A Raleigh County circuit judge is moving ahead with courtroom consideration early next month of how West Virginia’s religious freedoms law affects school vaccination requirements.
In doing so, Judge Michael Froble is setting aside a request to pause action for state Supreme Court review while also absorbing a Kanawha County case focusing on the legality of an executive order by Gov. Patrick Morrisey on the vaccine issue.
So Froble’s courtroom in Beckley will have a full range of issues for a multi-day permanent injunction hearing that he set to start Sept. 10.
It is still possible that parties in the case could make a motion for a stay directly to the Supreme Court. If that were to occur and if the justices would agree to halt the lower court proceedings then that would likely knock aside the Sept. 10 court date.
Judge Froble, near the end of a Monday status hearing, concluded that the Supreme Court would benefit from further development of the questions addressed in his courtroom. And he also concluded that there’s enough overlap in the issues from the Raleigh and Kanawha cases to consider everything all at once.
Froble last month issued a preliminary injunction allowing three families to send their children to Raleigh County schools based on religious exemptions to the state vaccination law.
“My experience with the Supreme Court is, I truly believe that this case appealing the preliminary injunction case is premature, and that the Supreme Court would benefit immensely from full development and moving on,” Froble said.
He continued, “And the court believes that most of these are a lot of legal issues that need to be resolved and need to be presented in a manner in which the Supreme Court can fully understand the issues and have the opportunity to rule on us.”
The case in Raleigh County was filed by parents who are asserting that the school system should honor religious exemptions to vaccination requirements. They have sued the state Board of Education along with the Raleigh County Board of Education.
The Kanawha County case was filed on behalf of parents contending their immunocompromised children would be put at risk if the schools are opened to more students exempted from vaccines for communicable disease. That lawsuit challenges the constitutionality of an executive order by the governor.
A filing last week by Attorney General J.B. McCuskey contended the two cases should be considered together. Attorneys for ACLU West Virginia and Mountain State Justice countered that there’s a different fact set in the Raleigh and Kanawha cases, and that they should proceed separately.
As long as Judge Froble’s consolidation ruling holds up, the case that had been in Kanawha County will be argued on the basis of a permanent injunction — even though a motion for preliminary injunction was still pending before Kanawha Circuit Judge Kenneth Ballard.
“Those issues need to be addressed as quick as possible. It’s unclear to the court as exactly who wants what and what relief. But I believe that the issues presented do involve multiple legal issues,” Froble said, concluding that all issues could be aired at the permanent injunction hearing.
There has been an underlying issue about preparation for the upcoming hearing. Lawyers for the state school board, in particular, have argued that the timetable has been exceptionally compressed from the preliminary injunction hearing late last month to the permanent injunction court date early next month.
And the lawyers for the board have been in apparently frustrating discussions with the lawyers for the parents who want the religious exemptions over preparation matters like deposing the parties to the case.
Froble said the parties could continue to talk about discovery, but the judge said he would not compel it.
“I’m not going to grant a motion to compel the depositions at this point,” Froble said. “The bottom line is, we’re going to do the hearing on Sept. 10.”