A family asserting deeply held beliefs to decline school vaccination requirements did not appear for a scheduled hearing in Kanawha Circuit Court today, leaving the judge who was already in a confusing situation in even more of an awkward spot.
In the short term, Kanawha Circuit Judge Richard Lindsay reset the temporary injunction hearing that was originally scheduled for today to 9 a.m. Friday instead.
The case in Kanawha County was filed on behalf of the family of an elementary school student, asking for a temporary injunction to allow the student to attend public school. The original complaint was filed in court by a parent, apparently without the representation of a lawyer.
The family had cited irreparable harm from the loss of education, emotional distress and violations of constitutional rights and asked for emergency relief in court.
“I do think it’s important that parties that have filed to have an opportunity to be heard by any court in West Virginia, in all courts,” Lindsay said before moving the hearing to later in the week.
More broadly, Judge Lindsay spent a few minutes talking with lawyers in the courtroom about how he should proceed given that a different judge, Raleigh County’s Michael Froble, has said he will treat religious exemptions cases across the state as a class action.
As a matter of timing, that presents a challenge for other judges like Lindsay. The case in the Kanawha courtroom is still up to be heard. But Raleigh County’s Froble needs time to file a written order on the class action.
The class could cover the more than 570 families whose students are seeking admission to school all over the state after receiving religious exemptions from the state health department.
These cases assert that West Virginia’s religious freedoms law passed in 2023 affects the longstanding school vaccination requirements in state code. Besides in Kanawha, there are cases ongoing in counties like Jefferson and Berkeley.
Until Judge Froble’s written order is entered, cases in other courtrooms are in an awkward spot. Without a final order on class certification, judges Froble and Lindsay would remain counterparts with different jurisdictions.
“So it does raise a question as to what happens here if a decision is not made before that occurs,” said Corey Palumbo, a lawyer who has represented local school boards in both cases.
Palumbo, who was representing the Kanawha school board in this instance, discussed the situation with Judge Lindsay as the court waited for a few minutes to see if the hearing could proceed today.
Of the class action certification by Judge Froble, Palumbo said, “So it would cover essentially every kid in one of these cases in the state now.
“Whether he has the authority to do that and take away the the authority of this court or any other court in the state, I’m skeptical that he has that authority. But I can’t tell you for certain as I’m sitting here right now.”
Judge Lindsay said it is also unclear to him.
“Without knowing more about it,” Lindsay said, “I can’t say today whether or not Judge Roble has the authority to determine these types of cases for the entire state.”