WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SIXTH LEGISLATURE

REGULAR SESSION, 2003

FOURTEENTH DAY

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Charleston, W. Va., Tuesday, January 21, 2003

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

     Prayer was offered by the Reverend Father John McDonnell, St. Agnes Catholic Church, Charleston, West Virginia.
     Pending the reading of the Journal of Monday, January 20, 2003,
     On motion of Senator Caldwell, 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 Senate then proceeded to the third order of business.
     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. 2054--A Bill to amend article four, chapter thirty-six of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section eighteen, relating to certain unlawful covenants; and requiring the clerk of the county commission to execute, record and post a disclaimer.
     Referred 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 July 1, 2003, and requested the concurrence of the Senate in the passage of
     Eng. Com. Sub. for House Bill No. 2154--A Bill to amend and reenact section forty-five, article five, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section five, article five-a of said chapter, all relating to the school calender generally; removing requirement for state board rule on minimum attendance; providing for scheduling instructional support and enhancement days and specifying their use; requiring both instructional activities for students and professional activities for teachers and listing examples; waiving minimum attendance and attendance requirements on instructional support and enhancement days; changing dates for scheduling the primary statewide assessment program; authorizing the addition of instructional minutes for certain purposes; and requiring the scheduling of certain times available for faculty senate meetings.
     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. 178, Relating to subject matter jurisdiction in family courts.
     And reports back a committee substitute for same with the following title:
     Com. Sub. for Senate Bill No. 178 (originating in the Committee on the Judiciary)-A Bill to amend and reenact section two, article two-a, chapter fifty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to subject matter jurisdiction in the family courts; and including in that jurisdiction all actions for payment of attorney fees in some cases, property distribution and spousal support.
     With the recommendation that the committee substitute do pass.
                              Respectfully submitted,
                               Jeffrey V. Kessler,
                               Chair.
     The Senate proceeded to the sixth order of business.
     On motions for leave, severally made, the following bills were introduced, read by their titles, and referred to the appropriate committees:
     By Senator Tomblin (Mr. President) (By Request):
     Senate Bill No. 187--A Bill to amend and reenact section fourteen, article three, chapter seventeen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to providing for special motor vehicle registration plates for volunteers and employees of the American red cross.
     Referred to the Committee on Transportation; and then to the Committee on Finance.
     By Senators Bailey, Edgell, Caldwell, Unger, Boley, Rowe, Minard, White, Kessler, McKenzie and Bowman:
     Senate Bill No. 188--A Bill to amend article five, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section forty-six, relating to requiring certain comprehensive vision examinations for school admission; notice of requirement; rule; and providing methods for children of limited means to obtain the comprehensive vision examination.
     Referred to the Committee on Education; and then to the Committee on Finance.
     By Senators Minard, Sharpe and Jenkins:
     Senate Bill No. 189-- A Bill to amend and reenact sections five and six, article eight-e, chapter thirty-one-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the requirement of notice and conditions for approval of out-of-state bank applications to establish bank branches in West Virginia; alternate method of providing notice to the commissioner; and removal of the commissioner's right to object to branch proposals upon grounds purely dealing with the procedures of the out-of-state bank's supervisory agency.
     Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
     By Senators Minard, Sharpe, Jenkins, Rowe and Sprouse:
     Senate Bill No. 190--A Bill to amend and reenact section six, article two, chapter thirty-one-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the bank examination schedule for certain banking institutions.
     Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
     By Senators Minard, Sharpe and Jenkins:
