From the Well | February 20, 2023

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

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

86th West Virginia Legislature

Countdown: 19 days to go

February 20, 2023

Counsel explained the bill, saying it added five new sections to the law and amended 15 sections.

Among other purposes, the bill clarifies fair and festival language, authorizes municipalities to designate outside areas for consuming alcoholic beverages, allows beer slushies, provides greater freedom for sampling, and removes the beverage limit for food deliveries, among other provisions.

Questions ranged from the requirement of fresh food to the reasoning behind specified populations of municipalities.

Senator Mike Stuart of Kanawha County asked what problem this bill was solving.

Counsel responded that it’s primarily for tourism and expanding services for customers.

“This is a regulated state,” said Counsel.

Senator Stuart commented on the amount of detail in the bill, calling it “painstaking” and observing that a city or town would almost always be in violation of something.

Senator Bill Hamilton of Upshur County asked, “What is a beer slushie?”

Counsel said, “I have no idea, but it will never touch my lips unless there’s nothing else to drink.”

Senator Laura Wakim Chapman of Ohio County asked why the bill refers to West Virginia products. Anoop Basim, Counsel for Alcohol Beverage Control (ABCA), said a West Virginia product, as defined in code, is any product from anywhere as long as the ABCA has listed it. He said the agency has about 2,500 listed and 2,500 special orders.

Mr. Basim responded to several of the questions from committee members, including the term “private” as it relates to the West Virginia Constitution and “trusts” as they relate to businesses, such as beer distributorships. He said he has had discussions with Chairman Charles Trump of Morgan County about simplifying the laws, but it would need to start by amending the Constitution.

Senator Patrick Martin of Lewis County proposed an amendment to take out all language related to allowing municipalities to designate outdoor areas where drinks could be consumed. He said municipalities already are allowing people to drink outside at restaurants.

Senator Ryan Weld of Brooke County spoke in opposition to the amendment, saying he has gone to Wooster, Ohio, which has designated outdoor recreation areas {DORAs} where people can drink outside.

“We have so many cities in West Virginia directly on the river. This comes with guardrails to allow cities to have control,” said Senator Weld.

The amendment was adopted by a 10-to-6 roll-call vote.

Senator Patricia Rucker of Jefferson County proposed an amendment to simplify the language related to food by simply saying there must be the capability of serving freshly prepared food and have food on hand but remove all the references to the specific amounts of food. The amendment was adopted.

Senator Chapman proposed an amendment to reduce the new $750 fee to the original $500 and it was adopted.

Senator Patrick Martin of Lewis County proposed an amendment that a municipality could not charge any additional fee beyond the fees established by ABCA.

Senator Mike Caputo of Marion County spoke against the amendment, saying, “We’re all for local control until we’re not,” and he expressed concern about the impact on municipal revenues.

Senator Weld said he could not support the amendment until he knew the revenue impact. The amendment was rejected.

Senator Chapman proposed an amendment to remove all language referring to trusts, saying trusts should not be allowed to get a license. Senator Weld asked Mr. Basim to explain the relationship of trusts to distributorships.

“On a weekly basis, we probably get five to six trusts. We get some disclosure of the trust,” Mr. Basim said. He added that trusts already are allowed to own a distributorship, and that it has become an estate-planning tool for some family-owned businesses. He clarified to Chairman Trump that if this language is gone, the trusts no longer can be licensed.

The amendment was adopted.

Counsel described the bill as an attempt to put some flexibility into capiases and warrants if there was no past documentation of failure to appear.

The bill sets a time frame on bail hearings and allows more time if the arrest occurs outside the charging county.

Senator Mike Stuart asked, “What’s the impetus for this bill?”

Counsel responded that a significant number of people have been taking up jail space during the last several years because of capiases. Counsel added that if the sole notice is in a newspaper, people aren’t seeing it.

Counsel said there currently is no limit on how long a person can be held for a bail hearing, adding, “People have truly been known to be forgotten.” Much of the bill, Counsel noted, is a regional jail issue to shorten the time frame for an initial court appearance.

Senator Laura Wakim Chapman of Ohio County had several questions about the differences between the introduced version of the bill compared to the committee substitute. Based on the differences, she offered several amendments that were adopted to incorporate parts of the introduced bill back into the committee substitute.

Sarah Whitaker, representing the West Virginia Center on Budget and Policy as its criminal and legal expert, told the Committee that capiases are becoming an increasing problem and the Center would prefer language that would allow the judge to hold the capias for a few days if good cause was shown.

