From The Well

Day 34


At the center of the West Virginia state Capitol is an area known as The Well.

It is the informal gathering place for lobbyists, reporters, constituents and lawmakers.

Centrally located between the chambers of the House of Delegates and Senate,

The Well is often where information is shared, alliances are formed, and deals are made.






Resolution encourages organ donations


The Senate acknowledged organ donations with the adoption of SR25, which designates Feb. 14, 2022, as National Donor Day.


Senator Michael Maroney of Marshall County, primary sponsor of the Resolution, moved for its adoption. It encourages residents to register online as an organ, tissue, and cornea donor at, local West Virginia DMV offices, or on West Virginia hunting and fishing license applications.


Senator Maroney acknowledged the attendance at today’s session of the family of Cecil F. Lockhart of Welch. Cecil F. Lockhart, was a World War II veteran, and he became the oldest organ donor in United States history when, at age 95, he donated his liver after his death in May 2021 to a woman in her 60s.


Senator Maroney also noted that more than 100,000 individuals in the United States, including 500 West Virginians, are currently awaiting a life-saving organ transplant.


Joining Senator Maroney in speaking in support of the resolution was Senator Richard Lindsay of Kanawha County, who noted Charleston Police Officer Casey Johnson, killed in the line of duty, was an organ donor. Her donations saved the lives of five different individuals.


Finally, Senator Jack Woodrum of Summers County offered his perspective as a funeral director and organ donation recipient.


The Senate unanimously adopted the Resolution on a voice vote.


Also sponsoring the Resolution were Senators Mike Woelfel, Randy Smith, Ron Stollings, Bill Hamilton, Robert Plymale, Stephen Baldwin, Mike Caputo, and Glenn Jeffries.




Committee passes anatomical gifts bill


House Judiciary Committee members unanimously passed Committee Substitute for HB4340, which came to them from the House Health & Human Resources Committee.


The bill would maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research, or education. It authorizes the Department of Health and Human Resources as guardian to make an anatomical gift without a court order and clarifies the duties of a procurement organization the state Medical Examiner to cooperate with procurement organizations to maximize the opportunity to recover anatomical gifts.


Delegate Tom Fast of Fayette County asked several questions about procurement organizations’ ability to conduct a test or examination to evaluate the medical suitability of the body or part for its intended purpose.


Susan Stewart, CEO for the Center for Organ Recovery and Education (CORE), said the testing is minimally invasive and intended to spare the family of the decedent the opportunity to grant organ donation and then take away that opportunity.



Senate panel considers telehealth changes


The Senate Judiciary Committee Monday took up Originating Bill 1, which was drafted in response to questions that occurred during consideration of an administrative rule related to telehealth. The rules were amended in such a way that necessitated a change to current law.


The proposed bill seeks to modify legislation passed during the 2021 regular session that created two standards of care. Rules intended to implement the 2021 law were amended last week by the Senate Judiciary Committee. Amendments to those rules resulted in the committee originating bill to synchronize the rules with the authorizing statute.


Senator Patricia Rucker of Jefferson County noted that because the originating bill is not referenced to the Committee on Health and Human Resources, the Health Committee will not have the opportunity to weigh in on the changes to a law that it worked on extensively and that it adopted during the 2021 Regular Session.


Senator Robert Karnes of Randolph County noted the rule the committee amended last week would not be authorized by the current law if the bill before them is not enacted.


Senator Tom Takubo of Kanawha County said the law enacted last year created two standards of care, one for persons who were seen in person and those seen virtually. The change in the bill before them is intended to make sure the standards of care are the same.


Senator Rucker spoke in opposition to the bill because the bill changes law that was vetted by the Committee on Health and Human and Resources just last year. She also said she believes the change will cause West Virginia to be out of line with other states.


Senator Takubo argued the bill will ensure consistency in standards of care and is good public policy for patients and health care practitioners.


The committee reported the bill to the full Senate with a recommendation that the bill be enacted.



Bill deals with handling unclaimed remains


Committee Substitute for HB4559 on Monday passed the House Judiciary Committee. The bill came from House Health Committee with the entirety of HB4584 incorporated into the bill.


Committee Counsel said the bill would clear up a problem in the Office of the Chief Medical Examiner, which is overwhelmed with the number of unclaimed remains it has to store.


The bill will allow disposition by cremation six months after all means to identify a body have been exhausted. If a body is identified but unclaimed, it will be placed in a cemetery.


The representative from the Chief Medical Examiner’s office said there is no mechanism currently in law to properly inter a decedent for those that are unclaimed and unidentified. The representative assured the committee that Medical Examiner always collects evidence and has documentation.






Senate approves changes in bicycle law


The Senate on Monday considered and approved SB560 on third reading.


The legislation addresses Class 2 electric bicycles, which are electric bicycles equipped with a motor that may be used exclusively to propel the bicycle but is not capable of providing assistance when the electric bicycle reaches the speed of 20 miles per hour.


