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WV Legislative Update: Delegate Brent Boggs - House Finance Chairman - 02.15.15

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First, let me thank BCMS teacher and advisor, Ms. Lori Dittman and the BCMS 8th Grade students and advisors that attended the Youth Leadership Academy - Youth & Government seminar in Charleston, Wednesday through Friday of last week.  I enjoyed having them visit the Capitol and also having dinner with them Thursday night.  Braxton County was well represented by these bright, outgoing and very thoughtful young men and women.  Their questions, comments and grasp of the positive aspects of West Virginia and the changes needed to grow and prosper are outstanding. They are our future leaders and I appreciate their interest in the legislative, judicial and executive branches of West Virginia Government.


Last Thursday, the Legislature crossed the halfway point, the 30th day, of the 2015 Regular Session. So far this session, the House of Delegates has introduced 753 bills while the Senate has introduced 490 bills.  The House has passed 27 House Bills and the Senate has passed 45 Senate Bills. Overall, both bodies have passed and completed legislation on nine bills this session and the Governor has approved and signed three.  Some of the bills passed this week in the House include:


House Bill 2128 permits individuals who have been issued concealed weapons permits to keep their personal firearms in their vehicles on the grounds of the State Capitol Complex. With this bill, vehicles must be locked and the weapons should be out of normal view.


House Bill 2568 creates the Pain-Capable Unborn Child Protection Act, prohibiting abortions when the gestational age of a fetus has reached a pain capable gestational age. The bill prohibits abortion past this stage except for in cases where the fetus is not medically viable or there is a medical emergency.


House Bill 2151 would make West Virginia’s teacher of the year a member of the Board of Education. They would be an ex officio, non-voting member of the Board. The bill also includes provisions for the governor to appoint a replacement for any vacant board member as well as compensate the teacher of the year for any expenses incurred in the duties of their membership on the Board.


House Bill 2444 would provide assistance to small businesses from the West Virginia Development office. The bill provides for the assignment of economic development officers to serve as Small Business Allies to act as facilitators to assist small businesses.


One bill that passed this week despite my concerns was Senate Bill 237, which moves oversight of deer farms and private deer hunting preserves away from DNR and gives it to the WV Dept. of Agriculture.  Taking into account the concerns of DNR and the hunting community at the possibility of Chronic Wasting Disease (CWD) being spread by importation of captive cervids or genetic material from other states, the dangers of a complete shift from a wildlife agency to an agricultural agency is unwarranted.

And, for the first time, our native whitetail deer and elk will be classified as livestock as soon as it is moved behind a fence for commercial raising, slaughter and private preserve hunting for those willing to pay thousands to kill a genetically superior antlered deer.  That may appeal to some folks, but not to me.

A better way would have been a joint regulatory system whereby the DNR would manage the hunting and wildlife aspects, while Dept. of Agriculture would oversee the commercial meat processing end.  Unfortunately, that was not to be.  I’m hopeful that this change works out.  However if an outbreak of CWD occurs and decimates a portion of our deer population – an industry that generates over $200 million in economic activity for our state each year – I know I exercised caution by voting no – the overwhelming position of hunters and sportsmen throughout West Virginia.


Finally this week, I was greatly saddened Saturday morning to learn of the passing of my friend, Jerry Duffield.  A long-time DNR employee, Jerry was well known throughout West Virginia and around the nation for his fishing, hunting, trapping and wildlife knowledge.  I had the privilege to work with Bert Pierce and Jerry during the summers of my college years and some of the best memories I have involve working with Jerry and Bert here in central West Virginia and around the State.

Generations of children owe their hands-on introduction to our State’s wildlife to Jerry as he shared animals, outdoor lore and stories with thousands throughout the area and state.  On every instance when Jerry would call or leave me a message, he would always say “this is the world’s greatest fisherman calling”.  That was a title he reminded me of many times over the past forty plus years of friendship, as he always out-fished me but was also quick to help improve my skills by observations, pointers and techniques that I’ve passed on to my kids and grandkids.

Our deepest condolences go out to Connie, Sam, Becky and the entire family at Jerry’s passing.  Elk River and the people along the way lost a great asset and true friend.


