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Tuesday, January 27, 2004



The House of Delegates met at 11:00 a.m., and was called to order by the Speaker.

Prayer was offered and the House was led in recitation of the Pledge of Allegiance.

The Clerk proceeded to read the Journal of Monday, January 26, 2004, being the first order of business, when the further reading thereof was dispensed with and the same approved.
At the request of Delegate Staton, and by unanimous consent, the applicable provisions of House Rule 136, relating to privileges of the floor, were suspended for the day to extend privileges of the floor to members of the family of the late A. James Manchin and other invited guests, who were present at the proceedings of today for a special memorial to former Delegate Manchin.


Committee Reports


Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:
H. B. 4027, Establishing a voluntary environmental excellence program,

And reports the same back, by unanimous vote of the Committee, with the recommendation that it do pass, but that it first be referred to the Committee on Finance.

In accordance with the former direction of the Speaker, the bill (H. B. 4027) was referred to the Committee on Finance.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:
H. B. 4017, Prohibiting retailer licensees use of gambling names and symbols in advertising, signage and directions to retail establishments offering limited video lottery games,

And,
H. B. 4097, Clarifying those persons or entities responsible for paying certain fees assessed by the clerk of the circuit court for processing of criminal bonds and bailpiece,

And reports the same back, by unanimous vote of the Committee, with the recommendation that they each do pass.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bills (H. B. 4017 and H. B. 4097) will be placed on the Consent Calendar.

The Clerk announced that, pursuant to House Rule 70a, Delegates Michael and Mahan had requested H. B. 4017 be removed from the Consent Calendar and be placed upon the House Calendar.

Chairman Spencer, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:

Your Joint Committee on Enrolled Bills has examined, found truly enrolled and, on the 26th day of January, 2004, presented to His Excellency, the Governor, for his action, the following bill, signed by the President of the Senate and the Speaker of the House of Delegates:

(H. B. 4111), Relating to education generally.


Messages from the Executive


Mr. Speaker, Mr. Kiss, presented the annual report of the State Board of Registration for Professional Engineers of West Virginia, in accordance with section twelve, article one, chapter thirty of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Board of Occupational Therapy, in accordance with section six, article twenty-eight, chapter thirty of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the West Virginia Department of Environmental Protection's annual report of the Special Reclamation Fund Advisory Council, in accordance with article one, chapter twenty-two of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the annual report of the Joint Standing Committee on Government Operations, in accordance with section twelve, article ten, chapter four of the code; which was filed in the Clerk's Office.


Messages from the Senate


A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to

S. B. 166, Reducing allowable blood alcohol content for DUI.

On motion of Delegate Staton, the House of Delegates refused to recede from its amendment and requested the Senate to agree to the appointment of a Committee of Conference of five from each house on the disagreeing votes of the two houses.

Whereupon,

The Speaker appointed as conferees on the part of the House of Delegates the following:

Delegates Craig, Mahan, Pethtel, DeLong and Schadler.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C. R. 14, "Urging President George W. Bush reduce the federal deficit."

Whereas, The federal deficit is the largest in the history of this country and is spiraling out of control without any end in sight; and

Whereas, President Bush inherited a surplus budget from his predecessor which was forecast at $5.6 trillion over 10 years. This has turned into a current deficit of over $374 billion, the largest dollar amount on record. The current administration has increased spending by 12.5 percent in the last year. Even with a growing economy, the White House expects the deficit to exceed $500 billion in 2005; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby urges President George W. Bush reduce the federal deficit; and, be it

Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to President George W. Bush.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:

H. C. R. 9, Urging the Legislature to set a goal of providing all citizens with comprehensive, quality and affordable health care.


Bills Introduced


On motions for leave, bills were introduced, read by their titles, and severally referred as follows:

By Mr. Speaker, Mr. Kiss, and Delegate Trump

[By Request of the Executive]:

H. B. 4139 - "A Bill to amend and reenact §17-3-1 of the code of West Virginia, 1931, as amended; and to amend and reenact §17A-3-4 of said code, all relating to imposing sales or use tax rather than title privilege tax on sale or use of all-terrain vehicles, snowmobiles and other motorized recreational vehicles not designed by the manufacturers for use on state roads; clarifying application of W.Va. Const. Art. VI, §52; and providing internal effective date"; to the Committee on Finance.

By Delegates Amores, Kominar, Palumbo, Webster and Armstead:

H. B. 4140 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §6B-2-5a, relating to requiring the ethics commission to establish a code of conduct for state administrative law judges, including civil penalties and sanctions for violations"; to the Committee on the Judiciary.

