IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA

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WEST VIRGINIA AFL-CIO, el al ,

Plaintiffs,

Civil Action No. 16-C-959 through 16-C-969

v.

(Judge Bailey - lead case)

EARL RAY TOMBLIN, et al ,

Defendants.

THE STATE OF WEST VIRGINIA'S MOTION TO INTERVENE

AND INTEGRATED MEMORANDUM OF LAW

The State of West Virginia (the "State"), represented by the Attorney General, moves to

intervene in this matter under Rule 24 of the West Virginia Rules of Civil Procedure for the
limited purpose of responding to Plaintiffs' challenge to the Workplace Freedom Act. As the
Supreme Court of Appeals has held, the Attorney General "has the right to appear as an
intervenor on behalf of the State in all proceedings where the interest of the State or a State entity

is at issue, to assert the Attorney General's view of the law on behalf of the State" Syl. Pt. 7, in
part, State ex rel. McGraw v. Burton , 212 W. Va. 23, 569 S.E.2d 99 (2002) (emphases added).
The State has a fundamental interest in this case, and should be granted intervention by its

Attorney General because Plaintiffs seek an order declaring a duly enacted law of this State
unconstitutional and permanently enjoining its enforcement. Intervention by the Attorney
General on behalf of the State is particularly important in this case, because it is plausible that
other named state defendants may choose to not defend the Act or to otherwise adopt adverse
positions in this proceeding.

Accordingly, the State should be pennitted to intervene under Rule 24 for the limited
purpose of addressing the challenge to the Workplace Freedom Act. Counsel for Plaintiffs have
communicated that they do not oppose this motion.

BACKGROUND

Senate Bill 1, referred to by its text as the "West Virginia Workplace Freedom Act," was
passed by the House of Delegates on February 4, 2016, and by the State Senate the following

day. Enrolled Senate Bill 1 was then sent to the Governor on February 8. 2 He vetoed it on
February 1 1 for public policy reasons, stating "I dispute that West Virginia needs a 'right to

work' law." Veto Message re: Senate Bill 1, Feb. 1 1, 201 6. 3 The Senate and House overrode the
veto on February 12, completing the legislative process. The Act became effective on May 5,
201690 days from "passage." See W. Va. Const., Art. VI, 30. Under its own terms, however,

the Act applies to collective bargaining agreements entered into after July 1, 2016. W. Va. Code
21-5G-7(b).

On May 9, 2016, the Attorney General received a letter from Plaintiffs notifying him that
several labor unions and one individual intended to challenge the Workplace Freedom Act. See
W. Va. Code 55-17-3 (requiring at least thirty days' notice to the Attorney General before any
legal action may be commenced against a State agency).

The original complaint in this case was filed on June 27, 2016, in the Kanawha County
Circuit Court. But before any action was taken in the case, Plaintiffs filed an amended complaint
shortly thereafter naming as defendants the Attorney General, Governor Tomblin, and Kanawha
County Prosecutor Charles Miller. The amended complaint contains three counts. Count One

The State is circulating for signatures a proposed agreed order granting this motion, which the
State will submit to this Court when completed.
O

" The final enacted version of the bill can be found online at

http://www.legis.state.wv.us/Bill_Text_HTML/2016_SESSIONS/RS/bills/SBl%20ENR.pdf.

3 Available at http://www.govemor.wv.gov/Documents/SBl%20-%20Right%20to%20Work.pdf.
2

alleges that the Act infringes on numerous Constitutional rights of unions and their members, as
found in Art. Ill, 1,3, 7, 9, 10, and 16 of the State Constitution. Count Two alleges technical
failings of the Act's title to comply with Art. VI, 30 of the State Constitution. Count Three asks
for a declaratory judgment concerning interpretation of the Act as it applies to the construction

industry. Plaintiffs have filed a motion to consolidate their various cases as well as a motion for a
preliminary injunction. Both of these motions are now pending before the court.
ARGUMENT
I.

The State Should Be Permitted To Intervene.

A.

The State Has A Right To Intervene.

West Virginia Rule of Civil Procedure 24(a) provides that a party has the right to

intervene in an action when the party "claims an interest relating to the property or transaction
which is the subject of the action and the applicant is so situated that the disposition of the action

may as a practical matter impair or impede the applicant's ability to protect that interest, unless
the applicant's interest is adequately represented by existing parties." W. Va. R. Civ. P. 24(a)(2).

