United States Court of Appeals

FOR THE EIGHTH CIRCUIT

__________

No. 02-3035

__________

Dan McCarthy, as Parent and as Next *

Friend of his Minor Daughter, *

*

Plaintiff - Appellant, * 

* Appeal from the United States

v. * District Court for the Western

* District of Arkansas.

Ozark School District; Faye Boozman, *

in his Official Capacity as Director, *

State of Arkansas Department of Health; *

John Doe, 1 through 20, in their Official *

Capacities as Agents, Servants, *

Employees or Officials of the State of *

Arkansas, Department of Health, *

*

Defendants - Appellees. *

___________

No. 02-3094

___________

Shannon Law, as Parent and Legal *

Guardian of her Minor Children Joey *

Law, Rob Law, and Claire Law; *

*

Plaintiff, * 

*
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Susan Brock, as Parent and Legal *

Guardian of her Minor Children Harley *

Brock, Mason Brock, Kathrine Brock *

and Michael Jarrell, *

*

Plaintiff - Appellant, * 

* Appeal from the United States

v. * District Court for the Eastern

* District of Arkansas.

*

Fay W. Boozman, in his Official *

Capacity as Director of the Arkansas *

Department of Health; Cutter Morning *

Star School District; Lake Hamilton *

School District; Raymond Simon, in his *

Official Capacity as Director of the *

Arkansas Department of Education, *

*

Defendants - Appellees. *

__________

No. 02-3104

__________

Cynthia Boone, Individually and as *

Next Friend of Ashley Boone, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Arkansas.

Cabot School District; Fay Boozman, in *

his Official Capacity as the Director of *

the Arkansas Department of Health; *

John Doe, 1 through 20, in their Official *

Capacities as Agents, Servants, *
-3-

Employees or Officials of the State of *

Arkansas, Department of Health, *

*

Defendants - Appellees. *

___________

No. 02-3195

___________

Shannon Law, as Parent and Legal *

Guardian of her Minor Children Joey *

Law, Rob Law, and Claire Law, *

*

Plaintiff, *

*

Susan Brock, as Parent and Legal *

Guardian of her Minor Children Harley *

Brock, Mason Brock, Kathrine Brock, * Appeal from the United States

and Michael Jarrell, * District Court for the Eastern

* District of Arkansas

Plaintiff - Appellee *

*

v. *

*

Fay W. Boozman, in his Official *

Capacity as Director of the Arkansas *

Department of Health, *

*

Defendant, *

*

Cutter Morning Star School District; *

Lake Hamilton School District, *

*

Defendants - Appellants, *

*

Raymond Simon, in his Official *
1

The Honorable David R. Hansen stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on March 31,

2003. He has been succeeded by the Honorable James B. Loken.

2

Ark. Code Ann. § 6-18-702 (2002), as in effect at the time of the district

courts’ decisions, provided:

(a) Except as otherwise provided by law, no infant or child shall be

admitted to a public or private school or child care facility of this state

who has not been age appropriately immunized from poliomyelitis,

diphtheria, tetanus, pertussis, red (rubeola) measles, rubella, and other

diseases as designated by the State Board of Health, as evidenced by a

certificate of a licensed physician or a public health department

acknowledging the immunization.

. . . .

(d)(2) The provisions of this section shall not apply if the parents or

legal guardian of that child object thereto on the grounds that

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Capacity as Director of the Arkansas *

Department of Education, *

*

Defendant. *

___________

Submitted: March 10, 2003

 Filed: March 8, 2004 

___________

Before HANSEN1

, Chief Judge, RILEY and MELLOY, Circuit Judges.

___________

MELLOY, Circuit Judge.

These consolidated appeals involve the application of an Arkansas statute that

requires the immunization of Arkansas schoolchildren against Hepatitis B. Ark. Code

Ann. § 6-18-702(a).2

 The district courts3 held that the statute's religious beliefs
immunization conflicts with the religious tenets and practices of a

recognized church or religious denomination of which the parent or

guardian is an adherent or member.

(Emphasis added). The State Board of Health, in cooperation with the Board of

Education, on July 27, 2000, promulgated regulations that listed Hepatitis B as one

of the designated diseases under Ark. Code Ann. § 6-18-702(a). 

3

The Honorable Robert T. Dawson, United States District Judge for the

Western District of Arkansas (Case No. 02-3035), and the Honorable Susan Webber

Wright, United States District Judge for the Eastern District of Arkansas (Case Nos.

02-3094, 02-3104, and 02-3195).

