Religious – home

NorthShore Jab Mandate Case

NorthShore Jab Mandate Case

Re: the Legality of Mandating Experimental Injections as a Condition for Employment

Back to All Cases

Facts of the Case

Dates: October 2021
Location: Chicago, Illinois, USA
Court: Federal Northern District Court of Illinois
Case #: 1:21-cv-05683
Plaintiffs: 500+ health care workers
Plaintiff’s Lawyer: Liberty Counsel

Defendant: NorthShore University HealthSystem
Trial Type: Class Action
Judge: John F. Kness
Status: Decided (Jul 29, 2022)
Verdict: for the Plaintiff

*updated Jan 08,2023

Background

The case centers around workers at NorthShore University HealthSystem, who filed a lawsuit in October 2021 claiming their employer illegally refused to grant any religious exemptions to a COVID-19 vaccine mandate. [2]

The Suit was initiated by 14 employees, including nurses, a pharmacy tech and a senior application analyst. They were named anonymously in the litigation. [6]

These healthcare employees said they were victims of religious discrimination, and were punished for their religious beliefs against taking an injection associated with aborted fetal cells. [4]

In October 2021, Liberty Counsel sent a demand letter to NorthShore on behalf of numerous health care workers who had sincere religious objections to NorthShore’s “Mandatory COVID-19 Vaccination Policy.” If NorthShore had agreed then to follow the law and grant religious exemptions, the matter would have been quickly resolved and it would have cost it nothing. But, when NorthShore refused to follow the law, and instead denied all religious exemption and accommodation requests for employees working in its facilities, Liberty Counsel filed a class action lawsuit, along with a motion for a temporary restraining order and injunction. [3]

Northshore has estimated that it denied Religious exemption to 523 employees between July 1 2021- July 1 2022. 204 of the workers succumbed to the pressure and were jabbed. The other 269 were fired or resigned. [6]

The Plaintiff’s Lawyer Liberty Counsel’s Mat Staver explained on “Fox & Friends” that NorthShore implemented a “jab or job” policy, meaning employees were required to get the vaccine or be terminated. [1]
“All of them were denied religious accommodations,” Staver told host Will Cain. “It was literally no religious accommodation, which they’re required to do under the federal employment law called Title VII.” [1]

Liberty Council

Liberty Counsel advances religious liberty, the sanctity of human life, and the family through litigation and education. (from their website) [3]

Staver said his group is not just limiting the battle over mandates to the Illinois health care workers, telling the Washington Examiner that Liberty Counsel is working for private sector employees in industries such as airlines and other health care systems. [3]

“We have been working with thousands of employees across the country,” he said. “Many of them face the same jab-or-job mandate that is that issue in NorthShore.” [3]

Significance

This is the first US classwide lawsuit for healthcare workers over a COVID shot mandate.

Liberty Counsel Vice President of Legal Affairs Horatio Mihet said in a statement that the settlement should “serve as a strong warning to employers across the nation that they cannot refuse to accommodate those with sincere religious objections to forced vaccination mandates.” [2]

“Let this case be a warning to employers that violated Title VII,” Mat Staver, founder and chairman of Liberty Counsel, the group behind the lawsuit, told the Washington Examiner. “It is especially significant and gratifying that this first classwide COVID settlement protects healthcare workers.” [3]

Plaintiff’s Argument

Staver explained that Title VII applies to both private and public employers and requires that sincere religious beliefs be accommodated. [1]

Title VII Explained . . .

This federal law, which applies to all 50 states and every American territory, requires employers to make reasonable accommodations for both legitimately-held religious beliefs and medical exemptions.

Straight out of 42 U.S. Code § 2000e-2, what you need to know is there in black and white:

“It shall be unlawful employment practice for an employer — (1) to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex or national origin.” (emphasis added)

Religious exemptions should, and must be accommodated, under the law.

Additionally, Title VII’s protections extend to nonreligious beliefs if related to morality, and ultimate ideas about life, purpose and death.

Defendant’s Argument

…More information is needed…

Relevant Prior Judgements/ Cases

…More information is needed…

Decision

NorthShore will be required to pay $10.3 million to employees who were denied religious exemptions. [1]

Anyone fired because of their refusal to get the jab will also be eligible for reemployment in the system. [2]

U.S. District Judge John Kness, who was appointed by former President Donald Trump, approved the settlement and appeared to side with Liberty Council’s claim that the mandate violated Title VII of the Civil Rights Act. [2]

The settlement must be approved by the federal District Court. Employees of NorthShore who were denied religious exemptions will receive notice of the settlement, and will have an opportunity to comment, object, request to opt out, or submit a claim form for payment out of the settlement fund, all in accordance with deadlines that will be set by the court. [3]

Compensation Agreement

NorthShore employees who were terminated or forced to resign will receive $25,000 and those who were forced to get the vaccine will receive $3,000 as part of the settlement. [1]

