The state Supreme Court is being asked to halt class certification in a case about religious exemptions to West Virginia’s school vaccination requirements.
Raleigh Circuit Judge Michael Froble last month certified a class action that would affect similar cases in other counties. The case before Froble was originally brought by a couple of local families seeking to have religious exemptions recognized by public schools in the area.
More than 570 families around the state so far have sought and received religious exemptions to school vaccination laws, state health officials testified in a permanent injunction case currently before Froble. The class action could apply to all of them — plus any families who seek religious exemptions in the future.
The lawyers for school boards argue that Froble decided halfway through a permanent injunction hearing to certify the class.
“Here, the court’s class certification order effectively guarantees that when it grants the permanent injunction, hundreds of unvaccinated children will be permitted in West Virginia’s public schools,” lawyers for the state and Raleigh County school boards wrote in a petition to the West Virginia Supreme Court.
Lawyers for the school boards asked to knock down the class certification, saying the Raleigh County judge exceeded his jurisdictional limits.
“The Circuit Court’s extra-jurisdictional, erroneous class certification threatens to upend not only this case but other cases involving religious exemptions to the Vaccine Law across the state,” the lawyers wrote.
The Supreme Court issued a scheduling order on Friday, directing lawyers for the original Raleigh County families to respond by Dec. 5. After that, justices would consider the matter.
West Virginia’s compulsory vaccination law means 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.
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.
The filing by the school boards contends that religious freedoms law applies to individuals, whose religious beliefs are personal, and that the law not meant to be applied to groups as a class action would.
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.
Froble late last week issued a revised version of the class certification. He defined it this way:
All persons who have requested and received, or in the future request or receive during the period that Defendants ’maintain their no religious accommodations policy to the CVL, for themselves or for their children or for children for whom they are a parent or guardian, a religious accommodation to the CVL from the State Department of Health and who are not, or whose children are not, in compliance with the CVL.