Senator Vince Deeds of Greenbrier County proposed an amendment to the bill that would provide a 48-hour grace period if there was no proper notice or the person has always appeared at hearings in the past.

“This would prohibit an innocent person from having to sit in jail for a few days,” Senator Deeds said.

The amendment was adopted.

Senator Mark Hunt of Kanawha County asked Senator Deeds, as the bill’s lead sponsor, if the bill does what he intended for it to do.

“I’ll be honest with you, I’m not sure what it does,” Senator Hunt said.

After 90 minutes of discussion and several amendments, Chairman Charles Trump of Morgan County said, “You all have loved that bill to death.”

He proposed allowing Counsel to incorporate the amendments made from the introduced version to the committee substitute along with the other amendments and create a new committee substitute to be taken up on Tuesday or Wednesday. Chairman Trump said it will be treated as a new measure.

According to Counsel, the change would not limit the resources available to polling places. Rather, it would improve efficiency by permitting the combining of resources at one designated location.

Under current law, voting precincts cannot be consolidated unless they are within one mile of each other. SB 620 would loosen that restriction by allowing consolidation of precincts within a five-mile radius.

Senator Mike Stuart of Kanawha County asked how the numbers were determined regarding the decision to increase the distance from one mile to five.

Donald Kersey, General Counsel for the Secretary of State, explained that it was an estimate that attempts to balance improved efficiency with the understanding that voters should not be unduly burdened.

Specifically, the bill impacts only polling places that already are in the same precinct, ensuring that voters won’t have to drive excessive distances to vote.

The Committee reported SB620 to the full Senate with the recommendation that it be passed.

Bill addresses federal election requirements

The Senate Judiciary Committee considered and approved the committee substitute for Senate Bill 631, which updates administration, funding, and requirements for federal elections in West Virginia.

The first change in SB631 relates to money received from Congress to improve election infrastructure. Currently, Congress allocates money to states and their subdivisions to improve election infrastructure. The money, if not used, is sent back to the federal government.

SB631 would authorize the Secretary of State, upon approval from the State Election Commission, to use those specific funds to upgrade and secure voting machines.

The second change clarifies the deadline for voter registration changes. Currently, registrations can be submitted up to the end of business on the deadline day. SB631 would extend the time to 11:59 p.m. on the deadline day.

Lastly, the bill alters the amount of time that County Clerks and other local election officials have after an election to submit reports of voter activity to a statewide database. Currently, those officials have 120 days to submit their reports. SB631 would reduce the time to 80 days.

The Committee agreed to the language in the committee substitute and reported SB631 to the full Senate with the recommendation that it be passed.

Bill updates contested election procedures

The Committee considered and passed the committee substitute for Senate Bill 644, which adjusts the process for contesting elections.

SB644 makes circuit courts the adjudicators of contested elections, allowing them to examine issues raised after elections regarding voter eligibility and the number of votes cast. Further, the bill provides for procedural requirements that restrict contesting elections until after the recount process has occurred.

The Committee agreed to the language in the committee substitute and reported SB644 to the full Senate with the recommendation that it be passed.

First, the Committee recommended passage of the committee Substitute for House Bill 2189, a bill to enact the Protection of Property from Warrantless Searches Act. The committee substitute significantly rewrites the bill as introduced.

Generally, the bill abrogates the common law “Open Fields Doctrine.” Hester v. United States first introduced the doctrine that the Fourth Amendment protection does not extend to open fields. Governmental intrusion and information collection upon open fields do not constitute searches or seizures under the Fourth Amendment. The expectation of privacy in an open field is not considered reasonable or legitimate even if there are fences or “no trespassing” signs around the field. Open fields may include any unoccupied or undeveloped area outside the curtilage. West Virginia adopted the “Open Fields Doctrine” in the case of State v. Lilly, 194 W. Va. 595 (1995).

Rodney Miller, Executive Director of the West Virginia Sheriff’s Association, answered questions regarding current practices. He believes current law already addresses many of the issues the bill intends to address.

Colonel Bobby Cales, Chief of the Law Enforcement Section of the West Virginia Division of Natural Resources, answered questions on current practice and law and the impact of the provisions of the committee substitute. Both indicated they were concerned about the potential restrictions the bill would place on law enforcement officers.

Bill aimed at clarifying charging for service of process

The committee considered House Bill 3265, which is intended to clarify current law by prohibiting the sheriff of one county from charging service of process fees to another sheriff’s department or law enforcement agency for service of an order, notice, summons, or other process or for serving an attachment or other processes.

