

treatment. That child was diagnosed with varicella by

a physician, although no laboratory test was

performed. The child also suffered from complications

12

Movants suggested the “ rash” could be poison ivy.

App. 35

of varicella–a superinfection, pain in the joints, and

resultant difficulty moving. The child received

intravenous antibiotics.

Movants attempted to counter the evidence of a

clinical or positive diagnosis by having several

witnesses testify the doctor at Cincinnati Children’s

Hospital refused to give the child a note excusing his

school absence due to chickenpox. However, Dr.

Marshall testified he reviewed the child’s medical

records, which confirm he was diagnosed with

varicella.13 Dr. Marshall further testified a laboratory

test is unnecessary for a trained physician to make a

clinical diagnosis because varicella is typical in the way

it presents. On cross-examination, Dr. Bark agreed

physicians are competent to make a clinical diagnosis

of varicella without laboratory confirmation.

There is also evidence Movants simply did not take

the children to a doctor for diagnoses or testing. At the

hearing, Movants relied on a chart prepared by Ms.

Dredger which indicates only one child was seen by a

doctor. Movants cannot decline to take the children to

a doctor for diagnoses and/or laboratory tests, then be

heard to complain the government acted without

having “laboratory confirmation.” Regardless,

laboratory confirmation is not required under the

regulations.

13

Mr. Raney also testified Cincinnati Children’s Hospital “faxed

over” a patient sheet with a doctor’s notes that “explained

chickenpox was suspected” and the “current diagnosis was a

secondary infection due to the chickenpox.”

App. 36

b. Was there an outbreak?

The trial court did not abuse its discretion in finding

there was an “outbreak” requiring the Health

Department to act. 902 KAR 2:020(10)(a) defines an

“outbreak” as “[t]wo (2) or more cases . . . that are

epidemiologically linked or connected by person, place,

or time.” The plain language of the regulation is met

here. The regulation does not require a laboratory

confirmation before an outbreak may be declared. See,

e.g., Revenue Cabinet v. O’Daniel, 153 S.W.3d 815, 819

(Ky. 2005) (“[t]he plain meaning of the statutory

language is presumed to be what the legislature

intended, and if the meaning is plain, then the court

cannot base its interpretation on any other method or

source”) (citation omitted).

c. Is varicella a public health threat?

The experts, Dr. Bark for Movants and Dr. Marshall

for Respondents, both confirmed a varicella vaccine

was developed in 1995. Before the vaccination was

developed, approximately 4 million people contracted

varicella in the United States each year; around 11,000

of them were hospitalized annually; and approximately

100 people died each year.

Both experts agree varicella is highly contagious.14

Ninety percent of a nonimmune population will

contract varicella if exposed to an infected person. Both

experts testified varicella is spread through the air. Dr.

Bark and Dr. Marshall also agree a person may be

14

Dr. Marshall testified varicella “spreads very rapidly through

populations.”

App. 37

infected with varicella and be contagious for up to two

days before the onset of the rash.

The experts each confirmed herpes zoster, or

shingles, is a serious complication of varicella, which

occurs in about one-third of adults who have had

varicella. The pregnant, elderly, infants, and the

immunocompromised suffer a higher rate of

complications.

Dr. Marshall testified varicella is a type of herpes

virus. Although Dr. Marshall stated he agreed with

CDC15 literature describing varicella as “mild,” he also

testified there is a threat to public health if varicella is

not contained. He described the symptoms of varicella

as follows:

[t]he lesions are initially little red bumps. They

evolve into vesicles, which is a little clear blister,

it’s described as a dewdrop on a rose petal. The

average healthy person who gets chickenpox

gets 200-500 of these lesions. They also have

fever, they have malaise. Then the lesions turn

into pustules, which are little blisters filled with

puss. Those eventually crust, and they fall off.

And once the last lesion crusts and falls off,

they’re -- the patient is no longer contagious.

Dr. Marshall cited the complication rate as 5-10%.

In describing the possible complications, he stated:

[m]ost of the complications are secondary

bacterial infections. Those can be anything from

15

United States Centers for Disease Control and Prevention.

