CHARLESTON — Can a judge in one part of West Virginia create a class action lawsuit for parents with religious vaccine exemptions when there are other individual cases pending in other circuit courts across the state?

That was the question Wednesday morning during a hearing before 8th Judicial Circuit Court Judge Richard Lindsay in one of the many lawsuits that have been filed since June after the West Virginia Board of Education issued directives to county school systems to continue to follow the state’s compulsory vaccine law and not accept religious exemptions granted via a January executive order from Gov. Patrick Morrisey.

Kanawha County parent Nakesha Watson filed a lawsuit on Sept. 18 on behalf of her child against the Kanawha County Board of Education and West Side Middle School seeking a temporary injunction to force the school system to enroll her child in school with her religious exemption granted by the state Department of Health.

Watson, who appears to be representing herself, was not present for Wednesday’s hearing, with Lindsay rescheduling the hearing for Friday, Oct. 17, at 9 a.m. But attorneys representing the county school system discussed with Lindsay the pending issues hanging over the case.

In an order issued last week, Froble certified a case filed in June by Raleigh County parents against the state Board of Education and Raleigh County Board of Education seeking a permanent injunction to force the acceptance of her child’s religious exemption as a class action lawsuit on behalf of the more than 570 religious vaccine exemptions granted to date by the state Department of Health’s Bureau of Public Health.

A written order certifying the class action case could come as soon as Friday, but questions have arisen over whether Froble can certify both current recipients of religious exemptions as well as future recipients while other similar lawsuits are either pending or in some cases resulting in opposite rulings from Froble’s earlier ruling in July granting a preliminary injunction supporting religious exemptions.

“It does raise a question as to what happens here if a decision is not made before that (class action order) occurs,” said Corey Palumbo, an attorney representing the Kanawha County Board of Education, speaking with Lindsay.

Judges in Berkeley and Mineral counties have ruled against parents who filed lawsuits against their county school systems seeking to force them to accept their religious exemptions, while cases in Jefferson, Gilmer, and Kanawha counties are pending. But in rendering his order last week, Froble said he believes he has the authority to lump all religious exemption cases into one and issue a ruling by the end of November that would affect them all.

“The parties have argued back and forth as to whether this court can do anything outside of Raleigh County, and the court believes it can and will,” Froble said. “I don’t in any way accept the argument that we have 55 different categories of education and this court doesn’t have jurisdiction.”

During Wednesday’s hearing, Lindsay asked Palumbo his legal opinion about whether an order from Froble to certify the 570 or more individuals who received religious exemptions as a class would have any bearing on a ruling he might make in the Kanawha County matter.

“I believe that if (Froble) enters an order certifying a class, it…would cover anyone who’s filed for a religious exemption or does in the future. So, it would cover essentially every kid in one of these cases in the state,” Palumbo said. “Now, whether he has the authority to do that and take away the authority of this court or any other court in the state, I’m skeptical that he has that authority, but I can’t tell you for certain.”

Lindsay said more legal research is needed, but the most likely outcome is the West Virginia Supreme Court of Appeals would likely have to decide the issue of religious exemptions for the entire state, not through a class action lawsuit. Froble’s order granting a preliminary injunction in the Raleigh County case has already been appealed to the state Supreme Court, which could hear arguments after February 2026.

“My understanding of how these cases work is similar to what you would see in the federal judiciary where you have the Fourth Circuit, which governs cases in West Virginia, come to a different decision than maybe the Ninth Circuit…The differences in decision are ultimately determined by the U.S. Supreme Court,” Lindsay said.

“I would think that these cases, without knowing any more – and I’m more than happy to research it more – would follow that type of pattern, so ultimately, the (state) Supreme Court can decide this issue as to whether or not the CVL (compulsory vaccine law) applies, whether or not the state has a compelling interest with regard to vaccination of children,” Lindsay continued.