The Joint Judiciary Committee met this morning to hear three presentations.

The first presentation was on public nuisance law. Elbert Lin stated public nuisance was originally defined as a narrow legal action, a method for governments to prevent interference with public right. Starting in 1979 the definition began to expand beyond criminal action to a broader action of unreasonable interference. It was stated that the broader definition creates a threat to businesses.

There are limitations on public nuisance. To be a public nuisance, the case must include a public right, must relate to real property, requires unlawful conduct, and defendant must have control of the nuisance. Remedies are often limited in a public nuisance case.

Legislation is the best way to create limits to public nuisance law. It creates “guardrails on the judiciary.” Several states have general laws defining public nuisance. Other states include the unreasonable interference. Most states’ definitions related to property. Many states exempt certain activities from public nuisance. West Virginia’s public nuisance laws label specific places or activities as public nuisance and exempts farming and gun ranges from public nuisances.

Tony Majestro stated he has worked on opioid litigation over the last few years. His presentation focused on public nuisance cases involving products. Twenty-five state have recognized nuisance cases on products. The case law requires illegal and negligent activity. The sale of opioids in Cabell County affects the public rights. Currently, 8.9 percent of the population has opioid addition disorder. They are at increased risk of hepatitis and HIV. Forty-five percent of the county’s CPS cases related to drug abuse. Public nuisance cases relating to opioid sales is the governmental agencies exercising their discretion to alleviate the crisis in their area.

The second presentation was on proposed legislation on juror incentivizing measures. The bill would create two new sections of code while amending two current sections of code relating to juror service. The first thing the legislation would do is provide a tax credit to employers who pay employees wage for the first five days of juror service. Second, the bill amends the reasons a juror can be excused from services. The bill also increases the per diem pay to $80 per day. The bill would also provide for 10 free hours of counseling services for jurors involved in particularly graphic cases. The bill also creates a special revenue account.

The final presentation was on the definition of “sexual contact” in code. Recently, there has been a movement to update and amend code to include martial rape. West Virginia is one of 26 states that retain marital immunity for rape. A bill passed out of Senate Judiciary last year to update the code.

The Legislative Oversight Committee on Regional Jail and Correctional Facility Authority heard an overview from William Valentino from a Study Group on the Per Diem Payment of Fees. The current per diem rate is frozen at $48.25. It was freezing in 2017 and then extended in 2021 and 2022. On July 1, 2023 without legislative action, the per diem rate will raise to $54.48 per inmate.

West Virginia jails and corrections facilities have a capacity of 4265. A previous study showed that the state had 5,177 incarcerated. The numbers have dropped to 4,558 incarcerated.

In 2020, the average number of stays a person spent in a regional jail due to pretrial delays was 251 days. About 80 percent of pretrial detainees are arrested due to substance abuse disorders or mental health disorders. While jails offer services for mental health and substance abuse, they are not mental health treatment facilities.

The group discussed if there should be a periodic review for those who are convicted of lesser crimes to see if there’s an alternative to jail that would allow the individuals to get the treatment need and allow them to get back to work.

The current pretrial risk assessment is a questionnaire with many self-reported questions. It was recommended that a study could take place to see how these assessments can be strengthened and how they can be used. Currently, the effectiveness isn’t clear great because the pretrial hearing is often set before the questionnaire is complete.

Cost-sharing measures were discussed during the workgroup. There is no doubt that counties bear the largest burden for per diem. The suggestion of additional agencies sharing the burden included the state police and municipalities. Both could have unintended consequences.

Community corrections were discussed. These would be alternatives for incarceration. Currently, there is a unique setup in Jefferson County, where a nonprofit report center is in place. The cost county about $150,000 a year.

One reason pretrials are delayed is that juvenile abuse and neglect take precedence over everything else on the docket. It was stated that about 80 percent of circuit courts’ time is spent dealing with juvenile abuse cases. A solution to this would be to divert all abuse and neglect to family courts or shift preliminary hearings for abuse and neglect to family courts. This would allow more criminal pretrials to move through the circuit courts faster.

Another suggestion during the workgroup was to help with substance abuse disorder by creating more drug treatment facilities. One complication is that if it was a secure facility, the cost of operating would be similar to the cost of another jail. However, if it was a non-secure facility, then an individual could get out.

There is a referral program for substance abuse disorder through the state police. It is just being put into place, where an individual can turn themselves in to the state police as needing treatment. Currently, there is not enough data to know how effective it will be.

Members of the Joint Committee on Natural Gas Development listened to a presentation from John Deskins, director of the Bureau of Business & Economic Research at West Virginia University, during the second day of November interim meetings on Monday. The committee met at Cacapon Resort State Park in Berkeley Springs.

According to Deskins, natural gas severance tax revenue between the start of the 2023 fiscal year in July and October accounted for approximately 20 percent of the $575 million in total general revenue surplus tax revenue during the same time period. Those figures came in at $205 million, easily exceeding the $92 million estimate by the Department of Revenue.

The actual taxable natural gas price of $5 per million Btu was greater than the expected taxable natural gas price of $2.25 per million Btu according to Deskins. He mentioned that  higher taxable natural gas prices also drive revenues for other state taxes, such as the corporate net income tax collections, personal income tax collections due to royalty payments, and higher natural gas prices naturally boost coal prices due to market forces, creating the boost in severance tax collections.

Deskins closed by giving the committee a word of caution, noting that he expects natural gas prices to fall over the course of the next year.

The Joint Judiciary Committee met this afternoon. First, the committee heard from the Tourism Cabinet Secretary Chelsea Ruby. She presented on where Tourism stands in the state.

