__________*__________
Tuesday, September 13, 2005
The House of Delegates met at 9:30 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, September 12, 2005, being the first
order of business, when the further reading thereof was dispensed with and the same approved.
Procedural Outline
Unanimous consent having been obtained, the Speaker addressed the House concerning
anticipated parliamentary procedures of the day, and asked and further obtained unanimous consent
that the remarks and the questions and answers be printed in the Journal of today, and were as
follows:
Speaker Kiss. Ladies and gentlemen, without objection I want to proceed to give you some
idea as to how we anticipate proceeding.
First of all, given the some degree of rarity as to the deliberations that we will proceed to
today, particularly the presentation of a not frequently addressed constitutional issue by this body,
we ultimately at the completion of our deliberations will be asking unanimous consent that large
portions of our proceedings be entered into the Journal. The Journal is the document which by prior
precedence speaks for this body, as opposed to the Appendix to the Journal.
Secondly, more out of interest of economy and time in how we deal with this bill obviously
before us, the sales tax bill, on Third Reading, subject to a full and complete right to amend. We
also have the bill from the Finance Committee with amendments pending, so there are a number of
amendments at the desk. At this point I am not sure what if any of those amendments might raise the
procedural point of order that I discussed with you a few nights ago, but what I prefer to do is that we identify them and that the procedural point of order would be raised, whether it by the gentleman
from the 22nd or anyone, I prefer that one person do them all, but the point would then be stated to
each of those amendments. Then we would proceed to have a full debate because it is a debatable
question for as long as that debate might take.
Having said that, the main point I am getting at is that if there are other amendments, get
them to the desk. I'm not saying that if someone comes running down with one later we will try
some procedural attempt to not take it up. What I am saying is that if the procedure we contemplated
is going to work, we need to get them to the desk now. I can't envision that someone has an
amendment, having been here for the last week, that they haven't already crafted or created. But,
in case you haven't, we will take a short break to get the amendments to the desk. Having gone
through that process, if we then later get amendments, as I said we are not going to procedurally try
to avoid dealing with them, but if we have later amendments which the same point of order is raised
to, by the Majority Leader or anyone else, then within my prerogative I will probably then be a lot
stricter on the scope and parameter of the debate at that time. Keep in mind what we are debating
is that constitutional issue. In fact, the way the point will be stated will be something to this effect,
and I have discussed this with the Minority Leader, that given our prior practices and procedures and
given the purview of the Governor's Proclamation, "Is the amendment in order?" The point I am
trying to make now is that I need to see the amendments. If they come rushing in later or ten or
twenty minutes later, or after we have gone through this full debate and the point is raised again, at
that time we will debate it again, but I am going to be much stricter on your comments. Whereas,
the initial phase, and again keep in mind we are debating that point, not the amendment per se, but
in the initial phase I am going to attempt to be a lot more lenient on the scope of the debate. If you
can't work with us and get the amendments in now and insist on bringing them down later, I am
going to be a lot stricter on the scope of the debate at that point and about what can be discussed and
debated given the fact that what is before us initially is that procedural issue.
Ladies and gentlemen, before I call upon the Majority Leader it has been pointed out to me that maybe I should briefly revisit the discussion we had on two nights ago.
The way that I had indicated to you a few nights ago that it was my intention to proceed, my
belief that the House should proceed, is to follow our prior precedents and practices and it was my
belief that looking at the prior precedents and practices, which is available to any of you, I think we
have provided it to some of you who have asked for it, was that anyone has the right as to any of
these amendments to raise the point of order given our prior practices and procedures and given the
purview of the Governor's Call, "Is the amendment in order?"
That is what we will be proceeding to first. What is happening a little differently here from
what I contemplated two nights ago is that the Majority Leader will probably be raising that point
as to several amendments at one time. We will then proceed to debate, because it is debatable,
whether or not those amendments are within in the purview of the Call of the Governor, and what
our desire is in terms of proceeding to dispose of them. It is a procedural motion, it is a procedural
method that has been used in the past. We will follow that same practice.
If then, that procedural vote is in the affirmative, if the point of order is sustained, then the
amendment or amendments it was brought to will not be taken up. If the procedural point of order
is rejected, and the vote is against the point of order, then we will proceed to take the amendment
or amendments up.
[House Recessed at 10:03 a.m.
and
Reconvened at 10:30 a.m.]
House Calendar
Third Reading
H. B. 401, Reducing the six percent sales tax on food and food ingredients intended for
human consumption to five percent beginning January 1, 2006; on third reading, coming up in
regular order, with the right to amend, was reported by the Clerk.
Speaker Kiss. Ladies and gentlemen, H. B. 401 was advanced to Third Reading with the right to amend. Are there amendments?
The following amendments had previously filed with the Clerk:
Amendment No. 1. Delegates Lane and Carmichael, on page two, section three-a, line
six, by striking out the word "five" and inserting in lieu thereof the word "zero".
Amendment No. 2. Delegate Louisos, on page two, section three-a, subsection (a), line
seven, following the word "chapter", by inserting the following:
"Notwithstanding any provision of this article or article fifteen-a of this chapter to the
contrary, the rate of tax on sales, purchases and uses of food and food ingredients intended for human
consumption after the thirty-first day of December, two thousand six, shall be four percent of its
sales price, as defined in section two, article fifteen-b of this chapter.
Notwithstanding any provision of this article or article fifteen-a of this chapter to the
contrary, the rate of tax on sales, purchases and uses of food and food ingredients intended for human
consumption after the thirty-first day of December, two thousand seven, shall be two percent of its
sales price, as defined in section two, article fifteen-b of this chapter.
Notwithstanding any provision of this article or article fifteen-a of this chapter to the
contrary, the rate of tax on sales, purchases and uses of food and food ingredients intended for human
consumption after the thirty-first day of December, two thousand eight, shall be eliminated."
Amendment No. 3. Delegates Trump, Anderson, Armstead, Ashley, Azinger,
Blair, Border, Canterbury, Carmichael, Duke, Ellem, Evans, Frich, Hall, Hamilton,
Howard, Lane, Leggett, Louisos, Overington, Porter, Roberts, Romine, Rowan,
Schadler, Schoen, Sobonya, Stevens, Sumner, Tansill, Wakim, Walters and L. White, on
page two, section three-a, line six, after the word "be", by striking the word "five" and inserting in
lieu thereof the word "zero".
And,
On page two, section three-a, line eight, by striking all of subsection (b) in its entirety and
redesignating the remaining subsections.
Amendment No. 3a. Delegates Carmichael, Wakim, Hall and Evans, on page two,
section three-a, line six, after the word "be", by striking out the word "five" and inserting in lieu
thereof the word "zero".
And,
On page two, section three-a, line eight, by striking all of subsection (b) in its entirety and
redesignating the remaining subsections.
Majority Leader Staton. Mr. Speaker, I rise to a point of order.
Speaker Kiss. The Gentleman may state his point.
Majority Leader Staton. Thank you, Mr. Speaker. Given the prior practice and
procedure of the House, and given the purview of the Proclamation issued by the Governor by which
the Legislature was called in this Extraordinary Session, I arise to a point of order. Are amendment
numbers 1,2, 3 and 3a in order?
Speaker Kiss. The Gentleman has stated his point of order. Given the prior practice and
procedure of the House, and given our precedents which I outlined two nights ago, which are a part
of our Journal, it is my intention to include a transcript of today's proceedings as part of the Journal
of today, the point of order raised by the Gentleman from the 22nd is clearly a matter for the House
to decide being whether or not it is our belief that our constitutional prerogative is being usurped by
the Executive. For that reason pursuant to our prior practice and procedure I am submitting the point
of order to the House for its decision. Are amendment numbers 1, 2, 3 and 3a a matter for
consideration by the House and in order?
