West Virginia Law Institute
Council Meeting
Minutes of Meeting
Friday, September 21, 2007
Davis Gallery, WVU College of Law
Morgantown, West Virginia

The West Virginia Law Institute governing Council meeting was called to order by President Bill Wooton at noon in the Davis Gallery at the WVU College of Law on Friday, September 21, 2007. A list of the members in attendance follows these minutes.

Because they are posted on the web, the reading of the minutes of the January 24, 2007, meeting of the governing Council was waived by motion, seconded, and approved unanimously.

Report on Landlord-Tenant Project

Director Bob Lathrop said that the Landlord-Tenant Project is in effect ?dead.? He said he would need to talk with Aaron Allred regarding the disposition of the proposed legislation. John Homburg said that it was left in a subcommittee, so nothing happened with it.

Report on Administrative Law Judge Project

Bob Lathrop indicated that since the completion of the Landlord-Tenant Project, the Council had proposed two other projects, the Uniform Trust Code and Obsolete Statutes. The legislature refused to fund either project. The Administrative Law Judge Project was suggested by Representative Jon Amores, a proposal was submitted, the project funded, and Professor Pat McGinley named as the reporter. The project was to have been completed for the 2008 legislative session. However, Professor McGinley had surgery in the spring and has not made a complete recovery yet. Bob called Aaron Allred to request a one-year?s extension on the agreement. As he received no response, he followed the call with a letter. He received a letter asking Bob to sign on the line to ?cancel? the agreement and that later they could reevaluate the need for the project.

Discussion included the importance of having neutral Administrative Law Judges. However, without legislative support, this too will not advance to become legislation. It was suggested that we contact Jeffrey Kessler and Carrie Webster to see if they agree that this is an important project and if the agreement can be extended rather than cancelled. The suggestion was to talk with the appropriate legislators to see if there is interest in the project before agreeing to the cancellation. Scott Curnutte suggested we table that decision until we determine if there is another project that the legislature might prefer we pursue in the interim while the ALJ Project is extended. The group was reminded that the letter from Allred did not mention an extension.

The two ?highest scoring? projects from the last Council meeting (January 24, 2007) were criminal sentencing structure/criminal code and mental health hearings/mental health system. It was noted that the criminal code project would be a huge undertaking, and that the two judiciary chairs may be interested in the mental health hearing issues. Lloyd Spring said the Supreme Court is looking at the mental health Code now, and he is on two committees appointed by the Court to review certain aspects of the mental health system.

It was suggested that Bob Lathrop approach the legislature and say that we will sign the letter to cancel the ALJ Project in exchange for funding the mental health project and that later we would revisit the ALJ Project. Bob said he could call the two judiciary chairs and Aaron Allred. However, John Homburg suggested that after Bob talks with the two judiciary chairs Bob should contact him rather than Aaron Allred. It was moved and seconded that Bob talk to the judiciary chairs and then call John Homburg who will talk with others in the legislature, as well as Aaron Allred.

New Projects

The following projects were on the agenda and have been on the list to consider as new projects for quite some time.

Bob added ?Marketable Title Act? to the list and eliminated the medical consent project. The self-settled trusts would be part of the Uniform Trust Code project.

Lloyd Spring said the mental health project would be concerned with focusing on a medical decision rather than an adversarial one. Lloyd is the chair of the Chapter 27 Supreme Court committee; he is not sure if anyone is chair of the Chapter 44A committee yet. He said the Pilot Project has two components: (1) making the procedure non-adversarial and (2) allowing a doctor to order treatment without a judicial procedure for three days. The second component has not been implemented yet as it is controversial.

Discussion included the fact that we need to know what the Supreme Court committees are doing so that our work would not duplicate, but rather compliment their work.

A concern was voiced regarding the attitudes and relationship between the Law Institute and the legislature. After several comments, it was decided that any funding for Law Institute projects must come from the legislature. It was also noted that any project the Institute proposes should have a very carefully defined scope. Another point was that one of the strengths of the Institute is that it is above politics, and this needs to continue.

Concerning the criminal sentencing/code, a suggestion was made to submit 1/3 of what Gerry Ashdown has already done on it. It was also suggested that we encourage the Legislature to adopt the Model Penal Code.

Bill Wooton posed the question of when our proposal would be submitted. The Joint Committee on Government and Finance meets monthly between now and January, but then not again until April.

Lloyd Spring was asked if he could identify the scope of the project and write up a one-page description of needs and deficiencies. This could be emailed to the Council for all to read and make suggestions. However, it is not possible to vote by email, as the Law Institute must meet the Open Meeting guidelines. It was decided that we should make a mental hygiene proposal to the legislature before January, so that if it dismisses that proposal, we could discuss an alternative project at the January 2008 meeting. The members were asked to provide other project ideas by email.

Vince Cardi reported that he had students study the Uniform Trust Code, and the information they compiled has been transmitted to the Probate Committee of the State Bar. It may be introduced to the legislature this fall/winter.

Old Business

There was no old business to discuss.

New Business

There was no new business to discuss.

Next Meeting

The spring meeting will be held at 4:00 p.m. in the WV State Bar conference room in conjunction with the WVU-Marshall basketball game on January 23, 2008.

Adjournment

There being no further business, a motion was made, seconded, and unanimously adopted to adjourn. The meeting was adjourned at 12:55 p.m.

Respectfully submitted,

Bertha C. Romine
Program Assistant
West Virginia Law Institute

Council Members Present: Vincent Cardi, Scott Curnutte, David Goldenberg, John Homburg, Gary Johnson, Mary Claire Johnson, Yolonda Lambert, Robert Lathrop, Joyce McConnell, Joyce Morton, Jeffrey Rodgers, Lloyd Spring III, Dawn Warfield, and William R. Wooton.