Last week I wrote about the ongoing legal battle over West Virginia’s right-to-work law. The headline was, “Right-to-work arguments in WV go on… and on.”
I was wrong… because that was before the state Supreme Court issued its decision overturning the lower court’s preliminary injunction preventing the right-to-work law from taking effect.
The majority opinion by Justice Menis Ketchum and the concurrence by Chief Justice Allen Loughry left no avenue for a possible appeal and no room to suggest they might be convinced that the right-to-work law is unconstitutional.
First, Ketchum established this is a legislative matter not a judicial one. “Whether a law is fair or unfair is not a question for the judicial branch of government,” he wrote. But then he went on to make clear his belief about the union argument.
“Twenty-seven other states have adopted right-to-work laws similar to West Virginia’s, and the unions have not shown a single one that has been struck down by an appellate court,” Ketchum wrote.
Chief Justice Loughry was even more direct. “In absence of any legal authority supporting its constitutional challenge and in the face of United States Supreme Court holdings undermining their (the unions’) position, the respondents’ (the unions’) action fails on all fronts.”
Justice Robin Davis dissented and will issue a separate opinion and Justice Margaret Workman concurs in part and dissents in part and also reserves the right to issue her opinion. However, the lean of the majority of the court—Loughry, Ketchum and Beth Walker—is clear.
The case is now remanded back to Kanawha Circuit Court Judge Jennifer Bailey for a final hearing. It would be wise for her to heed the not-so-subtle criticism from the court.
Justice Ketchum wrote in a footnote, “Because of the far-reaching effect of Senate Bill 1 (the right-to-work bill) and its potentially substantial impact upon the public interests, in the future, we encourage the circuit court to act with greater celerity in bringing this case to a resolution.”
Chief Justice Loughry was again a little more direct. He called Judge Bailey’s issuance of the injunction “inexplicable” and added, “I further encourage the circuit court to assiduously avoid further delay and grant this matter its foremost attention.”
The unions may continue their legal challenge, and Judge Bailey may even make an ill-advised ruling contrary to the strong message from the high court, but from a legal perspective this issue is settled. Right-to-work opponents should put their efforts into changing the make-up of the Legislature or the Supreme Court if they hope to prevail on this issue.