Patrick Morrisey and The State of West Virginia v. West Virginia AFL-CIO , 239 W. Va. 633 ( 2017 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2017 Term
_______________ FILED
September 15, 2017
No. 17-0187 released at 3:00 p.m.
RORY L. PERRY II, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
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
________________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Jennifer F. Bailey, Judge
Civil Action No. 16-C-959-969
REVERSED AND REMANDED
________________________________________________________
Submitted: September 5, 2017
Filed: September 15, 2017
Patrick Morrisey Vincent Trivelli, Esq.
Attorney General The Law Office of Vincent Trivelli
Elbert Lin Morgantown, West Virginia
Solicitor General Robert M. Bastress, Jr., Esq.
Thomas M. Johnson, Jr. Morgantown, West Virginia
Deputy Solicitor General Counsel for the Respondents
Gilbert Dickey
Assistant Attorney General
Charleston, West Virginia
Counsel for the Petitioners
Matthew B. Gilliam, Esq. John D. Hoblitzell, III, Esq.
National Right to Work Legal Defense Kay Casto & Chaney, PLLC
Foundation, Inc. Charleston, West Virginia
Springfield, Virginia Counsel for The Honorable James C.
Counsel for Amici Curiae National Justice, in his Official Capacity as
Right to Work Legal Defense and Governor of the State of West Virginia
Education Foundation, Inc., and
Reginald Gibbs Maneesh Sharma, Esq.
Washington, District of Columbia
Derk A. Wilcox, Esq. Thomas P. Maroney, Esq.
Mackinac Center for Public Policy Maroney Williams Weaver & Pancake
Mackinac Center Legal Foundation PLLC
Midland, Michigan Charleston, West Virginia
Danielle Waltz, Esq. Counsel for Amicus Curiae American
Jackson Kelly PLLC Federation of Labor and Congress of
Charleston, West Virginia Industrial Organizations
Counsel for Amicus Curiae Mackinac
Center for Public Policy 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 KETCHUM delivered the Opinion of the Court.
CHIEF JUSTICE LOUGHRY concurs and reserves the right to file a separate
Opinion.
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).
Justice Ketchum:
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,
1
Syllabus Point 2, in part, Huffman v. Goals Coal Co., 223 W.Va. 724, 725,
679 S.E.2d 323, 324 (2009).
1
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.
2
See 2016 Acts of the Legislature, ch. 142.
3
See generally, W.Va. Code §§ 21-5G-1 to -7 [2016]. We discuss the bill
in detail in the discussion below.
2
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.
4
The plaintiffs are the West Virginia AFL-CIO; the West Virginia State
Building and Construction Trades Council, AFL-CIO; the Chauffeurs, Teamsters, and
Helpers Local No. 175; the United Mine Workers of America, AFL-CIO; and the
International Brotherhood of Electrical Workers, AFL-CIO, Locals 141, 307, 317, 466,
596, and 968; and Amanda Gaines, a union member. The defendants included the
Governor of the State of West Virginia, originally Earl Ray Tomblin, who was succeeded
in January 2017 by James C. Justice; and the Attorney General, Patrick Morrisey. The
State of West Virginia subsequently intervened in the suit.
3
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
5
Syllabus Point 1, in part, State by and through McGraw v. Imperial
Marketing, 196 W.Va. 346, 472 S.E.2d 792 (1996) (citations omitted).
6
Syllabus Point 2, in part, State ex rel. Frazier v. Meadows, 193 W.Va. 20,
454 S.E.2d 65 (1994) (“Acts of the Legislature are presumed to be constitutional, and
Continued . . .
4
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:
courts will interpret legislation in any reasonable way which will sustain its
constitutionality.”); State ex rel. City of Charleston v. Coghill, 156 W.Va. 877, 883, 207
S.E.2d 113, 118 (1973) (same).
7
Syllabus Point 1, State ex rel. Appalachian Power Co. v. Gainer, 149
W.Va. 740, 143 S.E.2d 351 (1965).