     Senate Bill No. 191--A Bill to amend and reenact section three, article ten, chapter thirty-one-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the procedure for a state-chartered credit union to convert to a federal charter; removing the requirement of having a hearing; increasing the maximum period of notice to members prior to voting on the issue and adding a minimum period of notice prior thereto; and removing the impediments to converting a charter to that of another state.
     Referred to the Committee on Banking and Insurance.
     By Senators Minard, Sharpe, Jenkins, Rowe, Sprouse and Plymale:
     Senate Bill No. 192-- A Bill to amend and reenact section seven, article eight-a, chapter thirty-one-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the notice required from bank holding companies that apply for financial holding company status.
      Referred to the Committee on Banking and Insurance.
     By Senators Minard, Sharpe, Jenkins, Rowe and Sprouse:
     Senate Bill No. 193-- A Bill to amend and reenact section one hundred fifteen, article seven, chapter forty-six-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to required registration with the commissioner of banking of persons involved in consumer lending; commissioner to prescribe the registration form; registration fee; and entities to whom this section does not apply.
      Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
     By Senators Snyder and Helmick:
     Senate Bill No. 194--A Bill to amend article one, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section fourteen, relating to authority of county commissions; allowing county commissions to enact ordinances; and penalties.
     Referred to the Committee on the Judiciary.
     By Senators McCabe and Plymale:
     Senate Bill No. 195--A Bill to amend and reenact section ten, article twenty-two-a, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to raising to not less than one and one-half percent the amount of racetrack video lottery net terminal income to be used for payment into the pension plan for employees of the licensed racing association.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     Senators Prezioso, Unger, Bowman, Fanning, Minard, Weeks, Bailey, Snyder, Caldwell, Facemyer, Ross, Hunter, Oliverio, McCabe, Rowe, Plymale, Edgell, Minear, Boley, Sprouse, Deem, Kessler, White, Jenkins, Sharpe, Dempsey, Love, McKenzie, Smith, Guills, Chafin, Helmick and Tomblin (Mr. President) offered the following resolution:
     Senate Resolution No. 9-- Designating January 21, 2003, as "Disability Awareness Day".
     Whereas, There are approximately 400,000 West Virginians with disabilities who long to be active and participating members of society; and
     Whereas, People with disabilities are proving through education and rehabilitation that they can be dynamic employees in the workplace; and
     Whereas, West Virginia's disabled citizens have banded together in a collective group called the Fair Shake Network to help bring their concerns to the forefront of public awareness; and
     Whereas, Organizations such as the Appalachian Center for Independent Living, Arc of Kanawha and Putnam Counties, Coalition for West Virginia's Children, Mental Health Association of Monongalia County, Mountain State Centers for Independent Living, West Virginia Advocates, West Virginia Assistive Technology System, West Virginia Association of Persons in Support of Employment, West Virginia Association of Rehabilitation Facilities, West Virginia Developmental Disabilities Council, West Virginia Family Support Council, West Virginia Mental Health Consumers Association, West Virginia Traumatic Brain and Spinal Cord Injury Rehabilitation Fund Board, West Virginia Statewide Independent Living Council, West Virginia Division of Rehabilitation Services, West Virginia Autism Society, Early Intervention Interagency Coordinating Council and the West Virginia Parent Information Project have joined together to help increase public awareness of issues involving people with disabilities in West Virginia; and
     Whereas, The purpose of Disability Awareness Day is to increase the awareness of legislators, administrators, policymakers and the public of the issues that are important to people with disabilities; therefore, be it
     Resolved by the Senate:
     That the Senate hereby designates January 21, 2003, as "Disability Awareness Day"; and, be it
     Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate representatives of the Fair Shake Network.
     At the request of Senator Prezioso, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
     On motion of Senator Chafin, the Senate recessed for one minute.
     Upon expiration of the recess, the Senate reconvened and, at the request of Senator Deem, unanimous consent being granted, returned to the second order of business and the introduction of guests.
     The Senate again proceeded to the sixth order of business.
Petitions

