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W.Va. growing a record of changing laws to head off lawsuits


The State Journal

CHARLESTON, W.Va. — In August 2016, shortly after the Republican-controlled West Virginia Legislature passed a right-to-work bill that would have prevented labor unions from charging non-members union dues, Kanawha County Circuit Judge Jennifer Bailey issued a preliminary injunction against the new legislation.

West Virginia Sen. Mike Romano, D-Harrison, is reluctant for the Legistlature to pass laws that might affect current or pending litigation.
(Photo by Will Price/West Virginia Legislature)

Agreeing with the arguments of the AFL-CIO and other labor leaders, Bailey ruled the Workplace Freedom Act violated the state constitution. But Bailey also said the law was ambiguously worded, making it unclear if the legislation applied to state workers or employees of some construction trades.

The Legislature responded in the early days of the 2017 legislative session with Senate Bill 330, an attempt to fix the right-to-work law. Bailey’s ruling had by then been appealed to the West Virginia Supreme Court.

Passage of the Workplace Freedom act made West Virginia the 26th state to pass right-to-work legislation. The law prevents unions from charging dues to non-union members.

Under previous law, employees in a unionized workplace could opt out of joining the union, but still had to pay a portion of union dues. Supporters of the old law argued unions negotiate for all employees, whether they are in the union or not, and say unions are required to provide representation for non-union members in work disputes.

Bailey’s preliminary injunction raised questions about the constitutionality, but she also said some language in the bill was ambiguous.

Lawmakers couldn’t do anything about the constitutional questions raised by the Workplace Freedom Act. But in February, Senate Judiciary Chairman Charles Trump, R-Morgan, introduced Senate Bill 330.

Trump said the bill would clean up the language that Bailey found misleading. The Senate went on to pass the bill by a margin of 22-12, with Republicans voting in favor of the legislation and Democrats voting against it.

Senate Bill 330 also was approved by the state House of Delegates, but was vetoed by Gov. Jim Justice.

“Our state doesn’t need to meddle in the pending litigation,” Justice said at the time. “It deserves its day in court, free of interference.

Dangerous precedent?

Senate Bill 330 was not the first time the state Legislature has gone back to change a law that was challenged in court, and likely will not be the last. But some question whether retroactively passing laws is good public policy.

“I think it’s a bad precedent for us to be able to be changing laws in order to address court cases,” said Sen. Mike Romano, D-Harrison, and an attorney/CPA by trade, shortly after Senate Bill 330 passed. “It disrupts the court system. It disrupts the constitutional separation of powers amongst the three branches because when we do it, we go in and change the playing field after the courts have spent a tremendous amount of time and resources in order to come with an answer.”

Roman Stauffer, director of West Virginia Citizens Against Lawsuit Abuse, said it’s unusual for state legislatures to pass retroactive legislation.

“I agree, absolutely we should probably be looking forward and not passing reforms that are retroactive and may impact legal actions that are currently pending,” Stauffer said. “Typically, that’s not the way reforms are passed, and there should be some concern with that.

“If they can pass reforms that affect one case, they can probably do it in just about any issue, and that’s something we should be concerned about. The Legislature should focus on passing reforms that don’t impact current litigation in our court system.”

In floor discussions on Senate Bill 330, however, Trump argued that problems were found with the law after it was passed, so it was the duty of the Legislature to go back and fix them.

Other cases

Sometimes, laws are passed to limit or head off future litigation, or to determine that actions can no longer be taken for events that happened after a certain date.

In 2016, the Legislature passed Senate Bill 14, designed to set a cutoff date for filing asbestos-related health cases against companies with ties to the manufacture of asbestos products.

The law was centered on Crown Cork and Seal, one of the country’s largest manufacturers of drink and food cans. The company used to have subsidiaries in West Virginia, leaving Crown Cork and Seal open to being sued in West Virginia courts.

In 1963, Crown Cork and Seal bought out a competitor, Mundet Cork, which manufactured asbestos products. With the sale, Crown Cork also acquired Mundet’s liabilities, according to the law.

That means although Crown Cork and Seal only briefly manufactured asbestos after the acquisition, the company was still legally liable for the health issues of employees who had worked for Mundet. The question was for how long.

Senate Bill 14 was intended to limit the liability of Crown Cork and Seal and other successor corporations that had bought out asbestos-related companies before 1968.

“The issue was, when did these successor companies know that asbestos causes cancer?” said Romano. “The later the date, the more companies are insulated (from lawsuits).”

Trump, who co-sponsored the bill, said the legislation was necessary to protect successor companies that never had anything to do with manufacturing asbestos from being sued for the actions of previous owners.

Romano said the original version of Senate Bill 14 limited the liability of successor corporations that bought out asbestos-related businesses prior to 1972. He said the change could potentially affect hundreds of companies whose owners knew or should have known that asbestos caused cancer.

Pending cases

The Supreme Court has yet to hear arguments in the appeal of Bailey’s right-to-work injunction. Arguments are scheduled for Sept. 5 in front of the high court.

But the Workplace Freedom Act injunction is not the only court action lawmakers passed legislation related to this year. During the regular session, the Legislature passed Senate Bill 575.

The law affects a case in Berkeley County Circuit Court involving Peacemaker National Training Center, a massive gun range and training facility near Glengary on the border with Virginia. Most of the facility lies in West Virginia, but a portion of the gun range extends across the border into Virginia.

In 2015, Ben and Diane Goldstein, who live in Virginia near the gun range, filed suit based on noise from the gun range. The Goldsteins moved in in 2011, after the gun range had been built.

Ironically, Trump said, the couple filed suit in West Virginia because they were unable to sue the gun range in Virginia under Virginia law.

Trump said the lawsuit was based on a local noise ordinance passed after the gun range was built. Senate Bill 575 was passed to make shooting ranges subject to whatever noise ordinances were in place at the time the facilities are built.

Romano, who reluctantly went along with the bill, said he had mixed feelings about the legislation.

While Romano said it was a good idea for the Legislature to protect gun ranges from lawsuits based on noise ordinances that weren’t in existence when the ranges were built, he was uneasy about passing legislation affecting a local government’s ability to pass its own ordinances.

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