8
Southern Valley Grain Dealers Ass’n v. Bd. of Cty. Comm’rs of Richland
Cty., 257 N.W.2d 425, 434 (N.D. 1977).
5
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
methodology when weighing the granting or refusal of a preliminary injunction:
Under the balance of hardship test the district court must
consider, in ‘flexible interplay,’ the following four factors in
determining whether to issue a preliminary injunction: (1) the
likelihood of irreparable harm to the plaintiff without the
injunction; (2) the likelihood of harm to the defendant with an
injunction; (3) the plaintiff’s likelihood of success on the
merits; and (4) the public interest.10
In this appeal, the State’s arguments center upon the third factor: the
unions’ likelihood of success on the merits of their constitutional arguments. The State
argues on appeal that the constitutional claims advanced by the unions have been tested
before in other courts and rejected. Twenty-seven other states have adopted right to work
laws similar to West Virginia’s, and the unions have not shown a single one that has been
9
Syllabus Point 4, State ex rel. Donley v. Baker, 112 W.Va. 263, 164 S.E.
154 (1932).
10
Jefferson Cty. Bd. of Educ. v. Jefferson Cty. Educ. Ass’n, 183 W.Va. 15,
24, 393 S.E.2d 653, 662 (1990) (emphasis added) (quoting Merrill Lynch, Pierce, Fenner
& Smith, Inc. v. Bradley, 756 F.2d 1048, 1054 (4th Cir. 1985)).
6
struck down by an appellate court. Moreover, the unions did not plainly articulate to the
circuit court which provision of the West Virginia Constitution provides, beyond a
reasonable doubt, that a right-to-work law is improper. Because the unions did not
demonstrate a likelihood of success, the State argues the circuit court should not have
granted a preliminary injunction. We agree.
Congress enacted the National Labor Relations Act11 (also called the
“Wagner Act”) in 1935 to protect the rights of employees and employers, and to
encourage collective bargaining. Congress amended it through the Labor Management
Relations Act of 1947, better known as the “Taft-Hartley Act.” Section 8(a)(3) of the
Taft-Hartley Act prohibited a “closed shop,” a union security agreement whereby an
employer agreed to employ only union members.12 Section 8(a)(3) still permitted “less
severe forms of union-security arrangements” such as a union-employer agreement
“requiring nonunion members to pay to the union $2 a month ‘for the support of the
11
29 U.S.C. §§ 151-169.
12
Section 8(a)(3) is codified at 29 U.S.C. § 158(a)(3) [1979].
7
bargaining unit.’”13 It also permitted a workplace where the employer was free to hire
anyone, but could require new employees to join the union after they were hired.14
Although Section 8(a)(3) of the Taft-Hartley Act permitted the adoption of
such less restrictive union-security agreements, a provision of the Act also left states free
to ban them altogether. Section 14(b) of the Act creates an exception to Section 8(a)(3),
and provides that states may pass laws that prohibit “agreements requiring membership in
a labor organization as a condition of employment[.]”15 The United States Supreme Court
has examined the interplay between Section 8(a)(3) and Section 14(b) and found that
“Congress left the States free to legislate” and adopt laws “restricting the execution and
13
N.L.R.B. v. Gen. Motors Corp., 373 U.S. 734, 739-40 (1963). Section
8(a)(3) provides that nothing “shall preclude an employer from making an agreement
with a labor organization . . . to require as a condition of employment membership
therein[.]” 29 U.S.C. § 158(a)(3).
14
Int’l Union of the United Ass’n of Journeymen & Apprentices of the
Plumbing & Pipefitting Indus. of the U. S. & Canada, Local Unions Nos. 141, 229, 681,
& 706 v. N. L. R. B., 675 F.2d 1257, 1266-1269 (D.C. Cir. 1982) (Mikva, J. dissenting).
