Justice v. W.Va. AFL-CIO

Decision Date22 November 2021
Docket Number21-0559
PartiesJAMES C. JUSTICE, II, GOVERNOR OF THE STATE OF WEST VIRGINIA, Petitioner, Defendant Below v. WEST VIRGINIA AFL-CIO, ET AL. Respondents, Plaintiffs Below
CourtVirginia Supreme Court

Submitted: October 26, 2021

Patrick Morrisey, Esq. Attorney General Lindsay S. See, Esq Solicitor General Curtis R. A. Capehart, Esq. Deputy Attorney General Virginia M. Payne, Esq. Assistant Solicitor General/Deputy Attorney General Charleston, West Virginia Counsel for Petitioner

Robert M. Bastress, Jr., Esq. Morgantown, West Virginia Jeffrey G Blaydes, Esq. BLAYDES LAW, PLLC Charleston, West Virginia Counsel for Respondents

Matthew B. Gilliam, Esq. Counsel for Amicus Curiae, National Right to Work Legal Defense and Education Foundation, Inc. Springfield, Virginia

John F. Dascoli, Esq. JOHN F. DASCOLI, PLLC Charleston, West Virginia Counsel for Amicus Curiae, West Virginia Deputy Sheriffs' Association.

JUSTICE HUTCHISON and JUSTICE WOOTON dissent and reserve the right to file separate opinions.


1. "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." Syllabus Point 4, State v. Baker, 112 W.Va. 263, 164 S.E. 154 (1932).



Earlier this year, the Legislature passed the West Virginia Paycheck Protection Act, which prohibits state employers from continuing to deduct union dues and employee association membership fees from public employees' wages as they have in the past. One month before the new law's effective date, Respondents[1]-labor unions, employee associations, and individual members of such groups-sought to enjoin its enforcement. They argued to the circuit court that the law violated certain of their constitutional rights and that its enforcement would harm them, irreparably. The circuit court agreed and enjoined enforcement of the law. Petitioner the Honorable James C. Justice, II, Governor of the State of West Virginia, appeals.

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.[2]


This appeal concerns the West Virginia Paycheck Protection Act-also known as House Bill 2009[3]-enacted in the 2021 Regular Session of the West Virginia Legislature. Broadly, HB 2009 bars State employers from continuing to deduct union dues and employee association membership fees from public employees' wages. Mechanically, HB 2009 produces that result by amending the definition of "deduction" in the Wage Payment and Collection Act.[4]

Before it was amended by HB 2009, the Wage Payment and Collection Act defined "deductions" as "amounts required by law to be withheld [from an employee's wages], and amounts authorized for union or club dues, pension plans, payroll savings plans, credit unions, charities and hospitalization and medical insurance." Practically, this definition meant that employer and employee could "agree . . . as to deductions to be made from the payroll of [the] employee[]," without complying with the additional statutory requirements imposed on the formation of legal wage assignments, such as annual reauthorization.[5] For example, because the Legislature has included in the definition of "deduction" "amounts authorized for . . . charities," an employer may deduct from an employee's wages an amount he has authorized and pay that amount to the employee's chosen charity and may continue to do so until the employee says, "Stop." And because the definition of "deduction" included "amounts authorized for union or club dues," public and private employers could deduct those from an employee's wages year after year without the employee's annual reauthorization.

HB 2009 changed all that for public employers and employees in West Virginia. First, HB 2009 amended the definition of "deduction" in the Wage Payment and Collection Act as follows:

(g) The term "deductions" includes amounts required by law to be withheld, and amounts authorized for union, labor organization, or club dues or fees, pension plans, payroll savings plans, credit unions, charities, and any form of insurance offered by an employer: Provided, That for a public employee, other than a municipal employee covered by a collective bargaining agreement with a municipality which is in effect on July 1, 2021, the term "deductions" shall not include any amount for union, labor organization, or club dues or fees.[6]

The Legislature added this caveat to West Virginia Code § 21-5-3, as well: "[t]hat nothing in [Chapter 21] shall be construed to interfere with the right of an employee to join, become a member of, contribute to, donate to, or pay dues or fees to a union, labor organization, or club."[7]

The Legislature also amended other parts of the Code. For example, added to Chapter 7 (County Commissions and Officers), Article 5 (Fiscal Affairs) is new section twenty-five, which states that "[n]o deductions or assignments of earnings shall be allowed for union, labor organization, or club dues or fees from the compensation of county officers and employees."[8] Similar language was added as subpart (c) to West Virginia Code § 8-5-12, regarding compensation of municipal officers and employees:

No deductions or assignments of earnings shall be allowed for union, labor organization, or club dues or fees from the compensation of officers or employees covered by this section: Provided, That this subsection shall not apply to municipal employees covered by a collective bargaining agreement with a municipality which is in effect on July 1, 2021.[9]

Amendments to the same effect were made to West Virginia Code §§ 12-3-13b (state employees) and 18A-4-9 (teachers and school personnel). HB 2009 was slated to take effect on June 17, 2021, so that after that date, unions and employee associations could not collect dues or membership fees directly from a public employee's wages.

On May 20, 2021, Respondents filed a complaint for equitable relief in the Circuit Court of Kanawha County. They sought a declaration that HB 2009 violates their rights under the equal protection, contract, and speech and associational clauses of the West Virginia Constitution, and injunctive relief. Respondents also filed a motion to preliminarily enjoin HB 2009 from taking effect. Respondents argued that, should the court permit HB 2009 to take effect, they would "have to forego their regular representational activities and redirect precious resources toward new methods of collecting union dues." They contended that the harm posed by the law to Respondents' "constitutionally weighty interests" far outweighed any de minimis harm posed to Petitioner should the law not take effect, as "[t]he only conceivable state interest that can be claimed that [HB 2009] will vindicate is the negligible cost associated with administering the program."

According to Respondents, the deduction of dues from public employees' wages premised on agreements or contracts between public employers and public employee unions had been the decades-long status quo; why, they questioned, had the Legislature chosen to forbid the practice now and only for public employee unions and associations? Their answer: animus towards unions expressed in a law that treats unions differently than other entities (equal protection), undercuts unions' ability to collect dues from members and so hinder their ability to advocate on behalf of members (freedom of speech and association), and impinges on long-standing agreements between public employees, the unions, and public employers (the contract clause). Respondents argued that HB 2009 contravened this Court's decision in Pushinsky v. West Virginia Board of Law Examiners, [10] among others, and related federal authority because it targeted member-employees' exercise of their right to speech and association by withdrawing a benefit- payroll deductions-from them while continuing to offer the benefit to groups other than unions.

Petitioner countered that Respondents were highly unlikely to succeed on the merits of their claims under the West Virginia Constitution because (1) state and federal courts had already rejected similar (or identical) theories challenging similar (or identical) laws; (2) nothing indicated that Respondents' claims-all predicated on rights guaranteed by the West Virginia Constitution-would fare any better; (3) Civil Rights Era cases cited by Respondents were not relevant to their claims; (4) Respondents had not produced any contracts to be protected by the contract clause of the...

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