Reginald Gibbs, by counsel Matthew B. Gilliam, appeals the
order of the Circuit Court of Kanawha County, entered on
March 1, 2017, denying his motion to intervene in the
consolidated civil actions 16-C-959 through -969, which
encompass several respondents' challenges to West
Virginia's recently-enacted "right to work"
Respondents West Virginia AFL-CIO; West Virginia State
Building and Construction Trades Council; United Mine Workers
of America; Chauffers, Teamsters, and Helpers, Local No. 175;
Amanda Gaines; International Brotherhood of Electrical
Workers, AFL-CIO Local 141; International Brotherhood of
Electrical Workers, AFL-CIO Local 307; International
Brotherhood of Electrical Workers, AFL-CIO Local 317;
International Brotherhood of Electrical Workers, AFL-CIO
Local 466; International Brotherhood of Electrical Workers,
AFL-CIO Local 596; and International Brotherhood of
Electrical Workers, AFL-CIO Local 968 ("the union
respondents") appear by counsel Vincent Trivelli and
Robert M. Bastress. Respondent Governor James C. Justice
appears by counsel John D. Hoblitzell, III and Matthew D.
Elshiaty. Respondent Patrick Morrisey makes no appearance.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
union respondents filed petitions challenging the statute
styled the "Workplace Freedom Act" in the Circuit
Court of Kanawha County on June 27, 2016. The parties filed
cross-motions for summary judgment on October 4, 2016. On
that same date, petitioner's counsel filed an amicus
curiae brief with the circuit court on behalf of the National
Right to Work Legal Defense and Education Foundation, Inc.
and the National Federation of Independent Business Small
Business Legal Center. The parties appeared for hearing on
their summary judgment motions on December 2, 2016. The same
day, petitioner filed his motion to intervene. The circuit
court denied petitioner's motion by order entered on
March 1, 2017, citing petitioner's lack of timeliness and
failure to show that his interests were not adequately
protected in the litigation. In its order, the circuit court
stated that it "is prepared to issue an [o]rder on the
appeal, petitioner asserts two assignments of error. He
argues, first, that "[t]he circuit court abused its
discretion in concluding that Gibbs did not make a timely
application for intervention, and erred in applying the
four-factor test to determine whether Gibbs's
intervention should be granted" under Rule 24(a) of the
West Virginia Rules of Civil Procedure. He argues, second,
that the circuit court erred in denying his motion to
intervene under Rule 24(b) of the West Virginia Rules of
standard of review of a circuit court order denying a motion
to intervene has been explained as follows:
"'In reviewing challenges to the findings and
conclusions of the circuit court, we apply a two-prong
deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion
standard, and we review the circuit court's underlying
factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review.'
Syllabus point 2, Walker v. West Virginia Ethics
Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997)."
Syllabus Point 1, Coordinating Council for Independent
Living, Inc. v. Palmer, 209 W.Va. 274, 546 S.E.2d 454
Syl. Pt. 1, Stern v. Chemtall Inc., 217 W.Va. 329,
331, 617 S.E.2d 876, 878 (2005). We consider petitioner's
arguments in light of this standard.
of the West Virginia Rules of Civil Procedure provides in
(a) Intervention of right. - Upon timely application anyone
shall be permitted to intervene in an action: (1) when a
statute of this State confers an unconditional right to
intervene; or (2) when the applicant claims an interest
relating to the property or transaction which is the subject
of the action and the applicant is so situated that the
disposition of the action may as a practical matter impair or
impede the applicant's ability to protect that interest,
unless the applicant's interest is adequately represented
by existing parties.
(b) Permissive intervention. - Upon timely application anyone
may be permitted to intervene in an action: (1) when a
statute of this State confers a conditional right to
intervene; or (2) when an applicant's claim or defense
and the main action have a question of law or fact in common.
When a party to an action relies for ground of claim or
defense upon any statute or executive order administered by a
federal or State governmental officer or agency or upon any
regulation, order, requirement, or agreement issued or made
pursuant to the statute or executive order, the officer or
agency upon timely application may be permitted to intervene
in the action. In exercising its discretion the court shall
consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original
proceeding under subpart (a) or (b), a movant must make
"timely application" for intervention. Regarding
timeliness, we have explained:
"While Rule 24 of the West Virginia Rules of Civil
Procedure provides for the intervention of parties upon a
timely application, the timeliness of any intervention is a
matter of discretion with the trial court." Syllabus
Point 10, Pioneer Co. v. Hutchinson,  W.Va.
, 220 S.E.2d 894 (1975), overruled on other grounds,
State ex rel. E.D.S. Fed. Corp. v. Ginsberg, 
W.Va. , 259 S.E.2d 618 (1979)." Syl., Pauley v.
Bailey, 171 W.Va. 651, 301 S.E.2d 608 (1983).
Syl., W. Virginia Pub. Employees Ins. Bd. v. Blue Cross
Hosp. Serv., Inc., 180 W.Va. 177, 178, 375 ...