Judge in vaccine lawsuit sponsored religious freedom, vaccine exemption bills while a lawmaker

The Raleigh County circuit judge tasked with determining the legality of Gov. Patrick Morrisey’s vaccination exemption mandate previously co-sponsored a religious freedom bill that’s being used as the governor’s justification for the order.

On Tuesday, Morrisey held a press conference in Beckley, West Virginia, to announce that a mother had filed a lawsuit against  Raleigh County and state boards of education after the state school board recently announced it wouldn’t recognize the governor’s executive order allowing religious exemptions to school immunizations.

The Republican governor says his vaccine executive order is legally permissible under a 2023 bill known as the “Equal Protection for Religion Act” after House of Delegates members lawmakers killed a bill that would have put religious exemptions for childhood vaccinations in state law. 

The lawsuit was assigned to Raleigh County Circuit Court Judge Todd Kirby, who, while serving as a Republican in the House of Delegates, vehemently advocated for the religious freedom bill. 

Kirby joined 10 other Republicans to sponsor the broad bill that says no state action may substantially burden a person’s exercise of religion unless it’s essential to a compelling government interest.

While speaking on the House floor, Kirby said that — in his view — the government had infringed on residents’ religious rights, including what was being taught in classrooms. In the wake of the COVID-19 pandemic, he also cited vaccine requirements as an example.

“For people that are very well-educated on the effects of vaccines, both the side effects and benefits, we told them you don’t have a choice; you have to get vaccinated even if it violates your most fervently held religious beliefs,” Kirby said during bill debate. 

Kirby, who has served as judge since 2024, did not respond to an email for this story with questions about whether he should recuse himself from the case. 

Sen. Joey Garcia, D-Marion, who was in the House in 2023, raised concerns during bill debate that it would be used to weaken West Virginia’s strict childhood immunization laws. The state has been one of only a handful that hasn’t permitted religious exemptions to school vaccination requirements.

“I have a lot of respect for Judge Kirby, and I expect that he’s going to recuse himself. It’s less of an ask, I expect he’s going to do that because that’s the only thing you can do in this type of situation where he’s voted and advocated for the underlying bill just a couple years ago,” Garcia said on Tuesday.

Garcia said there is precedent that other judges, who served as lawmakers in the House and Senate, recused themselves when case analysis involved legislation they’d voted on.

While a lawmaker, Kirby also co-sponsored a 2024 bill that would have eliminated childhood immunization requirements for private and parochial schools. The bill passed the House and Senate, but former Gov. Jim Justice vetoed the legislation, citing childhood health concerns. 

The West Virginia Democratic Party has also called on Kirby to recuse himself from the case.

“Judge Todd Kirby should recuse himself from hearing this case. As a former member of the West Virginia House of Delegates, he cast a vote and spoke in favor of the so-called ‘Religious Freedom Restoration Act’ — legislation that is central to the legal arguments now before him. That alone should raise serious concerns under the West Virginia Code of Judicial Ethics,” Mike Pushkin, state Democratic Party chair, said in a statement. 

“West Virginians have a right to expect an impartial hearing when it comes to matters affecting the health and safety of their children. Judge Kirby’s continued involvement in this case would violate that principle,” he continued. 

Garcia said he voted against the 2023 religious freedom bill because, “I thought that there was the potential that someone would try to use the law as a weapon to take down the other laws that we’ve had for public safety.”

“I think that Gov. Morrisey has been so aggressive in trying to make a change to the law that he’s really just picking fights wherever he can, and unfortunately for him, he’s losing those fights, and I think he’s going to lose,” he said.

The lawsuit was filed in Raleigh County Circuit Court on behalf of Miranda Guzman, whose child, A.G., was issued an exemption to the school vaccine mandates by the state Department of Health based on religious beliefs. 

More than 100 families have requested to use religious exemption to circumvent vaccine requirements the upcoming school year, according to the state health department. 

Morrisey says the religious freedom bill will supersede the current compulsory school vaccination requirements. 

“In my view, and I think the view of many, many people, this applies to the topic of religious exemptions for vaccines,” he said. “And that 2023 law was passed over any of the conflicting laws.”

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. 

Kirby, an attorney, served in the House of Delegates beginning in 2022. He resigned from his seat in 2024 after Justice appointed Kirby to serve in the 10th Judicial Circuit. Kirby won his judicial election and is serving an eight-year term that began Jan. 1.

Editor’s note: This story was updated to report that the lawsuit was also filed against the West Virginia Board of Education.