The Supreme Court of Appeals has explained that a party may intervene as of right if four
conditions are met: (1) the application is timely; (2) the applicant claims an interest relating to
the property or transaction which is the subject of the action; (3) disposition of the action may, as

a practical matter, impair or impede the applicant's ability to protect that interest; and (4) the
applicant's interest will not be adequately represented by existing parties. See Syl. Pt. 2, State ex
rel. Ball v. Cummings, 208 W. Va. 393, 540 S.E.2d 917 (1999). Here, the State clearly satisfies
all four of these conditions and must be permitted to intervene as a matter of right.
First, this intervention is timely. In determining whether an application for intervention is
timely, a court must consider, as relevant here, "whether the underlying action had progressed to
a point that intervention would substantially affect the parties to the original action."
3

W. Va.

Pub. Employees Ins. Bd. v. Blue Cross Hosp. Serv., Inc., 180 W. Va. 177, 181, 375 S.E.2d 809,
813 (1988). There can be no serious argument that the intervention proposed by the State is

untimely under that standard. The original complaint was filed on June 27th and no hearings have
taken place nor rulings been handed down. As the Attorney General, a party defendant, has been
involved in the litigation as a defendant up to this point, no claim could be made that the State's

limited intervenor participation by the Attorney General would unduly prejudice the rights or
expectations of the other parties.
Second, the State has a critical interest in this case because Plaintiffs have challenged the
validity of a duly enacted state law. It is beyond dispute that the State has a fundamental interest
in the constitutionality of its laws. Alfred L. Snapp & Son, Inc. v. Puerto Rico , 458 U.S. 592, 601
(1982) (a state has an interest in its sovereign power "to create and enforce a legal code");
accord Maryland v. King, 133 S. Ct. 1,3 (2012) (Roberts, C.J., in chambers) ("Any time a State

is enjoined by a court from effectuating statutes enacted by representatives of its people, it

suffers a form of irreparable injury."). Indeed, the State's interest is acknowledged in Rule 24
itself, which provides that a court "shall give notice ... to the attorney general" whenever "the
constitutionality of a statute of this State affecting the public interest is drawn in question in any
action to which th[e] State or an officer, agency, or employee thereof is not a party." W. Va. R.
Civ. P. 24(c). The express requirement of notice to the Attorney General who is charged with

"the right to appear as an intervenor on behalf of the State in all proceedings where the interest
of the State or a State entity is at issue," Syl. Pt. 7, in part, Burton, 212 W. Va. 23, 569 S.E.2d 99
(emphasis added)is a clear invitation to the State to participate in cases like this one.

Courts of this Stateincluding most recently the Supreme Court of Appeals itselfregularly pennit the Attorney General to intervene on behalf of the State in cases challenging the

validity of state law. See, e.g., Rule to Show Cause, Biafore v. Tomblin, No. 16-0013 at *2 (W.

Va. Jan. 13, 2016) (granting intervention in constitutional challenge to ballot vacancy statute)4;
Agreed Order Permitting Intervention of the State of West Virginia, Walker v. Greenbrier
Emergency Servs., No.

14-C-1443 (W. Va. Cir. Ct. Apr.

14, 2015) (Stucky, J.) (granting

intervention in constitutional challenge to medical malpractice reform statutes).

Third and fourth, a decision by this Court without the Attorney General's participation on

behalf of the State will impede the State's ability to vindicate its interest in the validity of its
laws. The Attorney General, representing the State, is uniquely placed to defend the laws of the

State against court challenge. As a "constitutional officer who is directly elected by and
accountable to the people," the Attorney General can consider the legal significance of the
Workplace Freedom Act to "the full range of State entities and interests." Burton, 212 W.Va. at
40, 569 S.E.2d at 116. That is why Rule 24 specifically requires notice to the Attorney General
of constitutional questions in cases "to which th[e] State or an officer, agency, or employee
thereof is not a party."

W. Va. R. Civ. P. 24(c). The State must have the independent ability as

an intervenor to protect its unique interests and to appeal any adverse decision. Cf. Burton, 212
W. Va. at 39-40, 569 S.E.2d at 115-16.

