PATRICK MORRISEY, in his official capacity as West Virginia Attorney General, and THE STATE OF WEST VIRGINIA, Defendants Below, Petitioners
WEST VIRGINIA AFL-CIO, et al., Plaintiffs Below, Respondents
Submitted: September 5, 2017
from the Circuit Court of Kanawha County The Honorable
Jennifer F. Bailey, Judge Civil Action No. 16-C-959-969
Patrick Morrisey Attorney General Elbert Lin Solicitor
General Thomas M. Johnson, Jr. Deputy Solicitor General
Gilbert Dickey Assistant Attorney General Charleston, West
Virginia Counsel for the Petitioners.
Vincent Trivelli, Esq. The Law Office of Vincent Trivelli
Morgantown, West Virginia Robert M. Bastress, Jr., Esq.
Morgantown, West Virginia Counsel for the Respondents.
Matthew B. Gilliam, Esq. National Right to Work Legal Defense
Foundation, Inc. Springfield, Virginia Counsel for Amici
Curiae National Right to Work Legal Defense and Education
Foundation, Inc., and Reginald Gibbs.
D. Hoblitzell, III, Esq. Kay Casto & Chaney, PLLC
Charleston, West Virginia Counsel for The Honorable James C.
Justice, in his Official Capacity as Governor of the State of
A. Wilcox, Esq. Mackinac Center for Public Policy Mackinac
Center Legal Foundation Midland, Michigan Danielle Waltz,
Esq. Jackson Kelly PLLC Charleston, West Virginia Counsel for
Amicus Curiae Mackinac Center for Public Policy.
Maneesh Sharma, Esq. Washington, District of Columbia Thomas
P. Maroney, Esq. Maroney Williams Weaver & Pancake PLLC
Charleston, West Virginia Counsel for Amicus Curiae American
Federation of Labor and Congress of Industrial Organizations.
Jeffrey G. Blaydes, Esq. Carbone & Blaydes, P.L.L.C.
Charleston, West Virginia Counsel for Amici Curiae West
Virginia Employment Law Association and West Virginia
Association for Justice.
JUSTICE DAVIS dissents and reserves the right to file a
JUSTICE WORKMAN concurs, in part, and dissents, in part, and
reserves the right to file a separate Opinion.
BY THE COURT
Court does not sit as a superlegislature, commissioned to
pass upon the political, social, economic or scientific
merits of statutes pertaining to proper subjects of
legislation. It is the duty of the Legislature to consider
facts, establish policy, and embody that policy in
legislation. It is the duty of this Court to enforce
legislation unless it runs afoul of the State or Federal
Constitutions." Syllabus Point 2, Huffman
v. Goals Coal Co., 223 W.Va. 724, 679 S.E.2d 323 (2009).
appeal, we examine a preliminary injunction issued by the
Circuit Court of Kanawha County that stopped the
implementation of West Virginia's new "right to
work" law. In limited circumstances, a circuit court may
issue a preliminary injunction when the plaintiff shows that
his or her lawsuit is likely to succeed on its merits.
plaintiffs in this case are several unions. The gist of their
argument is that the right to work law is unconstitutional
because it is unfair to unions and union members. The
defendants are officials for the State of West Virginia.
Their argument is that the law is fair because it protects
workers who do not want to join or pay dues to a union.
a law is fair or unfair is not a question for the judicial
branch of government. Courts cannot dwell "upon the
political, social, economic or scientific merits of
statutes[.]" 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. Our duty boils down to weighing whether the
preliminary injunction was proper, and whether the unions
showed they are likely to prevail in their ultimate claim
that the law is unconstitutional.
discuss below, we find that the unions failed to show a
likelihood of success in their legal challenge to the
law's constitutionality. 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
FACTUAL AND PROCEDURAL BACKGROUND
appeal concerns a preliminary injunction temporarily halting
the implementation of provisions in Senate Bill 1, enacted in
the 2016 Regular Session of the West Virginia
Legislature. The Legislature euphemistically titled
Senate Bill 1 as the "Workplace Freedom Act, " and
in the same way calls it a "right to work" law.