The bill repeals all restrictions contained in state law that treat electric bicycles differently from any other type of bicycle so that electric bicycles may be used in places where bicycles are permitted to travel, including, but not limited to, public roadways, public bicycle paths, public multiuse trails, and public single-use trails.


Senator Robert Plymale of Wayne County indicated through questions from Senator Charles Clements of Wetzel County, chair of the Committee on Transportation and Infrastructure, that he had concerns because the bill would appear to pre-empt the authority of local authorities who have jurisdiction over bicycle paths, multiuse trails, or single-use trails to regulate electric bicycles.


The bill passed the Senate by a vote of 22-11-1 (Nays: Stephen Baldwin, Owens Brown, Mike Caputo, Hannah Gefferts, Bill Hamilton, Glenn Jeffries, Richard Lindsay, Robert Plymale, Mike Romano, David Stover, and Mike Woelfel; Absent and not voting: Robert Beach).






Committee advances voting legislation


The Senate Judiciary Committee took up a bill Monday that previously appeared on its agenda this session but was laid over after members expressed concerns about its application. HB4299 is intended to clarify conduct that can be considered intentional interference with election processes.


Committee Counsel explained that a suggested strike-and-insert amendment was drafted with input from the Secretary of State. It is modeled from a Vermont law.


Senator Mike Romano of Harrison County asked about the language in the amendment regarding “travel into or out of the polling place” and how it might be interpreted. He also asked whether it would be helpful to include language adding “walks and driveways” to the amendment.


Senator Ryan Weld of Brooke County asked about the absence of specific language regarding intent. He offered an amendment to include such language.


Before voting on Senator Weld’s amendment, Senator Richard Lindsay of Kanawha County asked to speak to a representative of the SOS’s office.


Donald “Deak” Kersey, General Counsel, answered questions regarding other state laws.


Senator Mike Caputo of Marion County asked Mr. Kersey about complaints received by the SOS on issues related to the issue. Mr. Kersey describes some of the complaints his office has received.


Senator Weld’s amendment was adopted by a voice vote.


Senator Lindsay also offered an amendment to include more specific language relating to walks and driveways leading to the polling place.


Senator Romano asked whether Senator Lindsay would include parking areas adjacent to the polling place to the amendment. Senator Lindsay agreed to reform his amendment to include the language that Senator Romano suggested.


The Committee adopted Senator Lindsay’s amendment.


The Committee then adopted the strike-and-insert amendment as amended. The Committee voted unanimously to recommend the bill as amended to the full Senate for enactment.






House panel works on magistrate legislation


A subcommittee report to the House Judiciary Committee proposed a Committee Substitute for HB2910, which revises the allowable number of magistrate judges per county.


The Committee Substitute corrected dates and proposed that the Supreme Court could review the caseload of any county that fell below 7,000 of the target population of 31,000 and allow retention of magistrates but not the addition.


The bill as introduced uses a population benchmark of 15,500 and less for two magistrates and goes up in increments of 15,500, keeping the number of magistrates in the state at 158.


The subcommittee’s proposal eliminated the cap of 158 magistrates.


Delegate Shawn Fluharty of Ohio County proposed an amendment that border counties in WV be allowed to capture the population of bordering states within a 50-mile radius, noting that Washington County, Pa., with a population of 220,000, is across the border from Ohio County, W.Va.


Delegate Fluharty said the discussion gives an indication that, “We have no idea what we’re doing,” noting the 15,500 population benchmark is arbitrary and doesn’t reflect caseload.


The amendment failed with 8-4.


The second amendment was taken up. It would allow the Supreme Court to add magistrates if needed.


Keith Hoover, Deputy Director and General Counsel for the Supreme Court, responded to a question about the cost of one additional magistrate, stating that in year one it would be $181,000 and $177,000 thereafter.


Asked about the amendment to add a magistrate based on caseload study reports, he agreed it would be at the Supreme Court’s discretion to add magistrates. He further said the last case study was in 2015 and was conducted by the National Center for State Courts, which looked at case data, types of cases, and conducted field interviews.


“The Constitution says the Legislature determines the number of magistrates. There was nothing done with the study in 2015,” Hoover said.


Delegate Geoff Foster of Putnam County, lead sponsor of the bill, was asked how many counties might lose a magistrate. He said 12 counties would have the possibility of losing a magistrate but couldn’t name the counties because “my computer has died in the time we’ve been talking.”


As his computer was charging, Delegate Laura Kimble of Harrison County read that Mingo, McDowell, Nicholas, and Wyoming definitely would lose a magistrate, and another eight counties would be evaluated.


Chairman Moore Capito of Kanawha County spoke in favor of the Committee Substitute as presented by the subcommittee, saying, “We have kicked the can down the road for 20 years.”


He noted the subcommittee added some discretion, but the amendment currently being considered adds further confusion for the Supreme Court.


That amendment also failed. After a nearly 90-minute discussion, the bill passed with 19-4.



Senate OKs bill altering magistrate coverage


The Senate Judiciary Committee on Monday took up a staff-suggested Committee Substitute for SB573.


