The chambers of the West Virginia Supreme Court of Appeals
CHARLESTON – The state Supreme Court has issued a scheduling order for a case involving school vaccination and the state religious freedom law.
The court issued the order September 4 following a request from the state school board for an expedited review. The board also had asked the court to stay lower court proceedings.
The justices refused both.
“Upon consideration and review, the court is of the opinion to, and does refuse the motion for expedited consideration, and does refuse the motion for stay,” Thursday’s order states.
That means the case can continue for now in Raleigh Circuit Court.
On August 15, the state Board of Education, individual members of the board, state Superintendent Michele Blatt, the Raleigh County Board of Education, its members, Raleigh Superintendent Serena L. Starcher and a Jane Doe asked the Supreme Court for an appeal with a motion for expedited review. On August 26, they filed the motion to stay.
On August 28, the plaintiffs in the lower court case – Miranda Guzman individually and on behalf of her child A.G., Amanda Tolley individually and on behalf of her children A.C. and E.C. as well as Carley Hunter individually and on behalf of her child E.G. – filed a response to the motion for stay, which they withdrew on September 3.
The state school board already has filed an intent to appeal the case to the state Supreme Court. It now has a December 12 deadline for that. The families seeking religious exemptions to be able to opt out of school vaccinations have until January 26 to file their response. Any response to that by the school boards would have until February 16 to do so.
The state Board of Education filed its motion to stay August 26 a day after Raleigh Circuit Court Judge Michael Froble declined the stay and told the board it could appeal to the Supreme Court. The board says Froble’s “breakneck” schedule for the case puts a damper on discovery.
“The schedule the Circuit Court has entered is so truncated it sacrifices the Petitioners’ ability to litigate the issues presented in this matter on their merits, as supported by discovery,” the board motion states while also noting the Supreme Court simply could resolve the underlying issues. “If the Vaccine Law is to be reviewed under strict scrutiny, that scrutiny should be conducted only after fulsome discovery and case development, not at breakneck speed without any meaningful opportunity to develop the case.”
On August 25, Froble did agree with a request from state Attorney General J.B. McCuskey’s office to consolidate the Raleigh County case with a similar one filed in Kanawha County. Froble also said the scheduled hearing for September 10 and 11 will happen.
West Virginia previously has been one of only five states that do not allow religious exemptions for vaccines, but Gov. Patrick Morrisey issued an executive order in January requiring the state to accept such exemptions. The state Legislature voted down a bill this spring that would have written the religious exemption into state law, and the state Board of Education continues to tell county school boards to accept only medical exemptions as previously done.
In the Kanawha County case, the American Civil Liberties Union-West Virginia and Mountain State Justice sued the West Virginia Department of Health, West Virginia Bureau for Public Health, interim Commissioner for Public Health Justin Davis and Department of Health Secretary Arvin Sing on behalf of Marisa Jackson, a Kanawha County parent of a child particularly susceptible to illness, and Dr. Joshua A. Hess, a Cabell County parent of an immunocompromised child.
In the Raleigh County case, Guzman and the two other families sued the state board after it told county schools to ignore Morrisey’s executive order. Morrisey held a press conference in June with the attorney who filed the case, saying his administration supports the case to defend the religious liberty of West Virginia families. The administration also filed an amicus brief in the Raleigh County case, citing the state’s 2023 Equal Protection for Religion Act.
The families in the Raleigh County case are being represented by John H. Bryan. The school boards and their members are being represented by Benjamin L. Bailey, Christopher D. Smith and Denali S. Hedrick of Bailey & Glasser; Robert J. Kent, Leigh Anne Wilson and Corey L. Palumbo of Bowles Rice; Thomas J. Hurney Jr. of Jackson Kelly; and Marc E. Williams of Nelson Mullins Riley & Scarborough.
West Virginia Supreme Court of Appeals case number 25-528 (Raleigh Circuit Court case number 25-C-230)