Send your inquiries to the Capitol Office at:  Building 1, Room 462-M, Charleston, WV 25305.  Or, call Nancy Butcher in the Finance Committee office at 304.340.3230; or fax to 304.340.3388.  If you have an interest in any particular bill or issue, please let me know.  For those with Internet access, my e-mail address is: .

You may also obtain additional legislative information, including the copies of bills, conference reports, daily summaries, interim highlights, and leave me a message on the Legislature’s web site at www.legis.state.wv.us/.  When leaving a message, please remember to include your phone number with your inquiry and any details you can provide. Additional information, including agency links and the state government phone directory, may be found at www.wv.gov. Also, you may follow me on Facebook at “Brent Boggs”, Twitter at “@DelBrentBoggs” , as well as the WV Legislature’s Facebook page at “West Virginia Legislature” or on Twitter at twitter.com/wvlegislature.

Continue to remember our troops - at home and abroad - and keep them and their families in your thoughts and prayers.  Until next week – take care.

West Virginia House of Delegates Speaker Tim Armstead: Taking Bold Steps Together

The Gilmer Free Press

We have reached the halfway point of the first session of the 82nd Legislature.

As Speaker of the West Virginia House of Delegates, I am excited about the bold steps the Legislature is taking on behalf of the people of West Virginia.

The members of House of Delegates have hit the ground running this session, working hard to put our state on the right course. These men and women represent a variety of professional and educational backgrounds including farmers, doctors, teachers, coal miners, truckers, veterans and small business owners.

It is important to me as Speaker that all 100 of these members have input and that their voices, and those of the citizens they represent, are heard. We have made it a priority in the House of Delegates to promote openness and debate because we know that the end product of discussion and debate is good legislation.

Together, we are adopting sound legislation and taking bold steps for the people of West Virginia. The bills we have passed in the House of Delegates this session have enjoyed bipartisan support. Republicans and Democrats are joining together to move our state forward.

We are breaking down barriers and finally addressing long-standing issues that have held our state back. Together, we are creating exciting new opportunities for job creation through improvements in education, infrastructure, and our legal and regulatory climate.

The education of our children is a top priority. We are working to open new opportunities for students, parents and educators to bring innovation and greater flexibility for our schools at the local level.

Together, we are creating a pathway for highly qualified professionals to teach in regions that struggle to attract educators for subjects like math and science.

We are also working to give West Virginia the same opportunity that 42 other states and the District of Columbia already have; public charter schools. We have outstanding teachers in our schools and we need to give them the tools they need and the freedom to try new things in order to better reach our students.

We’re looking at innovative ways to ensure that every tax dollar is spent wisely and effectively. After years of advocating for transparency and efficiency, the House of Delegates unanimously passed a bill to require an audit of the Department of Highways.

We need to take an honest look at what we are doing right and where we need to make improvements. This effort will lead to improvements in how we build and maintain our roads and bridges throughout the state. We’re also working to implement additional accountability measures and audits of our state government agencies.

I am pleased that Gov. Tomblin has already signed the first bill passed in the in the House of Delegates, H.B. 2001, repealing the West Virginia Alternative Renewable Energy Portfolio Act. The governor stated, “We understand economic drivers and factors change over time, and the Act as it was passed in 2009 is no longer beneficial for our state.”

Finally, as you know, legal climate is a major factor employers consider when deciding to locate to a state and create jobs. For far too long, we have put off addressing long overdue civil justice reforms that would bring us into parity with the majority of other states.

As West Virginians, we value fair-mindedness and taking a practical approach to problem-solving and that is why we are passing meaningful reforms that will bring a renewed sense of confidence to our state’s court system. Civil justice reform is a matter of fairness and we will continue to do what is fair and what is right.

There are tough challenges, ahead. While there are those who may not always agree with the openness of our process or the ideas we have to improve our state, we will not refrain from doing what is right for the people of West Virginia.

We will continue to be thoughtful in our efforts to tackle the difficult issues. We will take bold steps to move our state forward, and provide all West Virginians with a brighter, more prosperous future.

WV Senate President Bill Cole: Assessing the Session’s First Half

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I have often been told that time is relative. Certainly at different points in my life, I’ve had days that seemed to fly by in the blink of an eye and days that felt like they stretched for years.