15
Section 14(b), codified at 29 U.S.C. § 164(b) [1959], provides:
(b) Agreements requiring union membership in violation of
State law. Nothing in this Act shall be construed as
authorizing the execution or application of agreements
requiring membership in a labor organization as a condition
of employment in any State or Territory in which such
execution or application is prohibited by State or Territorial
law.
8
enforcement of union-security agreements,” and even free to go so far as to “outlaw” a
union-security arrangement.16
When Congress passed Section 14(b) of the Taft-Hartley Act in 1947,
twelve states had right-to-work laws.17 “These laws fell into two different categories.
The first broadly disallowed compulsory union membership. The second included
specific provisions outlawing compulsory payment of dues or fees to labor
organizations.”18 “Congress knew precisely what state laws it was validating when it
passed § 14(b). The House [of Representatives’] report listed each state which had
passed a right-to-work law or constitutional provision.”19 The clear purpose of Section
14(b) “was to preserve the efficacy of laws like these – statutes that allowed states to
place restrictions of their choosing on union-security agreements[.]”20
In sum, under federal law, states may decide whether to allow or prohibit
employers and unions to negotiate agreements requiring compulsory union membership,
or requiring nonunion employees to pay dues or fees to the union.
16
Retail Clerks Int’l Ass’n, Local 1625, AFL-CIO v. Schermerhorn, 375
U.S. 96, 102-03 (1963). See also United Auto., Aerospace & Agric. Implement Workers
of Am. Local 3047 v. Hardin Cty., Kentucky, 842 F.3d 407, 417 (6th Cir. 2016) (“state” in
§ 14(b) includes political subdivisions).
17
Int’l Union of Operating Engineers Local 370 v. Wasden, 217 F.Supp.3d
1209, 1221 (D. Idaho 2016).
18
Sweeney v. Pence, 767 F.3d 654, 662 (7th Cir. 2014).
19
Int’l Union of the Plumbing and Pipefitting Indus., 675 F.2d at 1260.
20
Sweeney, 767 F.3d at 663.
9
In Senate Bill 1, the West Virginia Legislature chose to prohibit both
compulsory union membership and compulsory dues for union representation. The bill
provides that an employee may not be compelled,
as a condition or continuation of employment, to:
(1) Become or remain a member of a labor
organization;
(2) Pay any dues, fees, assessments or other similar
charges, however denominated, of any kind or amount to any
labor organization; or
(3) Pay any charity or third party, in lieu of those
payments, any amount that is equivalent to or a pro rata
portion of dues, fees, assessments or other charges required of
members of a labor organization.21
The bill goes on to declare as “unlawful, null and void, and of no legal effect” any
agreement between a labor organization and an employer that requires membership in the
organization,22 and imposes criminal and civil penalties for the adoption of such an
agreement.23
In the unions’ complaint for relief and request for a preliminary injunction,
the unions offered the aforementioned three arguments why Senate Bill 1 is
unconstitutional. The State counters that the unions have not demonstrated a likelihood
of success on the constitutional arguments they have so far advanced. Hence, the State
21
W.Va. Code § 21-5G-2 [2016].
22
W.Va. Code § 21-5G-3 [2016].
23
W.Va. Code §§ 21-5G-4 and -5 [2016].
10
argues that the circuit court abused its discretion in granting the preliminary injunction.
We therefore must examine the three constitutional arguments thus far proffered by the
unions.
The unions first argue that Senate Bill 1 violates their constitutional right to
freedom of association under the West Virginia Constitution.24 The unions contend that
the bill is unconstitutional because it impairs their ability to associate with employees to
advance workers’ causes.
