Lawyers for the state school board have officially filed an intent to appeal a Raleigh County circuit judge’s recent ruling in a case with statewide implications about religious exemptions to West Virginia’s school vaccination requirements.
The notice of appeal was filed this past week. Lawyers for the state board had already started asking for review of aspects of the case, including an earlier preliminary injunction and class action certification. This encompasses those, plus a final order on a permanent injunction.
The notice of appeal was initially filed to the West Virginia Intermediate Court of Appeals. Then, lawyers for the state board filed a motion for direct review to bump it straight to the Supreme Court, which granted it today.
“A swift ruling clarifying this issue restores normalcy to the public school system and clarifies what, exactly, is required to attend public school in West Virginia,” wrote the lawyers for the state board.
The next step would be for the Court to issue a scheduling order, likely next week, establishing a briefing schedule and deadlines for this new appeal.
The West Virginia Supreme Court has already placed a stay on lower court activity surrounding the vaccine exemptions case in anticipation of review. This filing by lawyers for the state board moves the matter another step toward that review.
In a 74-page Thanksgiving week order, Circuit Judge Michael Froble granted permanent injunctive and declaratory relief to families who want the public school system to accept religious exemptions processed by the state health department.
The case before Froble, who is in his first year on the bench, at first involved a couple of Raleigh County families wanting to send their children to local schools on vaccination exemptions.
But then Froble certified a class action for more than 570 families who have sought and received religious exemptions to school vaccination laws. The certification also affects families who might seek such exemptions in the future.
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 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 Morrisey administration directed families to apply for exemptions through the state health department, but West Virginia school systems have not accepted them.
Froble’s order late last month permanently enjoined the the West Virginia Board of Education and the local school board from enforcing the compulsory vaccine law or related policies against the plaintiffs and members of the class.
Specifically, he said the school authorities should not prevent the children from enrolling in school, attending school, or participating in extracurricular sports because of their vaccination status.
Attorneys for the state and local school boards signaled weeks ago that they would appeal the local judge’s rulings.
The notice of appeal seeks reversal of a preliminary injunction, the class certification and the permanent injunction.
The lawyers for the state school board contend the circuit court “erred by grafting an extratextual religious exemption onto the Vaccine Law. As written, the only exemption contained in the Vaccine Law is a medical exemption. EPRA does not change that.”
Moreover, the lawyers for the state board maintain that Froble wrongly concluded that the Equal Protection for Religion Act makes no distinction between philosophical and religious objections and that self-attested religious-belief statements are sufficient for the act.
“This finding ignores the text of EPRA and essentially creates a standardless procedure to opt-out from vaccination in contravention of the Vaccine Law,” wrote the lawyers for the board.