From the Well | February 5, 2024

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86th West Virginia Legislature

State Capitol

February 5, 2024

West Virginia News Headlines

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PARENTAL RIGHTS: The House Judiciary Committee passed legislation that would modify the process when parental rights are terminated.

LEFT-LANE DRIVING: The Senate Judiciary Committee passed a bill that restricts driving in the left lane of multi-lane highways in West Virginia.

FUSION CENTER: The House Judiciary Committee passed legislation to create the Joint Oversight Committee on the Fusion Center.

ANTI-SWATTING: The House Judiciary Committee passed legislation to create the WV Anti-Swatting Act.

GENDER DESCRIPTION: The House Judiciary Committee passed legislation that prohibits non-binary as a gender description on birth certificates.

PARKING-LOT BILL: The House Judiciary Committee passed legislation that Counsel said was an update to the “parking-lot bill” that allows employees to have firearms in a locked car on an employer’s parking lot.

CONSUMER PROTECTION: The House Judiciary Committee passed a bill to create the Telephone Consumer Protection Act.

GIFT-CARD FRAUD: The House Judiciary Committee legislation to combat gift-card fraud.

BILL OF RIGHTS: Legislation to create the Women’s Bill of Rights prompted a lengthy discussion in the House Judiciary Committee prior to its passage.

WV Appellate Reorganization Act

Current law is ambiguous about whether the ICA has jurisdiction over cases involving injunctive relief, which is an equitable remedy addressed in another chapter of code.

The proposed bill aims to resolve the ambiguity by specifying that the ICA would have appellate jurisdiction over any final judgment or order in a civil case, including those involving legal or equitable relief-like injunctions. However, only the state Supreme Court of Appeals would continue to hear cases involving other extraordinary remedies listed in the other chapter, such as habeas corpus appeals.

The Committee discussed the introduced version of the bill and a subsequent Committee Substitute version. Members also discussed the rationale for carving out habeas cases and other extraordinary remedies from the ICA’s jurisdiction, noting the significant fiscal impact and workload that additional habeas appeals could create for the public defense system and courts.

After few questions and no discussion, the Committee voted to report the Committee Substitute version of the bill favorably to the full Senate for consideration.

Modifying process of when parental rights are terminated 

At times, adoptions have proceeded while underlying parental rights were under appeal. The primary purpose of the bill, according to Counsel, is to make certain that situations like that won’t occur. It would fall under the responsibilities of the Department of Human Services.

Restricting driving in left lane of multi-lane highways in WV 

The Division of Highways will be responsible for erecting signs on four-lane highways entering the state to alert out of state drivers of the law.

More than 20 states have language on the books stating it is against the law to impede traffic in the left lane. The bill before the Senate came from Arkansas and is also in effect in Kentucky, New Jersey, Maine, Louisiana, and other states.

The Judiciary Committee amended the bill to allow for a smaller first-time fine of $25, which is similar to West Virginia’s seat belt law. However, the bill does call for an increase in fines on second and third offenses.

The bill now heads to the full Senate for further consideration.

Creating the Joint Oversight Committee on the Fusion Center

Listed as members of the Joint Oversight Committee are:

·     the Speaker of the House of Delegates and two members of the House of Delegates, one from each ptarty

·     the President of the Senate and two members of the Senate, one from each party

·     counsel and staff to the Speaker and the Senate President

·     president of the West Virginia Chiefs of Police Association or designee

·     president of the West Virginia Sheriffs Association or designee

·     one senior-status judge to be selected by agreement between the Speaker of the House and the President of the Senate

The Oversight Committee is not subject to open meetings law. The bill creates a felony offense for improper actions governing activities of the Fusion Center.

To prohibit swatting

Swatting is the act of reporting or causing to be reported false or misleading information to a law enforcement agency, emergency service provider, or public safety answering point, knowing the information to be false or misleading, with reckless disregard regarding whether the report may cause bodily harm to any individual as a direct result of an emergency response to the report.

The bill calls for swatting to be a felony if actual harm results. Restitution can be ordered.

Non-binary not permitted on birth certificates

The Committee Substitute changes “gender” to “sex.” “Sex” is the more common term throughout code.

Delegate Shawn Fluharty of Ohio County asked what the current law is on this subject and was told by Counsel that he could find none.

“So this is not a thing in West Virginia,” Fluharty said. He then asked, “Has there been one single child born in this state with non-binary on the birth certificate?”

Counsel responded that he couldn’t find one.

Delegate Evan Hansen of Monongalia County asked how many states allow non-binary to be on a birth certificate. He was told there are 14 states.

The Business Liability Protection Act

An employer may not remove a customer, employee, or invitee based upon verbal or written statements of any party concerning possession of a firearm stored inside a motor vehicle in a parking lot for lawful purposes. An employer may not terminate an employee or take other adverse action.

Relating to the Telephone Consumer Protection Act

West Virginia currently has no statute on telephone solicitation. The bill requires that the person being called must be able to see the originating telephone number, and the identity of the caller cannot be concealed.

Solicitation calls are to be prohibited from 8 p.m. to 8 a.m., and voices cannot be altered.

Counsel noted that several states have adopted similar legislation. There was discussion about whether political polling calls would come under the legislation, but it was determined that they may fall under protected political speech.

Relating to combating gift card fraud

It sets forth requirements for retailers to publish notices to warn purchasers of gift cards about scams and to require employee training to identify scams.

The bill applies only to brick-and-mortar stores and does not apply to online retailers.

Relating to Women’s Bill of Rights

As described by Counsel, the bill clarifies discrimination laws by maintaining “safety, privacy, and fairness.”

Delegate Shawn Fluharty of Ohio County asked Counsel about the phrase in the bill, “Equal does not mean the same or identical.”

“What does that mean?” he asked.

Counsel responded that it came from a Virginia Military Institute case in Virginia that stated there are inherent differences between men and women.

Delegate Fluharty went on to ask whether the bill provides the right to equal pay or affordable child care.

Counsel responded that it does not.

“What actual rights are we guaranteeing here?” Delegate Fluharty asked.

Counsel responded again, “Safety, privacy, and fairness.”

Delegate Evan Hansen of Monongalia County said the “so-called” bill of rights also applies to cities and counties because it includes “instrumentalities of the state” in its language. He also expressed concern that the bill would impact or possibly override the Human Rights Act.

Because of the length of discussion, the Chairman moved the bill to the foot of the agenda and took it up again at the conclusion of other bills.

An amendment from Delegate David Kelly of Tyler County passed. It would prohibit sex discrimination pertaining to male or female.

Delegate Joey Garcia of Marion County proposed an amendment that would insert the entirety of HB4272, the Katherine Johnson Equal Pay Act, into the bill. Chairman Tom Fast of Fayette County ruled the amendment not germane. His ruling was sustained by a vote requested by Delegate Garcia.

Delegate Fluharty spoke in opposition of the bill, saying it does very little for women but what it does allow data collection on public school children without parental permission.

In the final voice vote, the Chairman mistakenly said the “No” votes prevailed. He put the bill “back on the table” for a revote and passage.

35th Day: February 13, 2024 — Last day to introduce bills in the House. House Rule 91a does not apply to originating or supplementary appropriation bills, and does not apply to Senate or House resolutions or concurrent resolutions

41st Day: February 19, 2024 — 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 25, 2024 — Bills due out of committees in house of origin to ensure three full days for readings

50th Day: February 28, 2024 — Last day to consider bill on third reading in house of origin; does not include budget or supplementary appropriation bills

60th Day: March 9, 2024 — Adjournment at midnight