“There is no doubt that union workers enjoy valuable rights of association
and assembly that are protected by the First Amendment.”25 However, we see nothing in
Senate Bill 1 that prevents a person from making a voluntary choice to associate with a
union or to pay union dues. Additionally, the constitutional freedom of association
argument proffered by the unions is nearly identical to one rejected by the United States
Supreme Court almost seven decades ago. The Supreme Court stated:
The constitutional right of workers to assemble, to discuss
and formulate plans for furthering their own self interest in
jobs cannot be construed as a constitutional guarantee that
24
The unions base their argument on two constitutional provisions. Article
III, § 16 of the West Virginia Constitution provides, “The right of the people to assemble
in a peaceable manner, to consult for the common good, to instruct their representatives,
or to apply for redress of grievances, shall be held inviolate.” Article III, § 7, provides in
part, “No law abridging the freedom of speech, or of the press, shall be passed[.]”
25
Sweeney, 767 F.3d at 670.
11
none shall get and hold jobs except those who will join in the
assembly or will agree to abide by the assembly’s plans.26
The Supreme Court plainly held that the constitutional right to assemble and associate
does not entitle a union to compel nonmembers to “participate in union assemblies” as a
condition of employment.27 Likewise, “unions have no constitutional entitlement [under
the First Amendment] to the fees of nonmember-employees.”28
We find no fault with the unions’ assertion that membership and dues are
the lifeblood of any labor organization. We also find no fault with the State’s contention
that, just as there is a right for employees and unions to associate, there is a right to not
associate.29 The question we must decide is whether the unions have shown a likelihood
of success in pressing their argument that Senate Bill 1 is unconstitutional because it
impairs their freedom of association. At least twenty-seven other states have some form
of a right to work law today, many in existence since the passage of the Taft-Hartley Act
in 1947. The unions have not directed us to any state or federal appellate decision
accepting their constitutional freedom of association argument and disapproving of a
right to work law on similar grounds.
26
Lincoln Fed. Labor Union No. 19129, A.F. of L. v. Northwestern Iron &
Metal Co., 335 U.S. 525, 531 (1949).
27
Id.28
Davenport v. Washington Educ. Ass’n, 551 U.S. 177, 185 (2007) (citing
Lincoln Fed. Labor Union, 335 U.S. at 529-531).
29
Adkins v. Miller, 187 W.Va. 774, 777, 421 S.E.2d 682, 685 (1992)
(quoting Rutan v. Republican Party of Illinois, 497 U.S. 62, 76 (1990)).
12
Put simply, the unions have not established a likelihood that they will
ultimately succeed on their contention that Senate Bill 1 violates their constitutional right
of association beyond a reasonable doubt.
The second constitutional argument proffered by the unions is that Senate
Bill 1 is an unconstitutional taking of union property. Federal and state law requires
unions to provide equal services and representation to all employees who are members of
a collective bargaining unit. 30 It costs a union money to negotiate, administer and enforce
an agreement with an employer. The unions argue that a state law prohibiting the union
from collecting fees from nonmembers, while the law requires the union to provide equal
services to these “free riders,” effects an unconstitutional taking of property. 31
The State contends that a unilateral expectation of fees is not a
constitutionally protected property right. For purposes of due process challenges, “A
‘property interest’ includes not only the traditional notions of real and personal property,
but also extends to those benefits to which an individual may be deemed to have a
30
Steele v. Louisville & N.R. Co., 323 U.S. 192, 202-03 (1944) (The
Railway Labor Act “expresses the aim of Congress to impose on the bargaining
representative . . . the duty to exercise fairly the power conferred upon it in behalf of all
those for whom it acts, without hostile discrimination against them.”). See also Ford
Motor Co. v. Huffman, 345 U.S. 330, 337-38 (1953) (extending duty of fair
representation to the NLRA); 29 U.S.C. § 159 (“Representatives designated or selected
for the purposes of collective bargaining by the majority of the employees . . . shall be the
exclusive representatives of all the employees[.]”; and W.Va. Code § 21-1A-5(a) (same).
31
W.Va. Const., Article III, § 9 (“Private property shall not be taken or
damaged for public use without just compensation.”)
