Raleigh County judge agrees to consolidate West Virginia vaccine lawsuits

by Lori Kersey, West Virginia Watch
August 25, 2025

The judge in a Raleigh County lawsuit against the state and county boards of education over their defiance of Gov. Patrick Morrisey’s executive order concerning school-required vaccines has agreed to consolidate that case with a Kanawha County lawsuit against the state Department of Health. 

Circuit Judge Michael Froble said he’ll go forward with a previously scheduled hearing for permanent injunction Sept. 10 and 11.

Ruling from the bench during a status hearing Monday, Froble denied a request from the state Board of Education that he suspend the case as education officials appeal to the state Supreme Court over his July ruling granting preliminary injunction to three families who sued to have their children admitted to school with a religious exemption to the state’s vaccination requirements. 

Froble suggested that the board should file a motion to suspend the case with the Supreme Court. 

“My experience with the Supreme Court is, I truly believe that this case appealing the preliminary injunction case is premature,” Froble said. “And the Supreme Court would benefit immensely from [full] development.” 

“The court believes that most of these are a lot of legal issues that need to be resolved and need to be presented in a manner in which the Supreme Court can fully understand the issues and have the opportunity to rule on those,” Froble said. “I believe that if there’s further discovery or factual issues that need to be resolved, the court can always remand it back.”

State Attorney General J.B. McCuskey filed the motion to consolidate the two lawsuits filed by plaintiffs on opposite sides of battle over the state’s compulsory school vaccination law and Gov. Patrick Morrisey’s executive order requiring the state to allow religious exemptions to the law. 

All states require school students to be vaccinated against a series of infectious diseases including polio, chicken pox and measles. West Virginia has been one of only five states in the country that do not allow religious or philosophical exemptions for the shots. West Virginia has only allowed medical exemptions. 

Morrisey issued an executive order requiring the state to accept religious exemptions on his second day in office. He has not rescinded the order despite the Legislature this year voting down a bill that would have established religious exemptions in state law. Morrisey argues that the state’s school vaccination law, read alongside the state’s Equal Protection for Religion Act of 2023, legally requires religious exemptions. 

The state board has said it would continue to instruct county boards to accept only medical exemptions.

Joshua Hess and Marisa Jackson, parents of immunocompromised students, sued the state Department of Health in Kanawha County Circuit Court in an attempt to stop the department from granting religious exemptions. They’re represented by the American Civil Liberties Union of West Virginia and Mountain State Justice. 

Miranda Guzman and two other families sued the state Board of Education after the board directed county school districts not to allow religious exemptions to the state’s school vaccination requirements. 

Froble in July granted a preliminary injunction in the case — a ruling that applies to the three plaintiffs in the case. 

Froble’s ruling to consolidate the cases came over objections from attorneys with the ACLU of West Virginia and Mountain State Justice on behalf of Hess and Jackson. The attorneys argued that the cases do not arise from the same transaction or occurrence, seek different relief, and present different legal questions.

Froble has set a hearing for Sept. 10 and 11. In a court filing recently, Froble said the agenda for the hearing will include: 

• Whether the state’s school vaccination law is constitutional without religious exemptions. 
• Whether his ruling should apply only to plaintiffs, to Raleigh County or statewide.
• Whether Morrisey has authority under his executive authority as it relates to the state’s mandatory immunization law and the Equal Protection for Religion Act.
• Whether, if the ruling applies county or statewide, the court has the authority to establish a process for parental applications for religious exemptions and for responding to any potential outbreak.

The hearing is set for 9 a.m. both days in Froble’s courtroom in Raleigh County Circuit Court. 

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