Union Station – December 3, 2021

West Virginia Supreme Court of Appeals overturns circuit court’s block of union dues law

On Nov. 22, the West Virginia Supreme Court of Appeals overturned a circuit court order blocking a new state law prohibiting public-sector employers from deducting union dues from employee paychecks.

Read our earlier coverage of this story here and here.

Background

Here’s a timeline of how we got here.

March 30, 2021: Gov. Jim Justice (R) signed Republican-sponsored House Bill 2009, a law prohibiting public-sector employers from deducting union dues from the paychecks of state, county, and certain municipal employees. The law was scheduled to take effect on June 17, 2021.
May 20, 2021: A group of 12 unions filed a lawsuit in the Kanawha County Circuit Court alleging the law would violate both the state constitution’s equal protection and contracts clauses and union members’ free speech rights.
June 16, 2021: Circuit Judge Tera Salango temporarily blocked the law from going into effect, ruling the unions’ case was likely to be successful. Salango was elected to the bench in 2018.
Sept. 3, 2021: The West Virginia attorney general’s office appealed Salango’s ruling to the West Virginia Supreme Court of Appeals.
Oct. 26, 2021: The court heard arguments in the case.

The court’s decision

On Nov. 22, the court ruled 3-2 to overturn Salango’s order and send the case back to the circuit court. Justice Beth Walker wrote the majority opinion, joined by Chief Justice Evan Jenkins and Justice Tim Armstead. Walker wrote:

“A preliminary injunction is a powerful remedy that should issue only after a court has carefully considered the parties’ arguments, evidence, and relevant authorities. Our review of the circuit court’s order preliminarily enjoining the new law from taking effect reveals that it is a product of less than careful consideration. We conclude that the likelihood of Respondents’ success on the merits of their claims—that the new law violates their constitutional rights—is far less than the circuit court believed it to be. For that reason, and when viewed in the context of other factors relevant to the issuance or refusal of a preliminary injunction, we conclude that the circuit court abused its discretion when it granted Respondents injunctive relief. So, we reverse the circuit court’s order, dissolve the injunction, and remand for further proceedings.”

Justice John Hutchison filed a dissenting opinion, which Justice William Wooton joined. Hutchison wrote:

“By dissolving the preliminary injunction, the majority has ensured that any victory by the respondents on remand will be pyrrhic, at best. First, once this Court’s mandate has issued and the injunction is dissolved, the horse will be out of the barn. Second, it is clear from the majority’s opinion that no matter what the circuit court may do or say, this case has been decided and the Paycheck Protection Act will be upheld when the case reaches this Court again.”

Justice appointed Armstead, Hutchison, and Jenkins to fill vacancies on the court in 2018. Walker was elected to the court in 2016, and Wooton was elected to the court in 2020.

The case is James C. Justice, II, Governor v. West Virginia AFL-CIO, et al. (West Virginia Supreme Court of Appeals case number 21-0559; Kanawha County Circuit Court civil action numbers 21-P-156 through 21-P-169).

Responses

West Virginia Attorney General Patrick Morrisey said, “The Court’s decision prevents the hardworking people of West Virginia from having their hard-earned money diverted for speech and activities they never intended to support.”

Mark Mix, president of the National Right to Work Legal Defense Foundation, which filed an amicus brief in the case, said, “The Supreme Court of Appeals made the right decision by reversing the Circuit Court’s injunction which was issued under the outrageous premise that union bosses have a legal right to use taxpayer-funded government payroll systems to divert workers’ money into union coffers.”

West Virginia AFL-CIO has not responded to the ruling. The West Virginia Education Association said on Facebook, “WVEA vows to continue advocating for public schools and educators.” American Federation of Teachers-West Virginia posted an update advising members of the decision, saying, “Any members in counties still utilizing the payroll deduction of union dues should immediately sign up for edues to continue their union membership.”

Political context

The five-member West Virginia Supreme Court of Appeals is the state’s court of last resort. Supreme court justices are chosen in nonpartisan elections and serve 12-year terms. Our “Ballotpedia Courts: State Partisanship” report, which evaluated justices’ partisan affiliations through their behavior before joining the court, identified four of the justices’ partisan affiliations as follows:

Armstead: Strong Republican
Hutchison: Mild Republican
Walker: Mild Republican
Jenkins: Mild Republican

While Wooton joined the court in 2020 and was not included in the report, he previously served in the state legislature as a Democrat.

In 2020, the court heard 899 cases and decided 91.5% of them unanimously.

Justice was first elected governor in 2016 as a Democrat. In 2017, he switched parties, giving Republicans trifecta control of the state. Republicans currently hold veto-proof majorities in both chambers of the state legislature.

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 110 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s)

Recent legislative actions

No public-sector union bills saw activity this week.