The settlement approved in the Illinois Northern District Court will result in 473 employees of the system becoming eligible for compensation for being denied a religious exemption to the vaccine mandate, with any of those fired as a result of the rules being eligible for $25,000. [2]

The 13 healthcare workers who are lead plaintiffs in the lawsuit will receive an additional approximate payment of $20,000 each for their important role in bringing this lawsuit and representing the class of NorthShore healthcare workers. [4] …while those who complied with the mandate to keep their jobs despite having religious objections will be eligible for $3,000. [2]

NorthShore will pay $10,337,500 to compensate these health care employees who were victims of religious discrimination, and who were punished for their religious beliefs against taking an injection associated with aborted fetal cells. [3]

Other Agreements

As part of the settlement agreement, NorthShore will also change its unlawful “no religious accommodations” policy to make it consistent with the law, and to provide religious accommodations in every position across its numerous facilities. No position in any NorthShore facility will be considered off limits to unvaccinated employees with approved religious exemptions. [3]

In addition, employees who were terminated because of their religious refusal of the COVID shots will be eligible for rehire if they apply within 90 days of final settlement approval by the court, and they will retain their previous seniority level. [3]

Aftermath

Plaintiff Reaction

Liberty Counsel’s Mat Staver said

“But as we went more into discovery, it was pretty clear they didn’t have a basis and they would lose big time,” [1]
in addition to financial payouts, NorthShore will also have to change its policy. [1]
“There will no longer be a no religious accommodation policy. Every position will be accommodated,” he said. “All the people can come back with no loss of seniority or job status.” [1]
Staver said he believes the case will have a broad impact. [1]
“It’s a big wakeup call to employers across the country that did not do these accommodations as they’re required under Title VII,” he said. [1]
“And I think it’s an encouragement for the employees that were abused and lost their jobs or threatened to lose their jobs, and some of them retirement, that they can pursue justice.” [1]

Liberty Counsel Vice President of Legal Affairs and Chief Litigation Counsel Horatio G. Mihet said,

“We are very pleased with the historic, $10 million settlement achieved in our class action lawsuit against NorthShore University HealthSystem. The drastic policy change and substantial monetary relief required by the settlement will bring a strong measure of justice to NorthShore’s employees who were callously forced to choose between their conscience and their jobs. [3]

Further Research

Court Documents:

Read the Settlement Agreement

In the news:

On Corona Cases

See more articles & videos here: Changing Definitions

Media

MO AG Full briefing: Judge’s ruling halts federal vaccine mandate for health care workers in 10 states

source: KSDK News

Victory for Medical Choice in Illinois

source: TrialSite News

NorthShore University Health agrees to pay $10.3 million in C19 Jab lawsuit

source: CBS Chicago

Vaccine Injury Claims Skyrocket & Government Won’t Resolve for Decades -Jan 6 2023

source: TrialSite News

Heavily Vaxxed Japan’s Covid Surge Turns Deadly

source: TrialSite News

Science Summit Uncensored: Dutch Excess Mortality Data -Aug 15, 2022

source: Odysee/ shortXXvids

Back to All Cases

Military Mandate Case

Military Mandate Case

Re: the Legality by the DoD to force Covid Injections unto Military Personal who Object on Religious Grounds

Back to All Cases

Facts of the Case

Date Filed: Oct. 15, 2021
Location: Florida, USA
Court: US District Court, Middle District of Florida
Case #: 8:21-cv-2429-SDM-TGW
Plaintiffs: Navy Seal 1, et al
Plaintiff’s Lawyer: Liberty Counsel

Defendant: Lloyd Austin, DoD secretary
Trial Type: Human Rights
Judge: Steven Merryday
Status: Ongoing
Verdict: TBD

*updated Apr 27, 2022

Background

Liberty Counsel on Friday (Oct 15, 2021) announced a class action lawsuit on behalf of members of all five branches of the U.S. military – the Army, Navy, Air Force, Marines and Coast Guard – against President Joe Biden over his orders they take the experimental COVID shots or face dishonorable discharge. [1]

“The Biden administration has no authority to require the COVID shots for the military or for federal employees or civilian contractors,” explained Mat Staver, Liberty Counsel chairman. [1]
“Nor can the Biden administration pretend that the federal Religious Freedom Restoration Act and the First Amendment do not apply to its unlawful mandates. The commander-in-chief must end this shameful treatment and abuse of our brave military heroes. Forcing the COVID shots without consent or consideration for their sincere religious beliefs is illegal.” [1]

It seeks a temporary restraining order preventing Biden and his appointees from “enforcing, threatening to enforce, attempting to enforce, or otherwise requiring compliance with the Federal COVID-19 Vaccine Mandate…” [1]

Other defendants are Secretary of Defense Lloyd Austin and Secretary of Homeland Security Alejandro Mayorkas. [1]