Ladies and gentlemen, the Gentleman's point of order is debatable. The Gentleman from the
22nd.
Majority Leader Staton. Mr. Speaker, ladies and gentlemen, the issue of the procedure
is a procedural one that is grounded in constitutional authority. I want to give you the background
of how we approached this decision when the issue first came up of the Governor issuing a Call for
a one percent reduction in the sales tax on food. Procedurally what we did, we asked our Clerk and Parliamentarian to research the issue from the House's precedents to determine what was the
appropriate course of action. What the Clerk found were instances in which the Legislature had
approached this and then what our lawyers found were some instances in which the Supreme Court
when asked, after the bill had passed, whether we were too limited in how the Call was approached
and handled by the Legislature.
So what we discovered, first of all, which is the question now presented to you, is the
question of determining the constitutionality or the narrowness of the Governor's Call as it relates
to us is a question determined by the House, not by other bodies and, as we learned yesterday, not
by the Court. It is a question to be determined by us and unlike other points of order, it is a question
that is determined by a vote of the House, not necessarily just by the Speaker or by the Speaker upon
an appeal of any ruling that he might have.
In our history, we have looked at the narrowness of the Call as it relates to the narrowness
of our ability to debate the issue. It can be said that the Call is narrow and it limits our ability to
debate how much of a percentage to reduce the sales tax on food. At the precedents that we have
looked, one of which ironically involves a sales tax on food amendment, relates to how we consider
the amendment by the Governor and offer further amendments to it. All the precedents are clear that
we determine that issue, number one, and once having broached that question and resolved it, then
the second question becomes comparing the Governor's Call to our ability to act on it, is his Call
beyond the purview of our prerogative to act? The answer to that question is no, it does not. The
Governor's Call does not severely limit our ability to deal with the sales tax on food. We have an
additional amendment to be offered that deals with the structure of the tax which, in essence, goes
back to that precedent that I told you about earlier, that to the extent the amendments do go beyond
the one percent reduction then it does, in fact, relate to the lack of an encroachment, if you will, on
our ability to handle this in this special session.
The law and the procedures are clear. The Governor has a right to establish his Call along
the parameters of what he or she believes it should be. The law is also clear that we decide whether he has encroached upon those parameters, but in this case, based upon our research into our own
precedents, not legal precedents, but our own precedents here within the House of Delegates, the
answer to that question is No. For those reasons I would urge you to vote yes to sustain the point
of order.
Minority Leader Trump. Thank you, Mr. Speaker. Ladies and gentlemen of the House,
I rise against the point of order and urge the House to overrule the point.
Let me begin my remarks by saying what I think should be said again here on the floor of this
House. We are indebted, all of us, to the resourcefulness and the diligence of our Parliamentarian
for combing through Journals of House proceedings for extraordinary sessions and we are indebted,
I suppose and agree, to the members of the House in 1958 for coming up with this procedure for the
disposition and resolution of the question and we are indebted ourselves to the Speaker for his
adherence to the procedures that had been developed and exist for the resolution of this question.
The submission of this question to this body is the right manner in which to handle this. It
is not for the Judiciary and it is not for the Governor, it is for this body to decide our own
constitutional prerogatives in the first instance. Ultimately, we all subscribe that the Supreme Court
gets to be the final arbiter pending upon what the Legislature does or does not do to protect the
rights of citizens from encroachments from other branches of government of their constitutional
rights but we must decide now, here, in this instance, for ourselves what are the constitutional
prerogatives for this body. I submit to you without intending to be melodramatic that the question
presents a much more weighty and important question than the merits of the amendment or anything
else. The members have strong feelings about the food tax and what the level should be but the
question we should decide now is of far more importance to a free people.
This is the thirteenth year that I have been privileged to serve as a member of this body and
I would submit to the membership that never before has a question of this importance been presented
to this body in my time. The vote we are about to make is the most important vote I will have ever
cast as a member of this body, not because it relates to food tax, but because it relates to who exercises legislative power in a free government. We are guided, as we must be, in this case, by our
Constitution. The Constitution of West Virginia. Let's start with Article VII, Section 7:
"The Governor may, on extraordinary occasions, convene at his own instance, the
Legislature; but when so convened it shall enter upon no business except that stated in the
proclamation by which it was called together."
Now, what is the meaning of that? That is the fundamental question that we have to answer
and resolve. We have to read it together with other parts of the Constitution. Article V, Section 1,
there is only one Section in the whole Article:
"Division of Powers
"1. The Legislative, Executive and Judicial Departments shall be Separate and distinct, so
that neither shall exercise the powers properly belonging to either of the others;..."
Our system of government created by our Constitution depends on separate, equal branches
of government independent of one another. The Speaker said yesterday on the floor of the House that
we are a coequal, an equal branch of government and he was absolutely right.
Article VI, Section 1 of the West Virginia Constitution says:
"The Legislative power shall be vested in a Senate and House of Delegates."
Now, what is that you say? The power to craft law, the power to appropriate money, that is
legislative power. Not executive power, not judicial power, legislative power. It belongs to the
Legislature. I would submit to you that every government, through all of history, every government
has had some person with the authority to wield executive power. What separates a free people from
the other governments is that the legislative power to make the rules by which society lives is vested
in a freely elected Legislature, the House of Delegates and the Senate.
As our founders envisioned and as the people of this great State have subscribed, we are not
reinventing the wheel here. These kinds of questions have arisen before in 1932, which must have
a raucous year in West Virginia politics, the Legislature passed an Act in extraordinary session which
went to the Supreme Court and the Court ultimately entered judgment on it - Passed an Act
abolishing an agency that existed at that time, the West Virginia Bridge Commission. The procedure was that the Governor vetoed the bill and the Legislature overrode the Governor's veto and then there
was a Court challenge. The Governor's veto was based on the contention that the Legislature had
exceeded the scope of the Call for the extraordinary session. There was nothing in the Call about the
abolishing of the Bridge Commission. The bill that was then passed was challenged in Court and in
a case that was ripe for adjudication and justiciable because the Legislature had acted, the Supreme
Court reviewed it and entered judgement.
I will read some of this decision because it is supreme law in West Virginia on this question:
"112 West Virginia, 514: When authorizing the Governor to state the business of an
extraordinary session and limiting legislative action to that specific business, the Constitution does
not confer upon him one jot of legislative power. The Constitution vests that power exclusively in
the Senate and the House of Delegates, whether the session be regular or extraordinary."
The Supreme Court went on to say: "We are indebted to the Superior Court of Pennsylvania
for a complete statement of the law on this subject as follows:
"Although a Governor who decides to convene a special session of the Legislature is
empowered to proclaim, to indicate, to designate the subjects for Legislative consideration for that
session, he cannot by his proclamation anymore than he can do by his message to the same Body in
a regular session prescribe or limit the manner in which or the extent to which the Legislature may
dispose of those subjects. Whether he designates in his proclamation as matters for legislative
consideration. He may by proclamation in one case, as by message in the other, suggest the lines,
on which in his judgment, the lawmaking body could most wisely or effectively operate. Such
recommendations are in no wise restrictive of legislative power."
Our Supreme Court went on to say:
"Since consideration of the bill was reopened by the Governor's proclamation and since the
Legislature had the same powers relating to the subjects in the proclamation at the extraordinary
session which it had at the regular session, we are empowered to hold that it could lawfully nullify
budget appropriations in favor of the Bridge Commission by a direct method of abolishing the Commission."
