The West Virginia Supreme Court of Appeals. (Photo by West Virginia Legislative Photography)
The two fresh judges on the West Virginia Supreme Court of Appeals will be involved in deciding how the court proceeds in a case that is at the center of a dispute over the future of the state’s strict school vaccination requirements.
Judges Bill Flanigan and HL Kirkpatrick, elected in May, took their oaths of office on Thursday and Friday, respectively. The public investitures for the two would take place later, a court spokesman said.
Flanigan, a former Republican state delegate who represented Ohio County, and Kirkpatrick, a retired Raleigh County district judge, persuaded Thomas Ewing and Gerald Titus, appointed to the Supreme Court by Gov. Patrick Morrisey. Flanigan officially resigned from the House of Representatives on June 9.
Going forward, the two justices will hear the West Virginia and Raleigh County Boards of Education case against Miranda G. and Carley H., which could be decided as early as this summer or during the court’s fall session, said Jared Hunt, the court’s communications director.
School officials filed their response letter this week in response to arguments from attorneys for Guzman and Hunter, the Raleigh County families suing to allow their children to receive religious exemptions from the state’s strict school vaccination requirements.
After the school board’s response is filed, Supreme Court justices can either rule on the school vaccination case based on written arguments or schedule a hearing in the case.
The court adjourned its spring session on Thursday. Hunt said the justices could hear the case during the fall semester, which begins Sept. 2, or argue during the holidays if they decide the case needs more urgent attention.
Every state requires school children to be vaccinated against a range of infectious diseases, including measles, polio, whooping cough and chickenpox. West Virginia is one of the few states where families cannot opt out of vaccinations because of religious or philosophical objections to vaccination. The state only allows medical exemptions.
Morrisey wants to change that. He issued one Implementing regulation in January 2025 The state health department must accept exemptions for religious reasons. Its arrangement is based on the 2023 Equal Protection of Religion Actwhich says that the government may not “simpose a significant burden on a person’s religious exercise, unless the burden on that person’s religious exercise in a particular situation is essential to furthering a compelling governmental interest; and is the least restrictive means of furthering this compelling governmental interest.”
Morrisey did not revoke the order even after the state did so Lawmakers rejected a 2025 bill that would have codified the religious exceptions.
The state education authority has advised district executives to follow the school vaccination law as written, without religious exceptions. Two Raleigh County families are suing school officials. Raleigh District Judge Michael Froble ruled in November in favor of families seeking to admit their children to classes with religious exemptions. Fröble issued a statewide ruling prohibiting school authorities from denying children entry to school based on vaccination status.
Froble’s sentence is on hold while the Supreme Court considers the case.
In the school board’s response brief, attorneys argue that the Equal Protection for Religion Act of 2023 only applies to laws that conflict with it and therefore the law does not add religious exemptions to vaccination requirements. The vaccination law does not burden or restrict religious practice, lawyers argue, and therefore does not contradict EPRA.
Lawyers for school boards called the Supreme Court case a “latest crucible for West Virginia’s most effective public health law.”
“The law, the evidence and common sense all show that the vaccine law will once again survive the challenge,” lawyers wrote. “Complainants cannot dispute the effectiveness of the vaccination law.
“For nearly a century, it has protected generations of West Virginians from dangerous diseases and outbreaks. Instead, appellants identify alleged deficiencies, many of which are unsupported or contradicted by the record, and ask this court to undermine one of West Virginia’s public health workhorses. But a direct application of existing law shows that this case should be the latest failed challenge to the vaccination law.”
In its argument, the school board argues that the West Virginia Religious Freedom Act differs from the federal Religious Freedom Restoration Act in that it does not contain language stating that the law applies to all federal laws enacted before or after the law’s passage.
“Appellants do not refute this point or explain why this court should ignore the differences in the statutes. They bury in a footnote the assertion that the EPRA clause is identical in all material respects to the RFRA clauses [sic] parallel, but simply more succinct,'” they write. “This is categorically false. Under West Virginia law, EPRA’s notwithstanding clause only supersedes laws that conflict with EPRA – as opposed to RFRA’s broader language, which the legislature considered and rejected.”
Lawyers for the families have argued that the EPRA’s initial language was “not upheld.” “Any other provision of law” means that the law takes precedence over other state laws.
The school authorities acted within their constitutional authority when they decided not to accept exemptions on religious grounds, the lawyers argue.
“There is nothing ‘rogue’ or ‘defiant’ about applying the vaccination law as it is written,” they write. “The State Board of Education is constitutionally charged with[t]”The general supervision of the state’s independent schools” and therefore enjoys “a special position” compared to “most other administrative authorities” in the state. The Board is a constitutional body whose powers derive from the West Virginia Constitution and not from executive directive. It is therefore not bound by the unilateral actions of the governor.”
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