Judge Kirby recuses himself from Morrisey-backed vaccine lawsuit to avoid ‘conflict or impropriety’

by Amelia Ferrell Knisely, West Virginia Watch
June 25, 2025

The West Virginia judge assigned to hear a mother’s vaccination lawsuit against the state school board has recused himself from the case, saying he wanted to avoid any conflict or impropriety.

Raleigh County Circuit Court Judge Todd Kirby previously served in the House of Delegates as a Republican, where he co-sponsored a bill loosening of the state’s strict school vaccination rules and another measure known as the “Equal Protection for Religion Act.”

The religious freedom bill, passed in 2023, is the basis for Gov. Patrick Morrisey’s executive order mandating that the state permit families to use religious exemptions to school immunization rules. Morrisey announced on Tuesday his support for a Raleigh County mother who is suing the state school board for not accepting religious exemptions despite the governor’s executive order. The school board has said they won’t recognize religious exemptions to vaccine requirements this upcoming school year since West Virginia’s immunization law remains unchanged. 

On Wednesday, Kirby submitted a voluntary recall order, saying, “Avoiding even the appearance of a conflict or impropriety is essential to the maintenance of the independence, integrity and impartiality of the judiciary.”

He deemed himself disqualified to hear the case and directed the circuit clerk to randomly assign the case to a different judge within the circuit. 

The state Democratic Party had called on Kirby to recuse himself due to his support for the religious freedom bill and a piece of legislation in 2024 that would have eliminated childhood immunization requirements for private and parochial schools.

Kirby left the House of Delegates in 2024 to serve as a judge in the 10th Judicial Circuit. 

The vaccine issue has become a key political point for Morrisey so far in his first months as governor. He says the school board is stripping “religious liberty protections” from families. 

West Virginia had been one of only a handful of states that didn’t permit religious exemptions, and the governor issued his executive order permitting religious exemptions on his first full day in office.

In March, the GOP-led House of Delegates voted down a bill that would have codified executive order and changed state vaccine laws. In response, Morrisey said his executive order would stand and ordered the state health department to accept parent’s requests to bypass school immunization rules for religious reasons. More than 100 families have requested to use religious exemption for the upcoming school year, according to the state health department. 

The American Civil Liberties Union of West Virginia and Mountain State Justice have filed a writ of mandamus in Kanawha County Circuit Court on behalf of two parents of immunocompromised students. That lawsuit seeks to compel the state’s Department of Health and Bureau for Public Health to stop complying with the executive order. 

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