Ladies and gentlemen, this question has been answered. The Governor cannot prescribe or
limit the manner in which or the extent to which the Legislature may dispose of those things. That
is a weighty and important question that we consider here now, I say again, far more important, than
the merits of any particular issue. We will disregard, if we vote to sustain the point of order, we will
disregard many a centuries worth of law, but we will do far worse. We will surrender to another
branch of government a portion of legislative power. A power that the people through their
Constitution have vested in their Legislature, in this Body. I submit it would be a much better result
to defeat any amendment on the food tax on their merits rather than to raise that flag to surrender to
the Executive the right to control the scope of our deliberations. Think about it not from the political
expediency of the moment, but twenty years from now, forty years from now, when none of us are
here, some resourceful parliamentarian dealing with some governor who is trying to control the
outcome of a legislative debate is going for the precedent that we set today, what we set today for all
time.
Think about this from this perspective: A Governor's Proclamation, when in this particular
instance: "Item 3, Legislation reducing rate of consumer sales and service tax and use tax, on the
sales, purchase and use of food and food ingredients intended for human consumption by an amount
not to exceed one percent.......". How much farther would it be for any Governor to issue a
proclamation to call this Legislature into extraordinary session, issue a Proclamation that says, Item
3, to consider the passage of this bill and write the text of the bill out into the Proclamation? How
restrictive will this branch of government allow another branch of government to be in control of our
deliberations? I submit to you that it is not farther at all to think that a proclamation that includes in
it the very text of a bill. What will that Legislature do? What will that House do? Will it decide
based on the precedent that we set today that it is beyond the scope of the Call for the Legislature to
exercise the legislative power issued by the Constitution for the people of this State in amending that
bill in any fashion. It would be an up or down vote, yes or no.
As I said before I think the Speaker is absolutely right in submitting, based on our precedents,
the parliamentary question, the constitutional question to the members of the House for consideration.
One of the things I have come to admire about our Speaker and I don't mind saying on the record that
there are many such things, but one of the things I have come to admire most in the gentleman's
tenure in this House is the degree to which he has fought to preserve and maintain what are
legislative prerogatives. The prerogatives of this House. I would submit to the House that if the point
of order raised by the gentleman from Wyoming is sustained by this body, we would be surrendering
without any good reason a constitutional prerogative of the Legislature.
During the arguments before the Court yesterday, Justice Albright made the observation that
there may not be a constitutional right to amend the bill. I agree with him that there is nothing in the
Constitution that gives a member of the Legislature the right to offer an amendment. I think it was
Justice Albright that said the United States House of Representatives has all the procedures in place
that if certain measures come to the floor cannot be amended. It is one thing for this body to decide
to do that themselves, I contend that I am not in favor of that, we shouldn't do that, but it is less
offensive for this House to adopt a rule than it would be to permit the upsetting of the balance
between the three branches of government and allow it to occur by decree from one of the other
branches of government. It is a question that we must decide for ourselves.
Ladies and gentlemen, however you feel about food tax, many of us would like to see it
repealed. However you feel about that question, separate it, please, in your mind from the pending
question because I submit to you, the pending question before this body, is whether or not the
Legislature will exercise or surrender.
The Legislative power provided for in the Constitution of West Virginia, I urge you, my
distinguished colleagues, in the strongest possible terms that I can find to do so, to overrule the point
of order. Thank you.
Speaker Kiss. Other members desiring to speak to the point of order?
The Gentleman from the 32nd, Delegate Armstead.
Delegate Armstead. Thank you, Mr. Speaker, ladies and gentlemen, the comments that
were just made by my distinguished colleague and the Minority Leader, I think underscore how
important this vote is going to be, and I think that one of things that I would like to just touch on for
a moment is not only what this vote is about but what it's not about.
Its already been said but when we walk out of this Chamber and the gavel falls on this special
session there will be in the wall of West Virginia a decision about what the role of this Legislature
shall be in the future and what the role of the Governor will be and that will be something, as we
have decided in 1958 and the 1932 decision, that when all of us are long gone there will be
legislators sitting in our seats citing the decision that we make. There will be governors who will be
citing the decision that we make here today.
I think that we really do need to take a moment and step outside of the issue that we are
debating and think about what we are about to do. It's a simplification perhaps of the principal of
separation of powers and checks and balances but it's been said that a governor or a president,
whatever the level of government we're talking about, the executive proposes and the legislative
branch disposes, and that is a very simple way to look at it in a sense but it's exactly what we are
discussing today. It's the root, the core of what we are discussing today. The specific rules, the
checks and balances that government has to have to function that goes back beyond the formation of
the State of West Virginia, back beyond the formation of this country, the principal back when we
were debating the Constitution of the United States. In the Federalist Papers, Madison wrote ..."the
accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a
few or many, or whether self appointed or elected may justly be pronounced the very definition of
tyranny." They were afraid of it. They were sounding alarms. They were saying this is extremely
important that we get this right when we write our constitution because if we don't and we put too
much power in one branch, that will only cause trouble. That's what, ladies and gentlemen, I'm afraid
we're about to do here today and I say that will no disrespect, whatsoever, to Governor Manchin.
I think that, as I said a moment ago, my discussion is about what this isn't, and the first thing that this debate isn't is that it isn't a debate about any disrespect to the Governor. This is not meant
to be, by me not supporting this point of order, is not meant to be disrespect. In fact what it is, its
respect I think for his role as well as respect for all of us legislators It is about mutual respect. It
is about respect for the Constitution. It is about respect for how the founders of this state designed
this process to be. Now, sometimes there is friction in that debate, maybe none of us like to have
friction between us and the Governor or anyone else, or friction among each other but that's part of
what this process is about, and the fact that there is friction and the fact that there is some
disagreement here isn't a bad thing. It's a good thing. It's what this checks and balances is all about.
It's our job, at times, to tell the Governor no. It's our job, at times, to say "Governor, in all due
respect, you've overstepped the authority of that in the Constitution." That is what we need to do
today, respectfully. That's not a broken process. That's the process working. That's what checks
and balances are all about.
Another thing this isn't: This isn't partisanship. And I know some may be hesitant to even
address that but this isn't about Democrats and Republicans. It's not about partisanship. It's not
about what party the Governor is and what party any particular legislator is. It's not that. This could
just have easily been argued eight years ago when there was a Republican Governor and Democrat-
controlled Legislature. And I ask you would you have, if your decision on this would have been
different then, and I'm not saying it would be but think about it. If your decision on this issue would
have been different then, and I'm not saying it would have been, but, if it would have been then
perhaps it is being made from a partisan perspective, but that's not what this is about.
There'll be, unlikely, Republican Governors in the future, perhaps Republican-controlled
Legislatures, legislative chambers in the future. I know you are thinking that's wishful thinking, but
think about that in the future. This doesn't go to the question of what party controls either branch
but it goes to when that person sits in that chair in the governor's office and each of us and our
successors sit in these chairs in this chamber, what are our roles, what are our jobs, what are we are
sent here for? Well, we are sent here as we've said to dispose and the Governor is sent here to propose. And the question today is, are we going to keep that bedrock of checks and balances in
place or are we going to allow the Governor to do both, to propose and dispose of this legislation?
That's essentially what we will have done if we determine that the Governor can limit the scope of
our discussion on this bill.