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exemption violated the Establishment Clause of the First Amendment because the

exemption applied only to the “religious tenets and practices of a recognized church

or religious denomination.” Ark. Code Ann. § 6-18-702(d)(2) (2000) (emphasis

added). The district courts then determined that the exemption was severable from

the remainder of the statute. Construing the statute without the exemption, the district

courts held that the underlying immunization requirement survived Due Process,

Equal Protection, Free-Exercise, and Hybrid Rights challenges. On appeal, we do not

reach the merits of the claims raised below because the Arkansas legislature rendered

these issues moot when it broadened the exemption to encompass philosophical as

well as religious objections. See Ark. Code Ann. § 6-18-702(d)(4)(A) (2003).

Instead, we set forth the general history of these matters, explain the changes in

Arkansas law, and address the issue of mootness as discussed by the parties in their

supplemental, post-argument briefs.

I. Background

Because the issues in this case do not turn on the specific facts that differentiate

each individual party, we forgo a detailed discussion of the individual parties and the

specific facts that gave rise to their actions. Instead, we describe the parties generally
-6-

by their respective roles. The first group of parties consists of Arkansas

schoolchildren who were excluded from school or threatened with exclusion from

school for failure to receive immunization treatments for Hepatitis B. This group also

includes the parents of the schoolchildren (collectively, the “Schoolchildren”). The

second group consists of the Arkansas Departments of Health and Education and

various officials from these two departments, including Fay W. Boozman, the

Director of the Arkansas Department of Health (collectively, the “Officials”). The

final group consists of various individual Arkansas school districts (collectively, the

“School Districts”). In each case, the Schoolchildren brought suit against the School

Districts and/or the Officials.

The Schoolchildren in each case alleged that they held sincere religious beliefs

that prevented each child from being immunized for Hepatitis B. The Schoolchildren

did not belong to any recognized religion that had as one of its tenets opposition to

immunization for Hepatitis B. We, like the district courts, assume for the purposes

of our analysis that the Schoolchildren held sincere religious beliefs against Hepatitis

B vaccination.

In Case No. 02-3035 the Schoolchildren argued that the religious beliefs

exemption violated the Establishment Clause of the First Amendment by permitting

exemptions only for beliefs associated with a recognized religion. They also argued

that the underlying immunization requirement violated their Equal Protection and

Due Process rights under the Fourteenth Amendment. The district court accepted the

Schoolchildren's arguments regarding the Establishment Clause challenge, but held

the religious beliefs exemption severable. The district court then rejected the

Schoolchildren’s Equal Protection and Due Process challenges to the underlying

immunization requirement, finding that the Supreme Court had repeatedly ruled such

requirements permissible. See Zucht v. King, 260 U.S. 174, 176-77 (1922); Jacobson

v. Massachusetts, 197 U.S. 11, 27-29 (1905). Accordingly, the district court

preserved the immunization requirement but severed the exemption. 
-7-

Noting the hollow nature of the Schoolchildren's victory, the district court

stated:

Our holding does not afford relief of any real value to the Plaintiff

because his daughter remains subject to receiving the required shots as

a condition of attending school within the state of Arkansas. This

decision will also be of understandable concern to those who previously

enjoyed the immunization exemption as adherents or members of a

recognized church or religious denomination. However, the recourse of

both groups is to communicate their concerns to the Arkansas

Legislature, for it is within the province of the legislature and not this

Court to enact a religious exemption provision that comes within

constitutional boundaries.

In Case No. 02-3104, the Schoolchildren brought suit against the Officials and

School Districts. The district court adopted the analysis of the earlier opinion and,

in addition, set forth a separate analysis to conclude that the religious beliefs

exemption was unconstitutional and severable. The district court rejected the

Schoolchildren's argument that the First Amendment’s Free Exercise Clause

demanded a compelling interest analysis of the compulsory immunization

requirement. Instead, the district court found that the statute was a neutral statute of

general applicability that did not target religious beliefs. The district court also

rejected the argument that other constitutional rights, such as, inter alia, a parent's

right to control a child's education, reinforced the underlying Free Exercise Rights

challenge and mandated the application of compelling interest review under a Hybrid

Rights analysis. See, e.g., Employment Div., Oregon Dep’t of Human Res. v. Smith,

494 U.S. 872, 881 (1990) (discussing the application of compelling interest review

in cases that involve alleged First Amendment violations in combination with other

alleged constitutional violations). Finally, the district court rejected a Substantive

Due Process challenge under the Fourteenth Amendment in which the Schoolchildren

alleged that the right to refuse medical treatment was a fundamental liberty interest

that mandated compelling interest review of the compulsory immunization statute.
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In Case No. 02-3094, the Schoolchildren brought suit against the Officials and

the School Districts and argued issues similar to those described above. In addition,

the Schoolchildren argued that because the compulsory immunization statute

provided individualized exemptions for secular purposes, such as medical exigencies,

a general religious exemption was necessary to avoid a Free Exercise violation. The

district court rejected these arguments.