App. 38

an ear infection, to pneumonia, to severe

invasive streptococcal syndrome, which I’ve

personally taken care of in the hospital and I’ve

lost patients to that. That’s where the Group A

strep, the bacteria that normally causes sore

throat, actually gains entry into the skin lesions

and then into the blood stream and causes shock

and often death. That’s one of the most serious

complications. Besides secondary bacterial

infections, you can actually have complications

from the virus itself. So the virus can get into

your brain, and cause encephalitis, which is

brain infection. It can get into the lungs and

cause pneumonia . . . 10% of women who get

chickenpox while they’re pregnant wind up in

the hospital in the intensive care unit from

varicella pneumonia.

Dr. Bark conceded the school population is at a

greater risk of infection because varicella is highly

contagious, and 82% of the students are unvaccinated.

Dr. Bark further testified varicella is a mild infection.

She testified it is preferable if children contract the

“wild” strain rather than being vaccinated. She opined

varicella is not a serious public health threat.

Courts have traditionally recognized the

government’s compelling interest in public health, even

in light of competing religious beliefs. In Mosier v.

Barren Cty. Bd. of Health, 308 Ky. 829, 215 S.W.2d 967

(1948), the plaintiffs sought to enjoin a government

resolution requiring all schoolchildren to be vaccinated

against smallpox, or else be excluded from school. The

plaintiffs argued vaccination was against their

App. 39

religious beliefs. The trial court denied the motion for

an injunction. Kentucky’s highest court affirmed,

holding:

[a]s pointed out in United States v. Ballard,

322.U.S. 78, 64 S.Ct. 882, 886, 88 L.Ed. 1148,

religious freedom embraces two conceptions,

‘Freedom to believe and freedom to act. The first

is absolute but, in the nature of things, the

second cannot be.’ The Ballard opinion quoted

from Cantwell v. Connecticut, 310 U.S. 296, 60

S.Ct. 900, 84 L.Ed. 1213, 128 A.LR. 1352, where

it was written that one may have any religious

belief desired, but one’s conduct remains subject

to regulation for the protection of society. A

learned and exhaustive opinion was written by

Judge Tilford while a member of this Court,

Lawson v. Commonwealth 291 Ky. 437, 164

S.W.2d 972, wherein he pointed out that the

constitutional guarantee of religious freedom

does not permit the practice of religious rites

dangerous or detrimental to the lives, safety or

health of the participants or to the public.

Id. at 969. See also Hodel v. Virginia Surface Min. &

Reclamation Ass’n, Inc., 452 U.S. 264, 300, 101 S.Ct.

2352, 2373, 69 L.Ed. 2d 1 (1981) (“Protection of the

health and safety of the public is a paramount

governmental interest which justifies summary

administrative action”); Jacobson v. Commonwealth of

Massachusetts, 197 U.S. 11, 25, 25 S.Ct. 358, 361, 49

L.Ed. 643 (1905) (“According to settled principles, the

police power of a state must be held to embrace, at

least, such reasonable regulations established directly

App. 40

by legislative enactment as will protect the public

health and the public safety”).

Although there was conflicting testimony presented

at the hearing as to whether varicella is a public health

risk, we cannot say the circuit court’s findings were

“arbitrary, unreasonable, unfair, or unsupported by

sound legal principles.” Com. ex rel. Conway, 300

S.W.3d at 162. See also Moore v. Asente, 110 S.W.3d

336, 354 (Ky. 2003) (“[J]udging the credibility of

witnesses and weighing evidence are tasks within the

exclusive province of the trial court”). The

Commonwealth has a compelling interest in taking

limited and temporary steps to control an outbreak of

a vaccine-preventable disease, even in the absence of a

serologically confirmed case.

iv.

Least restrictive means

The Health Department first took action with

respect to the school on February 5, 2019. In a letter

sent to all parents and guardians, the Health

Department stated the school was “currently

experiencing an outbreak of an illness that is

accompanied by a blister-like rash suspected to be

chickenpox.” At that time, the school had reported six

suspected varicella cases to the Health Department.

The February 5, 2019, letter described the symptoms of

chickenpox; advised parents to monitor their children;

and advised them to contact their doctor if chickenpox

was suspected. The letter further advised the parents

to “ensure all members of your household are up-todate on all vaccinations,” but it did not require or

purport to require vaccination.

App. 41

By February 21, eighteen cases of the illness had

been reported to the Health Department by the school.