In just a few days, we will reach the half way mark of the 2015 Legislative session. As I reflect on the time that has passed and I look toward the work we have in the days ahead, I’m energized by the challenge.

From the beginning, I have made it clear that my goal is to create the kind of West Virginia our kids can forever call home. I want to give our young people reasons to stay in this beautiful state. Great jobs must be the most positive promise that our state offers.

It’s a monumental task, but the Senate hit the ground running from the opening gavel. Our members have worked long days (and nights) to read bills, meet with constituents, meet and debate in committee, and take action to move West Virginia forward.

In the first half of this session, the Senate passed many bills that I believe advance our goal of making West Virginia a better place to live, to work, and to raise a family. We passed meaningful legal reform, we removed burdensome regulations that were placed on our electric-generating power plants, and we streamlined a permitting process that will allow 400 people to go to work almost immediately.

With those successes, however, we must prepare for serious challenges in the second half of session. We will address legislation that deals with how our taxpayer dollars are spent on public construction projects, and it will not be easy. There will be strong, emotional debate as the Senate works through this and other bills. We may disagree, but we will not be disagreeable. Regardless of where our politics rest, most every member of this body has the same goal: Do what’s best for West Virginia and her future.

We do not have all of the answers. We simply want to do the right thing for our state and its people. We will not stop working toward that goal.

However, it will require many of us to reframe the way we think about the issues and their solutions. What if instead of asking, “Why West Virginia?” we ask, “Why NOT West Virginia?”

Why not give our hardworking men and women the ability to have freedom in their workplaces? Why not allow our parents to choose whether they’d like to send their child to a public school or a public charter school? Why not allow the free market to set the wage rates on our public construction projects?

Why should we be bound by the past and by how things “used to be done”? We must approach old problems with new solutions. We have been given the opportunity to make necessary changes to allow West Virginia become competitive with not only its neighbors, but with the rest of the nation and the world.

Legendary UCLA coach John Wooden said, “If you don’t have time to do it right, when will you have time to do it over?” That quote really speaks to me as I prepare for the second half of this session. West Virginia, the time to do it right is now, and we don’t have time to do it over.

As we continue working, please make sure to write or call your Senator or Delegate to make sure your voice is heard. You can find a directory on the West Virginia Legislature’s website – www.legis.state.wv.us. We want to hear from you.

Prosecutors Aren’t Going To Stop Prosecuting, So Needed Reform Must Come From Congress

The Perils of Overcriminalization

Abstract

Overcriminalization is a serious problem that has led to questionable prosecutions and injures the public interest. Thousands of criminal laws are scattered throughout the federal criminal code, and hundreds of thousands of regulations are supposed to implement those laws. In addition, the whole notion of consciousness of wrongdoing in the criminal law has been obscured. Because prosecutors have no incentive to change a system that rewards their excesses, revisions may have to come from Congress—itself the source of much of the problem, both in the laws it passes and in the standards it uses to measure prosecutorial success. If we are to take pride in the claim that we are a nation governed by law, the criminal law must be sensible and accessible, not simply a trap for the unwary.

What has happened to federal criminal law in recent decades? Several former senior Department of Justice officials have expressed their concern with the path we have taken, along with the American Bar Association, numerous members of the academy, journalists,and other organizations like The Heritage Foundation.We agree with their considered opinion that overcriminalization is a serious problem and needs to be remedied before it further worsens the plight of the people tripped up by it and further injures the public interest.

To begin with, the sheer number of federal laws that impose criminal penalties has grown to an unmanageable point. The Department of Justice and American Bar Association have been unable to tally the correct number.


Proliferation of Federal Crimes

The Congressional Research Service reportedly has been unable to come up with a definitive total of federal criminal laws; the nearest they could come was to say they number in the thousands. They are by no means confined to the federal criminal code—Title 18, itself a weighty volume—but are scattered among the laws contained in the 51 titles or subject-matter volumes of the federal code and the hundreds of thousands of regulations that are supposed to implement those laws. The result is that there are more criminal laws than anyone could know.