Liberty Counsel said the non-military plaintiffs include a Department of Defense contractor who has conducted Intelligence, Surveillance, and Reconnaissance quantitative and qualitative assessments and studies, whose assessments are briefed to DOD senior leadership to inform decisions on future employment, allocation, and procurement; a federal civilian engineer employed by a large military defense contractor that provides LCD screens used in United States Armed Forces aircraft; a federal civilian contractor employer whose company develops and supports military weapons systems, including current and next generation land vehicles for the Army and next generation Navy vessels; a federal nuclear contractor employee who is a young woman opposed to abortion and who desires to have children of her own one day; and a Department of Energy Civilian Nuclear Tech who works at the Los Alamos National Laboratory. [1]

Liberty Counsel has been providing legal assistance to more than 700 service members from the Army, Air Force, Space Force, Navy, Marine Corps and Coast Guard. Liberty Counsel maintains an internal “Service Member Final Denial List” for service members who have contacted Liberty Counsel and whose final Religious Accommodation Request appeals have been denied. Based on this list alone, the U.S. military will continue to lose highly qualified and experienced personnel. [3]

Liberty Counsel Founder and Chairman Mat Staver said, “Liberty Counsel represents plaintiffs from all branches of the military who were denied religious exemptions from the COVID shot mandate. The military has violated the Constitution and the federal Religious Freedom Restoration Act with this unlawful COVID shot mandate. The abuse of military heroes is inhumane and unlawful. The Department of Defense acts likes it is above the law. This abuse and unlawful action must end.” [3]

The Plaintiffs:

The action in U.S. District Court in Florida is on behalf of two Navy SEALs, a Navy EOD Officer, a Navy Senior Chief Petty Officer, a Navy Chaplain, two Marine Lt. Colonels, two Marine Lance Corporals, an Air Force Major, an Air Force Technical Sergeant, an Army National Guardsman, an Army Colonel, and a Coast Guard Lieutenant. [1] As of March, 30 plaintiffs are listed [4]

The individuals for whom the case was filed are not named, but in a sworn statement on Navy chaplain explained,

“I personally observed (and the Sailors told me in the course of counseling about) tremendous amounts of coercion, bullying, censorship, and intimidation being brought forth by the command to bear against the personnel who expressed objections of any kind to the COVID shot mandates, including religious objections…And clearly, the military has lost more lives to the increase in suicide from 2020-2021 (at least 1,012) than to all of COVID in 2 years (~52), but suicide has not been a focus.” [1]

One plaintiff is a U.S. Marine Corps Lieutenant Colonel who faced immediate and irreparable harm beginning today. Her appeal for religious exemption was denied. Today she was to be added to the Officer Disciplinary Notebook, and her command selection withdrawn, irreparably damaging her career. This event would have begun the process of her ultimate discharge from the Marine Corps. [5]
Another plaintiff, a U.S. Navy Command Surface Warfare Officer, faced immediate discipline on February 3, at which time he would have been removed from command of his ship, irreparably damaging his career because he was denied a religious exemption from the COVID shot. [5]
Also under Navy SEAL 1 v. Austin, Liberty Counsel is representing a cadet at the U.S. Air Force Academy who is seeking legal relief after the Colorado Springs-based school ordered him to choose either the COVID-19 vaccination or “voluntary” resignation from the Academy. [6]

The unnamed cadet, according to Liberty Counsel, believes that God has called him to serve in the Air Force – but also holds a sincerely held religious belief that he shouldn’t receive any of the COVID shots because of their connections to abortion. [6]

Gordon Klingenschmitt is a former Navy chaplain who attended the Air Force Academy and runs the Pray In Jesus Name project. He tells AFN

“Cadet X” isn’t the only military cadet taking a stand against the mandate. “I’m told now 16 cadets at West Point and an equal number at the Air Force Academy are in danger of being separated because of their religious views,” he concludes. [6]

How this case is different from the Supreme Court Ruling

On Friday, the U.S. Supreme Court granted a partial stay, that focused solely on deployment, in the case of Navy SEALS 1-26 v. Austin. Although the names of the cases can be confusing, Liberty Counsel does not represent the case on which the Supreme Court ruled last Friday but does represent about 30 plaintiffs from all military branches seeking class certification in Navy SEAL 1 v. Austin. [7]

In its order last Friday, the Supreme Court issued a partial stay of the preliminary injunction in Navy SEALS 1-26 only “insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions.” [7]

In contrast, the preliminary injunction in Liberty Counsel’s case, Navy SEAL 1 v. Austin, enjoins the Department of Defense (DOD) and the respective military branches “(1) from enforcing against Navy Commander and Lieutenant Colonel 2 any order or regulation requiring COVID-19 vaccination and (2) from any adverse or retaliatory action against Navy Commander and Lieutenant Colonel 2 as a result of, arising from, or in conjunction with Navy Commander’s or Lieutenant Colonel 2’s requesting a religious exemption, appealing the denial of a request for a religious exemption, requesting reconsideration of the denial of a religious exemption, or pursuing this action or any other action for relief under RFRA or the First Amendment.” [7]

