From the Well | March 4, 2024

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86th West Virginia Legislature

State Capitol

March 4, 2024

West Virginia News Headlines

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ELECTIONS: The House Judiciary Committee passed Senate Bill 166 to update elections procedures.

CANDIDATE AFFILIATION: The Senate Judiciary Committee passed legislation that would require immediate verification of partisan election candidates’ party affiliation for when they file with the Secretary of State, County Clerks, or City Recorder.

FIRE-SERVICE FEES: The House Finance Committee passed Senate Bill 872, which addresses county fire-service fees.

MENTAL HYGIENE: The Senate Judiciary Committee passed legislation to allow the Supreme Court of Appeals to employ full-time mental hygiene commissioners who would have statewide jurisdiction to conduct proceedings in designated regions.

SCHOOL SECURITY: The Senate Judiciary Committee passed legislation to create school security officers.

STATE INSURANCE: The House Finance Committee passed legislation that involves certain insurance coverage provided by the state-run Bureau of Risk & Insurance Management.

SUBSTANCE USE DISORDER: The House Finance Committee passed legislation that would require residential substance-use disorder facilities in West Virginia to obtain national accreditation by January 1, 2026, to continue receiving Medicaid reimbursements.

LAW ENFORCEMENT: The House Government Organization Committee passed a bill that requires cooperation between law enforcement agencies and military authorities in West Virginia.

TAXATION: The Senate Finance Committee adopted a bill that involves taxing silicon and silicon carbide.

COAL PRODUCTION: The Senate Transportation and Infrastructure Committee approved legislation to emphasize qualified investment in coal production and processing facilities.

DUI: House Bill 5305 reconciles two differing sections of code relating to driving under the influence (DUI).

ANNUAL REPORTS: The House Government Organization Committee passed legislation that clarifies the deadline for annual reports filed by companies authorized to do business in West Virginia.

VEHICLE SALES: The Senate Transportation and Infrastructure Committee adopted House Bill 4434, which prohibits state agencies or political subdivisions from (restricting) the use or sale of motor vehicles based on the energy source used to power the motor vehicle.

PARENTS: The Senate Committee on Education approved legislation codifying the Parents’ Bill of Rights.

ONLINE CONTENT: The Senate Judiciary Committee passed legislation intended to protect minors from online pornographic content.

·     The Committee on Government Organization reported SB687 (Clarifying Legislative Auditor’s scope of authority) with a recommendation that it pass as amended

·     The Judiciary Committee reported SB632 (Relating to Dangerousness Assessment Advisory Board multi-disciplinary study group)

·     The Committee on Finance reported SB170 (Relating to compensable diseases of certain firefighters covered by workers’ compensation)

·     A message from the Senate reported the Senate had passed with amendment HB5347 (Relating to establishing a program for emergency medical services personnel to become certified paramedics); House concurred with the Senate amendment and passed the bill 97-0-3.

The following bills were considered on second reading:

·     SB160 (Updating language and increasing penalties for indecent exposure) advanced to third reading with the right to amend

·     SB200 (Budget Bill) advanced to third reading with the right to amend.

·     SB504 (Relating to felony offense of sexual intercourse, intrusion, or contact with student) was amended to include private elementary and secondary schools.

·     SB623 (Requiring DMV to provide images of certain individuals to Secretary of State for voter identification purposes) Judiciary Committee amendment was further amended to codify that an individual must be a US citizen to vote in West Virginia.

·     HB4025 (Budget Bill) was advanced to third reading with the right to amend.

Updating contested elections procedures

SB166 updates contested-election procedures and events through sections of the state election code. It moves election contestations from county commissions to circuit courts and gives a right to appeal to the state Supreme Court of Appeals. It also provides procedures for recounts that must be followed before an election can be contested. Finally, it clarifies that the burden of proof lies with the party that initiated the contest and does some code cleanup and modernization.

To ensure party affiliation is consistent with candidate’s voter registration

If the certificate of announcement has the incorrect party affiliation on the day it is submitted, it can be refused if the party registration on the announcement doesn’t match what is in the Statewide Voter Registration System.

David Cook, General Counsel for the Secretary of State, said the Secretary of State’s Office, as a courtesy, lets candidate know, but, by the time of filing, the candidate cannot change registration because there is a 60-day party membership requirement.

A representative of the West Virginia County Clerks Association said that actually refusing to accept a certificate of announcement is not a typical duty of the County Clerk.

