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Judge recuses self from Morrisey-supported vaccine mandate lawsuit

Fourteenth Judicial Circuit Court Judge Todd Kirby, seen here attending a 2023 legislative interim meeting in Charleston during his tenure as a member of the House of Delegates, recused himself from hearing a lawsuit challenging a West Virginia Department of Education directive to counties to follow existing requirements for school-age immunizations. (Photo courtesy of WV Legislative Photography)

CHARLESTON — The judge assigned a lawsuit filed Tuesday by a Raleigh County parent with the support of Gov. Patrick Morrisey to block a West Virginia Board of Education directive for counties to follow the state’s law mandating immunizations for public and private school students recused himself from the case.

Fourteenth Judicial Circuit Court Judge Todd Kirby issued a voluntary recusal order Wednesday in the case filed Tuesday by Raleigh County parent Miranda Guzman on behalf of her child seeking a preliminary and permanent injunction against the West Virginia Board of Education, State Superintendent of Schools Michele Blatt and the Raleigh County Board of Education.

The lawsuit seeks to block a June 11 unanimous vote by the state Board of Education requiring Blatt to issue guidance to county school systems that they follow the current state code requiring children attending public and private school to show proof of immunization for diphtheria, pertussis, tetanus, polio, measles, mumps, rubella, varicella and hepatitis B unless proof of a medical exemption can be shown.

“Avoiding even the appearance of a conflict of interest or impropriety is essential to the maintenance of the independence, integrity, and impartiality of the judiciary,” Kirby wrote. “Accordingly, the Judge to whom this action was assigned … deems himself disqualified. Therefore, the Circuit Clerk is directed to reassign this action by random selection to a different judge within this circuit.”

Kirby was elected to the 14th circuit in Raleigh County in May 2024. A former local attorney and assistant Raleigh County prosecutor, Kirby was elected in 2022 to represent the 44th District in the West Virginia House of Delegates.

During his first term, Kirby was a co-sponsor of House Bill 2042 in 2023, creating the Equal Protection for Religion Act which prohibits excessive government limitations on the exercise of religious faith. The law is a key part of Guzman’s lawsuit challenging the state board’s directive.

Specifically, the law says that no state action may “substantially burden a person’s exercise of religion unless applying the burden to that person’s exercise of religion in a particular situation is essential to further a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest….”

Kirby also offered an amendment in 2023 to House Bill 5105, eliminating the vaccine requirements for virtual public schools, which would have allowed for a religious exemption for all vaccines in public and private schools as long as a parent or guardian presents a letter stating the reasons for the religious exemption request. That bill was later vetoed by former Gov. Jim Justice.

Morrisey held a press conference in Beckley Tuesday expressing his public support for Guzman’s lawsuit against state education officials, whom he accused of being “politically unaccountable.”

“You have an unaccountable set of bureaucrats in the school board that’s trying to take matters into their own hands. That’s unacceptable to me,” Morrisey said. “I fully support Miranda’s ability to seek a religious exemption, and I support her lawsuit against school board bureaucrats. Remember, this is the politically unaccountable board who are trampling on her religious freedoms.”

Morrisey signed an executive order in January allowing for religious and conscientious objections to the state’s school vaccination mandates, requiring the commissioner for the Bureau of Public Health/state health officer to establish a process for parents/guardians to request religious or philosophical exemptions to school-age vaccines, only requiring a request in writing.

An effort to codify the executive order failed when the West Virginia House of Delegates voted down a heavily amended Senate Bill 460, which only allowed for a religious vaccine exemption for public schools while allowing private and parochial schools to set their own vaccine requirements. The bill failed in the House in a 42-56 vote.

Morrisey said his executive order clarifies state code, arguing that the Equal Protection for Religion Act supersedes the requirement of school-age vaccines for public and private school students, therefore allowing for religious exemptions. The ACLU-WV filed suit in May challenging the legality of Morrisey’s executive order.

Steven Allen Adams can be reached at sadams@newsandsentinel.com.

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