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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA No. PATRICK MORRISEY, in his official capacity as West Virginia Attorney General, and the STATE OF WEST VIRGINIA, Defendants below, Petitioners, vv WEST VIRGINIA AFL-CIO, et al. Plaintiffs below, Respondents. MOTION FOR STAY PATRICK MORRISEY ATTORNEY GENERAL Lindsay S. See (WV Bar #13360) Solicitor General Counsel of Record Zachary A. Viglianco Assistant Attorney General State Capitol Building 1, Room E-26 Charleston, West Virginia 25305 (304) 558-2021 Lindsay.S.See@wvago.gov Counsel for Petitioners Attorney General Patrick Morrisey and the State of West Virginia Petitioners, Attomey General Patrick Morrisey and the State of West Virginia, move, pursuant to West Virginia Rule of Appellate Procedure 28(b), for a stay of the circuit court's February 27, 2019 order permanently enjoining enforcement of the Workplace Freedom Act (the Act) pending Petitioners” appeal of that order to this Court. In support thereof, Petitioners aver as follows: 1, On February 27, 2019, the circuit court held that key provisions of the Act violate the ‘West Virginia Constitution. See Exhibit 1 at 45-46. Apparently recognizing the gravity of its decision and the importance of avoiding unnecessary legal uncertainty pending appeal, the circuit court sua sponte stayed its order for a period of 30 days “to accommodate any potential appeal.” See id. at 46. 3. On March 14, 2019, pursuant to West Virginia Rule of Appellate Procedure 28(a), Petitioners filed a motion with the circuit court seeking an extension of that stay for the duration of Petitioner's then-forthcoming appeal. See Exhibit 2. 4. Respondents opposed that stay motion. See Exhibit 3. 5. On March 25, 2019, the circuit court denied that stay motion, The circuit court did not provide a substantive reason for denying the motion, but “directed [Petitioners] to seek any further stay of th{e cireuit court's order] in conjunction with [the] Notice of Appeal.” See Exhibit 4 6. The circuit court’s stay, therefore, will terminate on March 29, 2019. 7. Petitioners filed a notice of appeal in this court yesterday, March 26, 2019. See Exhibit 5. 8. This Court should stay the circuit court’s order because permitting a validly enacted statute to be enjoined harms the State and its citizens. 9. Eighteen months ago, this Court reversed the circuit court’s order preliminarily enjoining the Act in the same case. In that decision, this Court held that Respondents “failed to show a likelihood of success in their legal challenge to the [Act's] constitutionality.” Morrisey v. W. Virginia AFL-CIO, 239 W. Va. 633, 637, 804 S.E.2d 883, 887 (2017). 10. In her partial concurrence and partial dissent, Justice Workman remarked that the majority opinion “so completely resolves the underlying constitutional issues that it renders such remand nothing but a perfunctory exercise.” Id. at 646, 804 S.E.2¢ at 896 (Workman, J., concurring in part and dissenting in part) 11, The facts and law surrounding this case have not changed in Respondents’ favor in the intervening months. If anything, the law has changed in Petitioners’ favor. See Janus v, Am, Fed’n of State, Cty., & Mun, Employees, Council 31, 138 S. Ct. 2448, 2467 (2018) (rejecting argument that agency fees are necessary for an exclusive agency union to fulfill its legal obligation to fairly represent nonmembers); see also Zuckerman v. Bevin, 565 S.W.3d 580, 603 (Ky. 2018) (ejecting similar challenge to Kentucky's right-to-work statute). Petitioners, therefore, have a substantial chance of succeeding in this appeal. 12, Allowing the circuit court’s order to take effect would engender confusion among employees, unions, and employers as to the appropriate legal framework for negotiating collective bargaining agreements while this appeal is pending. See Exhibits 6 and 7. 13. This is particularly true because, for the 17 months the circuit court waited before issuing the order on appeal after this Court’s prior decision and the parties’ cross- motions for summary judgment were pending, regulated parties complied with the Act.