The Health Department had received one student’s

medical records from Cincinnati Children’s Hospital

showing that he was diagnosed with complications of

chickenpox. Mr. Raney testified the Health Department

found the increase from six to eighteen cases

concerning because it represented a threefold increase

in two weeks. On February 21, 2019, the Health

Department required the school to send a follow-up

letter to parents and guardians cancelling school

events until 21 days after the onset of rash for the last

ill student. The letter again advised parents to monitor

their children; described the symptoms of varicella; and

recommended, but did not order, vaccination.

On or about February 22, 2019, Father Muscha

telephoned the Health Department to inquire whether

the boys’ basketball team could participate in the state

tournament. Mr. Raney initially informed Father

Muscha the team could not participate. Mr. Raney

testified the Health Department was concerned about

the spread of varicella to pupils of other schools. The

basketball team played against schools from other

regions, including Hopkinsville, Kentucky; Somerset,

Kentucky; Ohio; and Indiana.

After consultation with his superior at the Health

Department, Mr. Raney informed Father Muscha the

players on the basketball team could participate in the

tournament if they passed a varicella titer test. The

titer test indicates whether a person is immune to

varicella, either due to having had varicella previously

or having been vaccinated. On February 23, 2019, the

App. 42

Health Department advised Father Muscha two of the

basketball team’s ten players (Jerome and AC) did not

show immunity to the virus and could not play, but the

other eight players could participate.

By March 14, 2019, 32 cases of the illness had been

reported by the school. By this point, 13% of the total

student body had been reported as having the illness.

Following telephone consultation with the Kentucky

Department of Public Health, the Health Department

required the school to send the third letter, imposing

the school ban, to parents and guardians.

In Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

682, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), the United

States Supreme Court considered whether the HHS16

could require three closely-held corporations to provide

health insurance coverage for four methods of

contraception “that violate the sincerely held religious

beliefs of the companies’ owners.” Id., 573 U.S. at

689–90, 134 S.Ct. at 2759. Applying the federal statute

that mirrors KRS 446.350, the Court determined the

HHS mandate “plainly fails” the least restrictive means

test. Id., 573 U.S. at 692, 134 S.Ct. at 2759. The Court

held:

HHS has not shown that it lacks other means of

achieving its desired goal without imposing a

substantial burden on the exercise of religion by

the objecting parties in these cases. . . . The most

straightforward way of doing this would be for

the Government to assume the cost of providing

16

United States Department of Health and Human Services.

App. 43

the four contraceptives at issue to any women

who are unable to obtain them under their

health-insurance policies due to their employers’

religious objections. This would certainly be less

restrictive of the plaintiffs’ religious liberty, and

HHS has not shown . . . that this is not a viable

alternative.

Id., 573 U.S. at 728, 134 S.Ct. at 2780. The Court also

noted a second less restrictive means would be to

establish an accommodation applying to for-profit

organizations with religious objections to the mandate,

as an exemption for non-profit organizations with

religious objections already exists. Id., 573 U.S. at 73031, 134 S.Ct. at 2782.

In the case sub judice, the circuit court found

Movants had not shown a substantial likelihood of

success on the merits as to the elements of KRS

446.350. We cannot discern an abuse of discretion. The

Health Department initiated less restrictive means

before implementing the school ban. It increased its

level of regulation and response as the outbreak

continued to grow: first, it issued an advisory letter;

second, it implemented the activities ban; third, it

initiated the school ban. Dr. Marshall opined the

Health Department’s response was reasonable,

measured, and “incremental.”

Movants argue the Health Department could have

imposed a less restrictive alternative such as only

banning symptomatic children from school, but Dr.

Marshall testified just banning those children would

not stop the outbreak because varicella may be

transmitted before the sufferer is symptomatic. Dr.

App. 44

Bark conceded a person may transmit the infection

prior to developing the rash, although she maintained

the sufferer would have fever and malaise during that

time.

Movants further assert the Health Department

could have banned only populations at risk for

complications from school premises (i.e., pregnant

women, infants, the elderly, and the

immunocompromised). Dr. Marshall testified varicella

itself is a public health risk, while Dr. Bark disagreed.

At least one child at the school had already suffered

complications. We must defer to the circuit court’s

weighing of the testimony and expert opinions at this

juncture, and we do not discern an abuse of discretion.

