A judge in Raleigh County is moving ahead with the balancing act of handling two different cases about religious exemptions to West Virginia’s vaccination law at the same time.
In the short view, Judge Michael Froble will hear arguments in a multi-day hearing about whether to issue permanent injunctions in the cases that come at the vaccine issue from opposite sides.
But over the longer term, the circuit court hearing that starts at 9 a.m. Wednesday is about establishing the raw material of a state Supreme Court review that seems on track for next spring.
HOPPY KERCHEVAL: WV school immunization law needs legal clarification
The lawyers on opposite sides of the case agree so much is weighted toward the future that they jointly asked the circuit judge to halt everything, forgo this hearing and just move toward a Supreme Court review.
Instead, the judge decided to keep on going in the local courthouse.
In the Raleigh Judicial Center, he’ll consider a blitz of motions while also hearing two cases that got squished together.
The first was filed by three sets of parents who are asserting that the state and local school systems should honor religious exemptions to vaccination requirements. Froble granted a preliminary injunction weeks ago, specifically allowing those families to enroll the four affected students in local schools.
Froble agreed to pull in a Kanawha County case that comes at the conflict from the opposite side.
That second 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.
The two cases have overlap but they have different parties and different legal arguments. So Froble, in essence, will be hearing them in parallel.
The Raleigh County courtroom has received statewide attention because the parents are suing the state board of education, because the governor has publicly supported the parents and because it was the first venue to focus on the question of whether the religious freedom law affects school vaccination requirements.
But what Froble has been asked to consider has affected only the parties in his courtroom and has had no bearing — except perhaps in the court of public opinion — on the rest of the state. Meanwhile, other cases with equal bearing have popped up in other county courthouses.
A friend of the court brief filed by the state Attorney General on behalf of the governor underscores that the Raleigh County court activity would have limited influence — only on the plaintiffs and not statewide.
In their own filing, members of the Raleigh County school board agreed the court should not address the constitutionality of the state’s vaccination law or the governor’s executive order, nor should it explore county- or state-wide relief because nobody in the case has actually asked for such broad relief.
“Issuing a state-wide injunction in this case would exceed this Court’s authority under well-established standards,” wrote Corey Palumbo, the attorney representing the Raleigh County board.
Yet what unfolds in Raleigh County will have long-term consequences because attorneys for the state board have already filed intent to appeal to the Supreme Court. Justices provided a schedule of deadlines for more detailed filings, a timetable making it clear that a hearing would not be until next year.
Ground being laid in the Raleigh County courtroom could be questions like these:
- To what degree should families describe their deeply held religious beliefs? Should the students, especially those who are high school seniors, also present any relevant personal and religious beliefs that should be considered?
- Does the state’s religious protections act “notwithstanding” clause truly affect every facet of state code, including the vaccination law unless a law explicitly says otherwise?
In the more immediate sense, there’s a flurry of legal jousting through motions that Judge Froble will have to settle:
Lawyers for the families suing for religious exemptions seek to limit defense witnesses:
The plaintiffs argue that five experts for the school systems offer opinions that are either improper legal conclusions, irrelevant generalized public health policy arguments or lack sufficient scientific reliability.
One of the witnesses being contested by the families claiming religious exemptions is former state health officer Cathy Slemp.
The families contend she produces overly general opinions on health policy and vaccine mandates, offers improper legal opinions on the law’s narrow tailoring and appropriate religious beliefs and incorrectly argues against granting religious exemptions based on a “slippery slope” fallacy.
The Board of Education seeks to quash subpoenas that their lawyers say were served improperly:
Lawyers for the state and local boards contend the plaintiffs are trying to subpoena the entirety of both without providing any explanation of what relevant or unique information each member possesses.
They contend less intrusive alternatives like written interrogatories were available and argue that the plaintiffs are conducting an improper “fishing expedition.”
The first line of this motion is “Dr. Neuenschwander’s Opinion Is Neither Credible Nor Reliable,” a quote pulled from an entirely different federal court of claims case.
Here, attorneys for the school boards argue that Dr. Neuenschwander’s testimony should be excluded because it is not credible, unreliable, and he is not qualified to opine on vaccines.
They cite multiple previous court and board decisions that disregarded or found Dr. Neuenschwander’s testimony unpersuasive, noting he “displays a clear willingness to opine beyond his knowledge base.”
Lawyers for the school boards request an advisory jury:
An advisory jury provides non-binding advice and recommendations to a judge on factual matters in cases where there is no legal right to a jury trial.
The lawyers for the school board note that while the ultimate legal determinations under the religious protections act are the judge’s authority, the case involves credibility assessments, factual findings and weighing complex expert testimony on immunology, pediatrics, and public health.
They suggest that public input through an advisory jury would bolster confidence in the outcome, especially concerning whether the vaccine law is the narrowest means of achieving the state’s compelling interest in protecting children.