CHARLESTON – There are many uncertainties as the 2021 West Virginia legislative session begins, but a few perennial legal reform ideas will be considered.
On February 10, Gov. Jim Justice outlined his plans in the annual State of the State address, which included a plan to phase out the personal income tax and another to raise the sales tax by 1.5 percent.
Justice also proposed a tiered tax system for oil, gas and coal companies. Other taxes he wants to increase to make up for the eventual elimination of the personal income tax are on cigarettes and soda, as well as creating one on professional services. He also proposed a wealth tax.
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He also again proposed the creation of an intermediate court of appeals. The idea has been mentioned annually for the last few years, but it never has come to fruition.
This year, however, Republicans have a supermajority in both the state Senate and the House of Delegates. That might mean some measures, such as the intermediate court, could get over the hump this session.
Greg Thomas with West Virginia Citizens Against Lawsuit Abuse said he thinks the intermediate court is a slam dunk this session.
“This is need to ensure West Virginia is no longer out of step with the rest of the country in how we handle our court system,” said Thomas, who also said WV CALA is hopeful about seeing two more of its perennial issues – medical monitoring and phantom damages – being addressed as well.
He also said COVID-19 liability protection legislation needs to happen.
“Businesses and health care providers that have put forth a good-faith effort to reopen safely should be provided protection from lawsuits related to COVID-19,” Thomas told The West Virginia Record. “Businesses want to open back up and provide their services safely to the community, and health care workers are doing their best to tend to patients during this unprecedented time. The threat of lawsuits should be the last thing looming over their heads.
“Luckily, there appears to be strong support in the Legislature for this effort.”
The state Senate has passed a seatbelt admissibility bill several times in recent years, but it’s never made its way out of the House. Thomas is more hopeful this year.
“This legislation would provide commonsense reform that would make West Virginia roads safer, create a better environment for manufacturing jobs and potentially lower consumer costs,” he said. “With changes to key leadership in the House Judiciary Committee, consumers and job providers should be optimistic that this important legislation will pass both bodies this year.”
The president of the West Virginia Association for Justice, a group for plaintiff’s attorneys, agrees about COVID-19 liability protection legislation.
“We don’t disagree that employers, schools, retailers, health care providers and others need some sort of protection if they’d followed all of the rules,” Jon Mani told The Record. “Clearly in a pandemic, there are many instances where people should not be held accountable. But, the devil is in the details. You can’t have people ignoring governmental and scientific prevention measures. But for those who do, you can’t hold them accountable.”
Mani said the WVAJ still doesn’t see the need for an intermediate court of appeals.
“The economics just aren’t there,” he said. “We’re talking about repealing the personal income tax, and then they’re going to have a line-item for a multi-million court? On top of that, it’s just not needed. The notion that our courts are clogged up just isn’t true, especially with regards to civil litigation. It just lacks reason.”
Mani also said his group doesn’t see the need for the seatbelt admissibility or collateral source laws.
“This session will present unique challenges,” Mani said. “With the pandemic raging, from a legislative standpoint, we don’t have a legislative agenda we’re pushing.
“Lawmakers will have their hands full with purely processing the pandemic and the fallout. The last thing we need is a bunch of partisan fighting over legal reform issues.
“The populace needs to be taken care of. So, we will be here ready to do whatever we can to help them in their endeavors.”
WV CALA’s Thomas agrees about COVID being the biggest issue.
“This is one thing the state Legislature can do to provide confidence to everybody,” he said. “This bill, in particular, has wide support. It needs to be done. Leadership in both chambers and the governor are advocating for this.
“All in all, I think we won’t see as many bills this session. But we’re pretty excited about this year’s agenda.”
The president of the West Virginia Chamber of Commerce agrees COVID protections are a big issue.
“If you have followed the rules, you shouldn’t be subject to predatory lawsuits,” Steve Roberts told The Record. “We’re working closely with legislative leadership on that and other issues.
“We’re also really interested in the idea of eliminating the personal income tax. We’re historically on side of being careful and don’t want to cut so much that you aren’t properly funding everything. But the governor and others have made some interesting proposals. At least adjustments are in order. It deserves to be examined.
“When these income tax leaves were created, $60,000 or so was the highest level of income. That’s changed a lot. Plus, more money in people’s pockets helps them with their way of living and helps them meet financial obligations. And, most of that money in their pockets will go back into the economy.”
Roberts noted that the state unemployment rate is below the national average, the state’s workforce participation rate has steadily increased since 2015 and that the state’s poverty rate has gone down.
“We’re not declaring victory, but those who predicted doom and gloom are now seeing things level off and even go in the right direction,” Roberts said. “The impact of COVID will have some effect on that, but we’re bouncing back some.”
That’s why Roberts thinks now is a good time to at least look at tax changes.
“Let’s see what we can accelerate,” he said. “Everything is better than it was in terms of economic performance. As Joe Manchin likes to say, if we do something and don’t get it right, we can fix it later.”
Roberts said that same logic can be applied to the intermediate court of appeals.
“What’s the worst that can happen?” Roberts asked. “OK, if this doesn’t do what it was intended to do or, based on technology, we realize it’s superfluous, let’s just get rid of it.
“We were the initial proponents of this court. And it has its best chance of passing this year. Justice is one the real cornerstones of our republic, and 40 states do this. Evidence suggests an intermediate court of appeals adds to people’s ability to follow the law.”
Roberts said the GOP supermajority in both houses will be a focus for everyone.
“We’re as interested in that as everyone else,” he said. “We think they’re looking at the right things. They’re looking at reasonable solutions to West Virginia’s problems.”
Thomas agreed.
“People see an opportunity to get our economy back on track by continuing to finish the job with this legal reform agenda. It will put West Virginia in a position to be very competitive in drawing new jobs.”
He said West Virginia voters have given Republicans a mandate.
“I think that’s exactly what this is,” Thomas said. “I think one of the reasons our agenda works is that these are all very reasonable reforms. They put us in step with the rest of the country and are things West Virginia needs to do to attract job creators.
“We’re serious about fixing our legal system.”