As Judge Merryday noted, “[t]he operative language of the preliminary injunction is direct and specific,” and “narrowly and specifically protects Navy Commander and Lieutenant Colonel 2 (1) from enforcement of an order to either accept vaccination or undergo discipline, including possible separation from service, and (2) from any adverse action that is retaliatory.” Indeed, “[a]ny interpretation to the contrary is wrong.” The defendants “remain at liberty to issue commands, assignments, orders, and the like in the normal course of business.” The “injunction remains indifferent to that non-retaliatory exercise of command authority.” [7]

This preliminary injunction is more narrow than the Texas preliminary injunction which the Supreme Court considered, as it limits defendants from enforcement of an order to either accept vaccination or undergo discipline (which was not challenged before the Supreme Court or in Liberty Counsel’s case before the Court of Appeals), and from taking retaliatory action on the basis of a RFRA claim. [7]

Significance

This is an important case that challenges the Rights of the Individual over the Power of the State

Plaintiff’s Argument

The plaintiffs all hold sincere religious beliefs against the COVID shots on the basis that their body is the temple of the Holy Spirit and to defile it is a sin against God. In addition, the plaintiffs do not want to participate directly or indirectly or otherwise be associated with the destruction of human life through abortion by injecting a product that contains or was tested or developed with aborted fetal cell lines. The plaintiffs have all submitted religious exemption requests from a COVID-19 injection which have been unlawfully denied. [8]

The COVID shots cannot be mandatory under the federal Emergency Use Authorization law, and the plaintiffs’ free exercise of religion is protected by the First Amendment. In addition, their free exercise of religion is protected under the federal Religious Freedom Restoration Act of 1993 (RFRA). Regarding RFRA, the Supreme Court wrote,[8]

“That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases” (emphasis added). [8]

Defendant’s Argument

…More information is needed…

The Proceedings

(see here for a detailed accounting of the proceedings)

Over the course of several months, the presiding Federal Judge Steven Merryday granted several stays to get vaccinated to the service members. The Judge was also sympathetic to the arguments of the plaintiffs and critical of the DoD’s reasoning. The judge also granted anonymity to 2 plaintiffs [4]

While setting a hearing for February 10, Judge Merryday stated he searches in vain for any justification for the military’s refusal to grant accommodations. He says the DOD is “most unlikely” to meet its burden, and forecasts that he will rule against the government. Judge Merryday wrote, in part: [5]

“The record in this action establishes that the two service members are very likely to prevail on their claim that their respective branch of the military has wrongfully denied a religious exemption from COVID-19 vaccination. The record creates a strong inference that the services are discriminatorily and systematically denying religious exemptions without a meaningful and fair hearing and without the showing required under RFRA (while simultaneously granting medical exemptions and permitting unvaccinated persons to continue in service without adverse consequence). One struggles to imagine a wholesome and lawful explanation for the results evidenced in this record. The military is well aware of the frailty of their arguments in defense of their practices. Those arguments both procedural and substantive, are rejected in an action that is distinctively parallel to this action. U.S. Navy Seals 1–26, et al v. Biden, 4:21-cv-1236-O, Doc. 66, 2022 WL 34443 (N.D. Tex. Jan. 3, 2022) (characterizing the military’s review of requests for a religious exemption as “theater” and granting relief to the service member plaintiffs). Rejection on the same or a more encompassing basis is likely in this action (especially if the conduct of the military continues along the present lines).”

Judge Merryday’s order continues: [5]

“The two moving service members face either (1) a most-likely-unlawful deprivation of their accumulated status and standing in the United States military, as well as prospective advancement and benefits, or (2) deprivation of their constitutional and statutory rights to Free Exercise and the statutory right to receive a religious exemption unless the military can meet the statutory burden of proof, which the military has not and likely cannot. On the other hand, the military faces a trivial, if any, prospect of material injury as a result of permitting the service members continued service under the same terms and conditions and with the same privileges and emoluments as currently prevail, especially because the military permits a large group of unvaccinated persons to serve without adverse consequence…Finally, the military is most likely unable to establish, and certainly has not established, that permitting the relatively small number of RFRA objectors, even if every request for exemption (much less the two at issue in this motion) were sincere and successful, to serve without adverse consequences to their standing and the terms and conditions of their service will adversely affect the public’s interest in the maintenance and readiness of the nation’s military forces. In fact, the public undoubtedly has some considerable interest in maintaining the services of skilled, experienced, highly trained, patriotic, courageous, and esteemed service members, such as the two moving service members, in whom the public has an immense financial investment and who are not, to say the least, readily replaceable.” [5]

