W.Va. Supreme Court Tosses Right to Work Injunction

Chief Justice called circuit judge's injunction a 'monumental failure of legal reasoning'

West Virginia state capitol building

West Virginia state capitol building / Wikimedia Commons

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The West Virginia Supreme Court of Appeals dismissed a lower court's preliminary injunction that blocked the state from implementing right to work legislation passed last year.

The Court said the circuit court stepped outside the bounds of state and federal case law to grant a temporary injunction to unions seeking to overturn the right to work law.

"The unions have not directed us to any federal or state appellate court that, in over seven decades, has struck down such a law," the court said in a Friday court order. "The circuit court erred in granting the preliminary injunction."

The West Virginia AFL-CIO is spearheading the lawsuit against right to work, which forbids employers from mandating union membership or fees as a condition of employment. The labor coalition argues the law illegally deprives them of dues money and fees paid by members, since federal law requires unions to represent all workers in a bargaining unit regardless of whether they pay full dues or partial agency fees.

The union said it is holding out hope its lawsuit can succeed, even as the Supreme Court scuttled the preliminary injunction granted by Kanawha Circuit Judge Jennifer Bailey.

"We maintain that this law violates provisions of the West Virginia Constitution that prohibit the taking of property from unions and their members without just compensation or due process," AFL-CIO state president Josh Sword said in a statement. "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 3-1 ruling from the five-member panel only applied to the temporary injunction, but the opinion, authored by Associate Judge Menis E. Ketchum II, also indicated the legal challenge was unlikely to withstand judicial scrutiny. The court pointed to right to work's judicial track record, having survived dozens of federal and state lawsuit based on similar grounds. The plaintiffs are asking the court to weigh in on the bill's fairness, rather than its strict constitutionality, according to Ketchum.

"We find that the unions failed to show a likelihood of success in their legal challenge to the law’s constitutionality," the ruling says. "The wisdom, desirability, and fairness of a law are political questions to be resolved in the legislature. Those decisions may only be challenged in the court of public opinion and the ballot box, not before the judiciary."

Not every justice agreed with the opinion. Justice Robin Jean Davis dissented while holding the right to file a separate opinion, while Justice Margaret L. Workman concurred in part and dissented in part. Neither had filed those dissents as of Monday.

Chief Justice Allen H. Loughry II scolded the lower court for the injunction, calling it "profoundly legally incorrect," "unseemly," and a "monumental failure of legal reasoning," in a concurring opinion. He agreed with the court's conclusion, but issued the blistering opinion "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 conceded that the law could create a "free rider" problem for unions as workers refuse to pay union dues while receiving the same working terms as dues-paying colleagues, but said the U.S. Supreme Court had repeatedly affirmed such arrangements as constitutional.

"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. "The respondents have absolutely no entitlement to the fees of non-members; in fact, the United States Supreme Court has expressly stated as much."

Supporters of the law celebrated the demise of the injunction.

Mark Mix, president of the National Right to Work Foundation, called on labor groups to focus their resources on serving their members, rather than continuing a legal fight that is unlikely to succeed.

"Not a single state or federal appellate court has struck down a Right to Work law, and despite union lawyers’ outlandish claims there has never been any reason to think West Virginia’s Right to Work law is any different," he said. "If union officials spent more time making sure the services they offered were worth paying for instead of fighting Right to Work laws, perhaps Big Labor wouldn’t be so scared of giving workers a choice when it comes to joining and financially supporting a union."

Unions in other states have chosen to take their challenges to right to work outside of the judiciary. As West Virginia's law makes its way through the courts, unions in Missouri have forced a 2018 ballot initiative to determine whether the 2017 law will take effect. The initiative, which has faced suits from law supporters, has drawn considerable interest with each side raising more than $1.3 million for the campaign.

Bill McMorris   Email Bill | Full Bio | RSS
Bill McMorris is a staff writer for the Washington Free Beacon. He joins the Beacon from the Franklin Center for Government and Public Integrity, where he was managing editor of Old Dominion Watchdog. He was a 2010 Robert Novak Fellow with the Phillips Foundation, where he studied state pension shortfalls. His work has been featured on CNN, Fox News, The Economist, Colbert Report, and numerous print publications and radio stations. He lives in Alexandria, Va, with his wife and three daughters. His Twitter handle is @FBillMcMorris. His email address is mcmorris@freebeacon.com.

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