WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SIXTH LEGISLATURE

REGULAR SESSION, 2003

TENTH DAY

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Charleston, W. Va., Friday, January 17, 2003

     The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)

     Prayer was offered by Father Ed Tracey, Assistant Rector, Episcopal Church of the Good Shepherd, Charleston, West Virginia.
     Pending the reading of the Journal of Thursday, January 16, 2003,
     On motion of Senator Hunter, the Journal was approved and the further reading thereof dispensed with.
     The Senate proceeded to the second order of business and the introduction of guests.
     The Clerk presented the following communication from the Joint Committee on Government Operations:
WEST VIRGINIA LEGISLATURE

JOINT COMMITTEE ON GOVERNMENT OPERATIONS

CHARLESTON

January 16, 2003

West Virginia Legislature
State Capitol
Charleston, West Virginia
Ladies and Gentlemen:
     As required by §4-10-12 of the West Virginia Code, we respectfully submit the 2003 Annual Report of the Joint Committee on Government Operations.
                              Very truly yours,
                               Edwin J. Bowman,
                               Senate,
                               Cochair,
                               J. D. Beane,
                               House of Delegates,
                               Cochair.
     Which communication and report were received and filed with the Clerk.
     The Senate proceeded to the third order of business.
     A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
     Eng. Com. Sub. for House Bill No. 2052--A Bill to amend article one, chapter eighteen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section five; to amend and reenact section three, article seven of said chapter; and to further amend said article by adding thereto a new section, designated section three- a, all relating to higher education; student financial aid; defined terms; expanding definition of "eligible institution"; award eligibility in certain circumstances; and establishing funding priority for student financial aid in certain circumstances.
     Referred to the Committee on Education.
     A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
     Eng. Com. Sub. for House Bill No. 2120--A Bill to amend chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article one-a; to amend and reenact sections four, five and nine, article two of said chapter; to amend and reenact section one, article three of said chapter; to further amend said article by adding thereto a new section, designated section two-a; and to amend and reenact sections one-c, one-d and six, article four of said chapter, all relating to providing security for the workers' compensation fund generally; providing for the workers' compensation deficit reduction act; requiring commissioner to obtain written professional opinion of qualified actuary that certifies rates of premium taxes or other assessments applicable to employers; prohibiting rates other than those certified; authorizing workers' compensation division to require employers to make reports and payments of premium taxes or other assessments at intervals other than quarterly; providing for the elimination of second injury awards and the second injury reserve fund for certain claims; providing for security or bond provided by employers; requiring payment of employer's deficit amortization assessment by certain employers; authorizing certain employers to insure its catastrophic risk through private insurance carrier; removing obsolete language; providing for a security risk pool; requiring the employers authorized to self-insure their obligations to administer their own claims; providing for certain audits; promulgation of rules by the commissioner; providing periodic transfers to the workers' compensation fund from the West Virginia tobacco settlement trust fund; removing requirement that division refund overpayments made by self-insured employers; authorizing the compensation programs performance council to approve future benefits from which overpayments may be recovered; reducing basis for computation of temporary total disability benefits for certain claims; increasing threshold measurement of medical impairment for eligibility for award of permanent total disability; applications for awards; and effective date of enactment of amendments.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
     Eng. Com. Sub. for House Bill No. 2121--A Bill to amend chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article twenty-four, relating to the regulation of all- terrain vehicles; requiring safety training courses; requiring persons under the age of eighteen to have a driver's license or safety training course; prohibition of operation on lined, paved roads; exceptions to prohibition; requiring operators under the age of eighteen to wear a helmet; and exemption for operation on private lands.
     Referred to the Committee on Transportation; and then to the Committee on the Judiciary.
     A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
