HB2003 S JUD AM #1 3-29

Smith 7892

The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:

ARTICLE 5. DIVISION OF HOMELAND SECURITY AND EMERGENCY MANAGEMENT.

§15-5-2. Definitions.

As used in this article:

(1) “Board” means the West Virginia Disaster Recovery Board created by this article;

(2) “Code” means the Code of West Virginia, 1931, as amended;

(3) “Community facilities” means a specific work, or improvement within this state or a specific item of equipment or tangible personal property owned or operated by any political subdivision or nonprofit corporation and used within this state to provide any essential service to the general public;

(4) “Disaster” means the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural, or terrorist or man-made cause, including weapons of mass destruction, fire, flood, earthquake, wind, snow, storm, chemical or oil spill or other water or soil contamination, epidemic, air contamination, blight, drought, infestation, or other public calamity requiring emergency action;

(5) “Disaster recovery activities” means activities undertaken prior to, during, or following a disaster to provide, or to participate in the provision of, emergency services, temporary housing, residential housing, essential business activities, and community facilities;

(6) “Emergency services” means the preparation for and the carrying out of all emergency functions, other than functions for which military forces are primarily responsible, to protect, respond, and recover, to prevent, detect, deter, and mitigate, to minimize and repair injury and damage resulting from disasters or other event caused by flooding, terrorism, enemy attack, sabotage, or other natural or other man-made causes. These functions include, without limitation, firefighting services, police services, medical and health services, communications, emergency telecommunications, radiological, chemical, and other special weapons defense, evacuation of persons from stricken areas, emergency welfare services, emergency transportation, existing or properly assigned functions of plant protection, temporary restoration of public utility services and other functions related to the health, safety, and welfare of the citizens of this state, together with all other activities necessary or incidental to the preparation for and carrying out of these functions. Disaster includes the imminent threat of disaster as well as its occurrence and any power or authority exercisable on account of a disaster that may be exercised during the period when there is an imminent threat;

(7) “Essential business activities” means a specific work or improvement within this state or a specific item of equipment or tangible personal property used within this state by any person to provide any essential goods or service determined by the authority to be necessary for recovery from a disaster;

(8) “Local organization for emergency services” means an organization created in accordance with the provisions of this article by state or local authority to perform local emergency services function;

(9) “Mobile support unit” means an organization for emergency services created in accordance with the provisions of this article by state or local authority to be dispatched by the Governor to supplement local organizations for emergency services in a stricken area;

(10) “Person” means any individual, corporation, voluntary organization or entity, partnership, firm, or other association, organization, or entity organized or existing under the laws of this or any other state or country;

(11) “Political subdivision” means any county or municipal corporation in this state;

(12) “Recovery fund” means the West Virginia Disaster Recovery Trust Fund created by this article;

(13) “Residential housing” means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction or rehabilitation of land, buildings and improvements thereto, for residential housing, including, but not limited to, facilities for temporary housing and emergency housing, and any other nonhousing facilities that are incidental or appurtenant thereto;

(14) “State of emergency” means the duly proclaimed existence of conditions of disaster or other serious threat to the health or safety of persons and property within West Virginia, or a specific geographic area thereof, including but not limited to an attack upon the state or the United States, a natural or man-made disaster of major proportions, a pandemic, or other large-scale threat beyond the capacity of local control.

(15) “State of preparedness” means the duly proclaimed authorization for:

(A) Specialized planning and preparation activities intended to minimize any anticipated impact of conditions of a state of emergency, as defined in this section, which, in the judgment of the Governor, are expected to commence within the next 30 days, or within a period of longer than 30 days if necessary to obtain funding or maintain compliance with federal or interjurisdictional requirements; Provided, That a state of preparedness which is duly proclaimed under such circumstances shall be referred to as a “Class I state of preparedness”; or

(B) Specialized planning and preparation activities intended to minimize, by use of any available and appropriate federal or state governmental resources, any anticipated impact of or anticipated threats with respect to a planned or anticipated event of such large size or scope or both that it is beyond the capacity of local control, and which is scheduled to commence within the next 30 days, or longer if necessary to obtain funding or maintain compliance with federal or interjurisdictional requirements: Provided, That a state of preparedness which is duly proclaimed under such circumstances shall be referred to as a “Class II state of preparedness”.

(16) “Secretary” means the Secretary of the West Virginia Department of Military Affairs and Public Safety Homeland Security; and

(17) “Temporary housing” means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction, or rehabilitation of land, buildings and improvements thereto, for temporary residential shelters or housing for victims of a disaster and such other nonhousing facilities that are incidental or appurtenant thereto.

§15-5-6. Emergency powers of Proclamation of a state of emergency or state of preparedness by the Governor and or the Legislature; additional powers of the Governor during a state of emergency or state of preparedness.