By Delegates Amores, Webster, Palumbo and Kominar:

H. B. 4141 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §16-30-26, relating to the West Virginia health care decisions act; authorizing patients or residents of certain health care facilities or homes to designate nonrelatives to receive the same visitation privileges as immediate family members; authorizing the secretary of the department of health and human resources to develop a form to be used for such designations, and defining terms"; to the Committee on Health and Human Resources then the Judiciary.

By Delegates Amores, Webster, Palumbo, Kominar and Armstead:

H. B. 4142 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §36-4-18, relating to certain unlawful covenants; and requiring the clerk of the county commission to execute, record and post a disclaimer"; to the Committee on the Judiciary.

By Delegates Hatfield, Brown, Foster and Perdue:

H. B. 4143 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §30-7-8a; to further amend said code by adding thereto a new section, designated §30-7A-7a; and to further amend said code by adding thereto a new article, designated §30-7B-1, §30-7B-2, §30-7B-3, §30-7B-4, §30-7B-5 and §30-7B-6, all relating to recruiting and retaining nurses; authorizing supplemental nursing licensure and renewal fee; creating a center for nursing; establishing purpose; providing for board of directors; setting forth powers and duties; permitting expense reimbursement; establishing special revenue account; authorizing rules and limiting continuation"; to the Committee on Government Organization then Finance.

By Delegates Sobonya, Beach, Faircloth, G. White, Smirl, Howard and Renner:

H. B. 4144 - "A Bill to amend and reenact §30-40-5 of the code of West Virginia, 1931, as amended, relating to the practice of real estate brokerage and excepting secretaries of real estate brokers who set appointments with sellers and buyers from the scope of practice"; to the Committee on the Judiciary.

By Delegate R. M. Thompson:

H. B. 4145 - "A Bill to amend and reenact §15-2-7 of the code of West Virginia, 1931, as amended, relating to providing a salary increase for civilian employees of the state police"; to the Committee on Finance.

By Delegates R. M. Thompson, Morgan and G. White:

H. B. 4146 - "A Bill to amend and reenact §60-3A-17 of the code of West Virginia, 1931, as amended, relating to the sale of liquor generally and increasing the percentage a liquor retail licensee may charge the general public and licensed clubs to one hundred twenty-seven percent of cost"; to the Committee on Finance.

By Delegates Warner, Houston, Renner and Doyle:

H. B. 4147 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §20-10-1, §20-10-2, §20-10-3, §20-10-4, §20-10-5, §20-10-6, §20-10-7, §20-10-8, §20-10-9, §20-10-10, §20-10-11 and §20-10-12, all relating to providing for the use of returnable containers for soft drinks, soda water, carbonated natural or mineral water, other nonalcoholic carbonated drinks and for beer, ale or other malt drinks of any alcoholic content and for certain other beverage containers; providing for the use of unredeemed bottle deposits; prescribing the powers and duties of certain state agencies and officials; and prescribing penalties and remedies"; to the Committee on the Judiciary then Finance.
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Tribute to the Honorable A. James Manchin

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The family of the Honorable A. James Manchin was escorted into the Well of the Chamber.

At the request of Delegate Staton, and by unanimous consent, the House of Delegates returned to the Seventh Order of Business for the purpose of introducing resolutions.


Resolutions Introduced


Mr. Speaker, Mr. Kiss, Delegate Caputo and all other Members of the House then offered the following resolution, which was read by the Clerk, as follows:

H. C. R. 10 - "Honoring the late A. James Manchin by declaring that Route 250 in Marion County, currently known as 'The Husky Highway', shall continue to exist in honor of A. James Manchin."

Whereas, A. James Manchin was a flamboyant and dedicated public servant whose uniquely honest, compassionate and down-to-earth spirit and persona were indelibly derived from the people, culture, history, climate and topography of this, his beloved State. In accordance with his spiritual and personal roots, he never hesitated to boast of his birth in a United Mine Workers barracks, which he characterized as being "one step below a log cabin"; and

Whereas, A. James Manchin, was a resilient man with a long and distinguished career as a public servant. He had faced and survived the rigors, pitfalls and adversity of political turmoil and strife to emerge with his good humor, compassion for fellow human beings and integrity all intact; and

Whereas, A. James Manchin, at the time of his death, was an active member of this House of Delegates; and

Whereas, A. James Manchin served variously as a member of the House of Delegates, the Director of the Rehabilitation Environmental Action Program (REAP), Secretary of State and State Treasurer. He also taught civics classes to students in Greenbrier, Webster, Wetzel and Wood Counties; and

Whereas, A. James Manchin was born, lived and died in Marion County, unexpectedly departing this world on November 3, 2003, sadly missed by his family, friends and those others whose lives he touched with his good humor and good will; therefore, be it

Resolved by the Legislature of West Virginia:

That Route 250 in Marion County, currently known as "The Husky Highway," shall continue to exist in honor of A. James Manchin, our recently departed colleague and friend; and, be it

Further Resolved, That the Commissioner of Highways is hereby requested to design, cause to be fabricated, and erect at appropriate intervals, signs clearly demarking the portion of Route 250 which traverses Marion County known as "The Husky Highway", "The Husky Highway - in honor of A. James Manchin"; and, be it

Further Resolved, That the Clerk is hereby directed to provide a copy of this resolution to Stella Manchin (surviving spouse), Patty Manchin, Roseanne Manchin and Mark Manchin (surviving children), Rose Levitsky (surviving sister), Joe Manchin and the Commissioner of Highways.