     Eng. Com. Sub. for House Bill No. 2122--A Bill to amend and reenact section two, article eleven-a, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article thirteen-t; to amend chapter twenty-nine of said code by adding thereto a new article, designated article twelve-c; to amend and reenact section fourteen, article three, chapter thirty of said code; to amend and reenact section twelve-a, article fourteen of said chapter; to amend and reenact section four, article ten, chapter thirty-eight of said code; to amend and reenact sections one, two, three, six, seven, eight, nine, ten and eleven, article seven-b, chapter fifty- five of said code; and to further amend said article by adding thereto five new sections, designated sections twelve through sixteen, inclusive, all relating to medical professional liability generally; providing a personal income tax credit for physicians care providers based upon payment of medical malpractice liability; setting forth legislative findings and purpose; defining terms; creating tax credit and providing eligibility; establishing amount of credit; providing for forfeiture of excess credit; providing for the application of the credit; specifying effect of credit on computation of estimated taxes; providing for the computation and application of credit; authorizing tax commissioner to promulgate legislative rules; establishing burden of proof relating to claiming the credit; establishing effective date for credit; providing for termination of tax credit; establishing a special fund to compensate certain patients for uncollectible injury awards; creating board to propose funding mechanism; establishing term, authority and directives of the board; conditionally authorizing the board of risk and insurance management to promulgate legislative and emergency rules; directing the two thousand four Legislature to implement funding proposal; establishing patient injury compensation fund; providing for distribution and eligibility for moneys of the fund; requiring the board of medicine and the board of osteopathy to take certain disciplinary actions against physicians and surgeons in certain circumstances; increasing exemption available to certain physician and surgeon debtors in bankruptcy proceedings; providing additional legislative findings and purposes relating to medical professional liability; providing definitions; adding an element of proof in certain malpractice claims; altering notice requirements for malpractice claims; modifying the qualifications for experts who testify in medical professional liability actions; limiting liability for certain noneconomic loss; providing a reversion provision; providing for severability; eliminating joint, but not several, liability among multiple defendants in medical professional liability actions; requiring consideration of certain third parties in malpractice cases; reduction in damage awards for certain collateral source payments to plaintiffs; providing mechanism for determining collateral source payments and damages distribution; requiring periodic payment of damages for certain medical malpractice awards; providing for calculation methodology for determining award payments; providing for limitations against health care providers for certain third-party claims; limiting civil liability for trauma care; directing the office of emergency medical services to designate hospitals as trauma centers; placing limitations on eligibility for trauma care caps; authorizing the commissioner of the bureau for public health to designate certain hospitals as trauma centers; authorizing the secretary of the department of health and human resources to promulgate legislative and emergency rules; providing method for calculating certain contingent fee payments; and establishing effective date.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
     Eng. House Bill No. 2224--A Bill to amend article one-b, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section ten, relating to higher education reorganization; legislative funding; establishing a special revenue account in the state treasury; purpose of fund; use of funds retained by reorganization; use of funds deposited into special revenue account; legislative findings and intent; personal services and employee benefits reduction; institution conversion; detailed written notice to governor, Senate president and House speaker; disposition of real property and assets; student transfers; reconciling program requirement conflicts; and student financial aid eligibility and continuation.
     Referred to the Committee on Education; and then to the Committee on Finance.
     The Senate proceeded to the fourth order of business.
     Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
     Your Committee on the Judiciary has had under consideration
     Senate Bill No. 4, Relating to enforcement of judgments in magistrate court.
     And reports back a committee substitute for same with the following title:
     Com. Sub. for Senate Bill No. 4 (originating in the Committee on the Judiciary)--A Bill to amend and reenact section one, article six, chapter fifty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to civil judgments in magistrate court; and requiring notice of judgment by mail.
     With the recommendation that the committee substitute do pass.
                              Respectfully submitted,
                               Jeffrey V. Kessler,
                               Chair.
     Senator Ross, from the Committee on Transportation, submitted the following report, which was received:
     Your Committee on Transportation has had under consideration
     Senate Bill No. 82, Extending time for study of orphan roads and bridges.
     And reports the same back with the recommendation that it do pass.