See, e.g., Gingerich v. Commonwealth, 382 S.W.3d 835,

850 (Ky. 2012) (Scott, J., dissenting) (internal quotation

omitted) (emphasis added) (“[T]o be a ‘less restrictive

alternative,’ [the alternative] must be both less

restrictive in the sense that it inhibits [the free exercise

of religion] to a lesser degree and it must be a viable

alternative in that it allows the Government to achieve

the ends that are its compelling interest.”).

Finally, Movants argue the school ban was an

ineffective means to prevent the spread of the illness

because the students could and did regularly interact

outside of school, including attending daily mass at the

church, which shares a ventilation system with

Assumption Academy; having coffee and donuts

together after mass on Sundays; and receiving

communion on the tongue at mass. Movants assert an

employee of the Health Department conceded at the

App. 45

February 26 meeting that a school ban would be

pointless.

If anything, this argument supports a conclusion

the Health Department could have done more, not less,

to prevent the spread of the outbreak. 902 KAR 2:050.

Nonetheless, Dr. Marshall opined the restrictions

imposed by the Health Department were effective

because, at the time of the hearing on April 1, 2019,

only two new cases had been reported since the school

ban, i.e., in the period between March 15, 2019, and

April 1, 2019. We further note the Cabinet for Health

and Family Services could have implemented an

emergency regulation requiring vaccination of all

persons within the epidemic area, notwithstanding the

religious exemption in KRS 214.036. We cannot

determine an abuse of discretion under the facts and

circumstances of this case.

b. United States Constitution

The First Amendment to the Constitution of the

United States provides “Congress shall make no law

respecting an establishment of religion, or prohibiting

the free exercise thereof.” The First Amendment is

made applicable to the States by the Fourteenth

Amendment. Cantwell v. State of Connecticut, 310 U.S.

296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). In

addition to their claim under the Kentucky

Constitution, Movants brought claims under 42 U.S.C.

§ 1983, which provides a civil action for deprivation of

federal Constitutional rights.

Movants rely on Church of the Lukumi Babalu Aye

v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 2226,

App. 46

124 L.Ed. 2d 472 (1993). There, church congregants

practiced Santeria. “The basis of the Santeria religion

is the nurture of a personal relationship with orishas,

and one of the principal forms of devotion is an animal

sacrifice.” Id., 508 U.S. at 524, 1135 S.Ct. at 2222. The

city of Hialeah, Florida, enacted ordinances prohibiting

religious animal sacrifice. The Eleventh Circuit upheld

the regulations as constitutional, and the United States

Supreme Court reversed. Movants assert Hialeah

prohibits the “targeting of religious views,” and “[h]ere

. . . there were not orders of general applicability to the

entire community—the orders were addressed to

Assumption, a private Catholic church and school.”

The Hialeah Court, noting the ordinances at issue

used the words “ritual” and “sacrifice” and prohibited

“few if any killings of animals . . . other than the

Santeria sacrifice,” id. 508 U.S. at 536, 1135 S.Ct. at

2228, concluded the ordinances “ha[ve] every

appearance of a prohibition that society is prepared to

impose upon [Santeria worshippers] but not upon

itself.” Id., 508 U.S. at 545, 1135 S.Ct. at 2233 ( citation

omitted). In contrast, KRS 158.035, requiring

immunization of schoolchildren, applies to both public

and private school students.

In Miller v. Davis, 123 F.Supp.3d 924 (E.D. Ky.

2015), Davis, a state circuit court clerk, refused to issue

marriage licenses to same-sex couples. A state statute

required an authorization statement of the county clerk

to appear on each marriage license, bearing “the

signature of the county clerk or deputy clerk issuing

the license.” Id. at 932. Following the United States

Supreme Court’s decision in Obergefell v. Hodges, 135

App. 47

S.Ct. 2584, 192 L.Ed. 2d 609 (2015), the Governor of

Kentucky issued a directive to county clerks requiring

them to issue marriage licenses to same-sex couples.

Miller, 123 F.Supp.3d at 932. Davis argued the

Governor’s directive substantially burdened her right

to free exercise of religion under the First Amendment.

Id. at 939.

