UPDATE: Critics call session 'ludicrous'

By Chris Dickerson | Mar 12, 2014

CHARLESTON – West Virginia lawmakers are calling the just-completed legislative session a productive one.

CHARLESTON – West Virginia lawmakers are calling the just-completed legislative session a productive one.

They seem to be alone in that thinking.

While much of the session’s focus was on January’s Elk River chemical spill and subsequent work to make the state’s water systems safer, there were other topics that garnered attention.

“Going into my first session as speaker, I certainly didn’t envision having to deal with a State of Emergency that redirected much of our focus,” House Speaker Tim Miley, D-Harrison, said. “But I’m pleased to report it did not prevent us from accomplishing a great deal in a short time.

“In the end, the experience only confirmed my faith in the sincerity and work ethic of the members of the House of Delegates.”

House Majority Leader Harry Keith White agreed.

“We’ve dealt with everything from the water situation to snow and ice, but we never stopped working on the issues that are important to the House leadership,” White, D-Mingo, said. “We passed legislation to help small businesses and encourage economic development; support and protect West Virginia workers; strengthen our educational system; and improve public safety.”

The president of the West Virginia Chamber of Commerce called the session a strange one.

“This was the most unusual legislative session I recall,” Steve Roberts said. “It was marked by a out-of-the-gate attack by the leaders of the majority party.

“It seemed as though the session was a re-election effort on behalf of the majority party from day one. Very little happened that helps West Virginia families and working people or that really helps the economic future of West Virginia.”

Roberts mentioned House Bill 4001, which was the state’s version of the federal False Claims Act. It died in the House by a 55-42 in late February despite a strong push by House Judiciary Chairman Tim Manchin.

“It would have been on the list of the top five really bad bills,” Roberts said. “It would have done nothing it was purported to do. It was created to start new lawsuits for the ‘sue-and-settle’ bar.”

Roberts said the state Chamber “worked very hard” to kill the False Claims Act bill.

“It appeared on the first day of the session, and we fought it for about ¾ of the session,” he said. “It died in the House, but it never should have surfaced the way it did. It never should have come out of the House Judiciary Committee the way it did.

“It was just a sneak attack to deliver on behalf of the plaintiff’s bar. Fortunately, we called it out. The business community spoke up, and we opposed it.”

The executive director of West Virginia Citizens Against Lawsuit Abuse echoed Roberts’ thoughts on the False Claims Act bill, which is designed to provide incentives to whistleblowers who feel government programs are being cheated.

“It is very telling that the top priority and first piece of legislation by Miley and Manchin was a bill that would help the personal injury lawyers,” Greg Thomas said. “But, we are encouraged by the fact that reasonable heads prevailed by killing the False Claims Act."

HB4001 would have allowed whistleblowers to bring lawsuits in state courts against businesses alleged to have submitted false claims for reimbursement to state- and federal-run programs such as Medicaid. It also would have given the state a law compatible with the federal FCA, thus entitling West Virginia to a greater percentage of multi-state recoveries.

The president of the West Virginia Association for Justice was quick to chide Thomas for his comments.

“The False Claims Act was not a WVAJ bill," said Bernie Layne, president of the group of more than 500 plaintiffs attorneys in West Virginia and surrounding states. "Our organization was not involved with drafting the legislation, it was not part of our agenda and we did not lobby for it.

"If it had passed, the False Claims Act would have helped the state recover millions in tax dollars stolen through fraud by companies under contract with the state. A fiscal note on the North Carolina version of the bill estimated that the state would recover more than $3 million a year. Just a week ago, a federal claim allowed the U. S. government to recoup more than $500 million.”

Layne also said any such whistleblower act only can benefit people if there is a whistle to be blown.

“The only way that legislation could have been a windfall for plaintiffs’ attorneys would have been if hundreds of businesses were defrauding our government and cheating taxpayers," he said. "Unless a corporation was knowingly committing fraud, there is no case.

"In light of the response to the bill, I think the question West Virginians need to be asking is just how many corporate special interests are defrauding the state of West Virginia? Who wants corporate criminals to get a pass when they steal from taxpayers?”

Another bill that both Thomas and Roberts criticized was House Bill 4490, which also was known as the Attorney General Ethics and Accountability Act.

