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CHARLESTON — In a 3-2 decision, the West Virginia Supreme Court on Monday overturned a preliminary injunction that had blocked enforcement of a 2021 state law labor unions contend is deliberately intended to single-out public employee unions for financial harm.

In a majority decision written by Justice Beth Walker, the court concluded Kanawha Circuit Judge Tera Salango had overstepped her authority by issuing an injunction in June blocking enforcement of the so-called Paycheck Protection Act on the grounds it would cause irreparable harm to the unions.

“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,” Walker wrote.

Robert Bastress, representing more than a dozen labor unions in the case, argued the law amounted to legislative animus against public employee unions, particularly the state’s two teachers’ unions, since it prohibits state, county and public school employers from deducting union dues from employee paychecks, overturning a half-century tradition in 54 of 55 counties.

Bastress said the law clearly targets public employee unions, since it continues to permit the state, counties and school boards to provide upwards of two dozen other payroll deduction options to employees.

However, the decision Monday concluded the unions are unlikely to prevail on the merits of the animus claim, and had failed to provide evidence the legislation will cause them irreparable financial harm to the unions.

“Respondents could simply use the tools routinely used by other organizations and businesses to collect money, i.e., automatic bank drafts or charges to members’ credit or debit cards,” the decision states.

During oral arguments in October, state Solicitor General Lindsay See also argued there was no proof the legislation was intended to deliberately harm unions, stating, “Deduction of union dues is a special benefit the Legislature may not chose to extend to union groups.”

However, in a dissent written by Justice John Hutchison, Hutchison and Justice William Wooton argue the court’s majority had relied on evidence quickly assembled by attorneys for the unions to seek an injunction before the law went into effect to conclude the overall case lacks merit — something Hutchison said “short-circuited standard procedures designed to ensure that cases are resolved on the merits.”

“In practical effect, the majority has deprived the respondents of their day in court by making it clear, on the basis of nothing more than the evidence respondents were able to produce for an emergency hearing held within three weeks of filing their complaint, that they can’t — and won’t — win,” Hutchison wrote. “I refuse to accept this proposition at this early stage of the proceedings, before the first deposition has been taken or the first interrogatory sent.”

While the majority remanded the case back to circuit court, Hutchison asserted that the 3-2 decision overturning the injunction “so completely resolved the underlying constitutional issues that it renders such remand nothing but a perfunctory exercise.”

The dissent states: “The courts of this State are required to provide a level playing field where citizens can fully assert their common-law, statutory, and constitutional rights. Cases are to be decided on their merits, not on technicalities, and circuit judges are in the best position to allow the parties to give voice to their respective positions. This Court needs to stand aside, let the parties present their evidence below, and let the circuit court, not this appellate court, decide the case on the merits of those arguments in light of the evidence.”

Phil Kabler covers politics for HD Media. He can be reached at 304-348-1220 or Follow @PhilKabler on Twitter.

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