But ladies and gentlemen, again I agree wholeheartedly with my colleague the Minority
Leader, this goes far beyond the issue we are discussing here today. It goes far beyond any other
issues we are going to discuss. It goes far beyond what successors to us will discuss. It goes to what
is our job as a legislator and are we going to do our job or are we going to allow someone else to do
that job and we simply can not do that. We simply cannot relinquish the ability of this Legislature
to take a proposal from the Governor in determining it and determine what is the best public policy
for the people of West Virginia. With all due respect to Governor Manchin it is not his job to
determine that. It is our job. It is with the one hundred members here and the thirty-four members
across the hall to determine what the proper policy is.
So I'd ask you as you think about this, as you consider what your vote will be, that you think
about this quote from Jefferson of whom we often spoke in terms of his rules, his Jeffersonian Rules,
a procedure in this Chamber. Thomas Jefferson said that an elected despotism is not the government
we fought for, but one which should not only be founded on truth and principles on which the
powers of government should be so divided and advanced among general bodies of the magistrate
that no one, no one could transcend their legal limits without being effectively checked and restrained
by the others.
Ladies and gentlemen, the Governor, again with all due respect, the Governor has transcended
the legal limits allowed by the Constitution of this State. And now the battles of our Court do we
effectively check and restrain that extension of power or do we not? Do we allow that to go forward,
and as has been discussed here, what is the next step of that? Do we allow that to go forward and then
the next time it is further limited and further limited? Because if we do that then, in effect, we're
making this Legislature a rubber stamp whether by this Governor or any future governor and that's not where we are. This Chamber is better than that, what we came here to do is bigger than that and
it is so important that we don't let that happen today. I urge you to think about this vote in the context
of what it really is and that, you know regardless of the balance of the issue of what we are talking
about, regardless of the personalities involved and all these other things, find it in your mind that this
is about the role of the Legislature versus the role of the Governor and what did the Constitution, the
fathers of the Constitution intend when they wrote our Constitution? What do the people of West
Virginia, what are their rights under that constitution?
I think if you do that, you will have to agree, that today is the day that we must again
respectfully take the position that the Governor simply has overstepped the bounds of the Constitution
and cannot limit the debate within this Chamber or within the Senate on this bill or any other bill.
So I urge you in the strongest terms that I know how - to reject this point of order, to vote no.
Delegate Louisos. Thank you, Mr. Speaker.
I urge the House's rejection of the Majority Leader's motion. You know, sometimes I
wondered when I first ran for office how I got here, and I always prayed and asked God to help me
because I sure need it and there is one thing I always come to do, I come to do what's right. It's
difficult to be on this side of the aisle when everyone's going to vote one way and I'm going to vote
the other way.
This issue has become a partisan issue and it's sad that it has. I think this is an issue where
we either are able to represent the people who sent us here or not. If we don't allow amendments,
debate, we are disenfranchising the people who sent us here. We talk about precedent. I personally
don't think there has been a precedent set that says we don't allow amendments and debate. I think
today, today we're going to be the ones to set the precedent, we'll set it.
You know, whether it is a Democrat or Republican Governor, we should have the right to
amend this bill. I supported this Governor and I love him, but I have to say that his position is
wrong.
If you look at the Congress, when the other party was a minority and they had confirmations, they had the right to filibuster, do whatever they could to stop the confirmations. When my party
was the majority party, they wanted to change it, they said no, that's not right and it was wrong to
try to change it.
What's going to happen one day when, let's say, those folks are over here, their man's
standing up there, and they say, "Well, you know, the President says no abortions at all" and it'll be
that way whether they vote that way or not. Right to work - the death penalty -- things that we don't
like and we do like. It's not what we like or don't like, it's whether we have the right to debate here
today. I just think that if the Majority Leader wins on this motion, I think after regular session, no one
will be represented here. There's no need to be here. We'll say, okay Governor, make the call and
we'll all sign on and stay home. It's terrible, terrible. I think it's the worst thing we have ever done.
It's a sad day in my life.
I've been here nineteen years and I have never seen this happen before. The sad part, I'm
probably not going to win on this, but I still think I'm right and I always do what I think's right. It's
not popular. It doesn't help me at all, and for the future of my State, I love my Governor, but I love
my State more. The day we do this is wrong. Do what you have to.
Delegate Manchin. Thank you, Mr. Speaker. I rise in support of the Majority Leader's
position in this instance. I've looked at the Constitution and the Constitution says only that the
Governor may, on extraordinary occasions, convene at his own instance the Legislature. But when
so convened it shall enter upon no business except that stated in the proclamation by which it was
called together. No business. The business we have been asked to come here for is to determine
whether we should adopt the reduction of the sales tax of no more than one percent . I've listened
to various arguments and there are many good legal arguments on either side quite frankly. We have
a precedent and the precedent is that this body will make the decision as to whether or not and what
that term "no business" means. And it's our job to decide that and not necessarily always within
constitutional or legal context.
In this case in particular it's my thought that we should follow some degree of logic. And the logic of it is this, we are not in general session. We are in a special session called by the
Governor for a specific purpose. That we have adopted a budget for this year. We did so earlier this
year and passed by almost unanimous decision as I recall. Now the Governor since that time, has
looked at the situation of the State. He has determined that our people, who are suffering from high
gas prices and other difficulties in meeting their financial obligations, are deserving of a reduction
in the food tax. He has had his people, who are full time as opposed to us being a Legislature which
is only part time and having only the part time citizenry legislative abilities to follow these matters,
use their full time expertise to determine that we can afford to help the people by reducing that tax
by no more than one percent.
I think that it is entirely appropriate and reasonable and logical for this Legislature to
determine that he has that expertise. That we don't have that expertise. We don't have the ability to
adjust our projections for the future revenues that are coming in. Quit frankly, we don't have the
ability to adjust for the future income needs or the spending needs that we are going to have to do.
The Governor's office has that ability and therefore, under this specific set of circumstances, I think
that it's logical that this body adopt the position that this is the business that is at hand.
We can reject the one percent. We can do less than the one percent. He's not invaded our
prerogative in that regard. He's not gone out and done it on his own without asking us. He's not
attempted to do that, therefore, let's be reasonable and let's be logical. If we would happen to stray
from his projection, nobody has a plan on how we deal with the cuts that would have to come
afterwards in spending. Therefore it's only reasonable and logical that we limit ourselves to the
business that he has brought us here for.
Delegate Lane. Thank you, Mr. Speaker. I just want to quote briefly from the second
sentence or the second clause of Article V in our West Virginia Constitution. As the Minority Leader
so eloquently pointed out earlier, there is only one clause in that Article. The second clause says,
talking about the legislative executive or judicial of the branches of government, "...so that neither
shall exercise the powers properly belonging to either of the others." That's what's happening here. That's what's happening with this Call. The legislative power is properly vested within the legislative
branch. The executive has clearly overstepped his constitutional authority by limiting our ability to
debate and amend and discuss this issue. "...so that neither shall exercise the powers properly
belonging to the others." Those are important words in our Constitution.
I am going to read a few other important words. "I do solemnly swear, that I will support the
Constitution of the United States and the Constitution of the State of West Virginia and faithfully
discharge the duties of delegate according to the best of my ability."
I take those words seriously and I hope that each of you will think about those words before
you cast this vote.
Delegate Anderson. Thank you, Mr. Speaker. Before I begin my remarks, I would like
to praise the Speaker for framing our debate in such a way on this floor of the House of Delegates and
I view the motion of the Majority Leader, the gentleman from Wyoming, as performing a duty to
frame this question before the House.
