Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendant Pauline Maas (who is also third-party plaintiff) appeals from a final judgment and injunction entered in the Chancery Division in favor of plaintiff board of education and the individual third-party defendants, as well as from prior orders granting plaintiff an interlocutory injunction against her and denying her application to dissolve that injunction. The judgment was the culmination of litigation embracing several claims which arose out of defendant's attempts to gain attendance in the Mountain Lakes public schools of three children, temporarily in the United States from the Kingdom of Greece, and who had not been properly immunized against diphtheria.
Mrs. Maas resides in Mountain Lakes and has been a Christian Scientist since December 1933. She is conscientiously opposed to vaccination, immunization, or other forms
of medication. In September 1957 she sponsored the admission to the United States of three children from Greece for a 12-month stay here. That stay has since been extended. The children are not Christian Scientists but apparently of the Greek Orthodox persuasion; we are told they come from broken homes where the father has either died or deserted. Prior to leaving Greece they were vaccinated against smallpox in August 1957. They are the third set of three children whom defendant has sponsored. From 1953 to date plaintiff board of education has officially expressed itself on the subject of compulsory vaccination against smallpox and immunization to diphtheria. It has annually, by motion or resolution, consistently taken the view that before a child can be admitted to the public schools of Mountain Lakes there must be proof of vaccination and immunization, and this in the best interests of the public health, safety and welfare. For example, on May 13, 1957 the board on motion reaffirmed its existing policy that all children must be vaccinated against smallpox and present evidence of either a negative Shick test or a course of inoculations with diphtheria toxoid. Defendant appeared at the board meeting of June 3 to object to this policy as a Christian Scientist. On June 17, 1957 the board unanimously adopted the following formal motion:
"The Board of Education of Mountain Lakes shall require vaccination against smallpox and immunization to diphtheria as prerequisites for attendance at school.
Any pupil failing to comply with such requirements shall be excluded from school, unless the pupil shall present a certificate signed by a physician stating that the pupil is unfit to receive the immunizing treatment, or a certificate signed by a physician or by the Board of Health or the health officer of the municipality in which the pupil resides to the effect that the pupil is known by evidence of an appropriate test to be immune to diphtheria; provided , that in either or any such instance the certification and the test employed shall have the approval of the school medical inspector."
A representative group of Christian Scientists appeared at the next board meeting, held July 1, 1957, to present their
views, claiming that the existing policy infringed their religious principles and pointing out that there had been no smallpox cases in the borough since 1950. The chairman explained that the board had sought and received both legal and medical advice, and had carefully considered the issue. He invited any board member to move that the policy question be reopened, but no one did so.
Although parents had from time to time sought exemption from immunization on the basis of religious principles, the board adhered to its practice of not granting anyone exemption on that ground.
On September 24, 1957 defendant, as well as her attorney, wrote the superintendent of schools, noting that the children had been vaccinated against smallpox and objecting to immunization to diphtheria as contrary to defendant's religious beliefs and the tenets of the Christian Science Church, and requesting exemption from the board's policy under N.J.S.A. 18:14-64.2, discussed below. Plaintiff, through its attorney, at once responded, enclosing a copy of the resolution setting out the board's policy, pointing out that exemption under N.J.S.A. 18:14-64.2 was discretionary with the board, and stating that the board "does not see fit to change its policy and pupils will be excluded who are not vaccinated and immunized regardless of their religious beliefs." Defendant was further advised that upon compliance with the board rule the three children would be admitted.
On September 30, 1957 defendant, without authority, brought the unimmunized children to the third grade of the local school and told the teacher in charge she was going to leave them there, although they were unregistered. Advised that there were no desks and chairs available, she delivered three stools to the classroom and left the children there for the day. The press and newspaper photographers were present, apparently at defendant's instigation. She continued to bring the children to school daily until plaintiff resorted to the courts.
On October 8, 1957 plaintiff obtained an ex parte order to show cause, returnable three days later, why an interlocutory injunction should not be issued restraining defendant from entering and leaving the three children in the local schools. Defendant filed a detailed affidavit in opposition. Although she alleged she was unable to present a brief because of the short date, her affidavit fully set out her factual and legal assertions. On October 11, 1957 the Chancery Division judge, after hearing oral argument, directed the entry of an interlocutory injunction. Defendant at once discontinued her practice of bringing the children to the school.
Thereafter defendant filed an answer with separate defenses alleging contravention of the religious freedom guaranteed her under the First and Fourteenth Amendments to the United States Constitution and under Article I, paragraphs 3 and 5 of the New Jersey Constitution of 1947; that the policy adopted by plaintiff board was arbitrary and capricious, and in effect repealed the provisions of N.J.S.A. 18:14-64.2; and that plaintiff's refusal to register the children amounted to a denial of the equal protection of the laws. By way of counterclaim she alleged arbitrary and capricious interference with her constitutional right of religious freedom and demanded ordinary and punitive damages.