Finally, Case No. 02-3195 involves a cross-appeal from two of the School

Districts, the Morningstar and Lake Hamilton School Districts. The Morningstar and

Lake Hamilton School Districts moved for dismissal arguing that they were involved

in no justiciable case or controversy with the Schoolchildren. Pointing to the fact that

the relevant Arkansas statutes and rules provide for criminal sanctions against school

officials who fail to enforce the immunization requirements, the Morningstar and

Lake Hamilton School Districts characterized themselves as disinterested bystanders

caught in the crossfire between the Schoolchildren and the Officials. See Ark. Code

Ann. § 6-18-702(c)(2)(B) (2000) (“Any school official, parent, or guardian violating

the regulations shall be subject to the penalties imposed herein.”); Id. § 6-18-702(e)

(2000) (“any person found guilty of violating the provisions of this section or the

regulations promulgated by the State Board of Education or the division for the

enforcement hereof shall be guilty of a misdemeanor.”). The district court rejected

the motion to dismiss, finding that the Lake Hamilton and Morningstar School

Districts were proper parties to the litigation.

After obtaining jurisdiction, we entered a temporary stay to permit the nonimmunized Schoolchildren to attend school pending resolution of their appeals. After

oral arguments, we noted that the Schoolchildren had followed the district court’s

suggestion and communicated their concerns to the Arkansas legislature. As a result,

the Arkansas legislature had amended the exemption portion of the statute to omit

reference to “recognized” religions and to provide broader exemptions based on
4

Ark. Code Ann. § 6-18-702 (d)(4) provides:

(A) The provisions of this section shall not apply if the parents or legal

guardian of that child object thereto on the grounds that immunization

conflicts with the religious or philosophical beliefs of the parent or

guardian.

(B) The parents or legal guardian of the child shall complete an annual

application process developed in the rules and regulations of the

Department of Health for medical, religious, and philosophical

exemptions.

(C) The rules and regulations developed by the Department of Health for

medical, religious, and philosophical exemptions shall include, but not

be limited to:

(i) A notarized statement requesting a religious, philosophical, or

medical exemption from the Department of Health by the parents or

legal guardian of the child regarding the objection;

(ii) Completion of an educational component developed by the

Department of Health that includes information on the risks and

benefits of vaccination;

(iii) An informed consent from the parents or guardian that shall

include a signed statement of refusal to vaccinate based on the

Department of Health’s refusal-to-vaccinate form; and

(iv) A signed statement of understanding that:

(a) At the discretion of the Department of Health, the

unimmunized child or individual may be removed from day care

or school during an outbreak if the child or individual is not fully

vaccinated; and

-9-

“religious or philosophical beliefs.” Id. § 6-18-702 (d)(4)(A) (2003).4

 It appeared,
(b) The child or individual shall not return to school until the

outbreak has been resolved and the Department of Health

approves the return to school.

(D) No exemptions may be granted under this subdivision (d)(4) until

the application process has been implemented by the Department of

Health and completed by the applicant.

5

Rules and Regulations Pertaining to Immunization Requirements, § IV(A), (C)

and (D), slip at 4-5, at http://www.healthyarkansas.com/rules_regs/immunization

_requirements_2003.pdf (promulgated in part under the authority of Ark. Code Ann.

§ 6-18-702, signed by Governor Mike Huckabee on July 31, 2003). The relevant

provisions of the new exemption requirement require religious and philosophical

objectors to complete an annual application, sign a notorized statement claiming

conflict with religious or philosophical beliefs, complete an educational component

regarding the risks and benefits of vaccination, and sign a statement of informed

consent for the exclusion of a non-immunized child from school in the event of an

outbreak.

-10-

however, that the broadened exemption was not yet in force because the Arkansas

Department of Health had not passed necessary implementing regulations and the

amended statute specifically prohibited the granting of exemptions prior to passage

of the implementing regulations. See Id. § 6-18-702 (d)(4)(D). Accordingly, it was

not clear whether any Schoolchildren would be excluded from school in the absence

of our temporary stay. 