The Committee recommended a committee substitute to the full body for passage. The committee substitute makes only non-substantive changes.

Bill addresses sentencing

Finally, the Committee recommended for passage a committee substitute for House Bill 2252, which amends current law by making all sentences determinate rather than indeterminate.

Additionally, the committee substitute makes the low range of any determinate prison sentence equal to or greater than the current maximum indeterminate sentence. Further, the committee substitute removes all fines for human-trafficking offenses.

Finally, the bill also makes a person convicted of a human-trafficking offense ineligible for parole when the victim is a minor.

The committee adopted two amendments. First, the phrase “with no maximum penalty” was removed to avoid confusion. The bill still would provide a minimum determinate sentence. The second amendment returned all fines removed from the bill by the committee substitute.

The committee moved to report the bill to the floor with the recommendation that it pass as amended without further discussion.

HB2760 amends existing code to permit firefighters to drive ambulances at the scene of an emergency without completing an emergency vehicle operating certificate as otherwise required by code.

The allowance is granted in limited circumstances, specifically if emergency medical technicians (EMTs) or paramedics on the scene of an emergency are unable to drive an ambulance while administering care to a patient.

Pathways include dual credits that allow a candidate to obtain an education degree in three years, apprenticeship opportunities provided through the U.S. Department of Labor that include paid field experience and residency as the teacher of record during the last year the candidate is enrolled in higher education, and preferential hiring status.

The state Board of Education is required to adopt rules for the program and make reports to the Legislature about program operations, including the number of program participants; credits/certifications candidates earn; program costs; job status of students participating in the program; and the state superintendent’s recommendations for extending the pilot.

Program funding is through legislative appropriations.

Bill sets up Troops-to-Teachers program

The Committee passed House Bill 3368, which requires the state Superintendent to establish a Troops-to-Teachers program to attract veterans as teachers.

Retired armed forces officers and staff non-commissioned officers could apply to receive a teaching certificate valid in public schools.

Bill would allow aides to teach

House Bill 2761 authorizes county boards to employ classroom aides as teachers. The Committee adopted a substantive amendment, which requires aides to receive 16 hours of college credit. Aides would be supervised under a “Level Three Practicum,” a term not recognized by the state Board of Education, although Committee Counsel said mentors could assist aides who become teachers.

Counsel said teacher aides, unlike paraprofessionals — a similar service personnel classification — aren’t required to have higher education degrees or can they supervise students.

Carla Warren, a state Department of Education staff member, told the Committee the Department was initiating a similar program in the fall, coordinating the program with Workforce West Virginia.

Senator Swope of Mercer County announced from the Senate floor Friday morning that he had recommended Senator Jeffries to chair the Senate Economic Development Committee.

“I’ve been thinking about this for a while, so last night I came to the Senate President’s office and asked if he’d ever thought about naming (Jeffries) chair of economic development,” Senator Swope said. “If he had that title, it might strengthen his appearance when he’s out in the presence of the Warren Buffetts of the world. After a little bit of arm twisting, (Senator Blair) finally agreed that, yeah, (Senator Jeffries) would make an awesome chairman of the Economic Development Committee.

Click here to read more from The Parkersburg News and Sentinel.

Attorney General Morrisey is co-leading a coalition of more than 20 states in a lawsuit against the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers, asking a North Dakota federal district court to vacate the newly published final rule redefining Waters of the United States (WOTUS) and declare it unlawful.

Georgia, Iowa, and North Dakota are suit co-leaders. Neighboring states Ohio and Virginia are among the plaintiffs.

“This is a textbook case of federal overreach,” Attorney General Morrisey said in a press conference announcing the suit.

At the state level, Attorney General Morrisey is joined in opposing the rule by the West Virginia Farm Bureau, the West Virginia Coal Association, the Gas and Oil Association of West Virginia, the West Virginia Contractors Association, the West Virginia Chamber of Commerce and the West Virginia Association of Builders and Contractors

Click here to read more from WVMetroNews.

41st Day — February 20: Last day to introduce bills in the Senate. Senate Rule 14 does not apply to originating or supplementary appropriation bills and does not apply to Senate or House resolutions or concurrent resolutions.

47th Day — February 26: Bills due out of committees in house of origin to ensure three full days for readings.

50th Day — March 1: Last day to consider bill on third reading in house of origin. Does not include budget or supplementary appropriation bills.

60th Day —  March 11: Adjournment at midnight.