From the Well | March 3, 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: 8 days to go

March 3, 2023

It is a model act recommended by the Uniform Law Commission. Its purpose is to bring clarity and consistency across a range of agreements between spouses and those who are about to become spouses. The focus is on agreements that purport to modify or waive rights that would otherwise arise at the time of the dissolution of the marriage or the death of one of the spouses.

The Uniform Premarital Agreement Act was first promulgated in 1983. Since then, it has been adopted by 26 jurisdictions with roughly half of those jurisdictions making significant amendments either at the time of enactment or at a later date.

The Committee adopted a strike-and-insert amendment that updated the language of the act to the 2012 version. The House of Delegates modeled the introduced bill on the 1983 version.

The Senate Judiciary amendment also includes a provision that prohibits the parties to the agreement from restricting or limiting the rights of domestic violence victims.

The Committee adopted the strike-and-insert amendment and recommended the bill for passage to the full Senate.

Counsel said minor offenses are defined in code and include misdemeanors and non-violent crimes eligible for expungement. Exceptions are provided for fugitives or if the court determines a legitimate public interest.

An amendment was adopted that would make it clear that the Division of Corrections and Rehabilitation can still publish booking photos on their website, as they currently do daily.

Delegate Larry Kump of Berkeley County spoke against the amendment, saying, “I don’t like the idea of trial by social media for people who aren’t convicted yet.” The sponsor of the amendment responded the bill involves an official state website and not social media.

Delegate Geoff Foster of Putnam County spoke in support of the bill, explaining what his mother experienced when she was accused and subjected to a trial by social media for a matter that was immediately dismissed in magistrate court.

Bill addresses payment of court costs

The House Judiciary Committee passed a strike-and-insert amendment for Committee Substitute for Senate Bill 191, making payment of court costs a condition of a deferred adjudication agreement.

Counsel said the strike-and-insert amendment cleans up the bill to cover both pre-trial diversion and deferred adjudication and adds that, by court order or agreement, restitution may be included in costs.

The bill provides that financial inability to pay court costs may not be a basis for denying a person deferred adjudication.

Delegate Tom Fast of Fayette County successfully amended the bill by allowing restitution to be added only for deferred adjudication. He explained to the Committee that a pre-trial diversion has no determination of guilt.

“If you haven’t plead guilty, then you shouldn’t have to pay restitution,’ Delegate Fast said.

Bill removes ABCC enforcement of gaming laws

A strike-and-insert amendment for Senate Bill 457 passed the House Judiciary Committee. It would remove oversight of gambling and gaming devices from the Alcohol Beverage Control Commission (ABCC).

Senator Jason Barrett of Berkeley County, lead sponsor of the bill, said the it seeks to ensure that ABCC is enforcing alcohol laws. He said gaming devices and gambling were added when illegal gray machines were common.

“There have been issues with overzealous ABCC agents, and I think their focus should be on overserving customers and serving underage customers,” Senator Barrett said.

Asked whether there was any evidence of that, Senator Barrett responded that he has had several restaurant, bar, and private club owners report to him about agents threatening to pull the businesses’ LVL machines and take other actions.

Delegate Josh Holstein of Boone County said he looked at the ABCC mission statement and website, and the absence of any mention of gaming devices and gambling seemed to indicate “mission creep.”

Bill alters exceptions for using spousal privilege

After lengthy discussion, the House Judiciary Committee passed Senate Bill 559 to revise the old law of spousal privilege in order to allow the state to compel testimony when an offense is committed against any child, not just a child of one spouse or the other or their child together.

Counsel provided some historical background for spousal privilege, noting it goes back to 1849 Virginia law and stems from a basis that the husband and wife are “one person in law.”

Counsel said that although this basis is no longer part of our law, West Virginia still has spousal privilege that one cannot testify against the other. He added that both spouses have the privilege, but only the accused can waive the privilege.

Delegate Brandon Steele of Raleigh County successfully amended the bill to change child to minor as defined in statute and add “or any person deemed incompetent by mental disease, defect, or other disability.” Counsel explained that competency would be determined by the Court through a pre-trial hearing.

Delegate Steele described a situation in Raleigh County, where a neighbor’s child was molested by a husband. The only competent witness was his wife. She wanted to testify, but he asserted privilege. She was not allowed to testify. For that reason, Delegate Steele proposed an amendment that would permit but not compel the spouse to testify.

“This takes the option from the accused and puts the option on the witness,” Delegate Steele said. “I’ve seen instances where the spouse has wanted to testify but wasn’t allowed,” he added.

