Latest Court Filings In Vaccine Exemption Lawsuit Focus On EPRA

The latest court filings in the debate over the state’s school vaccine requirements are zeroing in on a linchpin legal question. 

Last week, lawyers from the ACLU of West Virginia and Mountain State Justice filed a motion asking Raleigh County Judge Michael Froble to grant summary judgment in favor of their clients Joshua A. Hess and Marisa Jackson.

Summary judgment is a decision entered by a court for one party and against another party without a full trial.

The two West Virginia parents, whose immunocompromised children face heightened risks for infection, sued the West Virginia Department of Health to stop Gov. Patrick Morrisey’s executive order granting vaccine exemptions based on religion. The Jackson Hess case originated in Kanawha County in August, but was consolidated with the Miranda Guzman v. State Department of Education case in Raleigh County under Judge Froble later that same month.

The motion from the ACLU and Mountain State Justice argues that a motion for summary judgment filed earlier by the defense argues “that they believe no genuine questions of material fact exist that would preclude entry of summary judgment.” That includes use of the Equal Protection for Religion Act (EPRA) as a defense against the requested injunction of Morrisey’s executive order. Taking this position blocks the defendants from arguing against themselves in future filings.

The motion goes on to argue the defendants’ sole defense is the EPRA, which they cannot establish applies to any of the granted exemptions.

“If the Court finds that only traditional religious beliefs qualify for EPRA protection, then Defendants have no defense,” the motion reads. “They cannot demonstrate that the exemptions at issue involve religious exercise, making summary judgment in favor of Plaintiffs appropriate. If the Court finds that philosophical beliefs may qualify for EPRA protection under appropriate circumstances, then the individualized, fact-based analysis required by Riddle and EPRA’s statutory framework becomes mandatory.” 

Attorney General Weighs In

Earlier this week, West Virginia Attorney General JB McCuskey filed a motion asking for the Supreme Court of Appeals to weigh in on the case. 

McCuskey is asking Froble to stay all further proceedings in the case until the higher court can certify the question of “whether the EPRA applies to West Virginia’s compulsory vaccination law, and thus requires the State to offer religious and philosophical exemptions to vaccination.” 

The attorney general argues “that certifying the proposed question is the only expedient route to effective statewide relief” and concludes that the supreme court should conclude “yes” on the question.
Earlier this month the West Virginia Supreme Court of Appeals issued a scheduling order in the case of West Virginia Board of Education, et al. v. Miranda G.