Judge Merryday pressed the Department of Justice counsel about the fact that the military is not showing that removing service members is the least restrictive means available. Judge Merryday also noted that he has to weigh the adverse impact of removing a highly qualified and skilled service member who is not easily replaceable against the minimal, if any, benefit of a “vaccine” in view of the fact that it is not preventing the transmission of Omicron. He pointed out that the military is now at its highest rate of vaccinated service members and also at the highest rate of COVID cases. With the shot not preventing transmission, “why,” he asked, “cannot a small number of service members remain unvaccinated because of their religious beliefs?” [9]

Judge Merryday previously ordered each branch of the military to file a detailed report regarding religious exemptions from the COVID-19 shot every 14 days beginning Friday, January 7, 2022. The documents prove that the military continues to deny religious exemptions while granting medical exemptions. According to the court, after three filings, [10]

“the Navy has denied 81 appeals and granted none, the Marine Corps has denied 119 appeals and granted 3, and the Air Force has denied 443 appeals and granted 1 appeal (and granted 8 initial requests). According to the notice, neither the Army nor the Coast Guard has resolved an appeal.” [10]

Witnesses & Experts

On March 10,2022 the court heard several witnesses.

Liberty Counsel presented compelling testimony from the Navy Commander and three military flight surgeons, Lt. Col. Peter Chambers, Lt. Col. Teresa Long and Col. (Ret.) Stewart Tankersley. [3] one of whom was injured by the COVID shots. [3]

In contrast, the Department of Defense (DOD) declined to present witnesses. The Department of Defense counsel refused to produce the Commodore of the Navy to be subjected to cross-examination. [3]

Dr. Long testified in federal court that she was ordered by high-level command not to discuss the controversy over Department of Defense data indicating a massive spike in serious injuries and illnesses among military personnel when the vaccines were rolled out in 2021. [2]

“I have so many soldiers being destroyed by this vaccine. Not a single member of my senior command has discussed my concerns with me,” she said amid tears. “I have nothing to gain and everything to lose by talking about it,”
She added that she is willing to lose her career “because I am watching people get absolutely destroyed.”
She said she regularly has been contacted by military personnel who have been injured by the shots, and most are pilots, who “have to meet one of the highest fitness standards.”
Amid the pressure to get vaccinated, Long described an atmosphere of low morale in which there have been at least two suicides.

The flight surgeon Chambers testified that he was ordered to make sure troops received the shots and was told that religious exemptions would be denied. He said that up to 80% of military personnel have contracted COVID-19 despite having had two shots. However, he said, among the unvaccinated, the infection rate was 15%. Chambers said he has had to delay his plan to retire in 2023 because he developed demyelination of his central nervous system after being vaccinated. [2]

Tankersley, a recently retired flight surgeon, said he has witnessed during the pandemic an unprecedented “suppression of scientific dialogue.” He said the shots are neither safe nor effective, explaining the delivery mechanism of the mRNA vaccines bypasses the natural immune system and creates inflammation that can inhibit the body’s innate immunity. Tankersly said he has treated more than 200 COVID patients with no fatalities using treatments such as ivermectin. Meanwhile, the Defense Department insists that the only way to combat COVID is to force vaccination and get rid of personnel who won’t comply. [2]

Relevant Prior Judgements/ Cases

On September 9, 2021, Joe Biden signed an executive order attempting to force COVID shots on more Americans, including federal employees, all private employers with 100 or more employees, health care workers, educators and even children. [11]

The courts recognize the constitutional protections against these lawless mandates and are striking them down one by one. For example, here’s the various courts’ recent actions: [11]

11-30-21 – Judge Gregory F. Van Tatenhove (KY) grants preliminary injunction against mandate for federal contractors in KY, OH, TN.

12-7-21 – Judge Stan Baker (GA) grants nationwide injunction against mandate for federal contractors in GA, AL, ID, KS, SC, UT, WV.

12-15-21 Judge Dee Drell grants preliminary injunction regarding contracts and grants with the states of IN, LA, MS.

12-20-21 – Judge David Noce (MO) grants preliminary injunction against mandate for federal contractors in AK, AR, IA, MO, MT, NE, NH, ND, SD, WY.

12-22-21 – Judge Steven Merryday (FL) grants preliminary injunction against mandate for federal contractors in FL.

12-31-21 – Judge James Wesley Hendrix (TX) issues preliminary injunction against Head Start shot mandate in TX.

1-1-22 – Judge Terry A. Doughty (LA) grants preliminary injunction against Head Start mandate in AL, AK, AZ, AR, FL, GA, LA, IN, IA, KS, KY, MS, MO, MT, NE, ND, OH, OK, SC, SD, TN, UT, WV, WY.

1-13-22 – The U.S. Supreme Court (6-3) issues a stay against OSHA mandates. OSHA has now repealed the mandate.