The Court applied rational basis review to the state

action under the First Amendment because the

Governor’s directive was neutral and generally

applicable. Id. at 940. “Under rational basis review,

laws will be upheld if they are rationally related to

furthering a legitimate state interest.” Miller, 123

F.Supp.3d at 938 (citations omitted). “A law or

regulation subject to rational basis review is accorded

a strong presumption of validity.” Id. (internal

quotation omitted).

In this case, because the state action survives a

strict scrutiny analysis, we need not consider whether

the action would also satisfy the more deferential

rational basis test.

3. Retaliation for protected speech

It is undisputed Jerome’s lawyer sent an email to

the Health Department on March 7, 2019, threatening

to file suit unless the activities ban was lifted. On

March 14, 2019, the school ban was implemented, the

same day the lawsuit was filed. The remaining

plaintiffs, as next friends and guardians of their

children, joined in Jerome’s lawsuit.

Citizens have the constitutional right “to petition

the Government for a redress of grievances.” United

App. 48

States Constitution, First Amendment. See also

Kentucky Constitution, § 1. This Court has explained:

[i]n order to state a retaliation claim under the

First Amendment a plaintiff must show that:

1) [she] engaged in constitutionally protected

speech; 2) [she] was subjected to adverse action

or was deprived of some benefit; and 3) the

protected speech was a ‘substantial’ or a

‘motivating factor’ in the adverse action.”

Mendez v. Univ. of Kentucky Bd. of Trustees, 357

S.W.3d 534, 546 (Ky. App. 2011) ( citation omitted).

In Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir.

1999), two inmates appealed a grant of summary

judgment against them on their claims of retaliation by

prison officials “for their efforts to litigate a civil rights

claim on plaintiff’[s] . . . behalf.” Id. at 383. The Sixth

Circuit vacated in part, explaining:

[o]nce the plaintiff has met his burden of

establishing that his protected conduct was a

motivating factor behind any harm, the burden

of production shifts to the defendant. Mount

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). If

the defendant can show that he would have

taken the same action in the absence of the

protected activity, he is entitled to prevail on

summary judgment.

Id. at 399.

App. 49

“Unlike in the McDonnell Douglas17 burden-shifting

framework, the burden does not shift back to a plaintiff

to show pretext in First Amendment retaliation

claims.” Dye v. Office of the Racing Commission, 702

F.3d 286, 295 (6th Cir. 2012). A summary denial of the

plaintiff’s allegations is insufficient to support

summary judgment in favor of the defendant.

Thaddeus-X, 175 F.3d at 399. On the other hand, “[i]t

is obvious, of course, that bare allegations of malice

would not suffice to establish a constitutional claim.”

Id. (internal citations omitted).

In Masterpiece Cakeshop, Ltd. v. Colorado Civil

Rights Commission, ___ U.S. ___, 138 S.Ct. 1719, 201

L.Ed. 2d 35 (2018), a Christian baker refused to create

a cake in celebration of the wedding of a same-sex

couple because of his religious opposition to same-sex

marriage. Id., 138 S.Ct. at 1723. The couple filed a

complaint with the Colorado Civil Rights Commission.

The Commission determined the baker violated the

Colorado Anti-Discrimination Act (“Act”), and the

Colorado Court of Appeals affirmed. The United States

Supreme Court reversed the decision of the Colorado

Court of Appeals, holding the Commission’s “actions

here violated the Free Exercise Clause.” Id., 138 S.Ct.

at 1724.

Although Masterpiece did not involve a claim of

First Amendment retaliation, the Court’s discussion as

17

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 794, 93 S.Ct.

1817, 1820, 36 L.Ed. 2d 668 (1973 ), holding modified by Hazen

Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed. 2d

338 (1993).

App. 50

to the statements made by the Commission in initially

finding a violation of the Act is instructive. The Court

noted the record reflected “elements of a clear and

impermissible hostility toward the sincere religious

beliefs that motivated [the baker’s] objection.” Id., 138

S.Ct. at 1729. At one public hearing, several of the

seven commissioners “endorsed the view that religious

beliefs cannot legitimately be carried into the public

sphere or commercial domain. . . .” Id. Two months

later, at a second public meeting, another

commissioner stated:

I would also like to reiterate what we said in the

hearing or the last meeting. Freedom of religion

and religion has been used to justify all kinds of

discrimination throughout history, whether it be

slavery, whether it be the holocaust, whether it

be—I mean, we—we can list hundreds of

situations where freedom of religion has been

used to justify discrimination. And to me it is

one of the most despicable pieces of rhetoric that

people can use to—to use their religion to hurt

others.