But now the question belongs to us, the members. On both sides of the aisles, from the length
and breath of this State, the issue before the House today, in my judgement, is much more important
than the issue of debate on the food tax. It's an issue of separation of powers in our three branches
of government and if we go back in history, not only from the founding fathers of this State, but the
founding fathers of this Country. What genius there must have been at Philadelphia. They created
a system of dynamic tensions within our governmental framework. The principle of federalism,
which we're not dealing with here today, but they created the dynamic tension between the national
government and the state governments in hopes that it would preserve the freedoms of all Americans
everywhere.
But the principle that we are here to discuss today is the principal of separation of powers and
that principle that I call dynamic tensions belongs to this issue as well. There is a dynamic tension
between the legislative, executive and judicial branches of government, and it operates, not for us
to compound and confound each other, but for the greater preserving of the rights and freedoms of all the citizens, be it of the United States if on the federal level, or be it here in West Virginia if it is
on state level.
We often wonder in other countries in the world not blessed with the amount of freedom that
we have, why can't they just do it the like we do it? We didn't get here overnight. We got here on
the battlefield called Runnymead in 1215 when the Magna Carta was signed. We made other steps
in the English Petition of Right in 1628, the English Bill of Rights in 1688. We took other steps
when we ratified the United States Constitution in 1789, and further steps when we adopted our West
Virginia State Constitution that governs our State today in 1872.
This is much more important than the food tax. I do not view the Majority Leader's motion
as a partisan attempt in any way to stifle this debate. I view him as just framing the issue for our
constitutional debate upon what the powers of the Governor are to be in framing a Call to call us into
special session. I would submit that the Governor can call us into special session and put the issue
before us, but he cannot so circumscribe the legislative branch of government in his Call that we
cannot fully debate and deal with the issue as we believe it should be dealt with in the legislative
arena.
I am concerned and I've heard members on both sides of the aisle sometimes complain about
our Supreme Court interfering with our legislative priorities. That's part of that dynamic tension that
I've referred to earlier. We are now some folks complaining about what we envision as the executive
invasion of our legislative sphere of influence. And I think the genius of the action of the Speaker
is that he has found the way to lay this debate at the floor of the House of Delegates and we decide,
free from if you want to call it, interference from the courts, and the executive in this matter and that
is as it should be. And that is the way it should always be. We should never surrender any of our
legislative powers to the executive or the judicial branch of government and I have the greatest of
respect for the other branches of government, but we preserve our freedoms and the freedoms of the
citizens of this State when we seek to operate that dynamic tension not in a partisan field but within
a legislative sphere as we look at our priorities. And I would submit, Mr. Speaker, and some may suggest or question my sincerity on this issue, but I would much rather, if this motion is adopted and
we accede to the Executive's request that we consider not more than one percent, I would rather see
us move this bill to the foot of the bills, deal with the rest of the calendar and adjourn rather than do
anything on this House floor that surrenders one little bit of what might be perceived as our
constitutional legislative prerogatives as a separate and equal branch of government in this State.
Thank you, Mr. Speaker.
Delegate Carmichael. Thank you, Mr. Speaker. Ladies and gentlemen of the House, I rise
in opposition to the Majority Leader's motion. It took us a long time to get to this point and the
arguments that have been put forth here by my colleagues are very persuasive, very persuasive. In
fact, I've heard similar arguments put forth by the Majority Party on many occasions about the
protection of legislative prerogative. The Speaker eloquently stated it from the floor the other day.
So why are we doing anything differently? It's because we do not like the amendment, bottom line.
We want to change the rules in order to prevent consideration of the elimination of the food tax. It's
just the procedures and the machination we've gone through. We sent the Clerk to the catacombs
and combing the archives, to find some kind of precedents that would support limiting the debate on
food tax. We want to go through all these processes and procedures in order that we can maintain a
tax that thirty-three other states don't have. Even consideration of it and maybe we are a part time
Legislature but just because the Governor is a full time governor doesn't mean that he has infinite
wisdom and we're dependent on his benevolence to tell us what's the right process or procedure.
Otherwise we'd just roll out a budget every year and vote on it. We'd have no opportunity to amend
it.
We are a part time Legislature that is responsible to the people of West Virginia and they want
legislative action. They don't want us to be limited to the debate. They deserve an opportunity to
express their will through this legislative process by eliminating the food tax. That's what they want.
If you don't like the amendment then just roll it out here and vote no, but to hide behind procedures
is not the right way to process this, I don't believe. It's not really hiding, it's just taking that step when we really don't need to take it. We've gone through how many amendments we have put
through on other governor's calls? Nobody makes this motion.
So, I guess just in summary I'd would just say, we're talking about the amendment here, and
you can't separate this vote the elimination of the food tax for the people of West Virginia. Keeping
a tax on the daily bread and the daily milk and the baby food of the working poor in West Virginia
is what this is about ultimately.
Delegate Amores. Thank you, Mr. Speaker. Ladies and gentlemen, I urge your support for
the Majority Leader's motion and in doing so, I think we, to the contrary of some of the views offered
here today, I think we do in fact affirm our constitutional duty to do so, as opposed to creating a
constitutional crisis which may be implied by other's remarks. I don't think we in anyway abrogate,
or advocate, our duties and responsibilities as Legislators but we do, I think, recognize that our
present relationship with our sitting Governor, for many in this Chamber, is not one of deference but
of comity which is to say respect for the coequal authority that provides for good will and whenever
possible provide for cooperation in our dealings with that coequal branch of government.
I would submit to you, that in our past and hopefully in our future, it would be nice that in
our past that we would be able to express that type of comity and cooperation, but, hopefully in our
future we can continue to work in that vein with governors both Republican and Democrat, whoever
may occupy that office. But I don't want to speak to that on this day.
We all know that in the regular session each of us can do what we wish, make policy and
submit bills of this and any other matter for general discussion. We all know in the special session
the sitting Governor can set the parameters by issuing a Call. It's been mentioned that as a body we
act on matters contained therein, within the Call. Sometimes we act by disregarding the items on the
Call, not taking them up at all. That's been a constant debate as to this Call, Calls issued in the past.
We certainly exercise that ultimate authority. We certainly are not compelled today to do what we
do, but we act in accordance with our constitutional authority.
Speaking only for myself on this issue, but I agree with this item on the Call, in it's narrow form and to recognize that sole point creates no constitutional crisis. It's not a statement of
abrogation. More than anything for me it's a statement of support. So I support this item on the Call.
I sustain the point. I understand the authority we have as a body to completely disregard the matter
on the Call and I look forward to further discussions on a broader sense on the tax issue during the
regular session. But in voting to sustain this point of order, I uphold my authority as a member of
this Body to act with both power and responsibility on this matter. I urge each member to do the
same. Thank you, Mr. Speaker.
Speaker Kiss. Does the Gentleman yield? The Gentleman yields to the Gentleman from the
fifty-first.
Delegate Trump. Thank you, Mr. Speaker. To my distinguished colleague from Kanawha,
Chairman of the Judiciary Committee from whom I have the greatest respect with your work in this
Body and your intellect, but that you and I disagree on this question troubles me.
Let me ask you a couple of questions if I may. We've been called into special session by
numerous governors during our joint tenure here together. Looking back to the special session we
had with the previous governor regarding coal trucks, would it be in your judgement within the
power of the Governor to call the Legislature into session under a proclamation that said to consider
legislation to increase the allowable weight of coal trucks from 80,000 pounds to a minimum of
160,000 pounds and had a proclamation been issued in that fashion would it have been beyond the
power of this Legislature, this House, to consider anything in between?