We directed the parties to submit supplemental briefs to address whether the

anticipated availability of a broadened exemption mooted the underlying challenges

to the immunization requirement. Subsequently, the Arkansas Department of Health

passed the necessary implementing regulations.5

 No claims under the newly amended

exemption are before the court at this time, and no Schoolchildren claim to have been
-11-

denied the benefit of the new exemption under the amended statute and the new,

implementing regulations.

II. Analysis

We first address the basic question of any mootness analysis: whether the

plaintiffs still hold a personal interest in the outcome of the action or whether

changed circumstances already provide the requested relief and eliminate the need for

court action. Next we address exceptions to the mootness doctrine, namely, whether

the controversy of the present cases is one that is likely to recur but evades review

and whether the Arkansas legislature’s amendment of the statute is merely a voluntary

cessation of challenged conduct that is insufficient to protect the Schoolchildren on

an ongoing basis. Finally, we do not address the Schoolchildren’s newly raised

challenges to certain procedural requirements of the new statute and regulations

because such challenges are not ripe for review.

A. Mootness

“Under Article III of the Constitution, federal courts ‘may adjudicate only

actual, ongoing cases or controversies.’” National Right to Life Political Action

Comm. v. Connor, 323 F.3d 684, 689 (8th Cir. 2003) (quoting Lewis v. Continental

Bank Corp., 494 U.S. 472, 477 (1990)). Various doctrines, including the doctrine of

mootness, provide the tools used to determine whether a plaintiff presents a

justiciable case or controversy. Our court has stated:

The Supreme Court has repeatedly described the mootness doctrine as

“the doctrine of standing set in a time frame: The requisite personal

interest that must exist at the commencement of the litigation (standing)

must continue throughout its existence (mootness).” Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 538 U.S. 167, 189

(2000) (citations omitted). Thus, “[w]e do not have jurisdiction over
6

The Schoolchildren also argued against mootness on the grounds that, at the

time of supplemental briefing, the implementing regulations were open for comment

and, therefore, not yet effective. This argument, however, was transitory and became

irrelevant on July 31, 2003 when the governor of Arkansas signed the implementing

regulations.

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cases in which ‘due to the passage of time or a change in circumstances,

the issues presented . . . will no longer be ‘live’ or the parties will no

longer have a legally cognizable interest in the outcome of the

litigation.’” Van Bergen v. Minnesota, 59 F.3d 1541, 1546 (8th Cir.

1995) (quoting Arkansas AFL-CIO v. FCC, 11 F.3d 1430, 1435 (8th

Cir. 1993) (en banc)).

National Right to Life Political Action Comm., 323 F.3d at 691. The first question

we address, then, is whether the current litigation still presents to the Schoolchildren

an opportunity for redress or whether the Schoolchildren have received the entirety

of their requested relief from the Arkansas legislature and, therefore, no longer

possess a personal interest in the litigation.

In each of the appealed cases, the Schoolchildren sought an exemption to allow

them to attend public school in Arkansas without receiving immunization against

Hepatitis B. Review of the amended immunization statute and its implementing

regulations make clear that the statutory exemption now available to all the individual

Schoolchildren provides precisely this relief. The Schoolchildren point to no other

relief that they requested in the lower courts. Instead, they argue that an exception

to the mootness doctrine applies and that we must address the merits of their cases to

eliminate the risk that Arkansas might later repeal the newly enacted exemption

provision. Further, they argue that the new exemption provision itself is

unconstitutional because it discriminates against religious objectors and imposes

undue burdens through the exemption application process.6

 These arguments,

however, do not speak to the underlying issue of mootness. Looking, as we must, at

the relief requested and the scope of the relief made available by the Arkansas
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legislature, and finding no further relief that might be appropriate or available, it is

clear that the Schoolchildren no longer present a live case or controversy. Their

claims are moot. 

B. Exceptions to Mootness

Notwithstanding this finding of mootness, we may still decide a case on its

merits if the controversy in the case is “capable of repetition yet evad[es] review.”

Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430, 1435 (8th Cir. 1993) (en banc). One

condition that must exist before this exception applies is “a reasonable expectation

that the same complaining party will be subject to the same action again.” Van

Bergen v. Minnesota, 59 F.3d 1541, 1547 (8th Cir. 1995). The Schoolchildren argue

that this exception applies because Arkansas voluntarily ceased the challenged action

when it amended the immunization statute, and, therefore, might repeal the new

exemption provision at any time if not prohibited from doing so by court order. In

advancing this argument, however, the Schoolchildren speculate as to a mere

theoretical possibility. A speculative possibility is not a basis for retaining

jurisdiction over a moot case. Id. (“The party need not show with certainty that the

situation will recur, but a mere physical or theoretical possibility is insufficient to

overcome the jurisdictional hurdle of mootness.”). 

