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WV Supreme Court overturns ruling that blocks right-to-work law

WV Supreme Court overturns ruling that blocks right-to-work law

West Virginia Supreme Court Justice Menis Ketchum asks a question during arguments on the state’s right-to-work law on Sept. 5. Ketchum wrote the majority opinion, released Friday, that reversed Kanawha Circuit Judge Jennifer Bailey’s injunction blocking the law.

Concluding that West Virginia labor unions have failed to show that they have a strong likelihood of successfully challenging the state’s new right-to-work law, state Supreme Court justices on Friday dissolved an injunction blocking enforcement of the law, and remanded the case to Kanawha Circuit Court for final resolution.

“Whether a law is fair or unfair is not a question for the judicial branch of government,” Justice Menis Ketchum wrote in the majority opinion.

“The wisdom, desirability, and fairness of a law are political questions to be resolved in the Legislature,” Ketchum wrote. “Those decisions may only be challenged in the court of public opinion and the ballot box, not before the judiciary.”

He noted that 28 states, including West Virginia, have enacted right-to-work laws, but the unions challenging West Virginia’s law could not point to any federal or state appeals court that has struck down a similar law elsewhere.

The court’s action ends an injunction blocking enforcement of the 2016 law that dates back to August 2016, and directs Kanawha Circuit Judge Jennifer Bailey to proceed with final hearings in the case.

Attorneys for the state AFL-CIO and other labor unions argued that the law amounts to an illegal taking of union resources, since under right to work and federal labor law, unions would be compelled to represent employees who opt not to join the union or pay union dues.

The law allows unions to represent only union members, but attorney Robert Bastress told justices during oral arguments Sept. 5 that would negate the unions’ ability to act as exclusive collective bargaining representatives in contract negotiations.

“Without that hammer, unions can’t bring employers to the table at all,” he said.

Attorney General Patrick Morrisey petitioned the court to overturn the longstanding injunction, arguing that the ongoing delay in enforcing the law was sowing confusion for businesses and workers, and causing irreparable harm to the state.

“Delay in this law’s enforcement will impair the state’s vital interest in protecting its citizens from compelled association,” the petition stated.

In a news release Friday, Morrisey called the decision “a major victory for my office and for the hard working men and women of West Virginia.”

Senate President Mitch Carmichael, R-Jackson, hailed the court’s decision, saying it is a signal that West Virginia is finally “open for business.”

“We sincerely appreciate the West Virginia Supreme Court of Appeals for its decision today to eliminate an unnecessary barrier to the implementation of West Virginia’s Workplace Freedom Act,” Carmichael said. “For more than a year, the will and progress of our Legislature – and the majority of the citizens it represents – has been unreasonably denied.”

Josh Sword, president of the West Virginia AFL-CIO, one of the unions that challenged the law, noted, however, that the Supreme Court had only overturned Bailey’s preliminary injunction. “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,” Sword said. “We look forward to continuing the debate on the merits of our arguments before the justices at that time.”

Ketchum was joined in the majority opinion by Justice Beth Walker. Chief Justice Allen Loughry agreed with the decision and wrote a separate concurring option. Justice Robin Davis dissented with the majority opinion, while Justice Margaret Workman concurred in part and dissented in part. Both reserved the right to file separate opinions.

During the Sept. 5 arguments, Workman suggested that the attorney general’s office was seeking a short cut by petitioning the Supreme Court before the circuit court had ruled on the case challenging the legality of the new law.

“You want to come to us to get the answers when you really should start at the circuit court level,” she said.

Reach Phil Kabler at, 304 348-1220, or follow @PhilKabler on Twitter.

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