Defendant's next step was to file a notice of appeal from the Chancery Division restraining order, purportedly as of right. Plaintiff moved to dismiss on the ground that this was an attempt to appeal an interlocutory order, within the ambit of R.R. 2:2-3(a). While this was pending defendant sought direct certification to the Supreme Court. The application was denied. The Appellate Division subsequently dismissed her attempted appeal.
Defendant then filed a third-party complaint against the individual members of the Mountain Lakes Board of Education and the superintendent of schools, alleging willful and malicious interference with her religious beliefs and
seeking ordinary and punitive damages. She also claimed damages as guardian ad litem of the three children. After the third-party defendants had answered, Mrs. Maas moved with supporting affidavits to dissolve the interlocutory judgment entered almost a year before. The motion was denied.
The pretrial order is unusually comprehensive and carefully developed. At the hearing which followed plaintiff board introduced minutes of meetings reflecting its official action through the years with respect to immunization and vaccination. It also produced a public health consultant qualified in the fields of epidemiology, bacteriology and biostatistics, who testified that a policy of compulsory immunization to diphtheria promotes the public health and is an effective barrier to the disease. He also stated that the presence of one unimmunized child in a group of immunized children may be the cause of one or more illnesses or deaths from the particular disease because total immunization had not yet been achieved among those who had been treated. Further, it might make the immunized children carriers of the disease. It was his firm opinion that a local board of education policy requiring immunization to diphtheria as a prerequisite to attendance of all children in the schools was a measure in the interest of public health, safety and welfare. Other witnesses for plaintiff were the superintendent of schools, who detailed the history of defendant's attempts to get the children into the school system, and the teacher with whom she had left the children.
Defendant testified in her own behalf, declaring her adherence to Christian Science doctrine and her refusal to have the children immunized because of her religious beliefs. Although invited by the court to present whatever testimony she had on the question of liability under the counterclaim and third-party complaint, defendant rested her case, claiming she had no testimony but insisting that liability existed as a matter of law.
Plaintiff's motion for judgment of injunction on the complaint, and of no cause of action on the counterclaim, was
granted. The third-party defendants' motion for judgment of involuntary dismissal was likewise granted. Defendant's motion for an order suspending the operation of the injunction pending the outcome of an intended appeal was denied.
We consider, preliminarily, defendant's claim that she was denied due process by the granting of the interlocutory judgment on three days' notice. She alleges that the short return day made impossible the preparation of a brief, thereby prejudicing her cause.
The Chancery Division judge could have issued a temporary restraining ex parte order under R.R. 4:67-2. Instead, he entered an order to show cause without restraint. The more acceptable practice would have been to bring the matter on by motion. R.R. 4:67-3 provides that unless a temporary restraint or special directions for services are sought, "or other exceptional circumstances appear," an interlocutory injunction shall be applied for on motion without securing an order to show cause. Briefs are required. The trial court must have considered the situation with which the board of education was faced as presenting exceptional circumstances, and so adopted the course indicated.
We perceive no prejudice visited upon defendant, or any denial of procedural due process. Her lengthy counter-affidavit fully set out her contentions, both factual and legal, and her counsel was afforded extensive oral argument. It has been said that due process deals with matters of substance and is not to be trivialized by formal objections that have no substantial bearing on the ultimate rights of the parties. Market Street Ry. Co. v. Railroad Comm'n of California , 324 U.S. 548, 562, 65 S. Ct. 770, 89 L. Ed. 1171 (1945). As Judge Clapp observed in Boots 'N Saddle v. Newark Municipal Bd., A.B.C. , 44 N.J. Super. 38, 41 (App. Div. 1957), "The magnificent concept of due process
would seem to have acquired a most perverse function if it could be made use of in order to reverse a case where substantial justice has plainly been rendered." Defendant had ample opportunity to be heard, and her contentions were fully aired. Her argument reduces itself to a procedural nicety, and we find it without merit.
Additionally, the matter of the interlocutory injunction is now moot in light of the granting of the final injunction here under appeal.
We would also dispose of defendant's contention that the testimony of the public health consultant should not have been admitted or considered by the court. He was preeminently qualified in his field, and the court properly permitted him to testify. Contrary to defendant's claim, he fully established that vaccination and immunization are effective health measures, reasonably related to and necessary for the public health, safety and welfare. Although defendant strongly attacks the ...