CHARLESTON – Tax plans might be taking up most of the talk so far in the 2023 legislative session, but there are some legal reform issues that likely will draw focus from lawmakers.
Moore Capito, chairman of the House Judiciary Committee, said he anticipates bills that will to rewrite parts of the criminal code.
“We endeavored several years ago to have a comprehensive criminal code rewrite,” Capito (R-Kanawha) told The West Virginia Record. “That stalled, but we’ve since been taking up individual crimes piecemeal.”
Windom
| Courtesy photo
Capito also said two bills taken up during legislative interims also will get attention.
The first is a jury incentivation bill, which was introduced January 11 by Delegate Trenton Barnhart (R-Pleasants). Among other changes, the bill would increase juror pay from $40 a day to $80
“We want to ensure we are fielding juries timely and ensuring West Virginians are without undue burden on their lives,” Capito said. “It gives them more money each day and gives some direction to employers creating greater flexibility enabling West Virginians to serve on juries without feeling the undue burden of work and duty strength.”
Another one focuses on judicial redistricting.
“It’s not often talked about, but just as the Legislature redistricts every 10 years, the judiciary does that as well to make sure judges are appropriately apportioned to meet caseloads,” Capito said. “Without the proper allocation of judges, our court systems can become a bit clogged, especially in certain areas.
“We have certain obligations to ensure fair and speedy trials. The Judiciary spearheaded a study with the National Center for State Courts to engage in a study to see where our workload is. Legislative redistricting is driven by population, but the courts are different. It’s driven by filings and issues that come before the court. It doesn’t always correlate to population.
“We have obligation to ensure our court system is functional and efficient.”
Capito said lawmakers have spoken to members of the state Supreme Court as well as circuit judges to get feedback and data.
“One of the things we are considering is making sure each circuit contains at least two judges in case one judge needs to be recused from a case,” he said.
A statewide legal reform group has a few items on its legislative agenda as well.
Greg Thomas with West Virginia Citizens Against Lawsuit Abuse said the group is supporting bills that would address phantom damages and medical monitoring.
Phantom damages refers to awards in personal injury cases given based on initial medical bills for a plaintiff than never are paid rather than the actual medical costs.
“With phantom damages, it’s something that’s been introduced before and had interest,” Thomas told The Record. “But we’re going to make a serious effort toward this year to get done. Several other states have taken care of it now. It’s a reasonable reform to do that will make West Virginia a better place create jobs and provide healthcare.”
Thomas called West Virginia’s stance on medical monitoring claims “troubling” because it still permits cash awards to uninjured people who bring speculative medical monitoring claims.
“West Virginia truly is out of step with the rest of the country on this,” Thomas said. “The law still in the books on this is from the late 1990s. Our planned legislation doesn’t do away with medical monitoring claims. It just eliminates medical monitoring as a cause of action.”
Thomas said the proposed legislation also would establish a medical monitoring trust fund where any money received through litigation would go to be used for actual medical monitoring.
Another that’s already passed the state Senate and sent to the House of Delegates is Senate Bill 138 would clarify that secondary sources do not constitute law or public policy. That would include a legal treatise, scholarly publication, textbook or other explanatory text.
Thomas said WV CALA also hopes anti-anchoring legislation is addressed. Anchoring is when an attorney says there is no exact amount of damages and, as Thomas says, “throws a number out there to make it seem like that’s what the jury should award.”
“That’s using an arbitrary number to manipulate the jury to raise the figures,” Thomas said. “We need to pass a bill that makes that illegal so attorneys stick to the facts of actual damages.”
Thomas also said there are other ways the state can recruit businesses in addition to tax reform.
“There are regulatory and legal reforms that would make the state friendlier to businesses,” he said. “We need to cut the red tape, make sure you have a fair chance in court. Legal reform has been a big part of the economic turnaround in West Virginia. We’ve passed dozens of reforms, and we’re no longer a Judicial Hellhole. Kanawha County is bad. But overall, the legal system has improved dramatically. We think that is a major factor in the growth we’re seeing.”
A statewide group for trial attorneys has issues it’s focusing on as well.
Scott Windom, president of the West Virginia Association for Justice, said his group will be fighting against the collateral source/phantom damages bill as well as legislation that would end the practice of lawsuits being filed for injuries because an employer didn’t have proper safeguards in place by eliminating the state's deliberate intent law.
“Obviously, with the change in numbers in the Legislature to a Republican megamajority, we aren’t quite sure what that will mean regarding some bills,” Windom told The Record. “It’s certainly a new mix of folks involved, but we’re still obviously opposing either of those bills.
“Obviously, fixing PEIA and some other issues such as taxes are going to take priority, but who knows what we’ll see with the way politics works. You just never know.”
Windom said the WVAJ also has concerns about Senate Bill 280 that would make judicial elections partisan again. Judicial elections were made nonpartisan in 2015, with the first such election taking place in 2016.
“We were sort of an outlier,” Windom said of the change in 2015. “We were one of seven states that had partisan elections. It was important then to not be outliers, and it showed itself to be very beneficial. It takes a lot of money out of those elections because there is no primary anymore and there’s a much shorter (campaign) window.
“Of all of the elected officials in the state, judges should be non-partisan. It should be wholly irrelevant. It would be a step backward right now.
“Again, you’re dealing with a lot of new variables with so many newly elected members. I would hope there isn’t a whole lot of appetite for this bill. To go back to that is a little premature, I think, at this point.”
Windom agreed that the jury incentivation bill is a positive step.
“I’ve met with legislators to speak in favor of the bill,” he said. “The (West Virginia) Chamber and circuit clerks are in favor of it. I’d like to think that bill will have bipartisan support.”
Senate Judiciary Chairman Charles Trump (R-Morgan) did not return attempts to interview him for this story.