State Supreme Court knocks down injunction over WV right-to-work law

CHARLESTON, W.Va. — The state Supreme Court has overruled a lower court injunction that blocked West Virginia’s right-to-work law, chastising a circuit judge for the pace of decision-making and for issuing the injunction in the first place.

The state’s unions failed to establish the likelihood of success based on the merits of three constitutional claims, wrote Justice Menis Ketchum in the court’s majority opinion.

The state AFL-CIO issued a statement noting that the Supreme Court ruling applied specifically to the injunction, saying unions will continue to fight during a broader hearing in circuit court and anticipating an eventual appeal of the full issue to the Supreme Court.

Right-to-work’s legality had been under consideration in the circuit court of Judge Jennifer Bailey for more than a year after its passage by the state Legislature in 2016. Bailey had issued a preliminary injunction this past Feb. 24, but hadn’t yet ruled further.

“The circuit court therefore abused its discretion in granting a preliminary injunction,” Ketchum wrote for the majority. “The circuit court’s February, 2017, order is therefore reversed, the preliminary injunction resolved, and the case remanded for the circuit court to conduct a final hearing on the merits of the parties’ various contentions.”

MORE: Read the Supreme Court decision on right-to-work in West Virginia.

The court’s majority included Ketchum, Justice Beth Walker and Chief Justice Allen Loughry. Loughry concurred and also wrote his own separate opinion.

Justice Robin Davis dissented and reserved the right to write a separate opinion.

Justice Margaret Workman dissented in part and concurred in part and also reserved the right to file a separate opinion.

A footnote in the majority opinion laid out the timeline and took Bailey to task.

“The record indicates the plaintiffs filed their request for a preliminary injunction on June 27, 2016, four days before Senate Bill 1 took effect on July 1, 2016. A hearing on the request was held on August 10, 2016, and a proposed order was submitted to the circuit court on August 19, 2016. The circuit court only entered the proposed order five months later, on February 24, 2017, after the Attorney General threatened to seek mandamus relief from this Court. Because of the far-reaching effect of Senate Bill 1 and its potentially substantial impact upon public interests, in the future, we encourage the circuit court to act with greater celerity in bringing this case to a resolution.”

Loughry’s concurring opinion made a similar point, with even stronger terminology.

“The respondents have demonstrated no likelihood of success and their failure was abetted by the circuit court’s use of an overruled, effectively meaningless standard for issuance of a preliminary injunction. This monumental failure of legal reasoning was compounded by extraordinary and baseless delay occasioned by the circuit court. Accordingly, I respectfully concur in the majority’s reversal of the preliminary injunction and remand for further proceedings. I further encourage the circuit court to assiduously avoid further delay and grant this matter its foremost attention.”

Right-to-work legislation was such a priority during the 2016 session that it was officially Senate Bill 1. It was introduced in the Senate and sent to Judiciary on the very first day of the that year’s legislative session, Jan. 13.

It passed both houses and was sent to then-Gov. Earl Ray Tomblin by Feb. 8. He swiftly vetoed it Feb. 11, and both houses overrode his veto the very next day.

The law went into effect July 1, 2016. Judge Bailey approved a temporary injunction supported by unions on August 10, 2016. This past February, Bailey filed a written version of the preliminary injunction.

Patrick Morrisey

The Attorney General’s office appealed to the state Supreme Court, asking that the preliminary injunction be overruled.

Attorney General Patrick Morrisey issued a statement praising today’s Supreme Court ruling.

“The court’s decision makes clear that those who oppose the state’s right-to-work law are unlikely to succeed. The trial court should now act expeditiously to bring this litigation to a close.”

The overriding issue is whether employees who join a workplace represented by a union have to pay some form of dues, whether they embrace union representation or not.

Josh Sword

The unions argued that employees who don’t would receive the benefits of collective bargaining without providing financial support to pay for those activities. In other words, they said, the right-to-work law takes union property.

“Today’s Supreme Court ruling pertains solely to the preliminary injunction issued by Kanawha Circuit Judge Jennifer Bailey that postponed enactment of the right-to-work law while she considers her final ruling,” stated AFL-CIO President Josh Sword.

“All parties in this case expect to be back before the state Supreme Court after Judge Bailey’s final order on our lawsuit is issued. We look forward to continuing the debate on the merits of our arguments before the justices at that time.”

The majority ruling said unions are unlikely to prevail.

“Twenty-eight states, including West Virginia, have a right to work law, yet the unions have not directed us to any federal or state appellate court that, in over seven decades, has struck down such a law. Therefore, the circuit court erred in granting the preliminary injunction,” Ketchum wrote for the majority.

Loughry’s written decision predicted challenges to the state’s right-to-work law are unlikely to succeed in the longer term.

The circuit court’s issuance of an injunction in this matter was not merely imprudent, but profoundly legally incorrect. Not only did the circuit court utilize an overruled legal standard for the issuance of an injunction, but blithely stated that the respondents’ constitutional challenge to West Virginia’s “right-to-work” law was “likely” to succeed, entitling them to an injunction. In fact, precisely the opposite was, and is, true: in absence of any legal authority supporting its constitutional challenge and in the face of United States Supreme Court holdings undermining their position, the respondents’ action fails on all fronts.

Loughry said he wrote separately to “demonstrate how fatally unsupported and lacking in merit the respondents’ constitutional challenge is, thereby making the circuit court’s issuance of an injunction all the more inexplicable.”

He went on to write, “Despite the circuit court’s terse and astonishing statement that the respondents had ‘demonstrated a substantial likelihood of success,’ it is nevertheless clear that the circuit court granted the injunction under a lax and improper standard.”

Mitch Carmichael

State Senate President Mitch Carmichael issued a statement praising the Supreme Court’s decision.

“For more than a year, the will and progress of our Legislature – and the majority of the citizens it represents – has been unreasonably denied,” stated Carmichael, R-Jackson. “With the dismissal of this clearly erroneous preliminary injunction, West Virginia’s working men and women are finally free to exercise their constitutional right to choose whether they want union representation.”

Tim Armstead

House Speaker Tim Armstead also expressed satisfaction at the Supreme Court’s ruling.

“In doing so, the court recognized that the unions’ arguments were baseless and that no court in this country has ever struck down this type of law,” stated Armstead, R-Kanawha.

“I remain confident that the law will ultimately be upheld once its merits are considered in full, and hope the court finishes consideration of this matter quickly.”

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