photo by: W.Va. Legislative Photograpy

Fourteenth Judicial Circuit Court Judge Todd Kirby, seen here attending a 2023 legislative interim meeting in Charleston during his prior 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.

CHARLESTON — The judge assigned a lawsuit filed last week 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 has recused himself from the case.

Fourteenth Judicial Circuit Court Judge Todd Kirby issued a voluntary recusal order in a case filed 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 first elected to the 14th circuit in Raleigh County in May 2024. A former local attorney and former assistant county prosecutor in Raleigh County, 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.

Kirby also offered an amendment in 2023 to House Bill 5105, eliminating the vaccine requirements for public virtual 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.

“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 from the parent/guardian.