The bill requests that the West Virginia Supreme Court of Appeals adopt a system for coverage by magistrates during non-court hours by assigning magistrates to serve on a regional basis and via virtual proceedings.


After a short discussion, the bill was recommended for passage to the full Senate.



Power of Attorney



House bill designed to clarify definition


Committee Substitute for HB4583 quickly passed the House Judiciary Committee on Monday to clarify the definition of incapacity so any incarceration in a penal system or detention outside of the United States may not be inferred as resulting in a lack of capacity to execute a power of attorney.


Committee Counsel gave an example of an incarcerated person having an account or mortgage on his or her name alone. Currently, the incarcerated person cannot execute a power of attorney without court proceedings.


The bill would allow the incarcerated person to execute a power of attorney and name someone to handle, for example, financial matters.



Medical Cannabis



Testing bill fails to win committee approval


The House Judiciary Committee reviewed Committee Substitute for HB4627, which would permit no more than two licensed laboratories to perform testing under the West Virginia Medical Cannabis Act.


Currently, there is no limit on the number of labs, but only two labs currently do that work.


Jason Frame, Director of the Office of Medical Cannabis under the Department of Health and Human Resources, said his office is neutral on the bill, but two labs can handle the commercial testing now.


Mr. Frame said the labs are private facilities doing business with the medical cannabis industry.


There was discussion that, from a business standpoint, there was little competition if a private entity is limited to two.


“There is a significant amount of testing going through now, but there will be more once all 10 growers are functioning,” Mr. Frame said.


Kelly Harrison, representing AnaLabs in Raleigh County, was asked about the process. She said the lab has been conducting a variety of tests since 1987 but have tested cannabis since October for pesticides, metals, THC potency, and other toxins.


The lab can handle 60 to 100 samples a week but have only done 216 samples in five months because of the caps throughout the medical cannabis process, including number of growers and customer base.


In response to Delegate Laura Kimble asking whether the lab could get business from other states, Ms. Harrison said cannabis cannot cross state lines and therefore the lab is limited to the 10 growers in the state.


Arguments against the bill objected to the monopoly the bill was creating. Proponents pointed out that this is a locally owned, West Virginia lab that has made a substantial investment.


Following a lengthy discussion, the bill failed to pass on a 9-9 tie vote.



Consumer Protection



Bill protects certain classes of property


Committee Substitute for HB4077 quickly passed the House Judiciary Committee on Monday.


It would exempt the following classes of property from collection, judgment, or garnishment for default of any consumer credit or installment obligation:


(1) Head of household wages up to the federal or state minimum wages, applied at a full-time rate of 40 hours per week, 52 weeks per year. Wages above this minimum threshold are subject to garnishment under this article;

(2) Annuities or life insurance proceeds paid to the debtor including any applicable cash surrender value;

(3) The first $20,000 of assessed value of a homestead that is used and occupied by the owner thereof exclusively for residential purposes;

(4) Tax advantage retirement accounts, including Roth IRA, IRA, and 401k,

(5) Disability or death benefit income;

(6) Prepaid college funding accounts; and

(7) Social Security income.



Delinquent Property



Bill proposes change in land sales process


Committee Substitute for HB4524, a Governor’s bill, is described as “reducing the rate of interest on delinquent property taxes,” but, in fact, it changes the entire process of the delinquent tax land sales.


The lengthy bill streamlines the process, according to Steve Connolly, Deputy State Auditor.


The two-step sale process that begins with a sheriff’s delinquent tax sale is being eliminated.


Connolly said, “The goal is getting land back to its best use.”


The new process will fall under the Office of the State Auditor and be unified into what Mr. Connolly described as “one massive sale.”


The Auditor’s Office will become the central point of the process.


The bill passed but was referred to House Finance Committee.



Law and Order



Prosecutors wary of criminal code rewrite


The West Virginia Prosecuting Attorneys Association has expressed reservations about a legislative plan to rewrite the state’s criminal statutes.


The majority of the association’s members have signed a letter that asks for more input from those familiar with state code. One officer warned of hidden consequences if legislators take on a wholesale revision of the code.


Click here to read more from WVNews.






State targets expanded connectivity in state


Economic Development Secretary Mitch Carmichael said his office is moving ahead with improving broadband access in the state.


“We have so much activity going on in regards to broadband,” Secretary Carmichael said. “We’re incredibly excited about this because we currently have about 300,000 West Virginians that do not have access to broadband as defined by the FCC … .”


The state’s broadband plan depends on state and federal funds and totals more than $700 million, which is to be allocated by fall 2022.


Click here to read more from WVNews.



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Some information in this update is collected from the WV Legislature’s Daily/Weekly Blogs.


Hartman Harman Cosco, Public Policy Strategists, LLC, (H2C) is a strategically assembled bipartisan lobbying firm comprised of legal, communications and policy professionals. H2C possesses the insight and intuition that only comes from decades of hands on experience leading community and statewide initiatives.






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