At the respective requests of Delegate Staton, and by unanimous consent, reference of the resolution (H. C. R. 10) to a committee was dispensed with, and it was taken up for immediate consideration.

The question now being on the adoption of the resolution, Delegate Staton demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 42), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale, Leach, Perdue and Shelton.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. C. R. 10) adopted.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
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Memorial Resolution

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The Clerk then read the following Memorial, the entire membership standing:
House Resolution 4

[By Mr. Speaker, Mr. Kiss and Delegate Caputo and all Members of the House]


"Enrolling a Memorial to the Honorable A. James Manchin, Former Member of the House of Delegates, Esteemed Public Servant and Cherished Friend from the County of Marion."


WHEREAS, The members of the House of Delegates profoundly deplore the death on November 3, 2003, of the Honorable A. James Manchin, and desire to pay a tribute to the memory of this extraordinary individual, former member, public servant and friend.

A. James Manchin was born in humble quarters in Farmington, Marion County, on April 7, 1927, the son of the late Kathleen "Mama Kay" and Joseph "Papa Joe" Manchin. He received his preparatory education in the public schools of Marion County, and he attended West Virginia University, Fairmont State College and Villanova, where he earned Bachelor's and Master's Degrees in political science, sociology and education.

He was married to Stella Machel and they had had three children: Patricia Lee, Mark Anthony and Rosanna, all of whom survive.

He entered the world of politics at an early age, and was elected to the House of Delegates in 1948, when he was but twenty-one years old. He ran for reelection to the House in 1950, but his defeat in that election did not curtail his desire to be in public service. He spent most of the 1950's as a wrestling coach and teacher at Rupert, Hundred and Webster Springs High Schools and at Jackson Junior High School in Vienna.

In 1961, A. James Manchin received an appointment by President John F. Kennedy to serve as State Director of the Farmers Home Administration and he served at the federal level as Special Assistant to the National Administrator of the Farmers Home Administration, holding those positions until 1972.

A flamboyant character of the first magnitude, A. James held close friendship with former Governor Arch A. Moore, who, in 1973, appointed him to direct the Environmental Action Program, a successful effort to rid the State of junked cars and appliances. Thus began his romance with junked cars that earned him national recognition and acclaim, simply by the effort and energy he put into it, and the total number of junked cars removed from the landscape of West Virginia during his tenure was over 100,000.

In 1976, A. James Manchin embarked upon yet another political adventure by running for and being elected as the Secretary of State of West Virginia. Although publicly viewed as largely a ceremonial office, he took the Great Seal of the State, with which he was entrusted by the Constitution, and made it into a symbol of the people and for the people, by bestowing countless thousands of medallions which he commissioned bearing the Great Seal upon those whom he wanted to honor. He remained as Secretary of State for nearly ten years, and in 1984 he sought and won election as Treasurer. In that office, he created the Teddi Program, which established 28,000 new jobs in the State. The darkest hours of his political career took root during his tenure as Treasurer, and in 1989 he resigned from public office.

Although no longer in great public view, A. James continued to work with and for those whom he loved, particularly the veterans and senior citizens. He held memberships in L. O. O. M., Veterans of Foreign Wars, the American Legion, Keep America Beautiful, Go-Cats, Inc., was a 4th Degree Member of the Knights of Columbus and served in the Silver Haired Legislature for four years. He was a Roman Catholic and particularly loved his home parish Church of St. Peter the Apostle in Farmington, from which he was buried, and where, on occasion he used his oratorical gift as a Lector at Mass.

A. James Manchin reentered public life and service as a member of the House of Delegates, having been elected in 1998 and serving as a member until his death. He served as Chairman of the Committee on Enrolled Bills, a largely ceremonial and ministerial position, and gave the signing of bills a certain character it never possessed nor ever again will possess. As a member of the House, he was adamant about the recitation of the Pledge of Allegiance during the opening of the daily session , and he insisted that the phrase "one nation under God" be said in one breath and always without hesitation.