Delegate Amores. Now first of all, I blanked out any memory that I have on coal trucks
and that issue, but if the Call indicates that it can be any number, and correct me if I'm wrong, that
any number up to a certain point implicit in the language of that Call is the invitation to do so. I guess
to be more general in my answer, if the Governor puts anything on the Call, I guess my remarks both
to our authority to either disregard it by simply not taking it up or if we so decide, again speaking for
myself in support of the matter on the question, by taking it up agreeing to the parameters contained
within.
Delegate Trump. Excuse me, I voiced a hypothetical during my earlier remarks. Let me
voice the hypothetical , if some governor in the future would call the Legislature of West Virginia
under a proclamation that said: Item 4, to consider passage of this bill and wrote out the complete
text including the title of a bill, is it your position the Legislature would be precluded from amending
it in any fashion?
Delegate Amores. Let me answer this with a direct answer, yes, very likely. If you want
the implication to some degree in my remarks, in speaking for myself, but if by taking up the matter
of the Governor's Call, I think you agree to the parameters contained within the Call and you know
that if you take it up in my opinion. If you don't approve in that instance and let's say that the
Governor's Call is to take up X and X is literally the transcript of the bill, you understand by taking
that up that you agree to the item on the call. If not as you say, you can vote with your feet by not
taking it up at all.
Delegate Trump. The gentleman from Kanawha would agree that the final word on these
matters of the interpretation of the Constitution is Mulberry v. Madison, et al., by the Supreme Court.
Delegate Amores. That's not to say that we can't, before we come to that swords point,
we can't make our own decision independently as to what we wish to do. My remarks are intended
to underscore the fact that I think we have to exercise our constitutional authority by affirming the
Call in its narrow form in as much as before we even came to this day we decided to take it up
understanding how narrow it is.
Delegate Trump. But I guess I would ask the gentleman further, how would the gentleman
reconcile your view of how we could dispose or would dispose of the hypothetical situation I
enumerated with the language the Supreme Court adopted in 1932 which says that the Governor,
in extraordinary session, may not prescribe or limit the manner in which or the extent to which the
legislature may dispose of those subjects which he designates. Aren't those two consistent?
Delegate Amores. No, I think especially as you want to bring that point to this day, I think
we can certainly show as a body some expression of lack of support by not taking it up at all. Saying in effect you cannot prescribe how we would want to do this by issuing such a narrow call that there's
no general support for that and so we'll not take it up. We've done it before. We've had Governors
on both sides of the aisle provide for a number of different items on the Call. I do recall before my
time that Governor Moore put forty some items on the Call which I'm sure everyone would view as
an unambiguous statement, we didn't agree with those items by not taking them up.
Delegate Trump. To the gentleman, if the choices are take them up or not. Pass it or not.
Isn't that in fact limitation on the manner in which, the extent to which the Legislature may dispose
of those items.
Delegate Amores. I think that we view the special session as the only opportunity to
perhaps act, but to think of it in the context of the regular session, the general session, in which we
all understand our abilities to pursue other differences of opinions on this and other matters, I don't
think so in the least.
Delegate Trump. Thank you, sir.
Delegate Amores. Yes, sir.
Delegate Sobonya. Thank you, Mr. Speaker, will the gentleman from Kanawha continue
to yield?
Delegate Amores. Yes, madam.
Delegate Sobonya. Would you agree that the legislative duties or right in considering
legislation is to debate, discuss and amend legislation? Is that part of our legislative duty or right
including discussion, debating and amending?
Delegate Amores. Absolutely, but just as we do that in the context of rules of parliamentary
procedure. If the place to which you are leading me in the question what we are doing here today,
I think we have to be somewhat cognizant of the Call that we are gathered here under issued by the
Governor.
Delegate Sobonya. I see it as a yes or no answer to a question.
Delegate Amores. I don't and that's my problem so.... perhaps you're right.
Delegate Sobonya. With all due respect, I do believe that any legislation that we consider
whether it is in special session or regular session we have constitutional rights, legislative rights,
which include special session, debating and amending and I don't think and you may disagree, you
can tell me if you disagree or not, but in the context of this discussion, whether we should vote for
the point of order or not limiting what we can do here, I believe that we are taking away a portion
of our legislative duty and we're only saying here in the context of what the Governor has put forth
during this regular session that we can only debate and discuss. We can't amend, and I do believe
that constitutionally we have the right to have all of our duties intact. Would you not agree?
Delegate Amores. If you want me to answer in a one word answer, no, and that's
unfortunate, because to reduce it to a no is to completely disregard everything I have said here on this
floor, but no.
Delegate Sobonya. Thank you.
Delegate Hall. Just on the points you were making to my distinguished Minority Leader,
in terms of deliberation, let me get this correct, deliberation in your statement was not acting as well
as acting.
Delegate Amores. I don't know if I mischaracterized it as deliberation, I think by not acting
we made an expression as a Body. I don't know if I characterized it as deliberation.
Delegate Hall. That gives rise to a question. I have never been party to an actual decision
of not acting on a bill. I've never set the agenda. That agenda is not set by the total membership, is
that correct?
Delegate Amores. In terms of our process, technically the Majority sets the agenda. If you
ask me personally I don't set it without.....
Delegate Hall. I don't disagree with the prerogative of setting the agenda and not putting
something on the agenda. I guess the question I have and would like you to elaborate, is that as you
argue against - as you argue for supporting deliberation, once the thing is out here, I want to know
if you agree or disagree and you can elaborate, I don't want a yes or a no. In terms of whether or not we are being restricted from what the Court has told us in the past, as our Minority Leader read to
us, and that would be materially different in my opinion from - and speak to it if you would - just
keeping something off the agenda.
Delegate Amores. Well, I suppose it would be certainly different to the degree it is
materially different. My statements were intended to reflect that there are ways that we act as a Body
in a constitutional fashion and using that authority and to do what we do here today isn't a diminution
of that. That was my only take. To answer your question that there are differences of opinions as
to whether or not that constitutional authority is fully vested, I will take the gentleman's point that
there may be a difference of opinion on that and certainly that's why there was a lot of activity in the
east wing .
Delegate Hall. Thank you very much.
Delegate Ellem. Thank you, Mr. Speaker. I rise in opposition to this point of order and
I want to make two points of view. First, my own point of view and second of all, if I dare to, the
Governor's point of view on this issue.
Now, first of all, I represent and defend people in my business and I think for all the reasons
set forth here by so many of my colleagues, we are in a position where we're called upon to defend
ourselves and to defend this institution. We are facing what so many have stated as a serious erosion
of our powers as a Legislature. If an executive is allowed to so carefully craft and word a
proclamation so that nothing else can be done to it, no amendments, nothing further for consideration,
then that proclamation essentially becomes a piece of legislation itself. In fact, it becomes a super
piece of legislation. We can't debate it, we can't amend it, it impenetrable. It's over. All we do is
yes or no, yes or no, yes or no. We become a rubber stamp and I think that has been set forth pretty
clearly by many of my colleagues.
But what about the Governor? I know that the decision is ultimately ours but I think we
should give some precedence to maybe what the Governor thinks, or says or feels, in particularly what
he has already said. As you know, this case, this issue, was heard before the Supreme Court yesterday and I was in attendance at that argument, and I heard the Governor's position. In fact, it is noted in
the opinion that the Supreme Court issued. I'll quote directly from the opinion:
"Of primary significance, during oral argument before this Court, both Counsel for the
Governor and Counsel for the Petitioner stated and agreed that it is within the scope of the Governor's
September 6, 2005, Proclamation and is accordingly within the powers of the Legislature to pass or
amend legislation that would reduce the sales tax on food by one percent or any percentage greater
than the one percent expressly indicated in that Proclamation or should the Legislature so choose to
completely eliminate the sales tax on food. Accordingly the Governor has not improperly limited the
manner in which the Legislature may conduct its business."