Id., 138 S.Ct. at 1729. The Court concluded: “[t]his

sentiment is inappropriate for a Commission charged

with the solemn responsibility of fair and neutral

enforcement of Colorado’s antidiscrimination law—a

law that protects against discrimination on the basis of

religion as well as sexual orientation.” Id.

Movants rely on Mr. Raney’s use of the word

“unfortunately” at the February 26 meeting as evidence

of animus. The Oxford Living Dictionaries define

“unfortunately” as “unluckily, sadly, regrettably,

App. 51

unhappily, woefully, lamentably, alas, sad to say, sad

to relate.”18 We are unable to conclude that

“unfortunately” necessarily connotes an admission of

animus or an affirmative response as to whether

Movants were “penalized,” particularly when

considered as a single word of an unfinished sentence.

In a February 20 email between Mr. Raney and

Julie Miracle,19 before the activities ban and the school

ban were implemented and before a lawsuit was

threatened, Ms. Miracle stated:

[h]ere is the guidance on [CDC] exclusion:

Children who lack evidence of immunity and

whose parents refuse vaccination should be

excluded from school from the start of the

outbreak through 21 days after rash onset of the

last identified case.20

18

https://en.oxforddictionaries.com/definition/unfortunately. Last

accessed 5/9/19. This Court may take judicial notice of the

dictionary definition of “unfortunately.” Stokes v. Commonwealth,

275 S.W.3d 185, 188 (Ky. 2008).

19

Ms. Miracle is a registered nurse who works for the Cabinet for

Health and Family Services.

20

At the hearing, Movants objected to introduction of this email

chain (beginning February 20, 2019, and concluding March 12,

2019), Respondents’ Exhibit P, on the basis that it was hearsay.

The trial court overruled the objection based on Respondents’

counsel’s statement that he was introducing the email to show why

the Health Department took the actions taken, but not for the

truth of the matter asserted, i.e., not to show what the CDC

recommendations actually were.

App. 52

Therefore, the possibility of a school closure was being

discussed prior to the threat of a lawsuit. On

February 21, 2019, Mr. Raney made clear, when

implementing the activities ban, that “[i]f cases

continue or if any of these measures are not followed,

additional prevention and control measures may

become necessary.”

Mr. Raney testified the Health Department became

aware of over ten additional cases of varicella at the

school on or about March 12. This made a total of 32

cases, or 13% of the student population. The school ban

was implemented after telephone consultation with Dr.

Doug Thoroughman of the Kentucky Department for

Public Health, on or about March 14. Mr. Raney

further stated the increase in cases between

February 26 and March 14 was “quick and alarming.”

In the case at bar, following a careful review of the

record, we cannot discern an abuse of discretion by the

trial court in finding Movants have not shown a

substantial likelihood of success on the merits of their

First Amendment retaliation claim.

4. Equal protection

“It is a violation of equal protection to treat

similarly situated individuals differently without any

justification.” Roberts v. Mooneyhan, 902 S. W.2d 842,

843 (Ky. App. 1995). Movants argue they were

“targeted” by the Health Department because of their

religious beliefs and their attendant decision to not

vaccinate the children. Strict scrutiny review is applied

to an equal protection claim involving a suspect class or

App. 53

a fundamental right. Commonwealth v. Howard, 969

S.W.2d 700, 702-03 (Ky. 1998).

Movants’ evidence of “targeting” consists of: 1) Mr.

Raney’s purported admission that the Health

Department was “punishing” Movants for exercising

their religious beliefs; and 2) their contention the

Health Department has not imposed similar

restrictions on non-parochial schools. As previously

noted, Mr. Raney’s statement is not necessarily

probative of animus toward Movants.

Moreover, Mr: Raney testified the February 6 letter

was routine, and the Health Department has in the

past issued similar letters for “multiple communicable

diseases,” “especially in schools.” Mr. Raney further

testified the Health Department has issued control

measures in response to influenza outbreaks within the

last four years to “many facilities within our region

throughout Northern Kentucky.” While he stated those

control measures have not included school bans, he

testified that control measures “vary, depending on the

facility type and layout and structure and the staffing.”