“The onus is on the candidate who signs to swear and affirm that the information is correct,” said the representative.

She noted that most County Clerks said they have not seen any candidates try to file with the wrong party affiliation, but that it is easy to check their registration.

Relating to county fire service fees

SB872 allows the county commission to accept a resolution to change the fire fee, but the county commission still would have discretion to follow the fire board’s suggestions when making changes to the fire fee. The fire fee still would need to be submitted to a referendum for voters to approve any changes.

Relating generally to the creation of mental hygiene regions by the Supreme Court of Appeals

The bill also allows evaluators to conduct evaluations statewide and specifies who can do the evaluations. Additionally, the strike-and-insert amendment incorporates Senate Bill 442 and House Bill 2754 where those bills overlap in code with HB5254.

To allow for public and private schools in West Virginia to employ security personnel

The bill requires the director of the Division of Protective Services to establish standards and authorizes local school boards, public charter schools, and private or religious schools to employ school security officers.

Counsel told the Committee that the bill is identical to Senate Bill 143, which was fast-tracked at the beginning of the session. The school security officers will not have law enforcement power, such as the power of arrest.

Delegate Joe Statler of Monongalia County, lead sponsor, said the bill is meant to supplement the health and safety of schools and said it’s important to include detainment powers. Senator Charles Trump of Morgan County offered an amendment that was adopted, adding authority for detention of individuals until law enforcement arrives.

Another adopted amendment added a definition of honorably discharged veterans.

Relating to certain insurance coverage provided by BRIM

The Committee will report the bill to the full body with the recommendation that it passes.

SB875 relates to state insurance coverage for government entities. It would prohibit BRIM from providing new or additional insurance coverage to non-mandatory entities until July 2025. That includes coverage for political subdivisions, charitable organizations, and emergency medical services.

The bill would not affect currently existing contracts or agreements. It also allows BRIM to non-renew insurance policies for nongovernmental entities with 60-days notices.

County boards of education, teachers, and other school entities still could obtain coverage from BRIM.

Modifying Medicaid reimbursements for services at residential substance abuse treatment facilities

The Committee will report the bill to the full body with the recommendation that it pass.

The bill aims to improve the quality of substance-abuse treatment in the state by implementing standards for facilities. It would give facilities time to seek accreditation and incentivize improving practices while potentially achieving some cost savings by discontinuing Medicaid funds for non-compliant providers.

Requiring cooperation between law-enforcement agencies and military authorities

The Committee will report the bill to the full body with the recommendation it pass.

SB732 allows law enforcement and prosecutors to share information with the West Virginia National Guard about offenses, such as sexual assault, child abuse, and human trafficking.

The bill aims to facilitate the sharing of information so criminal cases are properly investigated and prosecuted, whether by military or civilian authorities depending on the offense. It expands what information law enforcement can provide to the Guard upon written request, such as confidential details about sexual offenses and child abuse.

Relating to Critical Materials Manufacturing Tax

HB4971, as adopted by the House, includes a legislative finding that critical materials manufacturing is encouraged “…in support of the nation’s economic security.”

“Under the authority of the Energy Act of 2020, the United States Secretary of Energy has evaluated and defined a critical material as any non-fuel mineral, element, substance, or material that has a high risk of supply chain disruption and serves an essential function in one or more technologies, including technologies that produce, transmit, store, and conserve energy. Having reviewed the United States Secretary of Energy’s most recent report on critical materials, and having fully considered the negative consequences of a supply disruption to the nation’s economy, the Legislature is compelled to recognize and declare that.”

Consistent with the House-passed bill, silicon and silicon carbide would be taxed based on its salvage value, which is to be no more than 5% of its fair-market value.

The state Tax Department is to develop enacting rules.

HB4971 is effective July 1, 2025, with a sunset date of July 1. 2035.

Create a credit against the severance tax to encourage private companies to make infrastructure improvements to highways, roads and bridges in this state

As explained by Committee Counsel and discussed by a representative of the state Tax Department, the House-passed bill would provide what appears to be one project in the state relating primarily to financing infrastructure improvements to highways, roads and bridges as incidental to efforts to enhance coal production.

The amount of the project cannot exceed $100,000 with an effective $50,000 tax credit, although Deputy State Tax Commissioner Mark Muchow said the bill’s language appeared to address “projects” in certain of its sections.