1-21-22 – Judge Jeffrey Brown (TX) grants preliminary injunction against mandate for federal workers nationwide.

Decision

…More information is needed…

Aftermath

…More information is needed…

Further Research

Court Documents:

In the news:

Media

US Navy Doctor Whistleblower on Vaccine Deaths -Apr 13, 2022

source: odysee\shortXXvids

US N a v y Dr Long Testifies to Sen Johnson’s Panel on Vaccine Injuries

source: nicorster

Camp Pendleton Marine joins legal fight for vaccine exemptions

source: ABC 10 News

Back to All Cases

PoliceMandateCase:HighCourt

Police Mandate Case: High Court

Re: the Legality of mandating vaccines to the “Frontline Employees” (NZDF & police) of New Zealand

Back to All Cases

Facts of the Case

Dates: Jan 6, 2022 (filed)
Location: New Zealand
Court: High Court
Case #: CIV-2022-485-000001/ [2022] NZHC 291
Plaintiff: Yardley, Wallace & a Defence Force Worker
Plaintiff’s Lawyer: M I Hague & A P Miller
Expert Testimony: Dr Petrovsky

Defendant: Minister for Workplace Relations & Safety, Commissioner of Police, Chief Of Defence Force, & the Attorney General
Trial Type: High Court
Justice: Francis Cooke
Status: Decided (Feb 25, 2022)
Verdict: for the Plaintiff

*updated March 10, 2022

Background

The challenge, put forward by a three Defence force and police employees, questioned the legality of making an order under the Covid-19 Public Health Response Act to require vaccination for frontline employees. [1]

and who face termination if they are not vaccinated by 1 March 2022. [2]

The challenge was supported by a group of 37 employees affected by the mandate, who submitted written affidavits to the court. [1]

Minister of Workplace Relations and Safety Michael Wood, Deputy Police Commissioner Tania Kura and NZDF Chief People Officer Brigadier Matthew Weston filed affidavits defending the mandate. [1]

As it stands, 164 of the overall police workforce of nearly 15,700 were affected by the mandate after choosing not to be vaccinated. For NZDF, the mandate affected 115 of its 15,500 staff. [1]

The Police and Defence Force mandate was introduced by the Minister for Workplace Relations and Safety by the COVID–19 Public Health Response (Specified Work Vaccinations) Order 2021 in December 2021. It required all Defence Force personnel and all Police constables, recruits and authorised officers to receive two doses of the vaccine by 1 March 2022. It was additional to existing vaccination policies Police and Defence had already introduced internally. [3]

The 25-year police veteran Detective Senior Sergeant Ryan Yardley says the family’s decision to not get the Covid vaccine exposed them all to unfair treatment, unable to work, to go to restaurants and cafes, or to associate with friends. [4]

“And then I watched the mandates rolling for the teachers, and then the hospital staff, and I could see the harm and hurt that it was doing across society. Just from talking to friends and other people and hearing everyone’s stories. And that does not align with my values. And then the fact that people started getting separated and discriminated in society in relation to where they can and can’t go.” [4]
He and his family were not just opposed to the vaccine mandate – they were also personally against being vaccinated. “Everyone has to weigh that up for themselves personally and try and figure out the benefit versus risk scenario,” he said. [4]
“Because obviously, there are some known side effects that are coming out, myocarditis and other ones and I think it’s affecting more of the younger guys. I’m just slightly above that that age bracket, but it’s enough to make me concerned.”[4]

Significance

The landmark case means that the police and NZDF cannot be fired for refusing to take the experimental covid vaccine. This case may be used to overthrow all of PM Ardern’s mandates in New Zealand. [1]

Plaintiff’s Argument

The applicants challenge the Order on four main grounds: [2]

(a) that the Order was not properly made for the purposes of the Act and it is inconsistent with those purposes; and

(b) that the Order is inconsistent with other legislative provisions in the Defence Act 1990, the Policing Act 2008 and other legislation, and accordingly unlawfully purports to suspend the operation of other legislation; and

(c) that the Order fails to meet the Crown’s obligations under the Treaty of Waitangi for being inconsistent with Treaty principles, including because of disproportionate impact on Māori; and

(d) that the Order is unlawful as it involves an unjustified limit on rights protected by the NewZealand Bill of Rights Act, particularly the right to refuse to undergo medical treatment (s 11), the right to manifest religion (s 15), the right to be free from discrimination (s 19) and other rights recognised by s 28 of the Bill of Rights (including the right to work, and of minority groups to enjoy their culture and practice of religion).