Review of the facts makes clear the speculative nature of the Schoolchildren’s

argument. The Arkansas legislature promptly acted to provide a broadened

exemption for philosophical and religious objectors as well as objectors who claimed

medical necessity. The legislature took this action even though the outstanding

district court decisions held the existing statute constitutional even without a religious

exemption. The legislature took this action not only to protect the Schoolchildren,

but also to protect additional children not involved in this litigation who had received

exemptions under the earlier, unconstitutional exemption provision. These additional

children, like the Schoolchildren, would have been subject to exclusion from school
-14-

under the district courts’ decisions. Simply put, the legislature acted quickly for the

benefit of the Schoolchildren and other citizens of Arkansas to replace the stricken

exemption provision with an exemption it believed would pass constitutional muster.

In providing relief for philosophical objectors as well as eliminating the requirement

that religious objectors belong to a “recognized religion,” the legislature provided

relief greater than that requested in the present litigation. 

The Department of Health also acted quickly by passing regulations before the

start of a new school year. In sum, we find nothing to suggest a likelihood that

Arkansas might repeal its exemption or that Arkansas voluntarily ceased the

challenged behavior merely to thwart our jurisdiction. With no “reasonable

expectation” that the Schoolchildren will again face forced immunization for

Hepatitis B without the possibility of exemption, the exception to the mootness

doctrine does not apply.

The Schoolchildren argue not only that the general mootness exception applies,

but also that, because the state voluntarily altered its own laws, the specialized

exception for voluntary cessation applies. City of Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283, 289 (1982) (“It is well settled that a defendant’s voluntary cessation of

a challenged practice does not deprive a federal court of its power to determine the

legality of the practice.”). This exception, however, is merely a specialized form of

the general exception discussed above and provides no basis for retaining jurisdiction

in the present case. “[T]he standard we have announced for determining whether a

case has been mooted by the defendant’s voluntary conduct is stringent: ‘a case

might become moot if subsequent events made it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.’” Young v. Hayes, 218

F.3d 850, 852 (8th Cir. 2000) (quoting United States v. Concentrated Phosphate

Export Ass’n, 393 U.S. 199, 203 (1968)). As explained above, there is no basis on

which to conclude that the challenged behavior–mandatory immunization against

Hepatitis B without the availability of an exemption–might reasonably be expected

to recur.
-15-

Finally, we reject the Schoolchildren’s new challenges to the procedural

requirements of the amended legislation and the accompanying implementing

regulations. These requirements include an annual exemption application,

submission of a notorized statement to request the exemption, completion of an

educational component that “includes information on the risks and benefits of

vaccination,” submission of a signed informed consent statement regarding refusal

to vaccinate, and submission of a signed statement authorizing the Department of

Health to exclude non-immunized children from school during the presence of an

outbreak of a covered disease. See Ark.Code Ann. §6-18-702(4)(A) (2003). The

Schoolchildren conceded during the course of these proceedings that a state may

exercise its police power to exclude non-immunized children from public schools

during an actual emergency, such as an outbreak. Further, none of the procedural

requirements of the amended statute and new regulations empowers Officials to

assess the merits of the Schoolchildren’s beliefs, and the requirements for religious

objectors mirror those for philosophical objectors. Finally, the basis of their

challenges to the educational components and application requirements are not

entirely clear as these requirements apply equally to philosophical objectors as well

as religious objectors. 

We need not resolve these challenges, however, because any challenges to the

procedural requirements are not yet ripe. To the extent the Schoolchildren challenge

the educational component or other aspects of the application process under the new

exemption, their claims are speculative and involve no concrete injury–no

Schoolchildren have applied for nor been denied exemption under the new statute.

The purpose of the ripeness doctrine is “to prevent the courts, through avoidance of

premature adjudication, from entangling themselves in abstract disagreements over

administrative policies, and also to protect the agencies from judicial interference

until an administrative decision has been formalized and its effects felt in a concrete

way by the challenging parties.” Abbot Labs. v. Gardner, 387 U.S. 136, 148-49

(1967). Were we to address the newly enacted exemption statute and regulations

before first giving the Department of Health the opportunity to work with the
-16-

Schoolchildren, we would inappropriately and prematurely entangle the court in an

abstract disagreement. 

In Case Nos. 02-3035, 02-3094, 02-3104, and 02-3195 we dismiss all pending

claims as moot and all newly raised challenges as unripe for review.

______________________________