13
legitimate claim of entitlement under existing rules or understandings.”32 “A ‘property’
interest protected by due process must derive from private contract or state law, and must
be more than [a] unilateral expectation. . . .”33
These due process guides are instructive in the context of the alleged taking
of a property interest. In the absence of a collective bargaining agreement, unions have
only a “unilateral expectation” of receiving fees from nonunion employees. Prior to the
passage of Senate Bill 1, unions could only speculate whether they would be able to
negotiate new agreements with employers that would require the collection of fees from
nonunion employees. The formation of a collective bargaining agreement with a fee-
collection provision was contingent upon the consent of a third party: the employer.
Hence, in the absence of an actual collective bargaining agreement, the unions have only
a unilateral expectation that they will receive fees from nonunion employees. Senate Bill
1 does not affect existing contracts; it affects only future agreements that unions and
employers have not yet negotiated or accepted. The unions therefore have no protected
property right that the Legislature has taken through the adoption of Senate Bill 1.
Moreover, the unions have offered no authority that any other appellate
court in this country has examined a taking challenge to a right to work law and accepted
32
Syllabus Point 3, Waite v. Civil Serv. Comm’n, 161 W.Va. 154, 241
S.E.2d 164 (1977) (overruled on other grounds by W.Va. Dep’t of Educ. v. McGraw, 239
W.Va. 192, 800 S.E.2d 230 (2017)).
33
Syllabus Point 3, in part, Orteza v. Monongalia Cty. Gen. Hosp., 173
W.Va. 461, 318 S.E.2d 40 (1984) (emphasis added).
14
a similar argument. Hence, we cannot say that the union demonstrated a likelihood of
success on their claim that Senate Bill 1, beyond a reasonable doubt, is an
unconstitutional taking of union property.
The unions’ third and final argument – set forth in a single paragraph – is
that Senate Bill 1 deprives them of their liberty interest in their labors. The unions assert
that the Constitution safeguards individual “liberty,” a concept that includes “the right of
man to be free in the enjoyment of the faculties with which he has been endowed by his
Creator” and “the right of one to use his faculties in all lawful ways, to live and work
where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade
or avocation.”34 The unions then state that Senate Bill 1 will require unions and union
officials to work for nothing, thereby contravening their liberty interest.
The unions failed to develop their legal argument as to how Senate Bill 1
violates a liberty interest under the West Virginia Constitution. This Court routinely
rejects skeletal arguments like that offered by the unions.35 Nevertheless, as with the
unions’ other two constitutional claims, the union has failed to show that any other
appellate court in this country has adopted a similar argument to strike down a similar
right to work law. Hence, on the grounds offered by the unions, we are not persuaded
34
Lawrence v. Barlow, 77 W.Va. 289, 292, 87 S.E. 380, 381 (1915).
35
See State, Dept. of Health v. Robert Morris N., 195 W.Va. 759, 765, 466
S.E.2d 827, 833 (1995).
15
that they established a likelihood of success on their claim that Senate Bill 1 violated
their liberty interests.
In the absence of a likelihood of success on the merits, the circuit court
abused its discretion when it granted the unions’ request for a preliminary injunction.
The circuit court’s order must be reversed and the case remanded for final resolution.
IV.
CONCLUSION
The unions failed to establish a likelihood of success on the merits of their
three constitutional claims. 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.36
Reversed and remanded.
36
The record indicates the plaintiffs filed their request for a preliminary
injunction on June 27, 2016, four days before Senate Bill 1 took effect on July 1, 2016.
A hearing on the request was held on August 10, 2016, and a proposed order was
submitted to the circuit court on August 19, 2016. The circuit court only entered the
proposed order five months later, on February 24, 2017, after the Attorney General
threatened to seek mandamus relief from this Court. Because of the far-reaching effect of
Senate Bill 1 and its potentially substantial impact upon public interests, in the future, we
encourage the circuit court to act with greater celerity in bringing this case to a resolution.
16