     Senators Sharpe and Minard presented a petition from Dottie M. Underwood and numerous Harrison County residents, requesting assistance in the reopening of the Clark Street Bridge in Clarksburg.
     Referred to the Committee on Transportation.
     Senators Harrison, Sprouse, McCabe and Rowe presented a petition from Susan Milan and numerous West Virginia residents, requesting the Legislature to reform the medical liability system.      Referred to the Committee on the Judiciary.
     The Senate proceeded to the seventh order of business.
     Senate Concurrent Resolution No. 7, Requesting Division of Highways name bridge on Route 80 at Verner "William Chapman Browning Bridge".
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation.
     Senate Concurrent Resolution No. 8, Requesting Joint Committee on Government and Finance study capitol renovation and restoration projects.
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Rules.
     Senate Concurrent Resolution No. 9, Requesting Joint Committee on Government and Finance study establishing residential community for senior citizens.
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Rules.
     The Senate proceeded to the eighth order of business.
     Eng. Senate Bill No. 163, Continuing driver's licensing advisory board.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
      So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 163) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Senate Bill No. 164, Continuing office of coalfield community development.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
      So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 164) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Senate Bill No. 165, Continuing commission for national and community service.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
      So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 165) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Senate Bill No. 166, Continuing oil and gas inspectors' examining board.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
      So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 166) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     The Senate proceeded to the ninth order of business.
     Com. Sub. for Senate Bill No. 4, Requiring notice of judgments in magistrate court by mail.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     Senate Bill No. 82, Extending time for study of orphan roads and bridges.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     Com. Sub. for Senate Bill No. 93, Relating to violence against public employees.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
      The Senate proceeded to the twelfth order of business.
     Remarks were made by Senator Caldwell.
     Thereafter, at the request of Senator Sharpe, and by unanimous consent, the foregoing remarks by Senator Caldwell were ordered extended in the Journal as follows:
     SENATOR CALDWELL: Thank you, Mr. President. I stand today with support for my remarks from the Senators from Greenbrier, McDowell and Mingo. Mr. President, I have always believed that the secret to a successful career could be found in a degree from an institution of higher learning. Today I want to express my concern about the possibility of closing or restructuring one of West Virginia's colleges in order to save money.
     Mr. President, to close a college--where education is often the key to the future--to close a college which might be the ray of hope for our youth as well as a door to a new vocation for adults is in itself not sound policy. To destroy the jobs of hundreds of employees of a school will open Pandora's box to a new set of financial woes.
     Today I speak specifically of Bluefield State College in Mercer County. Bluefield State offers 16 nationally accredited programs of study to over 3,000 students. The home campus in Bluefield has three satellite campuses in Lewisburg, Beckley and Welch. All four campuses are experiencing constant and substantial growth. In fact, the Welch campus in McDowell County had 350 older students sign up and complete a six-hour Emerging Scholars Adult Program this fall. This Program prepares adults, often with no hope, with the skills to enter the work force. Where else will these people go for that ray of hope for a better future? Where else will the 300 employees of Bluefield State find jobs in this economy? And this does not include the impact on local businesses and their economic future.
     With all the discussion about the medical profession, Bluefield State offers the only LPN two year to RN four-year nursing program in a public college in southern West Virginia. And it is the only college within this state to offer the two-year certification program for Emergency Medical Response personnel.
     Bluefield State is a haven to all students. It has the second highest percentage of minority students and minority faculty in our state.
     Bluefield State has a budget of $32 million. Yet the State of West Virginia supplies only $8 million of this money. Endowments, grants and partnering provide the remaining $24 million. The college has demonstrated its proficiency in providing quality programs which have attracted grants and private donors.
     Bluefield State recently won sixth place in a world competition which included major universities such as the University of California at Los Angeles, Virginia Tech and the University of Moscow in the Intelligent Ground (Robotic) Vehicle. I stress that because now the Department of Defense of these United States is in negotiation with Bluefield State about that project as a future part of our national defense.
     Finally, 95 percent of the graduates of Bluefield State are from West Virginia--quite an accomplishment for a border county school. This success helps explain why Bluefield State is the fastest growing college, percentagewise, in West Virginia.
     So, Mr. President, the Senators from Greenbrier, McDowell and Mingo join me today in our opposition to closing Bluefield State.
     Thank you.
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     Remarks were made by Senators Sharpe and Facemyer.
     Thereafter, at the request of Senator Smith, and by unanimous consent, the remarks by Senator Facemyer were ordered printed in the Appendix to the Journal.
     At the request of Senator Chafin, unanimous consent being granted, the Senate returned to the fourth order of business.
     Senator McCabe, from the Committee on Economic Development, submitted the following report, which was received:
     Your Committee on Economic Development has had under consideration
     Senate Bill No. 76, Increasing amount from consolidated fund as loan to economic development authority.
     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 Finance.
                              Respectfully submitted,
                               Brooks F. McCabe, Jr.,
                               Chair.
     The bill, under the original double committee reference, was then referred to the Committee on Finance.
     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. 97, Updating code language to conform with current usage and uniform vehicle code.
     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 the Judiciary.
                              Respectfully submitted,
                               Mike Ross,
                               Chair.
     The bill, under the original double committee reference, was then referred to the Committee on the Judiciary.
     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. 128, Establishing All-Terrain Vehicle Safety Regulation Act.
     And reports back a committee substitute for same with the following title:
     Com. Sub. for Senate Bill No. 128 (originating in the Committee on Transportation)-- 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; defining "all-terrain vehicle"; requiring commissioner to establish safety training courses; requiring promulgation of emergency rules; requiring operators of all-terrain vehicles who are under the age of eighteen to possess a safety training course completion certificate; requiring a driver's license in certain instances; exceptions; prohibiting operation on lined paved roads; exceptions; requiring operators under the age of eighteen to wear a helmet; providing for exceptions for operation on private lands; providing for exceptions for the operation of commercial use all-terrain vehicles and farm use all-terrain vehicles; and providing penalties for violations of the article.
     With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on the Judiciary .
                              Respectfully submitted,
                               Mike Ross,
                               Chair.
     The bill (Com. Sub. for S. B. No. 128), under the original double committee reference, was then referred to the Committee on the Judiciary.
     The Senate again proceeded to the twelfth order of business.
     Remarks were made by Senator Sharpe.
     Pending announcement of meetings of standing committees of the Senate, including a majority party caucus,
     On motion of Senator Chafin, the Senate adjourned until tomorrow, Wednesday, January 22, 2003, at 11 a.m.
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