WV attorney general wants vaccine lawsuits consolidated in Raleigh County

Hess and Jackson, two parents of immunocompromised students, are suing in Kanawha County Circuit Court over the health department’s issuance of religious exemptions to the state’s vaccination law. They’re represented by the ACLU of West Virginia and Mountain State Justice. The organizations refiled the complaint Friday after Circuit Judge Kenneth Ballard dismissed the first complaint in July for procedural reasons.

Guzman and two other families of students issued a religious exemption to the state’s vaccination law are suing the boards of education for defying Morrisey’s executive order. The state board has said it would continue to instruct county boards to accept only medical exemptions to the state vaccination law.

In the motion, filed Tuesday, McCuskey wrote that the two cases are “at a crossroads between state mandated public health measures and individual religious liberty.�

“A single, organized judicial response is mandatory,� he wrote. “Identical issues, facts, and legal arguments will be presented throughout both cases, and consolidation is necessary to promote judicial efficiency, avoid duplicative litigation, and ensure orderly disposition of all issues.

“In contrast, separate yet simultaneous proceedings challenging religious exemptions to West Virginia’s vaccination law risks statewide confusion and inconsistency for school districts, families, and health officials,� he wrote.

The two cases were filed by parties on different sides of a battle over the state’s vaccination law and an executive order from Morrisey.

W.Va. vaccine regulations and related court cases

West Virginia has had one of the strongest school vaccination policies in the country. All states require that students be vaccinated for a number of infectious diseases like chicken pox, polio and measles. West Virginia is one of only five states that have not allowed religious or philosophical exemptions for the shots. Earlier this year, Morrisey issued an executive order requiring the state to allow religious exemptions.

The executive order has not been rescinded even though the state Legislature this year voted down a bill that would have inscribed religious exemptions into state code. Morrisey argues that the state’s school vaccination law should be considered along with the state’s Equal Protection for Religion Act of 2023 to mean that religious exemptions should be allowed.

In the Raleigh County case, Circuit Judge Michael Froble last month granted a preliminary injunction in favor of three families who sued the state board of education after it said it would defy Morrisey’s executive order and instruct county boards to allow only medical exemptions to the school vaccination requirements. The court’s decision applies only to three plaintiffs in the case.

Froble has scheduled a two day permanent injunction hearing in the case Sept. 10 and 11 to decide a number of issues including what authority the executive order has and whether the court’s ruling should apply statewide.

Meanwhile, the state board of education filed notice Friday with the state Supreme Court of Appeals that it plans to appeal Froble’s decision.

In the notice, attorneys for the board argue that Raleigh County Circuit Court erred in its ruling in a few ways, including by “grafting an extratextual religious exemption onto the vaccine law,� and when it determined that the vaccine law “substantially burdens� respondents’ exercise of religion.

“The right to free exercise of religion is a vital right, but it is not a boundless right,� the attorney wrote. “The Supreme Court of the United States has long recognized that the right to free exercise of religion does not give a person ‘freedom from compulsory vaccination’ because the ‘right to practice religion freely’ does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.’’

The board of education has also filed a motion asking the Supreme Court for a “swift review� of the case.

During the board of education’s regular meeting last week, Board President Paul Hardesty said the board would continue to follow advice of its counsel and not accept religious exemptions. The board’s conflict with the governor’s office should be left to the courts to decide, he said.

“There’s a checks and balances system in our government,� Hardesty said. “There’s three branches of government. They perform three different functions. I hate it for the people of West Virginia that this issue is not decided before school started. I wish it was, but I don’t control the schedule or the time frame of the judiciary. It takes time. This issue will be decided in the proper venue by the proper people, and we’ll get a decision one way or the other, up or down, and we will comply with that decision.�

In a social media post last week Morrisey promised families seeking religious exemptions that they would ultimately win in court or through legislative action. He again hinted at taking steps to limit the board of education’s power.

“Religious freedom is a cornerstone of our constitutional system and required under state law — we will eventually defeat this politically unaccountable board,� he wrote. “Nine year board terms are too long and need to be reconsidered.