WEST VIRGINIA LAW INSTITUTE
GOVERNING COUNCIL MEETING
Draft of Minutes of Meeting
Wednesday, January 27, 2010 9:00 a.m.
Meeting by Telephonic Communications at the following locations:
WVU College of Law
Morgantown, West Virginia
A telephonic special meeting of the Governing Council of the West Virginia Law Institute was held at 9:00 a.m. on January 27, 2010. The purpose of the meeting was to consider and act upon a proposed Report of the Institute on Prison Overcrowding.
The Institute’s Chair, Scott Curnutte, called the meeting to order.
The Director, Prof. David Hardesty of the WVU College of Law, noted the presence of Prof. William Rhee, of the WVU College of Law Faculty, who was recently appointed by the Dean of the Law School as a faculty representative on the Institute. Mr. Rhee recently joined the college after severing several years as an attorney with the U. S. Department of Justice.
Others participating in the meeting noted their presence, and a quorum was established and announced by the Chair.
The chair recommended the procedures to be used in the meeting: an open discussion, acceptance of a main motion on the report, acceptance of and votes on motions to amend the report, and a vote on the main motion. No objection was made to the proposed procedure.
He then called upon the Reporter for the Prison Overcrowding Project, Prof. Robert Bastress, of the WVU College of Law, for remarks.
The reporter reviewed the most current draft of the report that had been distributed by e mail to the members of the Institute, noting changes in the draft report that had been made since the Institute’s January 5, 2010 meeting. He also indicated that he had considered comments as to organization made by the Director and questions and comments submitted by representatives of the prosecutors in the state. He answered questions.
Judge Johnson reported that he had consulted with the executive committee of the WV Judicial Association, and noted his preference that the report include a notation that the recommendation concerning the creation of a sentencing commission include the observation that the Institute does not support giving a sentencing commission the power to impose sentencing guidelines.
Mr. Hardesty reminded the members of the Institute that its role was not to draft bills or finalize ideas, but to recommend areas of concern and possible reforms to the members of the legislature. He noted the Legislature has already called for testimony from the judicial and executive branches, and to have an impact on the process during the 2010 session of the legislature, the Institute should contribute its research without delay.
Senator Kessler noted that the Judiciary Committee in the Senate is working on issues associated with prison overcrowding, and that he anxiously awaited the research and ideas that the proposed report contains.
Mr. Hardesty noted receipt of an e mail from Delegate Tim Armstead dissenting from the report in its entirety. He noted that Del. Armstead could not be present due to commitments in the legislature, but wished the minutes to reflect his dissent.
Chairman Tim Miley, Chair of the House Judiciary Committee indicated that he had been notified by Delegate Boggs that he also could not be present due to the press of legislative business, but also wished the minutes to reflect his dissent.
Whereupon, the president Mr. Curnutte called for a motion. Jessica Justice moved the adoption of the report, which was seconded by Senator Kessler.
The chair called for amendments. Upon motion by Judge Johnson, duly seconded by Jessica Justice, the reporter was instructed to include within the report the limitation on the sentencing commission recommendation mentioned above. On a voice vote, the amendment was unanimously adopted.
The chair then called for other amendments to the motion. There being none, he took up the main motion. There was no further discussion.
The chair then called for a voice vote. The motion was unanimously adopted, with no member asking to be recorded as voting no.
There being no further business, the meeting was adjourned.