He further stated: “[w]e take a lot[] of things into

account when we implement those control measures.”

Because there is a dearth of evidence in the record to

support a claim of animus or targeting, we cannot

discern an abuse of discretion by the trial court as to

this claim.

5. Procedural due process; substantive due

process

For their procedural due process claim, Movants

allege KRS 214.036 “required the adoption of

App. 54

emergency regulation to enact quarantines or other

preventative measures for a specific area.” Movants

further contend a public hearing was required under

KRS 13A.190, which prescribes the procedures for

enactment of emergency regulations.

Under KRS 214.036, the mandate of an emergency

regulation, and any attendant rights enumerated in

KRS Chapter 13A, applies only where the Cabinet for

Health and Family Services seeks to require the

immunization of all persons within the area of

epidemic. In this case, Respondents have not required

or purported to require Movants to be vaccinated for

varicella. Therefore, an emergency regulation was not

necessary, and KRS Chapter 13A does not apply.

“Substantive due process, a much more ephemeral

concept [than procedural due process], protects specific

fundamental rights of individual freedom and liberty

from deprivation at the hands of arbitrary and

capricious government action.” Moffitt v.

Commonwealth, 360 S.W.3d 247, 253 (Ky. App. 2012)

(internal citation omitted).

In Jacobson v. Commonwealth of Massachusetts,

197 U.S. 11, 27, 25 S.Ct. 358, 361-62, 49 L.Ed. 643

(1905), a state statute gave the local health board the

authority to enact a regulation requiring vaccination

“if, in its opinion, it is necessary for the public health

and safety.” Id., 197 U.S. at 12, 25 S.Ct. at 358. A local

health board adopted a regulation requiring

vaccination against smallpox during an outbreak. The

defendant was convicted of violating the regulation,

and he alleged the statute and regulation deprived him

App. 55

of due process of law. Id., 197 U.S. at 13, 25 S.Ct. at

359. In affirming the judgment, the Court held:

it is to be observed that the legislature of

Massachusetts required the inhabitants of a city

or town to be vaccinated only when, in the

opinion of the board of health, that was

necessary for the public health or the public

safety. The authority to determine for all what

ought to be done in such an emergency must

have been lodged somewhere or in some body;

and surely it was appropriate for the legislature

to refer that question, in the first instance, to a

board of health composed of persons residing in

the locality affected, and appointed, presumably,

because of their fitness to determine such

questions. To invest such a body with authority

over such matters was not an unusual, nor an

unreasonable or arbitrary, requirement. Upon

the principle of self-defense, of paramount

necessity, a community has the right to protect

itself against an epidemic of disease which

threatens the safety of its members.

Id., 197 U.S. at 27, 25 S.Ct. at 361-62 ( emphasis

added). See also Mosier, 215 S.W.2d at 969 (citing

Jacobson). In the instant case, we cannot conclude the

circuit court abused its discretion in finding Movants

did not show they were likely to prevail on their

substantive due process claim. Similar to Jacobson, the

statutes and regulations implemented in Kentucky do

not appear to be unreasonable or arbitrary.

App. 56

C. Equities of the Situation

In weighing the equities of the situation, the circuit

court “should consider such things as possible

detriment to the public interest, harm to the defendant,

and whether the injunction will merely preserve the

status quo.” Maupin, 575 S.W.2d at 699.

The Health Department asserted an injunction

would endanger public health. It argued it had

implemented narrowly-crafted measures to control the

outbreak, pursuant to applicable regulations.

Movants have educational and religious rights at

stake. Movants argue the issuance of an injunction

would not threaten the public health because a

sufficient control measure would be to ban only the

symptomatic children. As previously noted, this

argument was contradicted at the hearing by testimony

to the effect that varicella is contagious even before the

rash appears.

The circuit court adequately weighed the equities of

the situation in denying Movants’ motion for a

temporary injunction. “[W]e give considerable

deference to the circuit court’s evaluation of the

dispute, the issues involved, the weighing of the

equities, and whether an injunction is proper under the

particular circumstances at hand.” Boone Creek

Properties, LLC v. Lexington-Fayette Urban Cty. Bd. of

Adjustment, 442 S.W.3d 36, 38 (Ky. 2014). See also

Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660,

675, 88 L.Ed. 834 (1944) (citations omitted) (“The

award of an interlocutory injunction by courts of equity

has never been regarded as strictly a matter of right,

App. 57

even though irreparable injury may otherwise result to

the plaintiff. . . . [W]here an injunction is asked which

will adversely affect a public interest for whose

impairment, even temporarily, an injunction bond

cannot compensate, the court may in the public interest

withhold relief until a final determination of the rights

of the parties, though the postponement may be

burdensome to the plaintiff.”).

