A Bristol lawyer suing the state for releasing data on student use of religious vaccine exemptions asked a Superior Court judge Monday to consider the constitutionality of a new law sunsetting those same exemptions. 

During a virtual hearing, attorney Brian Festa opposed a motion to dismiss his lawsuit against the Public Health Department for releasing school-by-school immunization data in response to a Freedom of Information request in 2019. 

Festa, and his wife Kristen Festa, contend the release of the information amounted to a breach of privacy for families using the exemptions, especially in smaller schools. The case was dismissed by a judge in 2019, but the Festas launched an administrative appeal. During Monday’s hearing, Brian Festa said the constitutionality of a new law was fair game after state lawyers cited it in an effort to dismiss the appeal.

The law, adopted this year amidst opposition from some parents, eliminates the religious exemption for childhood vaccines. 

Festa told Judge Daniel Klau that a finding in his case should also reflect on the legality of the new statute.

“The constitutionality of the new public act, I think, is implicated here simply because I did raise constitutional claims in my original petition,” Festa said. “If it were to be found that they engaged in unconstitutional behavior, then I don’t see how the court could just turn a bilnd eye to the fact that the new statute authorizes … unconstitutional behavior, I think the court would be remiss in just ignoring that.”

Klau seemed skeptical the case could be broadened to include the new law. As an administrative appeal, the case was limited to the record as it existed when the Public Health Department acted — prior to passage of this year’s bill. 

“I’m not sure how, since my jurisdiction is confined to reviewing the ruling on your petition for a declaratory ruling, how I can address the possible constitutional infirmity of an act that didn’t exist at the time you filed the petition,” the judge said.

Darren Cunningham, an assistant attorney general, said the new law was beyond the scope of the appeal. 

“We have to remember what we’re dealing with here, which is an appeal from the commissioner’s declaratory ruling,” Cunningham said. “Obviously, that issue was not before the commissioner and that’s part of the reason the case is moot now too.”

The judge said he was “strongly inclined” to agree with the state’s claim that sovereign immunity shielded the agency from paying punitive damages and he was doubtful he would impose sanctions on the state. 

Klau said he expected to issue a written ruling in the case soon. 

Under the new law, no child entering kindergarten will be allowed to have a religious exemption to childhood vaccinations. The list of mandated vaccines does not include the COVID-19 vaccine which is not available to anyone under the age of 12. The only exemption allowed for this upcoming school year will be a medical exemption.