West Virginia Coal Association President Chris Hamilton, who was invited to discuss the legislation, said the bill, as adopted by the House, didn’t address larger infrastructure investments that readily enhance the coal industry, including metallurgical coal investments.

Mr. Hamilton declared HB4722 as “virtually useless.” Mr. Hamilton and Transportation and Infrastructure Vice Chairman Mike Stuart of Kanawha County said the coal industry is under “relentless attack” by the current presidential administration and, in the words of Senator Stuart, other “headwinds.”

Senator Stuart, in making a motion to amend the bill, noted its second reference to the Senate Finance Committee, which he acknowledged could vote to work with House Bill 4722 as adopted by the House.

The measure was adopted by voice vote.

Relating to impaired driving not eligible for deferred adjudication

The bill has a second reference to the Senate Judiciary Committee.

Clarifying deadline to file annual report for companies authorized to do business in WV

SB142 clarifies the deadline for annual reports filed by companies authorized to do business in West Virginia to be June 30 instead of July 1. It also allows the Secretary of State to waive new business registration fees at three entrepreneurship events or conferences within the state. It also adds invalid account numbers as grounds for issuing bad-check fees and requires nongovernmental entities to make annual report filings on behalf of businesses to display disclaimers on solicitation materials.

Relating to restrictions on use or sale of motor vehicles based on power source

HB4434 defines “motor vehicle” as a “self-propelled device designed to transport persons or property from one place to another, and includes, for purposes of this article, farm tractors and implements.”

Bill provisions do not affect “any policy established by a state agency, nor by any political subdivision of this state, related to the purchase of motor vehicles for the use of the state agency or political subdivision.”

The bill has a second reference to the Senate Government Organization Committee.

Creating the Parents’ Bill of Rights

Although Senator Mike Oliverio of Monongalia County asked whether the legislation provides a “new cause of (legal) action” regarding school employees and school volunteers, Committee Counsel said many of HB4313’s provisions are cited, inferred, or permissible under existing laws. She noted that HB4313 includes proposed statutory language, saying, “The right to parental rights guaranteed by this article shall not be denied or abridged on account of disability.”

Counsel said the provision could be read as establishing addition parameters for legal review or challenges.

HB4313 permits parents to bring suit against the state, governmental officials, or persons acting “under color of law based on any violation of this article and seek appropriate relief, including, but not limited to, injunctive relief, monetary damages, reasonable attorneys’ fees, and court costs. A parent may also raise this article as a defense before any court or administrative tribunal.”

Delegate Diana Winzenreid of Ohio County and Committee Minority Chair Anitra Hamilton of Monongalia County contend the measure will affect individual school volunteers, ranging in Delegate Wizenreid’s analysis from the state Department of Education to the classroom.

Delegate Wizenried argued removal of the litigation provisions would allow codified sections of code to serve as remedies. Delegate Hamilton noted the bill’s potential effect on individual medical providers.

Jordan Carpenter of the Alliance Defending Freedom, appearing before the House Judiciary Committee, said, “We litigate cases where parents’ rights have been violated by government action.”

HB4313 has a second reference to Senate Judiciary.

The measure prohibits the state, political subdivisions, governmental entities, and institutions from “(infringing) on the fundamental rights of a parent to direct the upbringing, education, health care, and mental health of his or her minor child without demonstrating that such action is reasonable and necessary to achieve a compelling state interest and that such action is narrowly tailored and is not otherwise served by a less restrictive means.”

The bill defines “fundamental rights” to also include “moral or religious training.”

Require pornography websites to utilize age verification methods to prevent minors from accessing content

It also adds a new article designated Liability for Publishers and Distributors of Sexual Material Harmful to Minors.

Counsel said that law or a similar law has been passed in Texas, Louisiana, Utah, and Virginia. He said the bill brings up serious First Amendment issues about content-based restrictions and that there is a great deal of case law on the issue.

The strike-and-insert amendment closely aligns with the Virginia law to help satisfy certain constitutional standards.

Senator Michael Azinger of Wood County asked whether pornography is protected as free speech. Counsel responded that obscenity is not afforded protection, and the government is free to restrict it. He added that when pornography is not obscene but rather a form of expression, there are some protections, explaining that there is a three-factor test to determine whether it’s protected. Nude art or photography are two examples that Counsel provided.

An amendment from Senator Patricia Rucker of Jefferson County passed to clarify the definition of commercial entity by inserting “for profit or nonprofit.”