School Vaccine Lawsuits Consolidated In Raleigh County

Raleigh County Circuit Court Judge Michael Froble agreed Monday to consolidate two lawsuits that take opposing sides of the school vaccine debate according to reporting from Lori Kersey of West Virginia Watch.

The lawsuits, Miranda Guzman v. State Department of Education in Raleigh County and Joshua A. Hess v. West Virginia Department of Health in Kanawha County, ask the courts to decide if Gov. Patrick Morrisey can override state school vaccine law with an executive order.

Morrisey issued Executive Order 7-25 to allow religious and philosophical exemptions to the state’s school vaccination requirements as one of his first actions in office. A bill to add exemptions to state code failed to pass the state legislature this year, but Morrisey has maintained his executive order is valid.

Froble denied a request by the West Virginia Board of Education – defendants in the Guzman case – to suspend the case pending their appeal to the state’s Supreme Court. He argued the higher court would benefit from the “full development” of the cases in circuit court, Kersey reported.

Attorney General JB McCuskey requested the suits be consolidated on Aug. 19, arguing that identical issues will be argued throughout both cases and a single judicial response is mandatory. 

“Specifically, they stem from the Governor’s executive order directing the Department of Health to issue and recognize religious exemptions to the State’s school vaccination law, the Department’s subsequent compliance with that order, and the Board’s opposition to it,” McCuskey wrote to the court. “To resolve them, both courts will inevitably confront Executive Order 7-25’s legality and how the Equal Protection for Religions Act applies to the State’s vaccination law.” 

In response, the state Board of Education’s lawyers unsuccessfully argued that while both cases share some facts, they are arguing different issues.

Attorney Christopher D. Smith of Bailey & Glasser wrote that in Guzman, the issue is related to religious freedom while in Hess the question is the extent of Morrisey’s executive power.

“Nowhere in (Guzman’s) amended complaint do they seek relief under Executive Order 7-25; instead, the Amended Complaint seeks relief only under (Equal Protection for Religion Act),” Smith writes.

Last month Froble granted a temporary injunction in Guzman allowing the children of families suing the county to attend school without vaccinations while their case continues. In contrast, the plaintiffs in Hess have requested a temporary restraining order on Morrisey’s school vaccine exemption order.

Smith further argued in his filing that the Raleigh County court “lacks jurisdiction to transfer and consolidate the Kanawha County case” to no avail.

A hearing for permanent injunction is scheduled to begin Sept. 10.