Judge dismisses ACLU's lawsuit against West Virginia over Morrisey's vaccine executive order
A Kanawha County judge has dismissed a legal action filed against the state Department of Health over its compliance with Gov. Patrick Morrisey's executive order requiring it to issue religious exemptions to the state's school-required vaccinations.
Circuit Judge Kenneth Ballard dismissed the suit — filed by plaintiffs represented by the American Civil Liberties Union of West Virginia and Mountain State Justice — on procedural grounds without addressing the merits of the case. He agreed with an attorney representing the state that the ACLU had failed to meet a requirement that it notify the state 30 days in advance of filing the lawsuit.
'I think I'm jurisdictionally barred,' Ballard said from the bench Wednesday. 'I think that the petitioners here failed to satisfy the requirements of West Virginia Code 55-17-3 which requires either a …30-day notice or a pleading of injunctive relief.'
The judge said the ACLU's complaint and arguments sought a writ of mandamus with little discussion of a request for injunctive relief.
'I don't think you appropriately sought this injunctive relief, I think you only interjected it at the end in an effort to get around this rule,' Ballard said.
The ACLU and Mountain State Justice filed the lawsuit May 23 against the state Department of Health on behalf of Marisa Jackson, of Kanawha County, and Dr. Joshua Hess, of Cabell County. Jackson and Hess are both parents of immunocompromised students. Hess is also a pediatric hematologist and oncologist practicing at Marshall Health's Cabell Huntington Hospital.
The petition asked the court to compel the state's Department of Health and Bureau for Public Health to stop complying with the executive order requiring the state to allow religious exemptions for vaccine requirements.
The state is one of only five in the country that has not allowed religious or philosophical exemptions to school required vaccines.
Despite Morrisey's executive order, the state Legislature earlier this year voted down Senate Bill 460, which would have established those religious exemptions in state law.
The state Board of Education voted recently to direct county boards of education not to allow religious exemptions. In a separate legal action, a Raleigh County parent whose child was issued a religious exemption by the Department of Health is suing the state and county school boards for not accepting the exemption. A hearing is scheduled for Thursday in the Raleigh County lawsuit.
On behalf of the state, attorney Holly Wilson argued that the case can be dismissed for 'myriad reasons,' including that the plaintiffs did not offer pre-suit notice or meet a burden to show standing.
'But if this court decides that it wants to reach the merits or that it should reach the merits, petitioners lose,' she said. 'They can't show a clear legal right. They can't show a legal duty and certainly they can't show a legal duty that's non-discretionary.'
The state and Morrisey argue that the state's vaccine laws taken together with a 2023 Equal Protection for Religion Act require the state to allow religious exemptions.
Aubrey Sparks, legal director for the ACLU, argued that the ACLU was not required to give the state 30 days notice because of an exception in the law when parties are asking for injunctive relief.
Ballard dismissed the case without prejudice, meaning that the ACLU could re-file the lawsuit.
Sparks told reporters after the hearing Wednesday it's too soon to say whether the legal advocacy organization would do so.
'It's an open question about what our next steps are because I know that there's a lot of other lawsuits pending on this issue,' Sparks said. 'We want to understand what happens in those but we do feel fundamentally that what the state is doing here is unlawful. But then more concerningly, what the state has argued in this case is so profoundly unconstitutional that we all should be concerned.
'What they functionally came into this courtroom and said is that an act of the governor can just unilaterally swipe off the table any law that he thinks could burden someone's religious exercise, and that's just not supported and not permissible under our constitution.'
In a post on the social media platform X Wednesday, Morrisey called the judge's ruling the 'first skirmish of a longer fight.'
'But the ultimate outcome — whether resolved via litigation or a change in statute — is not in doubt,' he said. 'West Virginia is a radical outlier when it comes to onerous vaccine mandates — one of only 5 states in the nation without a statutorily-based, religious exemption. We have an EO based upon our state's religious freedom law that is very strong and must be given meaning. Sadly the state school board is ignoring this important law — they are over reaching and need to be stopped!'
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