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Morrisey v. West Virginia AFL-CIO

Supreme Court of West Virginia

September 15, 2017

PATRICK MORRISEY, in his official capacity as West Virginia Attorney General, and THE STATE OF WEST VIRGINIA, Defendants Below, Petitioners
v.
WEST VIRGINIA AFL-CIO, et al., Plaintiffs Below, Respondents

          Submitted: September 5, 2017

         Appeal 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.

          John 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 West Virginia.

          Derk 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 separate Opinion.

          JUSTICE WORKMAN concurs, in part, and dissents, in part, and reserves the right to file a separate Opinion.

         SYLLABUS BY THE COURT

         "This 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).

          Ketchum Justice.

         In this 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.

         The 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.

         Whether 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[.]"[1] 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.

         As we 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 injunction.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This 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.[2] The Legislature euphemistically titled Senate Bill 1 as the "Workplace Freedom Act, " and in the same way calls it a "right to work" law.

         Similar 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.[3] 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.

         The plaintiffs are several unions who sued various officers of the State of West Virginia to challenge the enforceability of Senate Bill 1.[4] The unions' complaint asserted a hodgepodge of theories.

         However, 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.

         In an 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' arguments.

         The State now appeals the circuit court's preliminary injunction order.

         II. STANDARD OF REVIEW

         The 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 novo."[5]

         III. ANALYSIS

         A 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 Constitution.[6]

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.[7]

         To 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."[8]

         The 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.[9]

         The 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 ...


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