Indeed, federal crimes are not confined to offenses against the domestic laws of the United States. Under the Lacey Act, it is a crime to import into the United States animals or plants gathered in violation of the laws of the countries from whence they came.

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In a sense, you can understand such a law from the standpoint of a conservationist who wishes to guard against the extinction of species of animals or destruction of the world’s forests. But one result of that seemingly well-meaning legislative effort was a raid by federal agents on the premises of the Gibson Guitar Company for importing wood for guitar frets that was allegedly exported in violation of the laws of India and Madagascar (the latter, by the way, are not even written in English). It is utterly unreasonable to require anyone to know the laws of every other nation in order to avoid criminal liability.

There have also been questionable prosecutions under domestic federal criminal laws. Consider the case of Lawrence Lewis. Mr. Lewis grew up in difficult circumstances but escaped the fate of two brothers, who died in prison. A blue-collar employee who worked his way up to the position of head engineer at a military retirement home, Lewis was charged with felonious pollution of a navigable waterway, a charge that summons the image of dumping toxic chemicals into a river.

That image, however, has nothing to do with the facts. Mr. Lewis was simply using a facially reasonable procedure—one that he had been instructed to use and had used uneventfully for years—to clean up occasional toilet overflows in the hospice area of the home (caused by adult diapers clogging the pipes) by spraying water from a hose to direct the waste into a sewer that led to a small creek that he believed went to the District of Columbia’s publicly owned treatment works but that, unbeknownst to him, emptied into Rock Creek and ultimately into the Potomac River. The federal government charged him with a felony for making a reasonable mistake.

Even setting aside the fact that what goes on alongside the Potomac in Washington makes the occasional runoff from a toilet at a military retirement home seem hygienic by comparison, how could this happen? The Lewis case is an example of the result of a process that started out with good intentions but has taken us far down the road that the old proverb tells us is paved with good intentions.

Before the 20th century, to the extent that there were federal criminal laws, they concerned acts that everyone knew and understood were morally wrong. Accordingly, the old saw that ignorance of the law is no excuse was one that could be uttered seriously and without evoking a sarcastic snicker.

At the beginning of the 20th century, laws were adopted that had the effect of protecting the purity of food, the safety of workers, and other goals included in the rubric of health and safety. Violations of some of those laws were made criminal, and some permitted conviction without a finding of criminal intent: That is, all that had to be proved was that the defendant had done the act. Courts allowed that but said it was permissible only in the kinds of cases that involved protecting the health and safety of the community. The courts’ rationale for permitting this departure from usual standards was that the stakes—public health and safety—were so high that protecting public welfare was paramount.

Many may well have reasoned that people whose conduct affected health and safety should be bound to pay particular attention and that if they let their intention flag, it was not unreasonable to hold them to a strict standard of something less than criminal intent. In the process, however, the whole notion of consciousness of wrongdoing in the criminal law was obscured, although the penalties of loss of freedom or property, and moral taint, remained.


Achieving Institutional Reform Through Prosecution

In addition to the passage of statutes and regulations, another phenomenon that started in the setting of civil litigation but has since spilled over into the criminal law is the practice of bringing prosecutions to achieve institutional reform rather than seeking legislation that would have that end. Litigators in what are referred to loosely as civil rights or civil liberties issues have long known that they could often achieve their goals more quickly and with greater certainty through litigation than through legislation. One obvious example was a Connecticut statute that banned the sale of contraceptives. The state had not enforced the statute for years, but a plaintiff eventually persuaded the Supreme Court that the law violated a constitutional right to privacy.

That practice has now spread to criminal cases. Take, for example, prosecutions for promoting drugs for uses other than those for which the Food and Drug Administration has approved them, even though the targets of the promotion are not laymen but physicians who exercise independent judgment about whether to prescribe a drug or not. The prescribing of a drug for a purpose other than the one for which it was approved is not an offense at all; indeed, physicians may help to make medical progress while curing their patients if they are able to see new uses for pharmaceuticals. Yet promoting drugs for what is called off-label use is a felony.