                              Respectfully submitted,
                               Mike Ross,
                               Chair.
     Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
     Your Committee on the Judiciary has had under consideration
     Senate Bill No. 93, Relating to violence against public employees.
     And reports back a committee substitute for same with the following title:
     Com. Sub. for Senate Bill No. 93 (originating in the Committee on the Judicidary)--A Bill
to amend article two, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section fifteen-b, relating to violence against public employees.
     With the recommendation that the committee substitute do pass.
                              Respectfully submitted,
                               Jeffrey V. Kessler,
                               Chair.
     Senator Hunter, from the Committee on Military, submitted the following report, which was received:
     Your Committee on Military has had under consideration
     Senate Bill No. 143, Providing high school diplomas to certain veterans.
     And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Education.
                              Respectfully submitted,
                               Jon Blair Hunter,
                               Chair.
     The bill, under the original double committee reference, was then referred to the Committee on Education.
     The Senate proceeded to the sixth order of business.
     On motions for leave, severally made, the following bills and joint resolution were introduced, read by their titles, and referred to the appropriate committees:
     By Senator Oliverio:
     Senate Bill No. 167
--A Bill to repeal section five, article five-a, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend article two, chapter twenty-one-a of said code by adding thereto two new sections, designated sections seven and seven-a, all relating to establishment of prevailing wage rates by department of labor; statement of legislative findings; and transferring all powers, duties and functions related to establishing of prevailing wage rates to the bureau of employment programs.
     Referred to the Committee on Labor; and then to the Committee on Government Organization.
     By Senators Bowman, Edgell, McKenzie, Prezioso, Kessler and Rowe:
     Senate Bill No. 168
--
A Bill to amend article four, chapter eighteen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section two-b, relating to creating the equitable compensation act; and establishing a state minimum salary supplement for professional personnel holding a nationally recognized professional certification.
     Referred to the Committee on Education; and then to the Committee on Finance.
     By Senators Rowe, White, Plymale, Jenkins, Ross and McCabe:
     Senate Bill No. 169
--A Bill to amend chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article twenty-nine, relating to creating a midland trail heritage highway authority.
     Referred to the Committee on Government Organization; and then to the Committee on Finance
.
     By Senators Kessler, Prezioso, Ross, Minard, Sharpe, Unger, Plymale, Weeks, Oliverio, Boley, Facemyer, Love, Bailey, Minear, Harrison, McKenzie, Sprouse, Bowman, Edgell, Deem, Guills, Dempsey, Helmick, Hunter, Fanning and Smith:
     Senate Bill No. 170
--
A Bill to amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two-i, relating to creating the "Women's Right to Know Act"; defining certain terms; requiring informed consent for an abortion to be performed; exception for a medical emergency; requiring the department of health and human resources to publish information and develop a website on alternatives to abortion; requiring physicians to report abortion statistics; providing criminal penalties for violations of the act; providing civil remedies; privacy in court proceedings; and providing a separate severability clause.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance .
     By Senators Oliverio, Hunter and Rowe:
     Senate Bill No. 171
--
A Bill to amend and reenact sections forty-three, forty-six and forty-nine, article fifteen, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to seat belts; requiring all new and used automobiles be equipped with safety seat belts for all seating locations; requiring passive restraints and properly adjusted seat belts for children; requiring certain children ride in the rear seat; prohibiting children from riding in certain cargo areas; increasing certain penalties requiring the use of safety belts while operating a motor vehicle; making offense of failure to wear a safety belt a primary offense; and specifying standards for safety belt use.
     Referred to the Committee on Transportation; and then to the Committee on the Judiciary
.
     By Senator Sprouse:
     Senate Bill No. 172
--
A Bill to amend and reenact section three, article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the consumers sales tax; and rolling back the sales tax on food by one-half percent per year until the sales tax on food is eliminated.
     Referred to the Committee on Finance
.
     By Senator Sprouse:
     Senate Bill No. 173
--
A Bill to amend and reenact section nine, article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to sales tax exemption for the United States flag.
     Referred to the Committee on Finance
.
     By Senators Love, Hunter, Prezioso, Dempsey, Ross and Rowe:

     
Senate Bill No. 174--
A Bill to amend and reenact section two, article five, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to granting incremental salary increases to division of corrections employees based on years of service.
     Referred to the Committee on Finance.
     By Senators Snyder, Rowe and Unger:
     Senate Bill No. 175
--
A Bill to amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article three- d, relating to reducing the threat of bioterrorism; establishing certification for research facilities or other entities that possess certain biological agents and toxins; providing for the secretary of health and human resources to limit possession and transfer of certain biological agents and toxins to certified entities; and establishing criminal and civil penalties for violations.
     Referred to the Committee on Health and Human Resources; and then to the Committee on Finance
.
     By Senator Oliverio:
     Senate Joint Resolution No. 4
--Proposing an amendment to the Constitution of the State of West Virginia, amending section eight, article IX thereof; and further amending said article by adding thereto a new section, designated section eight-a, all relating to the formation and reformation of counties; authorizing the Legislature to reconfigure county lines; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment.

     Referred to the Committee on the Judiciary.
     Senators Tomblin (Mr. President), Snyder, Unger, Boley, Chafin, Helmick, Rowe, Fanning, Ross, Smith, Minear, Sharpe, Facemyer, Guills, Plymale, Edgell, Kessler, White, Bowman, Minard, Jenkins, Love, Deem, Hunter, McKenzie and McCabe offered the following resolution:
     Senate Resolution No. 6--
Memorializing the life of the Honorable Louise Leonard Nelson, former member of the West Virginia Senate from the sixteenth senatorial district and dedicated stateswoman.
     Whereas, Louise Leonard Nelson was born October 7, 1919, in Washington, D. C., the daughter of the late Roy Leslie and Florence Alberta (Bellows) McVey; and
     Whereas, Following graduation from high school, Louise Leonard Nelson worked for the United States government in various areas. During World War II, she worked for 18 months in Alaska with the U. S. Army Corps of Engineers as they built the Alcan Highway. Later, she worked in Calcutta, India, for the Office of Strategic Services until the end of the war; and
     Whereas, In 1948 Louise Leonard Nelson received a degree in foreign affairs from George Washington University and began working at the United States Department of State; and
     Whereas, In 1948 Louise Leonard Nelson married Marine Captain Robert P. Leonard, whom she had met in India. In 1952, they relocated to Harpers Ferry where they owned and operated a restaurant; and
     Whereas, Louise Leonard Nelson was active in numerous community-related organizations, clubs and associations and Jefferson County politics. She served as chairperson of the Jefferson County Republican Executive Committee, second vice president of the West Virginia Federation of Republican Women and was also a member of the board of the National Federation of Republican Women; and
     Whereas, In 1968 Louise Leonard Nelson was appointed by Governor Arch A. Moore, Jr., to the Task Force on Regional and Local Planning. In 1969 she was appointed by President Richard M. Nixon to a four-year term on the Advisory Board of the Federal Reformatory for Women in Alderson; and
     Whereas, In 1970 the Honorable Louise Leonard Nelson was elected to the West Virginia Senate from the sixteenth senatorial district and served until 1974. She was the second woman in West Virginia history elected to the state Senate; and
     Whereas, During her tenure in the Senate, the Honorable Louise Leonard Nelson served the citizens of Jefferson County and the citizens of West Virginia with dedication and commitment. One of her proudest efforts while a senator was when she traveled to Paris, France, in an attempt to meet with North Vietnamese officials to gain the release of American military personnel held as prisoners of war. Although they refused to meet with her, she was able to deliver written arguments for the release of those Americans; and
     Whereas, In 1975, following the death of her beloved husband, she continued her education and earned a master's degree in political science from George Washington University; and
     Whereas, Louise Leonard Nelson, who traveled extensively, met Dr. Clarence Nelson of San Francisco, California, and they were married in 1985. As a resident of San Francisco, she was active in many organizations, including the St. Francis Yacht Club, the San Francisco Garden Club and the Daughters of the American Revolution. She also continued as an active member of many Republican organizations; and
     Whereas, Although Dr. Clarence Nelson passed away in October, 2001, Louise Leonard Nelson continued to live in San Francisco, surrounded by extended family members and many dear friends. Sadly, on Monday, October 14, 2002, Louise Leonard Nelson passed away, bringing to an end a lifetime of dedicated public service; therefore, be it
     Resolved by the Senate:
     
That the Senate hereby memorializes the life of the Honorable Louise Leonard Nelson and recognizes the many contributions she made to the citizens of the sixteenth senatorial district and the State of West Virginia by her service as a member of the West Virginia Senate; and, be it
     Further Resolved, That the Senate hereby extends its sincere sadness at the passing of the Honorable Louise Leonard Nelson, a dedicated public servant and stateswoman.

     At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Petitions

     Senators White and Love presented a petition from Jerry Weaver and numerous West Virginia residents, requesting water line extension for Upshur County residents of Alexander and Selbyville.
     Referred to the Committee on Finance.
     At the request of Senator Chafin, and by unanimous consent, the Senate returned to the fourth order of business.
     Senator Ross, from the Committee on Transportation, submitted the following report, which was received:
     Your Committee on Transportation has had under consideration
     Senate Concurrent Resolution No. 5, Requesting Division of Highways name bridge near Jackson's Mill "Homer Bennett Bridge".
     And reports the same back with the recommendation that it be adopted.
                              Respectfully submitted,
                               Mike Ross,
                               Chair.
     The Senate proceeded to the ninth order of business.
     Senate Bill No. 52, Eliminating certain bond on out-of-state defendants in automobile accident cases.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     The Senate then proceeded to the tenth order of business.
     Senate Bill No. 163, Continuing driver's licensing advisory board.
     On first reading, coming up in regular order, was read a first time and ordered to second reading.
     Senate Bill No. 164, Continuing office of coalfield community development.
     On first reading, coming up in regular order, was read a first time and ordered to second reading.
     Senate Bill No. 165, Continuing commission for national and community service.
     On first reading, coming up in regular order, was read a first time and ordered to second reading.
     Senate Bill No. 166, Continuing oil and gas inspectors' examining board.
     On first reading, coming up in regular order, was read a first time and ordered to second reading.
     The Senate proceeded to the twelfth order of business.
     Remarks were made by Senator Minear.
     Pending announcement of meetings of standing committees of the Senate,
     On motion of Senator Chafin, the Senate adjourned until Monday, January 20, 2003, at 11 a.m.
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