The amendment was discussed at length, including concerns about the use of coercion to get a spouse to testify. Delegate Geoff Foster of Putnam County said he believed in the “sanctity of marriage” and the “one-flesh” basis of spousal privilege and opposed the amendment.

Delegate Tom Fast of Fayette County opposed the amendment because it might substantially weaken the spousal doctrine deeply rooted in history.

“It takes the husband’s ability to object out,” Delegate Fast said.

The amendment was rejected.

·    Soviet Holodomor;

·    Khmer Rough Cambodian genocide;

·    Rwandan genocide;

·    Chinese Communist Uyghur genocides.

Additionally, instruction is to include genocides of Black Americans and Native Americans.

Instruction is to be completed by grade 12 in all schools of the state as a means for students to “identify relevant global actors in historical genocides; inform students of social and political contextual factors that influence genocides, describe the outcomes of genocides, familiarize students with, as applicable, the history, context, and explanation of the Holocaust and other genocides, and the influence of the Holocaust and other genocides on law, history, government, migration, religion, literature, art, music, customs, morals, values, and culture.”

The bill was adopted on a division votes and goes to House Finance unless the reference is abrogated.

Committee debated focused on whether Holocaust curricula, which is taught now, is effective.

Delegate Bill Ridenour of Jefferson County, given his career in the military, said many history and political graduates are unaware of genocides and, he argued, their “causes.” He questioned whether teaching of Holocaust education is effective.

Michelle Blatt, Deputy State Superintendent, said any complaint about Holocaust instruction is reviewed by the state Department of Education staff on an individual basis, and that county boards, through accreditation, would know about or need to address curricular deficiencies.

Discussions also focused on whether “genocides” should be the focus of the legislation without reference to the Holocaust particularly.

The bill was amended to remove reference to instruction in personal finance in that another House-adopted bill covers that topic.

The measure applies to all schools in the state.

Senate Bill 99 authorizes county boards from two or more counties a formal statutory process to explore possible school district consolidation or sharing of services between and among county boards.

The process outlined in statute is to be completed in 120 days with reporting to the Senate President and House Speaker concerning status of the discussions and possible impediments that hinder fuller exploration of sharing services or school district consolidations.

Senate Bill 282 establishes West Virginia Guardian Program, which allows retired law enforcement officers or members of the military who have received honorable discharges, serving as independent contractors, to provide public safety and/or security on school grounds.

Senate Bill 306 allows county boards to participate in the Summer Feeding for All Program. Senate legislation required the participation while the House effectively made the program “optional,” based on it being perceived by some Committee members as an “unfunded mandate.” The Senate’s bill required county boards to identify potential sources of food for students during summer months.

Senate Bill 428 revises provisions of law relating to Local School Improvement Councils (LSICs), including posting of the entity’s minutes online as well as providing county boards reports or ideas generated in LISCs or school-based meetings. The bill was recommended for passage by the Joint Education Committee.

Senate Bill 489 requires county boards to adopt a policy relating to providing feminine hygiene products in public schools grades 3-12. The bill has a second reference to House Finance. Delegate Todd Longanacre of Greenbrier County spoke against the bill, saying, “We have to weigh the purse strings as well as the heartstrings.”

Delegate Danielle Walker of Monongalia County said the bill amounted to respect for “reproductive rights.”

Other Delegates noted counties provide feminine hygiene products and that the legislation may create greater awareness among students who miss school because of a lack of hygiene products.

“Encourage your legislators to slow this down,” said Fred Albert, President of the American-Federation of Teachers-West Virginia.

Josh Sword, President of the West Virginia AFL-CIO, also urged, “We’re encouraging lawmakers to slow down, slow down.”

WVMetroNews reported that slowing it down seemed unlikely as the House of Delegates pushed the bill affecting the Public Employees Insurance Agency (PEIA) toward passage on Saturday, one week prior to the regular session’s conclusion.

Lined up for passage votes on Saturday are the PEIA bill, accompanying pay raise legislation, and the House’s version of the budget bill.

Click here to read more from WVMetroNews.

Record year-to-date general revenue fund severance tax collections of $702.2 million were 68.6% ahead of last year and $540.8 million above estimate.

February Personal Income Tax collections totaled $122.0 million. Collections exceeded the monthly estimate by $169 million and prior year receipts by 11.0%.

Click here to read more from the West Virginia Press Association.

60th Day — March 11: Adjournment at midnight.