A divided Kentucky Supreme Court upheld a law Thursday that severely curbs the power of labor unions to collect dues from workers, handing a victory to Gov. Matt Bevin and the Republican-led legislature.
The law, passed in January 2017 as Republican’s took full control of the Kentucky General Assembly and union members descended on the Capitol to protest, prevents unions from requiring all employees in a unionized workplace to pay dues.
The unions argued the law is unconstitutional because it treats union employees differently than others; it violates a provision of the Kentucky Constitution that prohibits “special legislation;” it takes private property without just compensation; and it was improperly designated as emergency legislation.
In a majority opinion supported by four of seven justices, Justice Larry VanMeter dismissed those arguments, concluding that the Kentucky Constitution grants the legislature power to regulate unions.
“Based on the foregoing reasons, we hold that the Unions’ constitutional challenges to the Act are without merit,” wrote Vanmeter, the newest member of the court. “In this area of economic legislation, the legislature and the executive branch make the policy, not the courts.”
The decision is a major victory for Bevin, who has touted the “right-to-work” law as a key factor in helping him recruit businesses to Kentucky. He often cites Braidy Industries, which plans to build an aluminum mill near Ashland, saying the company wouldn’t have agreed to build in Kentucky without the law.
Bevin’s office “applauded” the ruling in a statement on Twitter Thursday.
“Kentucky is experiencing unprecedented economic growth, as we provide important right-to-work protections to every worker in our state and send a clear message to the world that we are truly open to business,” he said.
The court split 4-3 with VanMeter, Chief Justice John Minton, Elizabeth Hughes and Daniel Venters upholding the law. Justices Michelle Keller, Samuel Wright and Bill Cunningham dissented.
The split focused on whether the Kentucky Constitution’s prohibition of “special legislation,” a term that goes back to the 1891 constitutional convention and applies to legislation passed to benefit specific people and corporations, applies to labor unions. This provision means that a law must apply to everyone within a “class” of people for it to be considered constitutional.
The founders wrote a list of subjects special legislation should not apply to, and one of those subjects was labor.
“The General Assembly shall not pass local or special acts concerning any of the following subjects, or any of the following purposes namely...” the constitution says, “Twenty-fourth: To regulate labor, trade, mining or manufacturing.”
In her dissension, Keller argued the “right-to-work” law is unfair because it does not apply equally to all employers and employees in Kentucky. It only applies to Kentucky employers and employees with unions.
“The methods and practices of those employers and employees associated with labor organizations are not only altered, but are extinguished going forward,” Keller wrote. “The employers and employees not associated with labor organizations are left in the same position as they were prior to the [Right To Work Act].”
Wright made a similar argument, adding that contracts between union employees and their employers are being treated differently than other contracts in the state.
Minton wrote an opinion supporting the majority that specifically addresses the dissent of Keller and Wright. In it, he said allowing the seven justices to determine whether a specific class of Kentuckians are affected by legislation gives the judicial branch too much power.
“...how this court defines ‘class’ at issue could mean the difference between rendering legislation constitutional versus unconstitutional,” Minton wrote. “Such a fluid determination in defining the ‘class’ at issue... gives the court too much leeway.”
Minton was joined in that opinion by Hughes and Venters.
Passing legislation aimed at weakening the power of unions was one of the top priorities for Republicans when they took control of the state House for the first time in nearly 100 years. Since then, Republican leaders have touted the law on the campaign trail as a significant accomplishment that has helped grow Kentucky’s economy.
Bill Londrigan, president of Kentucky State AFL-CIO, said he doesn’t think the court’s decision will weaken unions in the state, but he predicted it will undermine unions’ ability to provide services to their members.
He and others have said the law will create free-riders — people who get the benefits of union bargaining power without paying for it.
“It has the impact of creating divisions,” Londrigan said. “And that’s part of its purpose.”
The court affirmed the decision of Franklin Circuit Court, where Justice Thomas Wingate dismissed the complaint. Kentucky joins several states where union challenges to similar laws have recently failed.