RALEIGH — A case involving a Guilford County teen who was vaccinated against their will and without parental permission may be heading to the N.C. Supreme Court based on an appeal filed on April 4.
The case, Happel v. Guilford County Board of Education, was brought in 2022 by Emily Happel, the mother of Tanner Smith. Attorney Steven Walker of Walker Kiger is representing the family.
Happel’s case contends that Smith was “illegally vaccinated without his or his mother’s consent by the Old North State Medical Society, which was working in conjunction with Guilford County Schools.” Smith was supposed to receive a COVID-19 test only but instead was vaccinated.
Trial court Judge Lora Cubbage had dismissed the case, citing the federal PREP Act as keeping the district and Old North State Medical Society from being held liable.
Cubbage’s ruling in essence said the PREP Act superseded a 2021 state law that stated parental consent was required before a “vaccine granted emergency-use authorization may be administered to a minor.”
The plaintiffs appealed the ruling to the N.C. Court of Appeals, which rendered a decision on March 5, 2024, siding with the trial court’s dismissal ruling.
“Plaintiffs argue that the PREP Act does not cover their claims because they do not arise because of COVID-19, but merely happen to relate to COVID-19. We would be inclined to agree if the PREP Act did not define the scope of immunity so broadly,” wrote N.C. Court of Appeals Judge April Wood. “Because there does not appear to be any Fourth Circuit or North Carolina federal district cases on point, ONS Medical Society draws our attention to three out-of-state cases.”
N.C. Court of Appeals Judges Allegra Collins and Jeff Carpenter concurred in the decision.
The appeal to the N.C. Supreme Court filed by Walker takes aim at the immunity issues presented by the PREP Act.
“It’s a very important case, the jurisprudence of the state and how we handle immunity issues and conflicts between state and federal law,” Walker told North State Journal in an interview. “And I hope the court will take it up so that we can give a full argument.”
Walker said he didn’t believe Congress ever intended for the PREP Act to mean procedures could be performed without the required consent under state law.
“I just don’t think the PREP Act was ever intended by Congress to apply to something like this,” he said. “Where you’re claiming a constitutional violation of parents’ rights and the right of a minor — who said he did not want to receive the vaccine and who received it anyway — I don’t think that’s what the PREP Act was ever meant to cover.”
Eight North Carolina House lawmakers have filed an amicus curiae with the state Supreme Court in support of the plaintiffs.
The eight legislators, led by Rep. Neal Jackson (R-Randolph), include Reps. Brian Biggs (R-Randolph), Mark Brody (R-Union), Keith Kidwell (R-Beaufort), Donnie Loftis (R-Gaston), Joseph Pike (R-Harnett), Frank Sossamon (R-Granville) and Jeff Zenger (R-Forsyth).
“This case presents a major question regarding preemption of state constitutional protections for parents’ fundamental liberty interests,” the brief reads.
The brief also says the Court of Appeals decision siding with the trial court “calls out for further review and correction by this Court, not only because the case presents a substantial question of constitutional law, but also because discretionary review should be granted on the grounds of significant public interest and the presence of legal principles of major significance to the jurisprudence of the state.”
The lawmakers’ brief argues the lower courts “failed to correctly analyze the question of federal preemption,” and that the lower courts’ decisions “permit the federal government to unconstitutionally commandeer local governments.”
While the N.C. Supreme Court is not obligated to hear the case, the brief argues the subject matter of the appeal is one of “high public interest” and underscores that point by citing 2023 comments made by U.S. Supreme Justice Neal Gorsuch.
“Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country,” Gorsuch said of the nation’s COVID-19 response and restrictions.