Peter Gleason, a Maryland psychiatrist who regularly served poor and underserved constituencies, delivered a series of paid lectures at medical conventions describing success he had had with off-label use of certain drugs, and he was prosecuted for doing so. He did not have the resources to fight, so he pleaded guilty to a misdemeanor and paid a small fine. Nonetheless, the guilty plea ruined his medical practice. The Department of Health and Human Services told Dr. Gleason that his conviction excluded him from all medical programs, and virtually all of his patients were on Medicare or Medicaid.

Another defendant in the same case went to trial and prevailed when the U.S. Court of Appeals for the Second Circuit held that the First Amendment protects the right to communicate truthful information about the benefits of pharmaceuticals, even off-label benefits. Dr. Gleason, however, did not benefit from that ruling because his desperation over loss of his practice led to his suicide before the Second Circuit decided the case. The Gleason case is proof that good intentions can go haywire.


Nonprosecution and Deferred Prosecution Agreements

Another factor contributing to the proliferation of criminal regulations has been the advent of nonprosecution and deferred prosecution agreements with corporate defendants. The Department of Justice often uses settlements known as nonprosecution or deferred prosecution agreements to resolve criminal cases. It may seem paradoxical that agreements whereby corporations escape actual prosecution themselves contribute to the efflorescence of criminal laws and proceedings, but the process itself has pernicious results.

Consider the corporation investigated for a possible violation of criminal law. For most corporations, particularly those that are publicly traded, otherwise have a public profile, or do business in a highly regulated industry, a conviction can be crippling, but an indictment alone can also have catastrophic results. As a result, many large corporations negotiate deferred prosecution or nonprosecution agreements that permit them to escape the filing of a criminal charge in return for payment of a sizable penalty as a settlement.

The size of these settlements has made both state and federal governments begin to look upon prosecutors’ offices, where the interests of justice are supposed to govern, as profit centers. In some jurisdictions, proceeds of those penalties are used in whole or in part by law enforcement agencies to conduct activities or purchase equipment. In virtually all jurisdictions, including the federal government, the dollar value of penalties extracted from corporations is featured by law enforcement agencies and departments as a principal measure of their effectiveness and worth.

Moreover, as pointed out by Matthew Fishbein in the New York Law Journal, the very size of many of these settlements has raised the expectation of lay observers that individual defendants will be prosecuted as well; those expectations are then disappointed when no such prosecutions follow. The reason is that corporate settlements do not challenge the government’s legal theories or its evidence, but the government is wary of bringing charges against individual defendants because people who stand to lose their freedom often go to trial and prevail when the government’s case is tested in court.

The Department of Justice often goes beyond even the extraction of large settlements and has insisted on changes in corporate governance through the imposition of standards or monitors and even changes in corporate personnel as the price of avoiding criminal charges. The Department of Justice makes that demand even though those remedies would not be available as part of a sentence after conviction. To that extent, the running of corporations is taken out of the hands of shareholders and directors and placed instead in the hands of prosecutors.


Proposals for Reform

If these unhappy results of the proliferation of criminal laws and prosecutions are to change, the changes will not come from courts, which have upheld criminal penalties even without a showing of intent against claims of denial of due process. Obviously, prosecutors have no incentive to make changes in a system that rewards their excesses. The changes will have to come from Congress, which itself has been the source of much of the problem, both in the laws it passes and in the standards it uses to measure prosecutorial success.

There have been many proposals for reform, some with merit.

     
  • One is for a statute requiring proof of guilty knowledge in any criminal prosecution unless Congress has legislated specifically to the contrary.
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  • Another is that administrative agencies be required to list and make generally available in full text all regulations that carry potential criminal penalties, and perhaps that Congress then be required to ratify any such regulation before it can provide the basis for a criminal prosecution.
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  • Finally, Congress should adopt a general, across-the-board defense of mistake of law, requiring that a defendant be acquitted if he can prove by a preponderance of evidence that he believed reasonably that what he did was not a crime.

If we are to take pride in the claim that we are a nation governed by law, the criminal law must be sensible and accessible, not simply a trap for the unwary.

—Michael B. Mukasey, Partner, Debevoise & Plimpton, served as 81st Attorney General of the United States from 2007–2009 and as a judge on the U.S. District Court for the Southern District of New York from 1988–2006. Paul J. Larkin, Jr., is Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.

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