That's correct, I was there and I heard the same thing. I just wonder if now the Governor has
come to a different position or different conclusion? So I just think we should take the Governor
at his own word and allow this amendment. Thank you.
Speaker Kiss. Chair recognizes the Gentleman from the twenty-second to close the debate.
Majority Leader Staton. What a great discussion we've had today on many matters of
Constitutional importance that legislators do not deal with for dozens of years at a time. Let me
compliment those who have spoken on the scholarly examples of their debate and the scholarly points
that they made, and particularly my colleague the Minority Leader, on the strengths of his arguments
and the judicial manner in which he has approached them.
Let me begin by saying that we are not at all hiding behind a procedure to discharge our duties
or fail to discharge them. Unlike other matters that we undertake, we are here today undertaking a
constitutional duty to determine whether the Governor's Call infringes upon our ability to make law
and, as we know from this scholarly discussion, this is the procedure we have used before and the
results have varied before. At times it has not been in any way an issue oriented or party oriented
decision, it has been based upon a scholarly and constitutional discussion. There are instances in our
history where the Democratic Legislature joined with the Governor to uphold his ability to determine
the types of matters that may be undertaken in the Call. But in discharging our responsibility we do have to give comity to the constitutional authority that the Governor has, not only our own
constitutional abilities to determine what amendments are undertaken. It has been quoted before but
I want to mention one more time: "When so convened in extraordinary session the legislature shall
enter upon no business except that stated in the proclamation by which it was called together." The
instances in our past where the Court and the Legislature have determined whether or not the
Governor went beyond his preview or the Legislature was limited in what it may discuss all turned
upon the wording. A good example is the Road Commission case . The Governor very broadly said:
"Balance the budget." The Legislature came back and said, "Okay, we're going to balance the
budget by getting rid of the Bridge Commission." , and that was upheld because we were within the
preview of that Call for that special session.
So, here we are today, dealing with a different issue and I would submit to you that in our
history now and in the history to come later, we will continue to engage in these constitutional
discussions on a case by case basis as to how these matters contained in the Call of this or any other
Governor in the preview of our prerogative to act on legislation.
On the issue that we face today, is along a continuum you know in the bridge case he clearly
gave a very broad Call and the legislature stayed within that Call even though it did a very specific
thing.
To the extent that it may have been stated otherwise, or in a way that may be confusing, I
disagree with the Chairman of the Judiciary. If the Governor issues a Call and says: "Here's the bill
text that I want you to enact." I think two things would have to happen. First of all we would be
doing the very same thing that we are doing right now. We would be having a point of order as to
whether or not the Governor limited our Call beyond his constitutional authority and whether our
constitutional authority was being infringed upon and we would vote for that. And if that was the
vote we were taking today, I would vote and say yes, this Call is too narrow and we are too limited
to act upon that and we should have the authority to go beyond that. This issue lies somewhere in
between. Does the Governor have the authority to propose to us, whether you agree with him or not, a responsible cut, what he deems to be a responsible cut, on food tax and nothing more and no other
business. He is guided by this special session. If we were here in regular session it would be all
hands on deck. But we are guided by this
Call and we are properly here making that decision and we are not hiding behind any other
determination.
As to the argument that we may deal with other matters without further limitation, the Courts
have long upheld that legislators may take actions within their rules to limit the scope of debate. In
the Congress of the United States, as you may have heard today, their Rules Committee determines
what amendments can be offered on the floor. It is not a question of whether it is germane or not, it
is a question of whether they want to deal with it. The Courts have upheld that sort of authority for
legislators to do that. Thank God, frankly, that we don't do that. We don't do that in a regular
session we can offer the amendments that we want, but today we have to balance all our constitutional
authority to have amendments that we deem appropriate versus the Governor's authority to say this
is my special session and I want to limit the areas in which we can act.
If we uphold the authority of the Governor to engage in the limitation of the Call like this
today, there is nothing whatsoever to limit us at some point in the future to say to this or another
Governor you have limited us too much and to make the Call for ourselves. There is nothing that
does that. The precedential value of this is along that continuum that I am talking about, where we
are constantly shooting at a moving target based upon the facts of a particular circumstance. This is
not an area where, like Supreme Courts often do, where they have set a law, something that is filed
away forever. This procedure is precedential because of the way we are dealing with it, but the
decision is not. Next month, if there is a special session, and he offers the full text of the bill our
decision might be different. Next month if he offers one that is way too broad, our decision may be
different. This is just one of several decisions that legislators will make on this issue in the history
of our State and the continuing history of our State.
In closing let me say this: The reason we should vote yes or green on the point of order boils down to the legitimate and responsible exercise of our constitutional authority. Ronald Regan once
said that sometimes the greatest manifestation of power is declining to exercise it. Today we should
decline to exercise that power because we have not been severely limited in what he has done with
us in this Call. We have not been severely limited beyond constitutional boundaries and we must
respect his constitutional authority to limit the Call to what he wants to consider.
For all of those reasons I urge you to uphold the point of order and vote yes.
* * * *
Debate having concluded, the question of consideration by the House was again stated by the
Speaker as follows:
The Speaker. Pursuant to our prior practice and procedure, is the point of order sustained
against consideration of amendment numbers 1, 2, 3 and 3a?
On this question the yeas and nays were taken (Roll No. 842), and there were--yeas 66, nays
33, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Azinger, Blair, Border, Canterbury, Carmichael, Duke,
Ellem, Evans, Frich, Hall, Hamilton, Howard, Lane, Leggett, Louisos, Overington, Porter, Roberts,
Romine, Rowan, Schadler, Schoen, Sobonya, Stevens, Sumner, Tansill, Trump, Wakim, Walters and
G. White.
Absent and Not Voting: Ferrell.
So, a majority of the member present and voting having voted in the affirmative, the point of
order was sustained, the House thereby refusing to consider Amendment Nos. 1, 2, 3 and 3a..
On motion of Delegates Michael, Varner, Cann, Kominar, Stalnaker, Williams, H. White,
Boggs and Proudfoot the bill was amended on page three, line nineteen, section three-a, following
the word "of", by striking the words "the following items" and inserting in lieu thereof "Prepared
food," as defined in article fifteen-b of this chapter.
On page three, line twenty-one, section three-a, following the word "chapter" by striking the
semicolon and the remainder of the subsection.
On page four, line forty-three, section three-a, following the word "and" by striking the word
"other" and inserting in lieu thereof the word "emergency".
On page five, line fifty-one, section three-a, following the word "twenty-nine-a" by striking
the remainder of the subsection.
On page fifteen, line one hundred night-three, section two, following the word "beverages"
by striking "candy, dietary supplements, food sold through vending machines".
On page fifteen, line one hundred ninety-five, section two, following the word "food" and the
comma, by striking "soft drinks".
And,
On page twenty, section two, following line two seventy-eight, by inserting the following:
"(C) Additionally, 'prepared food', as defined in this subdivision does not include:
(i) Food sold by a seller whose proper primary NAICS classification is manufacturing in sector
311, except subsection 3118 (bakeries);
(ii) Food sold in an unheated state by weight or volume as a single item; or
(iii) Bakery items, including bread, rolls, buns, biscuits, bagels, croissants, pastries, donuts,
danish, cakes, tortes, pies, tarts, muffins, bars, cookies, tortillas."
There being no further amendments, the bill was then read a third time.
