West Virginia Law Institute
Council Meeting
Minutes
November 8, 2002

A meeting of the Council of the West Virginia Law Institute was held on Friday, November 8, 2002, at the WVU College of Law in the Bowers Conference Room. Professor Robert G. Lathrop, Director of the Council, convened the meeting at 5:15 p.m. A list of the members in attendance follows these minutes.

Minutes: The only correction to be made to the minutes of the last meeting of the Council held on May 10, 2002, is the spelling of Dawn Warfield’s name. Vincent Cardi moved that the minutes be approved as corrected, and John Homburg seconded the motion.

Landlord-Tenant Project Report: Dean John Fisher reported that the advisory committee is a good and active group. Three meetings have been held and the next will be on November 22 in Charleston. There are three working groups for the project, and at the current time the first group is presenting information on security deposits. It is a very slow process, as it is hard to get a consensus. He stated that it is more difficult that he expected and that the whole process may break down before the project is completed. Some advisory committee members hoped to get something before the legislature this session; however, the majority felt it should be delivered in one package. Dean Fisher reported that it may be 2004 or even 2005 before the project will be ready be presented to the legislature.

The question was raised about whether the project differentiates between commercial and residential rentals, and it was clarified that this project applies to residential rentals only. Dean Fisher also said there is quite a difference within the category of residential rentals: in some regions landlords cater to students, while in the eastern panhandle, for example, landlords cater to families.

Structure of the Institute: Professor Lathrop introduced the next item on the agenda by saying that the governing Council of the Institute is determined by statute. The membership part of the Institute is a separate group that consists of up to 80 lawyers, presumably designed to be a “think tank.” However, it is virtually defunct, and he suggested that we cut back on the membership. As the members’ terms expire, most have decided not to renew their terms, as they report that they “have not done anything” during their term. The Council represents the judicial, legislative, and executive components of state government, as well as the State Bar, and it is the Council who decides on the projects for the Institute. Although a federal judge was to be an ex officio member of the Council, there was some question whether federal judges can serve on the Council. Further, it is not clear whether they could serve as members only. Professor Lathrop will check with Chuck Haden and Irene Keeley to see if the federal judges could serve as members before any decision is made on disbanding the membership component of the Institute. He will distribute to Council members Article 12 “Establishment of a West Virginia Law Institute” and the by-laws of the Institute along with draft proposals.

Ellen Cappellanti asked if the Institute membership was called for by the statute. Professor Lathrop said it was in a general sort of a way and that the membership described in the by-laws includes the Council members and the group of 75+ lawyers. He said the by-laws can be changed with the approval of a majority of Council members and if necessary the statute could be amended.

Dean John Fisher said that the membership has never functioned as a “think tank” because the advisory committees have served that purpose. Professor Lathrop explained that the projects have had co-reporters as the lead people. In the past, the executive committee and the co-reporters have called upon people who are knowledgeable about the particular issues being discussed. Dean John Fisher said that the current advisory committee was formed by including individuals from different “groups” to represent landlords and tenants.

Budget: Professor Lathrop stated that the Institute does not have a general operating budget. Our records show that it costs about $300 a year for mailing and copying. We do not know the amount for phone calls as we do not have a separate Institute telephone identification number. These expenses currently come out of the Dean’s fund, and this seems to be appropriate. However, the legislature provides funding for specific Institute projects.

New Business: There was no new business to discuss.

New projects: The project list on the agenda (medical consent in family settings, Uniform Principal and Interest Act, Uniform Child Custody Jurisdiction, electronic real estate filings, other uniform laws, friendly corporate atmosphere à la Delaware, and self-settled trusts) includes ideas suggested in the past. The Institute, with its limited funds and personnel, work on one project at a time. As the landlord-tenant project may take three years to complete, it was suggested that we consider a project that would be “cleaner and easier to complete.”

There was some discussion of the other items on the list, about the feasibility and benefit of some of them for West Virginia, as well as whether some laws might have already been updated, particularly through adoption of uniform laws. It was suggested that we check the past records to determine why these particular projects were suggested. Ellen Cappellanti said she would find out what uniform laws have not yet been adopted by West Virginia.

When asked about how active the legislative members are and their perception toward the Institute, the discussion concluded that although they are not usually too active, some do attend the meetings regularly and when it is time to introduce one of our proposals, they “take charge.” They seem to have a good attitude about the Institute. It was mentioned that Senator Wooton was not re-elected. We will replace him with his successor when we know who that is.

Closing Comments: Professor Lathrop said that the next meeting would be held in conjunction with the State Bar Association meeting in May at Snowshoe.

Professor Lathrop thanked all for attending. The meeting was adjourned at 6:00 p.m.

Respectfully submitted,

Robert G. Lathrop
Professor and Director
West Virginia Law Institute

RGL/bcr

Council Members Present: Ellen Cappellanti (member of the Executive Committee), Professor Vincent Cardi, Dean John Fisher, II, David Goldenberg, John Homburg, Professor Robert Lathrop (Director), Dawn Warfield (for Honorable Darrell V. McGraw, Jr.), with Mary Clare Eros attending by speaker phone.

Guest: Bertha Romine (secretary to Professor Lathrop).