No. 17-0187 West Virginia Attorney General, and State of West Virginia v. West Virginia
AFL-CIO, et al.
                                                                                  FILED
WORKMAN, Justice, concurring in part, and dissenting in part:               September 19, 2017
                                                                                  released at 3:00 p.m.
                                                                                RORY L. PERRY II, CLERK

                                                                              SUPREME COURT OF APPEALS

                                                                                   OF WEST VIRGINIA


                The one and only issue properly before this Court is whether the circuit

court erred in granting a preliminary injunction of the Workplace Freedom Act, 1 also

known as the “right to work” law. The law is crystal clear that an appellate court’s review

of an order granting a preliminary injunction is strictly confined to the limited issue of the

propriety of the injunctive relief. 2 Our jurisdiction at this point is “not to resolve the
                                                                3
overall merits of the dispute between the parties[,]”               and not to decide the

constitutionality of the law until there is a full hearing on these issues below and the entry

of a full order capable of review. The majority purports to remand this case, but in fact so

completely resolves the underlying constitutional issues that it renders such remand

nothing but a perfunctory exercise.



                This appeal of the temporary injunction should have been treated as a

petition for a writ of mandamus to require the lower court to issue a ruling. I would have

granted mandamus and ordered the lower court to issue a full order and opinion within



       1
           See W.Va. Code §§ 21-5G-1 to – 7 (2016).
       2
           In re Estate of Reilly, 933 A.2d 830, 834-35 (D.C. 2007).
       3
           Id. (emphasis added).

                                              1

ten days.4 We could have then expedited the appeal thereof and promptly issued a full

opinion based on a complete record and full argument.



              Thus, I concur that this case should be remanded, but I dissent on this

Court’s stunning failure to recognize our jurisdictional limits in that they so explicitly

resolved the underlying constitutional issues in the context of the review of a mere

preliminary injunction prior to full hearing and the entry of an order below capable of full

review.



              Justice Franklin D. Cleckley emphasized during his tenure on this Court

that our first obligation when reviewing a circuit court’s decision is to articulate the

standard of review—i.e., our criterion for assessing the validity of the circuit court’s

ruling. “This requirement serves two functions: it informs the parties of the extent of the

review and, most important, reminds the appellate court of the limitations placed on its




       4
         See W.Va. R. App. P. 2 (“In the interest of expediting decision, or for other good
cause shown, the Supreme Court may suspend the requirements or provisions of any of
these Rules in a particular case on application of a party or on its own motion and may
order proceedings in accordance with its direction. These Rules shall be construed to
allow the Supreme Court to do substantial justice.”); see generally GMS Mine Repair &
Maint., Inc. v. Miklos, 238 W.Va. 707, 798 S.E.2d 833 (2017) (considering appeal of
interlocutory order as petition for writ of prohibition); State ex rel. Register-Herald v.
Canterbury, 192 W.Va. 18, 19 n.1, 449 S.E.2d 272, 273 n.1 (1994) (“In this case, it is
logical to treat the appeal filed by Mr. Thomas as a prohibition since it challenges the
scope of the injunction entered by the circuit court.”).

                                             2

own authority by the appellate process.”5 However complex the issues, “the standard of

review is the compass that guides the appellate court to its decision. It defines and limits

the course the court follows in arriving at its destination. Deviations from the path,

whether it be one most or least traveled, leave writer and reader lost in the wilderness.”6



                An overwhelming body of law in this country supports the proposition that,

in the appeal of an interlocutory order, the scope of appellate review is strictly confined

to the issues necessary to determine the propriety of the interlocutory order itself. 7 Thus,

the jurisdiction of this Court is limited to determining whether the circuit court abused its

discretion in granting a preliminary injunction. “A preliminary injunction is a provisional

remedy. Its function is not to determine the ultimate rights of the parties, but to maintain

the status quo until there can be a full hearing on the merits.”8 The fundamental purpose

of a preliminary injunction is “to prevent irreparable injury so as to preserve . . . [a]




       5
        North Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612,
626 (Fla. 2003).
       6
           People v. Jackson, 27 Cal. Rptr. 3d 596, 601 (Cal.App. 2005)
       7
         See Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure Volume 7, § 3291.1 (2d.ed. 2011) (“Ordinarily the scope of
appellate review . . . is confined to the issues necessary to determine the propriety of the
interlocutory order itself.”).
       8
       Pamela Equities Corp. v. 270 Park Ave. Café Corp., 881 N.Y.S.2d 44, 45 (N.Y.
App. Div. 2009) (internal quotation marks and citation omitted).

