Nine families who want religious exemptions from mandatory school vaccinations to be recognized by the Berkeley County school system have asked for voluntary dismissal of their court case there because they want to join a class action lawsuit originating in Raleigh County instead.
Berkeley Circuit Judge Michael Lorensen concluded a status hearing today by granting the dismissal. The judge expressed a hope that such cases, which have popped up in courtrooms around the state, are eventually headed for a higher authority like the state Supreme Court.
At issue in the cases is whether the Equal Protection for Religion Act that became law two years ago affects West Virginia’s school vaccination requirement that has been in state law since 1935.
“It’s simply that at some point, a statewide authority will weigh in as to whether the exception claimed to the 80-year-old act is going to remain viable in light of the religious freedom act or not,” Lorensen said.
“And it’s hard for me to conceive of a vigorously argued and challenging environment like this is going to rest with a single circuit court judge — certainly where there are circuits where a different result has been obtained.”
Lorensen in September ruled against the families in a temporary injunction case, concluding of the specific language of the school vaccination requirements, “I would be changing the law to recognize an exception.”
The Berkeley County judge had set an evidentiary hearing next week for the families in the case to more fully describe their circumstances. With the dismissal, that hearing now will not occur.
Other judges in other circuits have ruled in similar cases.
Mineral County Judge Cody Pancake denied an injunction, concluding that West Virginia’s religious freedoms law does not directly apply to the vaccine requirements in code.
And Kanawha Circuit Judge Richard Lindsay reached that conclusion as well, saying the state has a compelling health interest in suppressing the spread of disease.
However, Raleigh Circuit Judge Michael Froble granted a preliminary injunction to families seeking religious exemptions to be honored by the school system there and went a big step farther by filing a written order to certify a class action that would affect similar cases in other counties.
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.”
That is the route the Berkeley County families are pursuing.
“What’s going on right here is very simple,” said Christian Riddell, the attorney for the Berkeley County families.
“An order has been issued that offers my clients an opportunity to be a part of the class, at least as the as the order now stands, and they wish to take advantage of that and do not wish to move forward on the on the merits in this case.”
Gov. Patrick Morrisey issued an executive order earlier this year linking the Equal Protection for Religion Act with the vaccine law, which has no explicit religious exceptions. The Morrisey administration directed families to apply for exemptions through the state health department, but West Virginia school systems have not accepted them.
The religious protections law gives citizens the right to sue if they believe their deeply held beliefs are being suppressed. But the law includes additional factors to weigh, including whether a compelling state interest exists to uphold a policy under the least restrictive means.
West Virginia students entering school for the first time must show proof of immunization against diphtheria, pertussis, tetanus, polio, measles, mumps, rubella, varicella, and hepatitis B unless properly medically exempted.
“I’m sitting here thinking at some point, hopefully sooner rather than later, a statewide authority will announce what the controlling rule is and decide fully and finally whether the boards are bound to recognize an exception in the statute by virtue of the religious freedom act or not,” Lorensen said during the status hearing.
“So do you see the value of having that determined by the singular source? And I’m thinking that’s going to be the Supreme Court of Appeals eventually.”
Attorney Corey Palumbo, who was representing the Berkeley County school board, agreed that’s where the question is headed.
“I do suspect that the Supreme Court will ultimately make that decision.”