to right to work laws adopted in twenty-seven other states,
Senate Bill 1 amends West Virginia's labor relations laws
to change the way unions represent employees in a
workplace. First, the bill prohibits a union and an
employer from entering a collective bargaining agreement that
compels all employees to join the union. Second, the bill
eliminates a union's ability to compel nonunion employees
to pay any dues, fees, or assessments, of any kind, in
exchange for the union's assistance. Nevertheless, when a
union assumes representation of a workplace, other federal
and state laws require the union to fairly represent all
employees in the workplace, even employees who are not union
members and have paid no fees to the union.
plaintiffs are several unions who sued various officers of
the State of West Virginia to challenge the enforceability of
Senate Bill 1. The unions' complaint asserted a
hodgepodge of theories.
the unions raised three constitutional claims as the basis
for seeking a preliminary injunction. The unions maintained
that Senate Bill 1 violates the West Virginia Constitution
because it impairs the associational rights of unions to
consult for the common good; it takes the unions'
property without just compensation; and it violates the
unions' liberty interests, by requiring unions to expend
their labor for nonunion employees without the ability to
charge a fee for that labor. The unions argued that, if the
law took effect, the unions would be harmed because they
would be unable to bargain for compulsory membership and fees
in new collective bargaining agreements without potentially
violating the law. The unions asked the circuit court to halt
implementation of Senate Bill 1 until the merits of the
unions' complaint could be resolved.
order dated February 24, 2017, the circuit court imposed a
preliminary injunction. The circuit court ruled that the
provisions of Senate Bill 1 would not go into effect until
the circuit court ruled on the merits of the unions'
State now appeals the circuit court's preliminary
STANDARD OF REVIEW
granting or refusal of an injunction calls for a circuit
court to exercise judicial discretion. We apply a
three-pronged deferential review to the circuit court's
decision. "We review the final order granting the
[preliminary] injunction and the ultimate disposition under
an abuse of discretion standard, we review the circuit
court's underlying factual findings under a clearly
erroneous standard, and we review questions of law de
fundamental rule of governance is that courts must presume a
law is constitutional unless a party proves, beyond a
reasonable doubt, that the law violates the
In considering the constitutionality of a legislative
enactment, courts must exercise due restraint, in recognition
of the principle of the separation of powers in government
among the judicial, legislative and executive branches. Every
reasonable construction must be resorted to by the courts in
order to sustain constitutionality, and any reasonable doubt
must be resolved in favor of the constitutionality of the
legislative enactment in question. Courts are not concerned
with questions relating to legislative policy. The general
powers of the legislature, within constitutional limits, are
almost plenary. In considering the constitutionality of an
act of the legislature, the negation of legislative power
must appear beyond reasonable doubt.
ultimately succeed in this case, the unions must show beyond
reasonable doubt that Senate Bill 1 violates constitutional
bounds. Challenges to the constitutionality of a law cannot
be made lightly and without concerted, focused effort.
Indeed, "One who attacks a statute on constitutional
grounds, defended as that statute is by a strong presumption
of constitutionality, should bring up his heavy artillery or
forego the attack entirely."
unions sought and received a preliminary injunction based
upon their constitutional attack upon Senate Bill 1. For many
decades, West Virginia courts have applied the following
guide when granting or refusing an injunction:
The granting or refusal of an injunction, whether mandatory
or preventive, calls for the exercise of sound judicial
discretion in view of all the circumstances of the particular
case; regard being had to the nature of the controversy, the
object for which the injunction is being sought, and the
comparative hardship or convenience to the respective parties
involved in the award or denial of the writ.
central core of this decades-old analysis is the
"comparative hardship" of the parties. The federal
courts have evolved a detailed methodology to guide courts in
balancing the hardship of the parties. West Virginia trial
courts apply this same four-factor ...