On procedural grounds, a circuit judge in Kanawha County dismissed a lawsuit over Gov. Patrick Morrisey’s directive to allow religious exemptions to vaccination requirements.
The American Civil Liberties Union of West Virginia and Mountain State Justice filed the lawsuit in Kanawha Circuit Court, which is the standard venue for lawsuits against state government.
Judge Kenneth Ballard concluded at the end of a Wednesday afternoon hearing that the lawsuit had not appropriately abided by a requirement in state code to provide 30 days notice prior an action against a governmental agency.
“So, therefore, I believe I lack jurisdiction to review the merits of this action,” Ballard said.
“So I’m not going to address any other issue that may be jurisdictional, including standing, irreparable harm — I’m going to make no reference to any merits of this case at all. I’m just dismissing it today because I don’t believe that it was actually adequately pled as required by 55-17-3 and so I’m going to dismiss it for that.”
The lawsuit, potentially, could be filed again. Lawyers for ACLU were not yet certain of a course of action right after the hearing let out.
And yet another lawsuit is set for a hearing at 10 a.m. Thursday in circuit court in Raleigh County. This one comes at the vaccination issue from the side of a parent who says her family’s religious views would be violated if her daughter were forced to abide by the state’s vaccination requirements to go to public school
These cases mark courtroom flashpoints over friction between West Virginia’s mandatory school vaccination laws specified in state code versus a separate section of law broadly outlining legal options for people who contend their religious beliefs are being curtailed.
The governor says the two laws should work together, with people being able to assert religious freedom. That law says no state action may burden an individual’s exercise of religion unless it’s essential to furthering a compelling governmental interest and is the least restrictive means of achieving that.
In the Kanawha County case that was the subject of Wednesday afternoon’s hearing, two parents were asking a court to stop state officials from enforcing the governor’s executive order.
One of the plaintiffs, Marisa Jackson, is described as a Kanawha mother of a school-aged child who is particularly susceptible to illness if fewer classmates are vaccinated. The other plaintiff, Joshua Hess, is described as a pediatric hematologist and a Cabell County father of an immunocompromised child.
Those parents were available to testify in court on Wednesday, but the arguments moved very little past process.
Holly Wilson, principal deputy solicitor general for the state, argued that the lawsuit did not measure up, either procedurally or jurisdictionally.
“We ask that the case should be dismissed,” Wilson told the judge, arguing for the state. “It fails for standing, and it fails on the merits.”
Much of the state’s argument was about the requirement for 30 days notice, but Wilson also said the lawsuit had logical holes.
“How do you draw a line between their sickness and the religiously exempt unvaccinated students?” Wilson asked rhetorically, saying the spread of communicable disease may occur in a variety of ways.
She continued by saying of families who seek an exemption, “These parents are being placed in an untenable position — choose between faith and school.”
The attorney representing the families who wanted to have the governor’s executive order struck down maintained that the lawsuit had been within the state’s legal standards for consideration by the judge.
Aubrey Sparks, legal director of ACLU of West Virginia, made two related points:
— that time passed and state policy remained uncertain while the governor first rolled out his executive order, as the Legislature then voted down a bill to more specifically outline religious exemptions and when the governor announced he would abide by the executive order anyway and laid out a memo for how to follow it.
— and that passage of time has drawn everyone involved much closer to the start of a new school year in August.
ACLU-WV and Mountain State Justice were asking for the judge to direct the governor to fully comply with the vaccination law on West Virginia’s books while barring the executive offices from awarding any exemption that conflicts with state code.
In the hallway after the hearing, Sparks said it’s not immediately clear what steps the organization might take.
“I think it’s too early to say. It’s an open question what our next steps are because I know there are a lot of other lawsuits pending on this issue, and we want to understand what happens in those,” Sparks said. “We do feel fundamentally that what the state is doing here is unlawful.
“What they functionally came into this courtroom and said is an act of the governor can just unilaterally swipe off the table any law that he thinks could burden someone’s religious exercise, and that’s just not supported and not permissible under our constitution. If that’s the position they’re taking, then this is an issue that will likely end up being fought multiple times on multiple fronts.”