The circuit judge overseeing a case in Raleigh County about religious exemptions to mandatory school vaccinations has filed a written order to certify a class action that would affect similar cases in other counties.
Judge Michael Froble’s order says joining together the cases of all the people under similar situations is reasonable given the number of affected people and their statewide geographic distribution.
He concluded that all potential cases have similar circumstances including whether exclusion from school is a burden on the family’s religious beliefs or whether enforcement of mandatory school vaccinations furthers a compelling governmental interest.
“These issues arise from the same statewide policy and can be resolved in this action for all class members,” Froble wrote.
The class certification comes just as a hearing on a religious exemptions claim for an elementary school student, delayed once already, is set for 9 a.m. Friday before Kanawha Circuit Judge Richard Lindsay.
“Without knowing more about it,” Lindsay said from the bench earlier this week, “I can’t say today whether or not Judge Froble has the authority to determine these types of cases for the entire state.”
And a detailed evidentiary hearing is set for November in a case of nine families seeking exemptions in front of Berkeley Circuit Judge Michael Lorensen.
Lorensen already issued an order last month to deny recognition of the religious exemptions. The judge in Berkeley County said he had to honor the direct words of the state vaccine law and said “I would be changing the law to recognize an exception.”
The case in front of Froble, who was elected last year by Raleigh County voters, originally affected a couple of families who filed the lawsuit. Now, Froble’s conclusions will affect communities across the state.
Froble’s order suggests a pathway for families who may have active cases in front of other judges: “Class members who are currently pursuing related actions in other courts may join this class upon voluntary withdrawal of their pending claims, with leave of the court in which those claims are pending.”
He approved legal representation for the class by several attorneys who are already involved.
Those include Christopher Wiest, a Kentucky lawyer who has participated in similar vaccine exemptions cases elsewhere and who has taken the lead in the Raleigh County case; John Bryan, a West Virginia attorney described as “The Civil Rights Lawyer;” and Aaron Siri, whose work on vaccine cases has ties to now-U.S. Health Secretary Robert F. Kennedy Jr.
The class defined by Froble’s order would be “all individuals and families in the State of West Virginia who have sought, obtained or will in the future seek an exemption under the Equal Protection of Religion Act” if they have been denied access to public school.
More than 570 West Virginia families have so far sought and received religious exemptions to school vaccination laws, state health officials testified in a permanent injunction case currently before Froble.
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The judge laid out several reasons for class certification in his order:
One is the very possibility of different rulings by different judges across the state. Froble wrote that “the risk of inconsistent adjudications does not stem from differing factual contexts but from divergent judicial interpretations of the same statewide practice by the same state officials.”
Without class certification, the judge wrote that parties in such cases could wind facing circumstances where they are “ordered by one court to recognize exemptions under the EPRA while simultaneously enjoined by another from doing so.
“This would create a patchwork of inconsistent standards for identical conduct across the state, undermining both uniform administration and equal treatment of citizens.”
Second, the judge concluded that class certification makes sense because the state Board of Education has guided all county school boards to uphold the vaccination law and turn down submissions of the religious exemptions processed by the state health department.
The judge called that a single state board policy affecting the entire class of affected families.
“The existence, scope, and legality of this single policy are common questions that predominate over any factual differences among individual class members,” Froble wrote.