The group relied on two aspects of the Bill of Rights – the right to decline a medical procedure and the right to religious freedom. [1]

On the religious freedom argument, a number of those who made submissions referred to their fundamental objection to taking the Pfizer vaccine, given that it was tested on the cells that were derived from a human foetus. [1]

expert testimony

expert evidence from Dr Nikolai Petrovsky. DrPetrovsky is presently the Director of the Diabetes and Endocrinology Department of Flinders Medical Centre, Academic Professor at Flinders University, and Director of Vaxine Pty Ltd, a biotechnology company specialising in vaccine development and formulation. In this latter role he has developed a vaccine for COVID–19 which is presently in use in Iran. Finally the applicants rely on expert evidence from Raharuhi Koia, a Minister within the Presbyterian Church of Aotearoa NewZealand. [2]

Defendant’s Argument

…More information is needed…

Relevant Prior Judgements/ Cases

Three judicial review proceedings have been heard in the High Court challenging such orders. [2]

1. In September 2021 in GF v Minister of COVID–19 Response and Others Churchman J dismissed a challenge to an order bought by a former employee of the New Zealand Customs Service who had had her employment terminated. Two arguments were addressed — that the order was ultra vires the Act, and that it was irrational. [2]

2. In October in Four Aviation Security Service Employees v Minister of COVID–19 Response I then heard and dismissed a challenge to the order relating to Customs Service employees of broader scope, which included an argument that the order breached the New Zealand Bill of Rights Act 1990 by being an unjustified limit on the right to refuse to undergo any medical treatment as affirmed by s 11.3 I concluded that the order was a justified limit on that right. In doing so I noted: [2]

There is a last point of significance. This case concerns the measure that was introduced when New Zealand had eradicated the virus after the first outbreak, and was seeking to prevent a further outbreak (or delay a further outbreak until a greater proportion of the population is vaccinated, means of treating and managing the virus are better known, and the health system is better organised to address such an outbreak). Since that time it is a matter of judicial notice that an outbreak has occurred in Auckland, and that COVID–19 is spreading. It does not appear that this outbreak can be eliminated, reflecting the greater transmissibility of the Delta variant. Whether the challenged measure would remain demonstrably justified on the basis that it contributes to addressing the spread of the virus in circumstances when the virus is endemic in at least parts of New Zealand is an open question. This question is not before me. I note that under s 14(5) of the Act the Minister and Director–General are obliged to keep their COVID–19 orders under review. [2]

3. Finally in November in Four Midwives v Minister for COVID–19 Response Palmer J heard and dismissed a claim advanced by certain midwives affected by a vaccine mandate, together with the first part of a challenge to the mandate brought by certain teachers and doctors. Palmer J rejected the argument that the orders were not within the empowering provision of the Act notwithstanding it did not explicitly refer to vaccination. Palmer J endorsed the observation made in Four Aviation Security Services Employees that it was surprising that the legislation had not specifically addressed vaccination and the issues it raised. The second claim in the proceedings brought by teachers and doctors that the relevant order is not a justified limit on the right under s 5 of the Bill of Rights is to be heard shortly. That question was not addressed by Palmer J. [2]

Decision

The Order made in the present case is nevertheless unlawful and is set aside. [2]

Justice Francis Cooke ruled that ordering frontline police officers and Defence staff to be vaccinated or face losing their job was not a “reasonably justified” breach of the Bill of Rights. [1]

Justice Cooke agreed with the claim, saying that “an obligation to receive the vaccine which a person objects to because it has been tested on cells derived from a human foetus, potentially an aborted foetus, does involve a limitation on the manifestation of a religious belief.” [1]

However, Justice Cooke disagreed with the claimants’ broader claims that requiring vaccination is inconsistent with holding religious beliefs more generally. [1]

“I do not accept that a belief in an individual’s bodily integrity and personal autonomy is a religious belief or practice. Rather it seems to me, in the circumstances of this case, to be a belief in the secular concept referred to in section 11 of the New Zealand Bill of Rights Act.” [1]

Justice Cooke also agreed with the claim that the mandate impinged on the right to decline a medical procedure. [1]

The judge said that while it’s clear the government isn’t forcing Police and NZDF employees to get vaccinated against their will and they still have the right to refuse vaccination, the mandate presents an element of pressure. [1]

“The associated pressure to surrender employment involves a limit on the right to retain that employment, which the above principles suggest can be thought of as an important right or interest recognised not only in domestic law, but in the international instruments,” Justice Cooke stated. [1]

But in considering the two claims, Justice Cooke also considered whether or not the mandate fell within the definitions laid out in the Covid-19 Public Health Response Act. [1]

The court accepted that vaccination has a significant beneficial effect in limiting serious illness, hospitalisation, and death, including with the Omicron variant. However, it was less effective in reducing infection and transmission of Omicron than had been the case with other variants of Covid-19. [1]

“In essence, the order mandating vaccinations for police and NZDF staff was imposed to ensure the continuity of the public services, and to promote public confidence in those services, rather than to stop the spread of Covid-19. Indeed health advice provided to the government was that further mandates were not required to restrict the spread of Covid-19. I am not satisfied that continuity of these services is materially advanced by the order,” the Judge said. [1]
“Covid-19 clearly involves a threat to the continuity of police and NZDF services. That is because the Omicron variant in particular is so transmissible. But that threat exists for both vaccinated and unvaccinated staff. I am not satisfied that the order makes a material difference, including because of the expert evidence before the court on the effects of vaccination on Covid-19 including the Delta and Omicron variants.” [1]