She stated that prior to 2017, the tourism industry in the state was in decline but after an increase in funding, tourism in the state started to take off. During the pandemic, tourism did decline in the state. Now, the tourism industry numbers are 3.8 percent above the pre-pandemic numbers.

A program that has been extremely successful is the cooperative advertising program, which is a public/private partnership fund. It has allowed the southern WV rafting companies to advertise in Columbus, Cincinnati, and Pittsburgh. The Tourism Department determined where many of the visitors of the rafting companies were located and targeted the ads in those areas.

Traditional advertising, such as TV, billboards, print, and online is used by the Tourism Department in conjunction with sponsorships and event advertising. An example of this is the state’s advertising on the digital scoreboards at the Washington DC Capitol’s Game. The department is also working to recruit major events to the state, such as the world mountain bike championship and the USA national diving championship at Mylan Park. Tourism also brings the “Country Roads Camper” to events across the country.

More private investment is happening than ever before. More than 300 million applications have been submitted for tax credits on new tourism projects. The projects are taking place in every tourism region of the state.

Tourism advertising is important because it improves the state’s overall image. When people know what West Virginia has to offer, they are more likely to live, work, and retire here.

Next, the Committee heard from Keith Hoover, the Deputy Administrative Director, and Counsel at the West Virginia Supreme Court of Appeals on the Judiciary Workload Study.

The Circuit Courts have 75 judges in 31 circuits. These judges are elected to 8-year terms in nonpartisan elections. In the state’s Family Courts, there are 46 judges in 27 circuits. These judges are elected to 8-year terms in nonpartisan elections. In Magistrate Courts, there are 159 magistrates in 55 counties. Magistrates are elected in nonpartisan elections for 4-year terms.

Of the state’s judiciary budget, 82 percent goes to the more than 1,000 FTEs. The legislature has the power to create and reallocate positions in the judiciary. In 2014, five circuit court judges and two-family court judges FTE positions were added. From 2014 to 2019, the number of abuse and neglect cases increased by about 50 percent, leading to a need for more judges to handle the caseload.

The cost of a new circuit judge and staff is $422,000. The cost of a new family court judge and staff is $272,000. The cost of a new magistrate and staff is $110,000.

The committee heard a brief presentation regarding opportunities for West Virginia development and growth from Karen Schaufeld, CEO, SWaN Hill Top House Hotel. Lawmakers are currently in the middle of three days of traveling interim meetings at Cacapon State Park in Berkeley Springs, WV.

Schaufeld began by mentioning a favorable business tax climate, but also noted the many other factors that go into a decision to locate a business in a particular area.

She mentioned that an educated population, with an emphasis on career and technical education, is often key.

Schaufeld explained that most businesses have core principles and values that weigh heavily in decisions on where to locate. Many companies are committed to using all renewable energy to power operations by a certain date. Amazon was used as a common example of this principle.

She noted that many companies value a diverse workforce, with goals of 50 percent female employees and 30 percent people of color as an example. Companies also want employees to have access to quality healthcare, including family planning, according to Schaufeld.

Schaufeld used Pittsburgh as an example of a city that has revitalized itself from an industrial city to a diverse and vibrant city by focusing on intense collaboration with lawmakers, community organizations and leaders from a variety of industries.

She closed by emphasizing that West Virginia already has many advantages when it comes to attracting business, including location to the eastern seaboard, natural beauty and outdoor recreation.

The Joint Committee on Judiciary heard two presentations during the interim meetings today.

The first presentation was about juror counseling. Some cases require the presentation of graphic images as evidence. These photos can affect jurors and court staff. Judge Farrell said the effects are a type of PTSD. He’s worked as a judge for 12 years and was a prosecutor before that. He’s had jurors and staff tell him they had to see a counselor after what they witnessed in court.

Judge Farrell would like to see a mechanism in the code to provide counseling to jurors and court staff if they need it.

The second presentation was on incentivizing jury service. It was presented that in West Virginia jurors are paid between $15 and $40 a day for service. Legislation proposed in 2022 legislation would have doubled the pay to $80 a day. Jurors are responsible for their own food, parking, and other incidentals for the entire length of the court case. Jurors do receive reimbursement for mileage. Jurors would have to take time off work to serve. Often, jurors do not receive any payment for this time off. Small business owners struggle to serve on juries because it could require them to close their businesses for days. During the presentation, it was asked that the committee consider tax credits for businesses and individuals who serve on juries.

The purpose of incentivizing jury service is to get jurors a reason to want to serve. Adequate compensation increases the faith in the jury.

Jennifer Brown, the West Virginia Director of Senior and Community Services gave the committee an overview of the challenges her agency has had providing services to the state’s seniors post pandemic.

Brown explained to the committee that it’s always been challenging for seniors, many of whom rely solely on Social Security to afford food and the gas it takes to get to the store. Statewide, nearly one in 10 seniors struggles to get enough food; those with disabilities or raising grandkids are more likely to go hungry, Brown said.

The pandemic forced 3,000 new seniors to seek food from senior centers in West Virginia. As consumer prices have risen nearly 8 percent in the last year and a half, the problem is even more acute according to Brown.

Brown, who has run the Wyoming County center for decades, said the pandemic has been expensive. Her center in Mullens has had to adjust to feeding seniors while keeping them safe from the coronavirus. They did a grab and go meal option for seniors that didn’t feel comfortable going to the center in person. The center also offers medical services and connects seniors with any help they need.

West Virginia’s senior centers, which operate as nonprofits, are funded by a mix of federal, state and local funding. The state funding runs through the West Virginia Bureau of Senior Services.