WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Introduced
House Bill 5507
By Delegates Foster, Brooks, Dillon, Martin, Worrell, Burkhammer, Jeffries, Ridenour, Kimble, McGeehan, and Phillips
[Introduced February 07, 2024; Referred to the Committee on Government Organization then the Judiciary]
A BILL to amend and reenact §15-5-6 of the Code of West Virginia, 1931, as amended, relating to clarifying the Governor's powers regarding a state of emergency or state of preparedness, changing the expiration of a state or emergency or state of preparedness to 30 days, prohibiting the closure of businesses by type, and limiting the ingress and egress into or out of a disaster area or other area subject to a state of emergency or state of preparedness and the limitation of movement of persons and occupation of property to certain areas and not the entire state.
Be it enacted by the Legislature of West Virginia:
(a) 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 or in any executive order issued hereunder may be construed to suspend or supersede any provision of the United States Constitution or West Virginia Constitution.
(b) The existence of a state of emergency 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 concurrent resolution, finds that 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 60 30 days after issuance of the executive order unless, prior to the 60th 30th day, the Legislature adopts a concurrent resolution extending the state of emergency beyond 60 30 days. A concurrent resolution adopted by the Legislature to extend a state of emergency proclaimed by the governor shall set forth within its terms the length of time for which the state of emergency shall be extended. 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.
(c) 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 Class I state of preparedness expires 30 days after issuance of the executive order unless, prior to the 30th day, the Legislature adopts a concurrent resolution extending the state of preparedness beyond 30 days. A concurrent resolution adopted by the Legislature to extend a Class I state of preparedness proclaimed by the governor shall set forth within its terms the length of time for which the state of preparedness shall be extended. A Class II state of preparedness, whether proclaimed by the Governor of 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 Class II state of preparedness.
(d) 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 60 days, unless the Governor follows the requirements for extending the state of emergency under subsection (b) of this section.
(e) Any proclamation or concurrent resolution issued under this section shall include, in general terms:
(1) A description of the facts and circumstances warranting the proclamation or concurrent resolution; and
(2) A designation of the geographic area threatened.
(f) Any proclamation or resolution shall be disseminated as soon as practicable to the news media and any other means which are calculated to bring its contents to the attention of the general public: Provided, 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.
(g) Under a duly proclaimed state of emergency or state of preparedness, the Governor has the following additional 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 entities and personnel in the state;
(2) To sell, lend, lease, give, or transfer property, to make purchases, deliver materials or perform functions relating to emergency services on terms and conditions he or she prescribes without regard to the limitations of any existing law or being required 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 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 in preparation for the emergency, and to compensate such personnel for their services from the Governor’s Contingent Fund 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 into or out of a disaster area or other area subject to a state of emergency or state of preparedness, as well as the movement of persons and occupancy of premises within the area: Provided, The area must be a specified area and not apply to the entire state;
(7) To suspend the provisions of any 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: Provided, That nothing in this subdivision may be construed as granting the Governor the power to suspend any provision of this section;
(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
(h) 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 System set forth in §15-5-28 of this code.
(i) The powers granted under this section do not authorize any action that would violate the prohibitions of §15-5-19a of this code.
(j) 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 provisions in place for the operation of the most essential facilities of government or private enterprise.
(2) Suspend or limit the lawful sale, lawful transfer, or lawful transportation of firearms, ammunition, components of ammunition, or ammunition-reloading equipment and supplies; or
(3) Except as authorized by the provisions of this article, interfere with, or impair the operation of the news media.
(4) Order the closing of any entity, business, or corporation by virtue of type of business or profession in which they engage. Any entity may only be closed by the provisions of subsection (g) of this section.
(k) Unless expressly authorized by an executive order of the Governor, a municipal, county, or state health officer, under color of a duly proclaimed state of emergency or state of preparedness, shall not take any enforcement action which is not authorized by statute.
(l) 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 a writ of 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.
NOTE: The purpose of this bill is to clarify the Governor's powers regarding a state of emergency or state of preparedness and changing the expiration of a state of emergency or preparedness to 30 days
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.