An additional claim that the mandate would disproportionately affect Māori was dismissed by Justice Cooke. [1]

Aftermath

Nzherald.co.nz reports: The lawyer for the police and Defence staff at the centre of the claim is now calling for the suspended workers to return to their jobs immediately, saying many have given decades of service to their community and are still committed to their jobs. [1]

Response from the Plaintiffs

After overturning Police and Defence vaccine mandates in court, lawyer Matthew Hague, for 200-plus uniformed personnel has written to the Prime Minister today giving her till Friday to remove ‘discriminatory’ vaccine certificates too. [4]

“The Covid vaccination certificates requirement does not prevent or limit the risk of the outbreak or spread of Covid-19,” he wrote. “United We Stand ask that you immediately revoke the order or amend it to remove the Covid vaccination certificates requirement.”
“If the Covid vaccination certificates requirement is not removed by 4 March 2022, United We Stand has instructed us to apply for judicial review of the order.” [4]

He has also written to Police Commissioner Andrew Coster and Chief of Defence Air Marshal Kevin Short, saying it was not enough to just pause the termination processes. Those who have taken leave without pay should now be allowed to return to work, and those who resigned under threat of dismissal should be allowed to get their old jobs back. [4]

“Now that the High Court has determined that the order is unlawful and should be set aside, there is no basis for the ultimatum given to these workers. They must immediately be given the option of being reinstated with backpay.” [4]

Hague and Yardley confirmed there were ongoing discussions about the next steps – which may include the steeper legal challenge of suing the Government for damages. But first, they want an apology for the “enormous amount of harm” done to the officers and their families. [4]

The court heard evidence of 164 police, and 115 defence staff, who were still refusing to be vaccinated at the start of this month. It’s thought the full number of affected personnel (uniformed and civilian) is higher than that, because some simply resigned rather than face dismissal. [4]

Ryan Yardley told Newsroom that for him, a core principle of Christianity was accepting everyone – not discriminating against particular groups like those who refused to be vaccinated. Yardley said the mandates went against everything he believed in – his personal faith, and 25 years as a police officer adhering to the Bill of Rights. [4]

“To have something so fundamental stripped away from you, as that right to refuse any kind of medical treatment, just didn’t sit well. [4]

Response from the Defendant

It’s not immediately clear how many Police and Defence personnel, uniformed or civilian, may seek their jobs back. The police said they had retracted 42 termination letters – but acknowledged there were at least 100 more who had taken leave without pay, and more still who had resigned. [4]

Workplace Relations and Safety Minister Michael Wood said the High Court judgment was clear that it was not questioning the efficacy of vaccines nor the role of mandates per se, but just whether they were justified specifically for Police and Defence business continuity. [4]

“As the decision has only just been released, we will take time to consider it and seek advice on next steps,” he said. “The requests for vaccination mandates originally came from Police and Defence, so before making any decision we will go back to them to assess the implications for their operations. [4]
“No Defence and Police terminations will proceed at this time. Affected staff in Police and Defence are being advised.” [4]

Further Research

Court Documents:

In the news:

‘Not demonstrably justified’: High Court upholds challenge to Police and NZDF vaccination mandates, terminations suspended

Media

NZ High Court Stops Police Mandate

https://www.youtube.com/watch?v=8W-88Y0dK2c

source: Truths Uncensored

NZ High Court Stops Police Mandate for Religion

https://www.youtube.com/watch?v=E-t2mcdNQXA

source: Faith Reporters

NZ Military & Police Mandate Stopped

source: AussieFighter.

NZ High Court Rules against Mandate

source: Lawyer Sue Gray

Back to All Cases

Background

Liberty Council

Significance

Plaintiff’s Argument

Title VII Explained . . .

Defendant’s Argument

Relevant Prior Judgements/ Cases

Decision

Compensation Agreement

Other Agreements

Aftermath

Plaintiff Reaction

Further Research

Court Documents:

In the news:

On Corona Cases

Media

References

Keyword

Background

The Plaintiffs:

How this case is different from the Supreme Court Ruling

Significance

Plaintiff’s Argument

Defendant’s Argument

The Proceedings

Witnesses & Experts

Relevant Prior Judgements/ Cases

Decision

Aftermath

Further Research

Court Documents:

In the news:

Media

References

Keyword

Background

Significance

Plaintiff’s Argument

expert testimony

Defendant’s Argument

Relevant Prior Judgements/ Cases

Decision

Aftermath

Response from the Plaintiffs

Response from the Defendant

Further Research

Court Documents:

In the news:

Media

References

Keyword