A. James Manchin found a particular attachment to the staff of the Clerk of the House, and he made the Clerk's Office his "unofficial" office while in this part of the building. Whether calling a bureaucrat on behalf of some misguided soul in his district, or trying to boost the morale of the young troops serving our country, A. James, when telephoning some public official and being asked to identify himself, often would simply say "I am but a voice crying out in the wilderness", which would totally befuddle the person receiving the call. His requests were generally heeded.

Ceremony was a great part of his life, and no event in which he participated escaped his particular twist, even to the point of seeking recognition on the floor of the House and replying to the Speaker's inquiry that he "sought permission to approach the high throne of authority." His manner could disperse tenseness and turn the texture of the moment into one of gentle laughter, but his seriousness was evident when he spoke of things dear to him, and persons dear to him often received a moniker only he could effectively employ, such as "Little Buddy", "HashiBaba" or "Mamalini."

A. James Manchin was a rare political figure who had the true unique ability to transcend politics in order to promote what he believed was in the best interests of the citizens of this State, and leaves to all of us a legacy of statesmanhood and greatness of character that we should all seek to emulate, especially during those inevitable recurring conflicts which can sometimes inflame our passions, tempting us to obfuscate rather than to seek solutions to the problems we face; therefore, be it

Resolved by the House of Delegates:

That, while we formally mark the passing of a great leader of our State, a colleague, mentor and gentle friend, we also collectively celebrate in having been provided the example by this colorful, able and compassionate statesman, public servant and friend; and, be it

Further Resolved, That the members of the House of Delegates of this Seventy-Sixth Legislature of the State of West Virginia, in its Regular Session, 2004, hereby solemnly enroll this memorial to an extraordinary individual and public servant, A. James Manchin, hereby express the esteem in which he was held, and decry his passing; and, be it

Further Resolved, That the Clerk of the House prepare certified copies of this resolution for Mrs. Stella Manchin, his wife, and for Patricia Lee, Mark Anthony and Rosanna, his children.

At the respective requests of Delegate Staton, and by unanimous consent, reference of the resolution (H. R. 4) to a committee was dispensed with, and it was taken up for immediate consideration.
On the adoption of the resolution, the yeas and nays were taken (Roll No. 43), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale, Leach and Shelton.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. R. 4) adopted.

Delegate Staton asked and obtained unanimous consent that the remarks of Mr. Speaker, Mr. Kiss, Delegate Caputo, Mr. Mark Anthony Manchin and Mrs. Stella Manchin concerning today's Memorial Proceedings honoring the Honorable A. James Manchin, and a poem written by Delegate Hrutkay in his memory, be printed in the Appendix to the Journal.


Consent Calendar

Third Reading


The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub. for H. B. 3096, Authorizing cooperation of campus police and rangers employed by the Hatfield-McCoy regional recreation authority with other law-enforcement agencies,
H. B. 4020, Protecting personal information maintained by the state from inappropriate disclosure,
H. B. 4021, Preventing the disclosure of personal information of state employees and officers, and their dependents,

And,
Com. Sub. for H. B. 4081, Requiring county school boards to post the position of county superintendent prior to making an appointment.

On the passage of the bills, the yeas and nays were taken (Roll No. 44), and there were--yeas 94, nays none, absent and not voting 6, with the absent and not voting being as follows:

Absent And Not Voting: Caputo, Coleman, Fragale, Hrutkay, Leach and Shelton.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bills (Com. Sub. for H. B. 3096, H. B. 4020, H. B. 4021 and Com. Sub. for H. B. 4081) passed.

Delegate Staton moved that Com. Sub. for H. B. 4081 take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 49), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale, Leach and Shelton.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4081) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates on the Consent Calendar bills and request concurrence therein.


Second Reading

Com. Sub. for H. B. 4037, Providing for safe schools through alternative education programs and providing certain juvenile justice records to public school officials; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.


First Reading


The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
H. B. 4055, Creating a compact between states for the protection and return of juvenile offenders, runaways and other juveniles,

And,
H. B. 4108, Authorizing sun screening devices that exceed statutory limits to be used in law-enforcement K-9 and other emergency vehicles that haul animals.


House Calendar

Third Reading


H. B. 4068, Allowing the hunting of coyotes by use of amber colored artificial light with certain restrictions; on third reading, coming up in regular order, with the restricted right to amend, was reported by the Clerk.

There being no amendments offered and having been engrossed, the bill was then read a third time and put upon its passage.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 50), and there were--yeas 94, nays none, absent and not voting 6, with the absent and not voting being as follows:

Absent And Not Voting: Caputo, Coleman, Fragale, Leach, Manchin and Shelton.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4068) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.


Leaves of Absence

At the request of Delegate Staton, and by unanimous consent, leaves of absence for the day were granted Delegates Coleman, Fragale, Leach and Shelton.

At 12:31 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 11:00 a.m., Wednesday, January 28, 2004.