In this case, granting limited intervenor status to the State is particularly important, as it
is plausible that other defendants may choose not vigorously defend the lawfulness of the
Workplace Freedom Act. The Governor has long-opposed the Act, which he vetoed on policy

grounds. The Governor "dispute[s] that West Virginia needs a 'right to work' law." SB 1 Veto
Message, February 11, 2016. In a press statement issued shortly after passage of the bill, the

Governor stated, "I do not believe right-to-work legislation is the best way" to promote

4 This order may be found here: http://www. courtswv.gov/supreme-court/clerk/pdf/cases-ofinterest/senate-appointment-20 1 6/1 6-00 1 3 RuletoShowCause.pdf.
5

economic growth in West Virginia. Governor's Office Press Statement, February 4, 201 6. 5 In
light of these policy disagreements, it is plausible that the Governor will face conflicting
incentives over whether or how to defend the Act. Although the Governor has not yet formally
indicated his view of Plaintiffs' claims, the State cannot sit idly by as litigation proceeds waiting
to see how the other defendants may choose to defend (or not to defend) the Act, because a
motion to intervene must be timely. Syl. Pt. 2, Ball, 208 W. Va. at 396, 540 S.E.2d at 920.
In sum, the State's participation will ensure that the best arguments in favor of the Act's

validity are brought before the court, with no danger of conflicting incentives among the
defendants.
B.

This Court Should At Least Grant Permissive Intervention.

If this Court finds that the State may not intervene as a matter of right under Rule 24(a), it
should exercise its discretion to allow permissive intervention under Rule 24(b). For several

reasons, the equities support permitting the State to intervene for the limited purpose of
addressing the challenged provisions of the Act. As explained above, there are no concerns about

the timeliness of intervention, given that Plaintiffs only recently filed their complaint. See W. Va.
R. Civ. P. 24(b) ("In exercising its discretion the court shall consider whether the intervention
will unduly delay or prejudice the adjudication of the rights of the original parties."). Moreover,
Rule 24(b) specifically instructs that a "State governmental officer" may be permitted to
intervene "[wjhen a party to an action relies for ground of claim or defense upon any statute . . .
administered by" the officer. Id. It is consistent with that instruction to permit the Attorney
General to exercise, in this casewhere a party has drawn into question the validity of several

5 Available at: http://www.governor.wv.gov/media/pressreleases/2016/Pages/Governor-TomblinIssues-Statement-Following-Passage-of-Right-to-Work-Legislation.aspx

6

state statuteshis duty as the State's "chief legal officer" to offer his "view of the law on behalf
ofthe State." Burton, 212 W. Va. 23, 30, 41, 569 S.E.2d 99, 106, 117.
Intervention by the State is also likely to be "helpful" when the validity of a state law is at
issue, as the Supreme Court of Appeals has previously recognized. In re Application of Daley,
195 W. Va. 330, 331 n.2, 465 S.E.2d 601, 602 n.2.
And finally, it is well-settled that any "[djoubts regarding the propriety of permitting

intervention should be resolved in favor of allowing it." Stern v. Chemtall Inc., 217 W. Va. 329,
337, 617 S.E.2d 876, 884 (2005) (quoting Ball, 208 W. Va. at 403, 540 S.E.2d at 927).
CONCLUSION

For the foregoing reasons, the State of West Virginia should be pennitted to intervene
under Rule 24.

Dated: August 4, 2016

Respectfully submitted,

PATRICK MORRISEY

ATTORNEY GENERAL
ELBERT LIN
SOLICITOR GENERAL

Gilbert C. Dickey (WV Bar Numbei/l2655)

Assistant Attorney General
J. Zak Ritchie (WV Bar Number: 1 1705)
Assistant Attorney General
Office of the Attorney General

State Capitol Building 1 , Room E-26

Charleston, WV 25305

Telephone: (304) 558-2021

Fax: (304) 558-0140
E-mail: Gilbert.C.Dickey@wvago.gov
Counselfor Movant-Intervenor
State of West Virginia

CERTIFICATE OF SERVICE
i[n

The undersigned attorney hereby certifies that on August 4, 201 6, a true and correct copy

h
of the foregoing document was served upon the following via U.S. Mail, postage prepaid, and
addressed as follows:

Vincent Trivelli
The Law Office of Vincent Trivelli, PLLC
1 78 Chancery Row
Morgantown, WV 26505
Counselfor Plaintiffs

John D. Hoblitzell III, Esq.

KAY CASTO & CHANEY PLLC
707 Virginia Street, East, Suite 1500
Charleston, WV 25301
Counselfor Defendant Governor Earl Ray Tomblin
Charles T. Miller, Prosecuting Attorney

301 Virginia Street, East

Charleston, WV 25301
Counselfor Defendant Kanawha County Prosecutor

Gilbert C. Dickey
Counselfor Movant-lnl ei-venor
State of West Virginia