(a) The Legislature finds that:

(1) The global coronavirus (COVID-19) pandemic of 2020, which is continuing at the time of the enactment of the amendments to this article in the regular session of the Legislature in 2021, has presented unprecedented challenges for the citizens of West Virginia, which have required response of the government of the State of West Virginia;

(2) Exercising the authority and power provided by the Act, the Governor of West Virginia has marshalled the resources of the state and the full authority and response of the government of West Virginia to address the COVID-19 pandemic;

(3) West Virginia has been recognized nationally for its success in many aspects of its response, including vaccination rates and lower infection rates than exist in many other states; and

(4) It is the intent of the Legislature to codify some of the decisions that have been made by the Governor of West Virginia during the current COVID-19 pandemic, protecting individual liberties of the citizens of West Virginia, so that they have application to future states of preparedness or states of emergency in the State of West Virginia or any part thereof.

(b) The provisions of this section, and any executive order issued pursuant to the provisions of this section, are operative only during the existence of a state of emergency or state of preparedness: Provided, That nothing in this section may be construed to suspend or supersede any provision of the Constitution.

(c) The existence of a state of emergency or state of preparedness may be proclaimed by the Governor by executive order or by concurrent resolution of the Legislature if the Governor in the proclamation, or the Legislature in the resolution, finds that an attack upon the United States has occurred or is anticipated in the immediate future, or that a natural or man-made disaster of major proportions has actually occurred or is imminent within the state, or that an emergency exists or may be imminent due to a large-scale threat beyond local control conditions warranting the proclamation of a state of emergency, as defined in this article, exist, and that the health, safety, and welfare of the inhabitants of this state require an invocation of the provisions of this section: Provided, That a gubernatorially proclaimed state of emergency expires after 60 days from issuance of the executive order, unless prior to the 60th day the Governor provides written notice to the President of the Senate, the Speaker of the House of Delegates and the Joint Committee on Government and Finance that in his or her opinion it is necessary to extend the state of emergency. If the Governor extends the state of emergency beyond 60 days, he or she shall thereafter, no less frequently than every 30 days, provide the President of the Senate, the Speaker of the House of Delegates and the Joint Committee on Government and Finance with a written statement of his or her reasons to believe that the conditions warrant any continuation of the state of emergency. The Governor shall provide a timely written response to any written inquiry from the President of the Senate, the Speaker of the House of Delegates or the Joint Committee on Government and Finance regarding the need for continuing the state of emergency and the facts supporting the continuation. A state of emergency, whether proclaimed by the Governor or by the Legislature, terminates upon the issuance of a proclamation of termination by the Governor, or the passage by the Legislature of a concurrent resolution terminating the state of emergency.

(b) Any state of emergency or state of preparedness, whether proclaimed by the Governor or by the Legislature, terminates upon the proclamation of the termination by the Governor, or the passage by the Legislature of a concurrent resolution terminating the state of emergency or state of preparedness: Provided, That in no case shall a state of preparedness last longer than thirty days.

(d) The existence of a state of preparedness may be proclaimed by the Governor by executive order or by concurrent resolution of the Legislature, if the Governor in the proclamation or the Legislature in the resolution, finds that conditions warranting the proclamation of a state of preparedness, as defined in this article, exist, and that the health, safety, and welfare of the inhabitants of this state require the invocation of the provisions of this section: Provided, That the Governor or the Legislature shall proclaim a state of preparedness as a “Class I state of preparedness” or a “Class II state of preparedness”, as defined in this article by law: Provided however, That a gubernatorially proclaimed declared state of preparedness expires after 30 days unless, prior to the 30th day, following the issuance of the executive order the Governor provides written notice to the President of the Senate, the Speaker of the House of Delegates and the Joint Committee on Government and Finance that, in his or her opinion, it is necessary to extend the state of preparedness. If the Governor extends the state of preparedness beyond 30 days he or she shall thereafter, no less frequently than every 30 days, provide the President of the Senate, the Speaker of the House of Delegates and the Joint Committee on Government and Finance with a written statement of his or her reasons to believe that the conditions warrant any continuation of the state of preparedness. The Governor shall provide a timely written response to any written inquiry from the President of the Senate, the Speaker of the House of Delegates or the Joint Committee on Government and Finance regarding the need for continuing the state of preparedness and the circumstances and facts supporting the continuation. A state of preparedness, whether proclaimed by the Governor or by the Legislature, terminates upon the issuance of a proclamation of termination by the Governor, or the passage by the Legislature of a concurrent resolution terminating the state of preparedness.

(e) When a state of emergency follows a state of preparedness involving the same or substantially similar circumstances, the total time allotted for the duration of the two combined shall be no more than 90 days, unless the Governor follows the requirements for extending the state of emergency under subsection (c) of this section.