Critics called it a direct attack on current AG Patrick Morrisey. Morrisey agreed, and said the passage of the bill would have created a constitutional crisis in the state. It passed the House on a 52-44 vote, but died in the Senate Judiciary Committee, which never took up the measure.

Thomas called the bill “ludicrious,” and said again he’s glad cooler heads prevailed to keep it from being passed by the state Senate.

Roberts agreed, and said earlier reports that the bill was a product of the state Chamber were inaccurate.

“It is true that, at the request of the speaker, we offered some language about the bill,” he said. “But the bill that emerged was not a bill that we could support. Evidently, we were not the only ones to offer language.

“The House leadership said it was our bill. It never was our bill. We responded to a request and provided some guidance to the House. But what they came out with was a world apart from what we had recommended. And then, to release emails that were purportedly from the chamber regarding the bill … Well, that is ludicrous.”

Roberts said the bills the Chamber cared most didn’t have a chance during the session.

“I’m talking about the bills we spent time fighting for such as job creation, quality of life,” he said. “Our platform is fairly simple. We need a good economy, we’ve got to do our very best to help children in school, and we need to work on quality of life issues.

“We are disappointed that the Legislature -- at least the people in charge -- didn’t seem to share that point of view. They came out swinging against the economy from day one. That’s demonstrated by the bills they passed, the bills they introduced and took up in committee and the bills they let die in the House.

“Almost everybody I know who went to the Capitol will tell you that. The session was marked by deceit and hyper-partisanship. It doesn’t bode well for West Virginia’s future.”

Roberts said the Chamber pushed for the Uniform Arbitration Act, which passed the state Senate.

“But the House Judiciary wouldn’t take it up because Chairman Manchin is very pro-plaintiffs bar,” he said. “The bills that came out of that committee are a show of his personal opinion.

Roberts said the Chamber proposed a bill regarding the statute of limitations on third-party claims (Senate Bill 316) that passed the Senate, but was not taken up in the House.

“It’s easy to see that it’s more of the ‘Obamacrat’ mentality of the leadership of the West Virginia Legislature, particularly the House,” he said. “Before, we’ve been able to find something we were pleased about with a session. We’ve been able to point to workers’ comp reform, legal reform, insurance reforms that people thought would never pass. But we’re not able to say that about this session.

“Typically, everybody is a little tired and a little frazzled after the session. We’ve watched this closely. We participated in a very direct way. We find it very frustrating that West Virginia has so many problems, but none of them were taken up by the Legislature. We know we’re not alone in saying that.”

Definitely not.

“The 2014 session was a miserable failure,” Thomas said. “We have the most unfair court system in the country, and they did nothing to fix that. We have fewer people working than any state in the nation, and they didn’t pass one single bill that would create a job.

“With the budget difficulties that the state has, legal reform makes more sense now than ever. It creates jobs and doesn’t cost the state money. The only people who lose money are the greedy personal injury lawyers.

“There were good bills sponsored this session that dealt with comparative fault and creation of the intermediate appellate court. But these positive reforms never will see the light of day with the current leadership in Charleston.

“The actions of the House leadership this session were outrageous. We have been hearing from many of our members who desperately want new leadership in Charleston.”

Layne had more criticism of Thomas' comments.

“It’s absolutely ridiculous that Greg Thomas claims to care about West Virginia’s budget difficulties -- and then attacks legislation that would have allowed the state to recoup millions in tax dollars while at the same time he’s pushing for an unnecessary intermediate appellate court that would cost us millions,” he said. “CALA and its corporate backers also continue to demand that West Virginia establish an unnecessary intermediate appellate court that would cost state taxpayers millions.

“The 2012 annual report issued by our West Virginia Supreme Court showed that appeals are at a 25-year low -- and that they’re declining at a rate three times the national average. The new appellate rules also ensure that written decisions on why cases are accepted or not are written for every appeal.

"Even the West Virginia Chamber of Commerce has said that right now we do not need an intermediate court. It’s outrageous that Thomas is continuing to demand that we waste tax dollars on it when we don’t need it.

“The so-called reforms Greg Thomas is pushing will do nothing to help our state or create jobs. The only thing they will do is destroy the right of West Virginia consumers, workers and small businesses to hold insurers and other corporations accountable while increasing the profits for the special interests behind CALA.”

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