                                              3

court’s ability to render a meaningful decision on the merits.”9 Thus, it is essential for

this Court to refrain from offering its view of the ultimate merits of the parties’

arguments to allow the circuit court the latitude to make those rulings in the first

instance.10



              Yet the majority—without a dispositive order by the circuit court on the

petition for declaratory relief—steamrolls over our jurisdictional limits in resolving these

significant constitutional issues.



              The urgency of the Petitioners to have a final ruling is understandable. And

certainly it is troubling that this matter has been ripe for decision by the circuit court

since December of 2016. Perhaps that is why the majority felt so emboldened to ignore

the limits of our jurisdiction and resolve the entire case immediately under the guise of

reviewing a preliminary injunction.




       9
        Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 627
  th
(5 Cir. 1985).
       10
         See Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d
1354, 1356 (6th Cir. 1985) (“An appellate court in reviewing the propriety of a
preliminary injunction should refrain from the unnecessary comment on the evidence or
review of the merits of the case since the case has yet to be heard in full on the merits.”);
DiLucente Corp. v. Pa. Roofing Co., 655 A.2d 1035, 1037-38 (Pa. Super. 1995) (“When
reviewing the denial of a preliminary injunction, this Court will not inquire into the
merits of a controversy, but will examine the record to determine if any apparently
reasonable grounds exist for the trial court’s action.”).

                                             4

                A review of the procedural history reflects that on June 27, 2016, the

Respondents filed the petition for a preliminary injunction and declaratory relief in the

circuit court of Kanawha County. On February 24, 2017, after a hearing on the petition

for injunctive relief, the Honorable Jennifer Bailey entered an order temporarily enjoining

the enforcement of the statute. Although the order contained some discussion of the

underlying constitutional issues, the court did not resolve them fully or in anything other

than a cursory and preliminary fashion. Instead, the court set a date for full briefing and

argument of those issues. After conducting a hearing on the parties’ motions for summary

judgment in the declaratory judgment action in December of 2016, the circuit court has

yet to make a decision.



                During this long delay, the Petitioners have had at their command the office

of mandamus, which is the proper remedy to compel tribunals and officers exercising

discretionary and judicial powers to act when they unreasonably neglect or refuse to do

so,11 but they failed to use that tool. Instead, on February 27, 2017, they filed an appeal of

the circuit court’s preliminary injunction and made a motion for expedited relief before

this Court.




       11
            See State ex rel. State v. Reed, 204 W.Va. 520, 514 S.E.2d 171 (1999).


                                              5

                In an insightful presentation on United States Supreme Court Justice Ruth

Bader Ginsburg’s approach to judicial decision-making, Justice Peter J. Rubin 12 cited

Justice Ginsburg strong view that appellate courts must be attentive to their proper role.

He also pointed out that Justice Ginsburg’s jurisprudence is animated by recognition that

an appellate court must refrain from adopting a position that has not been tested “in the

crucible of the adversary process[.]” 13 Issues that are fully pled, briefed, argued, and

decided in the first instance by a lower court not only provide the jurisdictional basis for

appellate court review, but well-serve the process that the creators of our system foresaw.

That is how our system is set up, and no matter how controversial or politically charged

an issue is, that is how cases should be decided. This Court should not do an end-run

around a pending declaratory judgment action involving constitutional issues by

resolving all the issues pending below without the benefit of full proceedings and a ruling

from the circuit court. “Furthermore, principles of judicial restraint counsel against

addressing issues—particularly constitutional issues—which are not squarely . . . before

the court.”14




       12
         Associate Justice Rubin serves on the Massachusetts Appeals Court; he is a
Professor of Law at Georgetown University.
       13
         See Peter J. Rubin, Keynote Address: Justice Ruth Bader Ginsburg: A Judge’s
Perspective, 70 Ohio St. L.J. 825, 832 (2009).
       14
        Florida Carry, Inc. v. Univ. of N. Fla., 133 So.3d 966, 981 (Fla. Dist. Ct. App.
2013) (Wetherell, J., concurring).


