WEST virginia legislature

2021 regular session

Introduced

House Bill 3028

By Delegate Pritt

[Introduced March 09, 2021; Referred to the Committee on the Judiciary]

A BILL to amend and reenact §15-5-6 of the Code of West Virginia, 1931, as amended, relating to prohibit the emergency powers of the Governor from restricting the ability of West Virginia citizens to enter or exit the State of West Virginia; and providing right to injunctive relief.

Be it enacted by the Legislature of West Virginia:

ARTICLE 5. DIVISION OF HOMELAND SECURITY AND EMERGENCY MANAGEMENT.

§15-5-6. Emergency powers of Governor.

(a) The provisions of this section are operative only during the existence of a state of emergency or state of preparedness. The existence of a state of emergency or state of preparedness may be proclaimed by the Governor 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, and that the safety and welfare of the inhabitants of this state require an invocation of the provisions of this section.

(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 may a state of preparedness last longer than 30 days.

(c) So long as a state of emergency or state of preparedness exists, the Governor has and may exercise the following additional emergency powers:

(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, transfer, 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 chapter 54 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 property so procured shall be made in the manner provided in chapter 54 of this code;

(4) To obtain the services of necessary personnel, required during 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 a disaster area or an area where large-scale threat exists, the movement of persons within the area and the occupancy of premises therein:  Provided, That this authority may not restrict the ability of West Virginia citizens to enter or exit the State of West Virginia.  Any person aggrieved by a breach of this subdivision may seek injunctive relief in the Circuit Court of Kanawha County and, if successful, is entitled to an award of attorney fees and damages;

(7) To suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders, 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;

(9) To suspend or limit the sale, dispensing or transportation of alcoholic beverages, explosives, and combustibles;

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

NOTE: The purpose of this bill is to prohibit the emergency powers of the Governor from restricting the ability of West Virginia citizens to enter or exit the State of West Virginia.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.