II. CONCLUSION

WHEREFORE, Respondents’ motion to supplement

their brief is GRANTED. Movants’ motion for

interlocutory relief under CR 65.07 is DENIED. The

motion for oral argument is DENIED.

ENTERED: JUN 26 2019

/s/

JUDGE, COURT OF APPEALS

App. 58

APPENDIX C

Supreme Court of Kentucky

2019-SC-000359-I

[Filed August 29, 2019]

________________________________________________

JEROME KUNKEL; SEANTE CARTER, AS

)

NEXT FRIEND AND GUARDIAN OF AC, EC,

)

MC, OC, NC, SC, AND RC, MINORS;

)

CHRISTINA BELL, AS NEXT FRIEND AND

)

GUARDIAN OF GB, CB, GB2, CB2,

)

AND GB3, MINORS, MARIA KUNKEL AS NEXT )

FRIEND AND GUARDIAN OF NK, CK, RK,

)

SK, AK, MK, AND GK, MINORS; AND DAVID

)

KUNKEL AS NEXT FRIEND AND GUARDIAN

)

OF CK2, DK, VK, IK, LK, AND DK2, MINORS

)

MOVANTS

)

)

V.

)

)

NORTHERN KENTUCKY INDEPENDENT

)

HEALTH DISTRICT, ZACH RANEY, LYNNE

)

M. SADDLER, MD, AND UNKNOWN

)

DEFENDANTS 1-10

)

RESPONDENTS

)

_______________________________________________ )

ON REVIEW FROM COURT OFAPPEALS

CASE NO. 2019-CA-000575

BOONE CIRCUIT COURT NO. 1-CI-00357

App. 59

ORDER DENYING PETITION

FOR CR 65.09 RELIEF

The Court has considered the movants’ CR 65.09

motion and the respondents’ response and determines

that the trial court did not abuse its discretion in

denying the movants’ motion for a temporary

injunction, and we find both the trial court and the

Court of Appeals to have adequately addressed the

issues presented by the movants’ request. Accordingly,

the Court DENIES the motion.

All sitting. All concur.

ENTERED: August 29, 2019.

/s/

CHIEF JUSTICE

App. 60

APPENDIX D

U.S. Const., Amend I.

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or

of the press; or the right of the people peaceably to

assemble, and to petition the government for a redress

of grievances.

U.S. Const., Amend XIV.

Section 1.

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they reside.

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

Section 2.

Representatives shall be apportioned among the

several states according to their respective numbers,

counting the whole number of persons in each state,

excluding Indians not taxed. But when the right to vote

at any election for the choice of electors for President

and Vice President of the United States,

App. 61

Representatives in Congress, the executive and judicial

officers of a state, or the members of the legislature

thereof, is denied to any of the male inhabitants of such

state, being twenty-one years of age, and citizens of the

United States, or in any way abridged, except for

participation in rebellion, or other crime, the basis of

representation therein shall be reduced in the

proportion which the number of such male citizens

shall bear to the whole number of male citizens

twenty-one years of age in such state.

Section 3.

No person shall be a Senator or Representative in

Congress, or elector of President and Vice President, or

hold any office, civil or military, under the United

States, or under any state, who, having previously

taken an oath, as a member of Congress, or as an

officer of the United States, or as a member of any

state legislature, or as an executive or judicial officer of

any state, to support the Constitution of the United

States, shall have engaged in insurrection or rebellion

against the same, or given aid or comfort to the

enemies thereof. But Congress may by a vote of

two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States,

authorized by law, including debts incurred for

payment of pensions and bounties for services in

suppressing insurrection or rebellion, shall not be

questioned. But neither the United States nor any

state shall assume or pay any debt or obligation

incurred in aid of insurrection or rebellion against the

App. 62

United States, or any claim for the loss or

emancipation of any slave; but all such debts,

obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.