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              The majority examines, discusses, and makes significant legal statements

on the standard for granting injunctive relief. Importantly, however, they never enunciate

a new syllabus point of law on the proper standard, despite the fact that our State

jurisprudence has no existing syllabus points relating to the proper criteria for preliminary

injunctive relief. This Court has stated that

                     [t]he customary standard applied in West Virginia for
              issuing a preliminary injunction is that a party seeking the
              temporary relief must demonstrate by a clear showing of a
              reasonable likelihood of the presence of irreparable harm; the
              absence of any other appropriate remedy at law; and the
              necessity of a balancing of hardship test including: “(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.” Jefferson County Bd. of
              Educ. v. Jefferson County Educ. Ass’n, 183 W.Va. 15, 24,
              393 S.E.2d 653, 662 (1990) (quoting Merrill Lynch, Pierce,
              Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1054 (4th
              Cir.1985))[.]15


              In Jefferson County, we stated that courts must consider these factors in

“flexible interplay” when determining whether to issue a preliminary injunction, which

seems to suggest a movant must make a showing on all factors and the court has

discretion in weighing them. 16 While the factors set forth in Jefferson County have


       15
         State ex rel. McGraw v. Imperial Mktg., 196 W.Va. 346, 352 n.8, 472 S.E.2d
792, 798 n.8 (1996).
       16
         Jefferson County, 183 W.Va. at 24, 393 S.E.2d at 662; see also Horton v. City of
St. Augustine, 272 F.3d 1318, 1326 (11th Cir. 2001) (stating it is well established that
preliminary injunction is extraordinary and drastic remedy not to be granted unless
movant clearly establishes burden of persuasion as to all elements).

                                                7

become the apparent standard in West Virginia, we have not adopted them in a syllabus

point. Because the preliminary injunction is an extraordinarily powerful remedy, the

majority drops the ball badly by setting forth constitutional conclusions while failing to

even clarify our standard for a preliminary injunction. The fact that there are substantial

differences in the law governing the proper standard of review of a preliminary injunction

in both state17 and federal courts18 should have also impelled the majority to put these

issues through that “crucible of the adversarial process.”




       17
          See Richard R.W. Brooks & Warren F. Schwartz, Legal Uncertainty, Economic
Efficiency, and the Preliminary Injunction Doctrine, 58 Stan.L.Rev. 381, 389-90 (2005)
(“Most courts, when deciding whether to grant an injunction, rely on a four-part standard
that (to varying degrees) considers (1) plaintiff’s likelihood of success on the merits, (2)
the amount of irreparable harm likely in the absence of the injunction, (3) a balancing of
expected harms to plaintiff and those to defendant, and (4) the public interest. Within the
jurisdictions that use this four-part standard, there is no uniform application. Courts
outside these jurisdictions apply entirely different standards that may, for example, limit
consideration to a combination of plaintiff’s probable success on the merits and her
irreparable harm or a balance of hardships that favors plaintiff.”) (footnotes omitted).
       18
          See Thomas R. Lee, Preliminary Injunctions and the Status Quo, 58 Wash. &
Lee L. Rev. 109, 110 (2001) (“The federal courts of appeals are in substantial disarray on
an issue of threshold importance to the issuance of preliminary injunctive relief. One set
of circuits says that the traditional role of such relief is the preservation of the ‘status
quo,’ and thus accords disfavored status to preliminary orders that are mandatory in form
or that otherwise upset the status quo. In these circuits, a party seeking a preliminary
injunction must satisfy a heightened standard of proof requiring a clear and compelling
showing of the propriety of such relief. Another set of circuits rejects this view. These
circuits apply a uniform standard to all requests for preliminary relief.”); Rachel A.
Weisshaar, Hazy Shades of Winter: Resolving the Circuit Split over Preliminary
Injunctions, 65 Vand.L.Rev. 1011, 1014-15 (2012) (discussing split of authority among
federal district courts as to proper standard following United States Supreme Court’s
decision in Winter v. National Resources Defense Council, Inc., 555 U.S. 7 (2008)).

                                             8

              While the Respondents clearly have an uphill battle to demonstrate that this

legislation is unconstitutional, both parties deserve to have the merits of their claims fully

adjudicated below, and to have a full review by this Court of a full and complete order on

the petition for declaratory relief before this Court rushes to judgment.



              Thus, I concur that this case should be remanded, but I dissent on this

Court’s stunning failure to recognize our jurisdictional limits in explicitly resolving

constitutional issues in the context of the review of a preliminary injunction with no entry

of an order below capable of full review.




                                              9