(f) Any proclamation or resolution issued under this section must include, in general terms:

(1) A description of the facts and circumstances warranting the proclamation or resolution; and

(2) A designation of the geographic area threatened:

Provided, That any proclamation or resolution shall be disseminated as soon as practicable to the media and any other means which are calculated to bring its contents to the attention of the general public: Provided however, That for a gubernatorial proclamation of a state of emergency or state of preparedness, the Governor shall provide a copy of the executive order to the President of the Senate, the Speaker of the House of Delegates and the Joint Committee on Government and Finance.

(c) (g) So long as a Under a duly proclaimed state of emergency or state of preparedness exists, the Governor has and may exercise has the following additional emergency powers which are intended to be construed to authorize actions which are consistent with constitutional or statutory law, or with final orders of those courts of competent jurisdiction to which the Governor is subject:

(1) To enforce all laws and rules relating to the provision of emergency services and to assume direct operational control of any or all emergency service forces and helpers in the state;

(2) To sell, lend, lease, give, or transfer property, to make purchases, or deliver materials or perform functions relating to emergency services on terms and conditions he or she prescribes and without regard to the limitations of any existing law and to account to the State Treasurer for any funds received for the property;

(3) To procure materials and facilities for emergency services by purchase, condemnation under the provisions of §54-1-1 et seq. of this code, or seizure pending institution of condemnation proceedings within 30 days from the seizing thereof and to construct, lease, transport, store, maintain, renovate, or distribute the materials and facilities. Compensation for the procured property so procured shall be made in the manner provided in §54-1-1 et seq. of this code;

(4) To obtain the services of necessary personnel, required during the emergency or to prepare for the emergency, and to compensate them for their services from his or her contingent funds or other funds available to him or her;

(5) To provide and compel the evacuation of all or part of the population from any stricken or threatened area within the state and to take steps that are necessary for the receipt and care of the evacuees;

(6) To control ingress and egress to and from into or out of a disaster area or an area where large-scale threat exists, other area subject to a state of emergency or state of preparedness, as well as the movement of persons within the area and the occupancy of premises therein within the area;

(7) To suspend the provisions of any regulatory statute prescribing the procedures for the conduct of state business or the orders, or rules of any state agency, if strict compliance therewith would in any way prevent, hinder, or delay necessary action in coping with the emergency;

(8) To use available resources of the state and of its political subdivisions that are reasonably necessary to cope with the emergency or to prepare for the emergency;

(9) To suspend or limit the sale, dispensing, or transportation of alcoholic beverages, explosives, and combustibles: Provided, That explosives and combustibles do not include firearms, ammunition, components of ammunition, or ammunition-reloading equipment and supplies;

(10) To make provision for the availability and use of temporary emergency housing; and

(11) To perform and exercise other functions, powers and duties that are necessary to promote and secure the safety and protection of the civilian population.

(d) (e) The declaration of a state of preparedness has the same effect as a declaration of a state of emergency for the purposes of the Emergency Management Assistance Compact established in §15-5-22 of this code, and the Statewide Mutual Aid Systems set forth in §15-5-28 of this code.

(e) (h) The powers granted under this section do not authorize any action that would violate the prohibitions of §15-5-19a of this code.

(i) During any state of preparedness or state of emergency proclaimed at any time, an executive order of the Governor may not:

(1) Close churches or other houses of worship or prevent their operation in any manner that is more restrictive than the least restrictive rules in place for the operation of the most essential facilities of government or private enterprise;

(2) Suspend or limit the sale, lawful transfer, or transportation of firearms, ammunition, components of ammunition, or ammunition-reloading equipment and supplies; or

(3) Interfere with or impair the operation of the news media.

(j) Unless expressly authorized by an executive order of the Governor, a municipal, county, or state health officer shall not take any enforcement action which is not authorized by statute under color of a duly proclaimed state of emergency or state of preparedness.

(k) Any suit filed challenging an executive order issued relating to a state of preparedness or emergency pursuant to the authority granted in this section shall be limited to a petition for prohibition or mandamus pursuant to Rule 16 of the Rules of the West Virginia Supreme Court of Appeals. The provisions of §55-17-3 of this code are not applicable to any suit filed challenging an executive order issued pursuant to this section.

(l) The amendments to this section and §15-5-2 of this code enacted during the 2021 regular session of the legislature are applicable to circumstances constituting a state of emergency or state of preparedness initially proclaimed after the effective date of the amendments. It is the express intention of the Legislature not to interfere with the executive branch’s handling of the COVID-19 caused state of emergency originally proclaimed on March 16, 2020, and executive orders entered under the proclamation. Provided, That nothing in this subsection may be construed to limit the authority of the Governor as to the state of emergency caused by COVID-19 in effect as of April 1, 2021.

Adopted

Rejected