The following council members attended by telephone:
Jessica Alsop,
Scott Curnutte (President),
Jonathan Deem (Legal Counsel to the Gov.),
David Hardesty, Jr. (Director/Secretary),
Sen. Jeffrey V. Kessler (Chairperson Senate Judiciary Comm.),
John Homburg (Dir. of WV Legislative Ser.),
Gary Johnson (Dir. of WV Legislative Service),
Jessica Justice (Director of CLE),
Anders W. Lindberg (Chair Young Lawyers Section W V State Bar),
Dean Joyce McConnell (Dean of WVU College of Law),
Del. Tim Miley (Chairperson House Judiciary Comm.),
Joyce H. Morton,
Audy Perry, Jr.,
Will Rhee (WVU College of Law Faculty Rep.),
Jacqueline Sikora (Pub. Relations Chairman),
Lloyd W. Spring III. ,
John Wallace, IV.,
Dawn Warfield (Rep. (Deputy Gen. to the Attorney Gen.),
Members Absent:
Del. Tim Armstead (House of Delegates (Minority Rep.),
Justice Benjamin (Chief Justice of WV Supreme Ct of Appeals),
Del. Brent Boggs (House of Delegates (Majority Party Rep.),
Vincent P. Cardi (WVU College of Law Faculty Rep.),
Sen. Don Caruth (Senate Minority Party Rep.),
Lettia Neese Chafin (President-Elect WV State Bar),
Sen. Truman Chafin (Senate Majority Party Rep.),
Sandra M. Chapman (President W V State Bar),
Richard E. Ford, Sr. (Chairperson, W V Comm. on Uniform St. Laws (National Comm.),
Michael S. Garrison (Gov. Appt. Attorney Rep.),
David Goldenberg (Past President),
Yolonda Lambert,
Erica Mani (Deputy Cabinet Sec. Tax Dept.),
Sean P. McGinley (Gov. Appt. Attorney Rep.),
Darrell McGraw (Attorney General),
Jeffrey Rogers,
Brandon Stump (Editor-in-Chief,
William Wooton (Past President & Dis. 3 Rep.),
Invited Guests present during the meeting were as follows:
Joe Altizer (Gen .Counsel House Judicial Comm.),
Bob Bastress (Reporter, Criminal Sentencing Project),
Anna DeWitt (Director’s Secretary),
Rita Pauley (Chief Counsel WV Senate Judiciary Comm.)
Attachment:
Dear Dr. Hardesty and members of the Law Institute,
I have received the notice of the meeting scheduled tomorrow to review and
act upon the revised draft of the report of the West Virginia Law Institute
and have reviewed the revised draft. Because the legislative session is
currently ongoing, and I have a legislative committee meeting scheduled at
9:00 a.m. tomorrow, it is doubtful that I will be able to participate in the
call tomorrow. However, if able to attend, I would intend to vote against
the report in its current form.
I had previously expressed by e-mail my strong objections and concerns
relating to the original report. Having reviewed the revised draft, I must
again restate my concerns regarding its content and express my dissent from
the report. After receiving an update regarding the meeting earlier this month
and receiving the e-mail relating to that meeting, it was my hope that
substantive changes would be made to the report. However, much to my
disappointment, with a few exceptions, the report appears largely unchanged
in terms of its general tone and content.
The report still calls for changes in existing law that would result in
reductions in sentencing not only for misdemeanor, non-violent
offenses but also for felony crimes, drug offenses, violent crimes and
sexual offenses, including sexual crimes against children and display of
obscene material to children. Frankly, I believe these recommendations to
be shocking. Rather than enumerate, section by section, each of my specific
objections at this time, I would simply state that I strongly disagree with
such reductions and believe that the majority of West Virginians would also
object to such changes. I not only dissent from the report, but would intend
to oppose any efforts to implement such recommendations if they were
considered by the West Virginia Legislature during my service in that body.
In addition, the report still contains the section relating to alleged
“Outdated, Unnecessary and Unconstitutional Provisions” despite the fact
that the language of the report recognizes that those provisions “do not
contribute to overcrowded prisons…” The primary charge to the Institute
was essentially to recommend ways to reduce prison population. The report
itself states that “As an overriding principle, the proposed reforms should
minimize risk to public safety and minimize incarceration costs.”
Respectfully, I fail to see how such matters as flag desecration, crimes
against morality and Sunday Blue Laws have anything whatsoever to do with
the stated objectives of the report.
Because of my belief that this report is so thoroughly flawed, it remains my
recommendation that the Institute essentially start over with its work.
However, if the Institute opts to proceed with issuing the report in its
current form, or in a substantially similar form, I strongly oppose the
report. The e-mail I received relating to the January 5, 2010 meeting
stated that “It was also decided to allow those who wished to note their
objections to various aspects of the report to file written dissenting
comments at the appropriate time…” I am uncertain what is considered the
appropriate time to make such comments, but I would ask that my objection to
and dissent from the report be expressed during the meeting tomorrow, in the
minutes of the meeting and in the report itself. I would also ask that I be
permitted to reserve the right to further expand upon my objections in
writing in the future.
Sincerely,
Tim Armstead, Minority Leader
West Virginia House of Delegates
