CHARLESTON – West Virginia Supreme Court of Appeals Justice Robin Jean Davis has issued a dissenting opinion in the state’s right-to-work case filed by Attorney General Patrick Morrisey.

Davis said the majority’s misapprehension of the realities of the collective bargaining process notwithstanding, the unions acknowledge and embrace their duty of fair representation and neither shirk nor deny their responsibility to union and non-union members alike, according to the Oct. 2 opinion.

Davis

“In its opinion, the majority opines that the case sub judice raises concerns of fairness,” she writes. “This is an absolutely correct statement of the issues underlying the instant proceeding because the respondent unions rightfully question how it can be fair that they are required to expend time and resources to ensure that non-union members are equally represented while those same non-union members are allowed a free ride to benefit from the union’s collective bargaining activities without having to contribute to the cost of providing such services.”

Nevertheless, while the majority astutely recognizes that matters of public policy are within the realm of the Legislature, it fails to appreciate that matters of constitutionality squarely reside in the judicial branch of government, according to the opinion.

“By this I mean that while statutes must be read so as to conform to the constitution where possible, it is not the court’s province to contort the law to achieve a finding of constitutionality by resorting to ‘disingenuous evasion’ to achieve a result that clearly is contrary to legislative intent.”

Davis said the majority failed to recognize fatal deficiencies of Senate Bill 1, which demonstrated its blatant lack of appreciation for the sanctity of basic constitutional protections” guaranteed by the Bill of Rights.

“Yet, because exclusive representative unions have an obligation to represent all employees in a workplace fairly and without regard for their union membership or affiliation, and the majority has failed to understand that there exists a corollary right to expect nonunion member free riders to bear their proportionate share of the cost of the union’s collective bargaining activities, the right to be free from the unfettered taking of one’s property no longer is a right guaranteed by the laws of this state,” Davis wrote. “Because the preclusive effect of Senate Bill 1 leaves unions with no ability to enforce the corollary duty of free-riding nonunion members to pay for the services which the unions are obligated to provide to them, and because the majority has upheld the validity of this provision despite its blatant unconstitutionality, I respectfully dissent.”

Last month, Justice Menis Ketchum authored the majority opinion, reversing Kanawha Circuit Judge Jennifer Bailey’s Feb. 24 order, dissolving the injunction and remanding the case back to Kanawha County.

“The unions failed to establish a likelihood of success on the merits of their three constitutional claims,” Ketchum wrote. “The circuit court therefore abused its discretion in granting a preliminary injunction. 

“The circuit court’s February 24, 2017, order is therefore reversed, the preliminary injunction dissolved, and the case remanded for the circuit court to conduct a final hearing on the merits of the parties’ various contentions.”

Ketchum also said the circuit court had “abused its discretion when it granted the unions’ request for a preliminary injunction.”

Ketchum said the Supreme Court found 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,” Ketchum wrote. “Therefore, the circuit court erred in granting the preliminary injunction.”

Chief Justice Allen Loughry filed a concurring opinion. Justice Margaret Workman concurred in part and dissented in part.

In his concurring opinion, Loughry wrote that the circuit court’s issuance of an injunction in the matter was not merely imprudent, but profoundly legally incorrect.

“Not only did the circuit court utilize an overruled legal standard for the issuance of an injunction, but blithely stated that the respondents’ constitutional challenge to West Virginia’s ‘right-to-work’ law was ‘likely’ to succeed, entitling them to an injunction,” he wrote. “In fact, precisely the opposite was, and is, true: 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 he wrote separately 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

“In short, twenty-eight states have a right-to-work law,” Loughry said. “None has been struck down, much less on the grounds advanced by the respondents. United States Supreme Court precedent has effectively rebuffed all of the challenges and subsidiary positions advanced by the respondents.”

The respondents have demonstrated no likelihood of success and their failure was abetted by the circuit court’s use of an overruled, effectively meaningless standard for issuance of a preliminary injunction.

“This monumental failure of legal reasoning was compounded by extraordinary and baseless delay occasioned by the circuit court,” Loughry said. “Accordingly, I respectfully concur in the majority’s reversal of the preliminary injunction and remand for further proceedings. I further encourage the circuit court to assiduously avoid further delay and grant this matter its foremost attention.”

In her opinion, Workman wrote that the one and only issue properly before the court is whether the circuit court erred in granting a preliminary injunction of the Workplace Freedom Act.

“The law is crystal clear that an appellate court’s review of an order granting a preliminary injunction is strictly confined to the limited issue of the propriety of the injunctive relief,” she wrote. “Our jurisdiction at this point is ‘not to resolve the overall merits of the dispute between the parties,’ and not to decide the constitutionality of the law until there is a full hearing on these issues below and the entry of a full order capable of review.”

Workman wrote that the majority purports to remand the case, but, in fact, so completely resolves the underlying constitutional issues that it renders such a remand nothing but a perfunctory exercise.

“This appeal of the temporary injunction should have been treated as a petition for a writ of mandamus to require the lower court to issue a ruling,” she wrote. “I would have granted mandamus and ordered the lower court to issue a full order and opinion within ten days. We could have then expedited the appeal thereof and promptly issued a full opinion based on a complete record and full argument.”

Workman wrote that she concurred that the case should be remanded, but dissented on the court’s “stunning failure” to recognize its jurisdictional limits in that they so explicitly resolved the underlying constitutional issues in the context of the review of a mere preliminary injunction prior to full hearing and the entry of an order below capable of full review.

“While the respondents clearly have an uphill battle to demonstrate that this legislation is unconstitutional, both parties deserve to have the merits of their claims fully adjudicated below, and to have a full review by this court of a full and complete order on the petition for declaratory relief before this court rushes to judgment,” Workman wrote.

Earlier in September, the justices heard arguments related to West Virginia’s right to work law, also known as The West Virginia Workplace Freedom Act. Last year, the state Legislature became one of 28 states to enact a right to work law.

Morrisey’s office filed a legal challenge to a February injunction issued by Kanawha Circuit Judge Jennifer Bailey. That followed a challenge of the law by state labor unions.

The unions argued union dues are necessary to allow unions to enter into collective bargaining for both member and nonmember employees.

The legislature passed the bill in February 2016 and then voted to override a veto by then-Gov. Earl Ray Tomblin.

West Virginia Supreme Court of Appeals case number 17-0187

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