WV Senate Judiciary, Janurary 16th
Earlier today, January 16th, The West Virginia Senate Judiciary Committee met. On the agenda was the appointment of subcommittees, referral of bills to those subcommittees, and the discussion of two bills. The committee discussed S.B. 53 (Relating to DNA data maintained for law enforcement purposes) and S.B. 115 (Providing procedure for WV to select delegates to an Article V Convention).
S.B. 53 would amend state code to require that DNA samples be collected upon arrest for certain crimes, and that it be collected on conviction for all felonies. Currently, samples are only collected on conviction of certain crimes.
Senator Chapman proposed an amendment that would allow for the samples to be collected on arrest but would prevent them from being entered into a database until after the conviction of a crime. Chapman had voiced 4th amendment concerns about the bill, arguing that collection of the DNA sample without a conviction of a crime would constitute unreasonable search and seizure, she did acknowledge that the Supreme Court has ruled that DNA collection is not unreasonable search and seizure (Maryland v. King), but disagreed with its ruling. Chapman reasoned that once the DNA sample was submitted to the database, it was constantly checked against other cases looking for a match in unsolved cases, and that doing this took away judicial discretion in issuing warrants for DNA in these cases.
Senators Stuart and Weld voiced opposition to the amendment, arguing that by waiting on a conviction to submit the DNA samples, that the state was risking putting people in danger. They argued that it can take months for a case to go from arrest to trial and conviction, and that in that time an offender could make more people victims. Senator Chapman’s amendment failed by voice vote, the bill was then reported to the full Senate, with the recommendation that it do pass, after going to the Committee on Finance.
The committee then discussed S.B. 115, which would create some procedures for delegates to an Article V Convention. Article V of the U.S. Constitution stets out procedures for amending the constitution. It provides two methods of proposing amendments, being proposed by 2/3 of each House of Congress (the only way amendments have been proposed so far), or by 2/3 of state legislatures submitting applications to Congress for a constitutional convention. Anything proposed by Congress, or a convention, must be approved by either ¾ of the state legislatures or ¾ of state conventions (Congress decides how amendments will be approved).
An Article V Convention has never been called before, and there is an enormous amount of uncertainty as to how one would work and what constraints would be placed on it. It is not known how delegates are chosen, how they would vote, if they are constrained to only discussing items in the applications for a convention, etc.
The bill, sponsored by Senator Karnes, gives the legislature the power to appoint a committee of correspondence to communicate with other bodies regarding an Article V Convention, prohibits delegates from West Virginia from participating in a convention that uses proportional representation, prohibits delegates from voting for any unauthorized amendments (amendments not in the application), creates and oath for delegates, and sets out punishments. The provision of the bill prohibiting delegates from participating in a convention that utilizes proportional representation was not discussed, its reasoning is not currently known.
The bill prohibits delegates from voting for amendments not listed in the application for a convention, an effort to prevent a “runaway convention”. If a delegate were to vote for an unauthorized amendment or break their oath in a different way, then they could have their vote voided, face recall, fines, and prison time. The penalties include a fine ranging from $100,000 to $500,000 and “not less” than ten years imprisonment.
The constitutionality of this bill is questionable at best, its unknown if a state has any control over its delegates, if it can compel them to vote a certain way, punish its delegates for a vote, or void a vote from its delegate. Senator Karnes, speaking before the committee on behalf of his bill, said that he was inspired by faithless elector laws and the Supreme Court’s support for them. Faithless Elector laws compel a presidential elector to vote a certain way and can cancel their vote and punish them for voting differently then directed to by the state. It’s improbable that the states would have this much control over a constitutional convention. Senator Stover, who said he is a yes on this bill, questioned the constitutionality of this bill multiple times, and said that a constitutional convention would likely be independent of the states and have unlimited power to propose amendments.
The committee reported the bill to the full Senate with the recommendation that it do pass and then adjourned.