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Court cases challenging lawmaker actions move forward

A committee meets in the House Government Organization Committee’s meeting room during the 2021 legislative session. Audio problems in the room prompted a lawsuit filed by the ACLU-WV last week. (Photo Provided)

CHARLESTON — Actions by the West Virginia Legislature during the 2021 regular session are facing legal challenges with one law already on hold pending the outcome.

Kanawha County Circuit Court Judge Tera Salango granted a temporary restraining order Tuesday on behalf of multiple public- and private-sector unions to block a law prohibiting local and state governments from taking dues and fees from employee paychecks.

The West Virginia AFL-CIO and 11 other unions filed suit last month in Kanawha County Circuit Court to block implementation of House Bill 2009 relating to limitations on the use of wages and agency shop fees by employers and labor organizations for political activities.

HB 2009, also known as the “Paycheck Protection Act,” was passed March 19 and signed into law by Gov. Jim Justice on March 30. The bill was scheduled to go into effect Thursday.

HB 2009 prohibits employers and payroll agents from withholding a portion of an employee’s wages and salaries for political activities on behalf of a union or any other private organization without express written authorization by the employee. The bill also prohibits state, municipal, and county governments from withholding union or club dues from a public employee’s wages or salaries.

“The judge made it clear the purpose of HB 2009 and legislators’ actions were retaliatory against the unions, and that West Virginia law protects everyone, including labor unions, from retaliation,” said Dale Lee, president of the West Virginia Education Association.

“This is a small and positive step in what will be a long, drawn-out legal battle. We will not let them destroy unions in West Virginia,” Lee said. “We will double our efforts in making sure all of our members have changed their dues payment method from payroll deduction to ensure coverage and protection.”

A full hearing on the case is expected to be scheduled soon, though the state could appeal the judge’s temporary restraining order to the state Supreme Court of Appeals.

The Legislature also is facing a lawsuit filed last week by the West Virginia chapter of the American Civil Liberties Union. ACLU-WV is suing the House of Delegates and the House Government Organization Committee for violating state open meetings laws by voting on legislation when the committee’s audio live streaming system was not working.

“Open meetings laws are at the very foundation of our democracy,” said Loree Stark, legal director for the ACLU-WV. “Without basic transparency and the opportunity of the public to observe government business, we cease to be a government for and by the people.”

The public was prohibited from entering the Capitol during the 2021 legislative session by order of Justice, except for official business. Witnesses for legislative committee meetings had to be invited. Meetings were open to the press, but seating was limited. All of these precautions were meant to limit the spread of COVID-19.

The public was forced to rely on video and audio live streams of House and Senate floor sessions and committee meetings. The House Government Organization Committee had several problems with its audio live streaming system during the 60-day session. In March, the House recommitted several bills to the House Technology and Infrastructure Committee, which met in the House Government Organization Committee’s meeting room, after the ACLU-WV threatened to sue when the committee continued to work without a functioning audio livestream.

Also in March, the House Government Organization Committee recommended four bills for passage, continuing its meeting even after learning the audio livestream system was not working. Robert King, the owner of Morgantown-based R and R Transit, was following one of those bills and was unable to listen due the malfunctioning equipment. The ACLU-WV and Huntington attorney Hoyt Glazer are suing on King’s behalf.

“As a business owner and resident in West Virginia, I follow the Legislature closely,” King said. “I have a right to know what politicians are doing in Charleston, but the House of Delegates and the Government Organization Committee denied me my rights by denying me the ability to observe meetings that must be publicly open about matters that directly affect me.”

The ACLU is seeking to have the four bills recommended by the House Government Organization Committee and passed by the Legislature voided. A spokesperson for the House declined to comment on the lawsuit.

Lambda Legal, the state and national chapters of the American Civil Liberties Union, and the law firm Cooley LLP brought suit last month against House Bill 3293, relating to transgender student participation in interscholastic athletic events. The bill passed the Legislature the day before the end of the 2021 session. HB 3293 requires student-athletes in middle school, high school or college to participate in sports that match their biological sex based on the student’s sex at the time of their birth.

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