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AFL-CIO rescinds endorsement of Justice Hutchison after right to work decision

The West Virginia AFL-CIO rescinded its endorsement of state Supreme Court Justice John Hutchison Wednesday, a day after Hutchison sided with the majority in upholding the state’s right to work law.

Josh Sword

“Justice Hutchison approached our organization and met with many members, seeking our endorsement of his candidacy and our support,” WV AFL-CIO President Josh Sword said in a Wednesday late afternoon statement.

“Despite his statements both to us and in his concurring opinion that he values the work of unions, his vote to concur with the politically motivated decision in support of the state’s ‘Right to Work’ law made clear to us that he has put the interests of out-of-state corporations over the interests of West Virginia working families.”

Sword concluded, “The leaders of the West Virginia AFL-CIO and its affiliates can in no way support such a candidate.”

The court issued a ruling Tuesday upholding a right-to-work law passed by the state Legislature in 2016.

John Hutchison

Hutchison, who is on the ballot for West Virginia’s upcoming election, sided with the majority but wrote his own concurrence. 

Hutchison described his admiration for how the labor movement has shaped workplaces, but concluded he could not diverge from the majority’s legal conclusion.

“No other court in America has found a right-to-work legislative enactment unconstitutional, and the majority opinion has done nothing different,” Hutchison wrote.

Hutchison Concur (Text)

Before the opinion was released, Hutchison had been endorsed by both the West Virginia Chamber political action committee — which represents business — and by the West Virginia AFL-CIO’s political action committee — which represents labor.

During a Wednesday morning appearance on MetroNews “Talkline” Sword was already expressing regrets.

He took Hutchison’s concurrence as, “I love unions, but I’m gonna vote against you on one of the biggest issues that labor organizations face in the entire country. That’s the difficult part to swallow in all this.”

The vote to rescind came in an already scheduled executive board Wednesday afternoon.

“I have a hard time leaving things as is if I personally, as of right now, can’t vote for one person on our endorsed list. I can’t ask others to vote for somebody I can’t vote for,” Sword said on “Talkline.”“I will say this about Justice Hutchison, in his own concurring opinion, he spoke very highly of unions. But he still concurred, and that’s the problem.”


West Virginia’s Republican-led Legislature passed the “Workplace Freedom Act” in 2016 as Senate Bill 1.

The act said people may choose to be employed in unionized workplaces without actually joining the union or paying regular union dues.

Labor unions filed a complaint challenging the act four days before its July 1, 2016, effective date. They contended the provisions of the act represented a “taking” of representation without fair compensation.

Kanawha Circuit Judge Jennifer Bailey threw out key provisions of the act in a 2018 decision, generally agreeing with the union position.

This week, the Supreme Court reversed that: “We conclude that the Act does not violate constitutional rights of association, property or liberty.

Hutchison’s concurring opinion said he had no choice but to side with the majority in upholding state law.

“The law dictates that I must concur because the gist of the majority opinion is true: what the Legislature gives, the Legislature can constitutionally take away.”

But his six-page concurring opinion includes praise for how the labor movement has affected workplaces, including safety, health and economic changes.

“Unions rose and grew to combat the wrongs that employees faced in the workplace,” Hutchison wrote.

“Right to work laws serve to undermine unions, and no matter how optimistic I am, my years as a judge have taught me this: those wrongs will more likely than not rise again.”

But he wrote that it’s not a justice’s job to make the law.

“Many people  in the state of West Virginia personally disagree with the Legislature’s decision to enact right to work law and question the propriety of the policy propounded by such legislation,” Hutchison wrote.

“However, I do not approach this question as a legislator or as a private citizen. I approach it as a justice, and as a justice I must defer to the decisions of legislators, acting together, whom the people elect every two to four years.”

If people don’t like the results, Hutchison pointed out, there is an election upcoming.

“I now think the solution lies in the ballot box,” he wrote, “not the courtroom.”

Hutchison was a longtime Raleigh circuit judge but is facing election for the first time as a Supreme Court justice.

He is vying for the seat previously held by Justice Allen Loughry, who resigned and is serving jail time on a federal fraud conviction.

Loughry took office in 2013 and served five years of the term until resigning on Nov. 12, 2018. Hutchison then was appointed to the seat by Gov. Jim Justice.

The other candidates in the division are Lora Dyer, a circuit judge in Jackson County, and Charleston lawyer William Schwartz.

Three Supreme Court seats are up this year in West Virginia’s election. West Virginia’s nonpartisan judicial elections are settled on primary ballots.

Seats held by current justices Margaret Workman and Tim Armstead are also on the ballot. Workman isn’t running again — and dissented in part and concurred in part on right to work. Armstead is running but recused himself on right to work because the bill passed while he was House speaker.

The entire makeup of the court changed two years ago during a period of intense turmoil when Loughry and fellow justices Menis Ketchum and Robin Davis resigned.

With the majority of the five-member court being determined by the upcoming election, Sword said those seats are a major political focus.

He said this week’s right to work decision reflected the politics of the court.

“It is a political decision. It can’t be anything other than that. The court just basically said it’s OK for property of union members and their unions to be stolen and taken away, so it has to be political,” Sword said.

“We’ll move on to the election. All the more reason to move into this election. It could be potentially the most important election of my lifetime. In June, we’ve got 28 years of bench time on the Supreme Court on the ballot, so we clearly need some changes.”


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