At 12:24 p.m., on motion of Delegate Staton, the House of Delegates recessed for ten minutes,
and reconvened at that time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 843),
and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as
follows:
Absent And Not Voting: Ferrell and Iaquinta.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (H. B. 401) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 844), and there were--yeas 98, nays
none, absent and not voting two, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Iaquinta.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 401) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for H. B. 408, Relating to the accountability of persons receiving state funds or
grants; on third reading, coming up in regular order, was, on motion of Delegate Staton, laid upon
the table.
Com. Sub. for H. B. 409, Relating to salaries for teachers and school service personnel; on
third reading, coming up in regular order, was, on motion of Delegate Staton, laid upon the table.
Com. Sub. for H. B. 415, Supplementing, amending, reducing and increasing items of the
existing appropriation from the Department of Agriculture, agriculture fees fund; on third reading,
coming up in regular order, was, on motion of Delegate Staton, laid upon the table.
Com. Sub. for H. B. 416, Making a supplementary appropriation to the Department of
Agriculture -West Virginia Agricultural Land Protection Authority; on third reading, coming up in
regular order, was, on motion of Delegate Staton, laid upon the table.
Com. Sub. for H. B. 417, Making a supplementary appropriation to the West Virginia
Conservation Agency, to the Department of Health and Human Resources, Division of Human
Services, ....etc.
; on third reading, coming up in regular order, was reported by the Clerk, and
temporarily postponed.
Com. Sub. for H. B. 419, Supplementing, amending reducing and increasing items of the
existing appropriations from the state fund, to the Department of Health and Human Services-
Division of Human Services, and higher education, higher education policy commission
; on third
reading, coming up in regular order, was, on motion of Delegate Staton, laid upon the table.
H. B. 420, Expiring funds into the unappropriated surplus balance in the state fund, general
revenue, and supplementing and increasing an item of appropriation in the aforesaid account
; on third
reading, coming up in regular order, was, at the request of Delegate Staton, and by unanimous
consent, temporarily postponed.
H. B. 422, Supplemental appropriation to the Department of Administration, consolidated
public retirement board
; on third reading, coming up in regular order, was, at the request of Delegate
Staton, and by unanimous consent, temporarily postponed.
S. B. 4008, Relating to salaries for teachers and school service personnel
; on third reading,
coming up in regular order, was, at the request of Delegate Staton, and by unanimous consent,
temporarily postponed.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates
and the passage, as amended, to take effect from passage, of
S. B. 4010, Relating to proposed merger of Teachers' Defined Contribution Retirement System
with State Teachers Retirement System.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of
the House of Delegates as follows:
H. B. 414, Supplementing and amending chapter sixteen, Acts of the Legislature, regular
session, two thousand five, as amended known as the budget bill, providing for salary increases for
public employees.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the
House of Delegates as follows:
H. B. 407, Providing that department secretaries may transfer employees between departments
in certain instances.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the contrary, the secretary of each
department shall have plenary power and authority within and for the department to:
(1) Employ and discharge within the office of the secretary employees as may be necessary
to carry out the functions of the secretary, which employees shall serve at the will and pleasure of the
secretary;
(2) Cause the various agencies and boards to be operated effectively, efficiently and
economically, and develop goals, objectives, policies and plans that are necessary or desirable for the
effective, efficient and economical operation of the department;
(3) Eliminate or consolidate positions, other than positions of administrators or positions of
board members, and name a person to fill more than one position;
(4) Transfer permanent state employees between departments in accordance with the
provisions of section seven of this article;
(4) (5) Delegate, assign, transfer or combine responsibilities or duties to or among employees,
other than administrators or board members;
(5) (6) Reorganize internal functions or operations;
(6) (7) Formulate comprehensive budgets for consideration by the Governor, and transfer
within the department funds appropriated to the various agencies of the department which are not
expended due to cost savings resulting from the implementation of the provisions of this chapter:
Provided, That no more than twenty-five percent of the funds appropriated to any one agency or board
may be transferred to other agencies or boards within the department: Provided, however, That no
funds may be transferred from a special revenue account, dedicated account, capital expenditure
account or any other account or funds specifically exempted by the Legislature from transfer, except
that the use of appropriations from the State Road Fund transferred to the Office of the Secretary of
the Department of Transportation is not a use other than the purpose for which the funds were
dedicated and is permitted: Provided further, That if the Legislature by subsequent enactment consolidates agencies, boards or functions, the appropriate secretary may transfer the funds formerly
appropriated to the agency, board or function in order to implement consolidation. The authority to
transfer funds under this section shall expire on the thirtieth day of June, two thousand five;
(7) (8) Enter into contracts or agreements requiring the expenditure of public funds, and
authorize the expenditure or obligation of public funds as authorized by law: Provided, That the
powers granted to the secretary to enter into contracts or agreements and to make expenditures or
obligations of public funds under this provision shall not exceed or be interpreted as authority to
exceed the powers granted by the Legislature to the various commissioners, directors or board
members of the various departments, agencies or boards that comprise and are incorporated into each
secretary's department under this chapter;
(8) (9) Acquire by lease or purchase property of whatever kind or character and convey or
dispose of any property of whatever kind or character as authorized by law: Provided, That the
powers granted to the secretary to lease, purchase, convey or dispose of such property shall not exceed
or be interpreted as authority to exceed the powers granted by the Legislature to the various
commissioners, directors or board members of the various departments, agencies or boards that
comprise and are incorporated into each secretary's department under this chapter;
(9) (10) Conduct internal audits;
(10) (11) Supervise internal management;
(11) (12) Promulgate rules, as defined in section two, article one, chapter twenty-nine-a of this
code, to implement and make effective the powers, authority and duties granted and imposed by the
provisions of this chapter in accordance with the provisions of chapter twenty-nine-a of this code;
(12) (13) Grant or withhold written consent to the proposal of any rule, as defined in section
two, article one, chapter twenty-nine-a of this code, by any administrator, agency or board within the
department. Without written consent, no proposal for a rule shall have any force or effect;
(13) (14) Delegate to administrators the duties of the secretary as the secretary may deem
appropriate from time to time to facilitate execution of the powers, authority and duties delegated to
the secretary; and
(14) (15) Take any other action involving or relating to internal management not otherwise prohibited by law.
(b) The secretaries of the departments hereby created shall engage in a comprehensive review
of the practices, policies and operations of the agencies and boards within their departments to
determine the feasibility of cost reductions and increased efficiency which may be achieved therein,
including, but not limited to, the following:
(1) The elimination, reduction and restriction of the state's vehicle or other transportation fleet;
(2) The elimination, reduction and restriction of state government publications, including
annual reports, informational materials and promotional materials;
(3) The termination or rectification of terms contained in lease agreements between the state
and private sector for offices, equipment and services;
(4) The adoption of appropriate systems for accounting, including consideration of an accrual
basis financial accounting and reporting system;
(5) The adoption of revised procurement practices to facilitate cost-effective purchasing
procedures, including consideration of means by which domestic businesses may be assisted to
compete for state government purchases; and
(6) The computerization of the functions of the state agencies and boards.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, none of the
powers granted to the secretaries herein shall be exercised by the secretary if to do so would violate
or be inconsistent with the provisions of any federal law or regulation, any federal-state program or
federally delegated program or jeopardize the approval, existence or funding of any program.
(d) The layoff and recall rights of employees within the classified service of the state as
provided in subsections five and six, section ten, article six, chapter twenty-nine of this code shall be
limited to the organizational unit within the agency or board and within the occupational group
established by the classification and compensation plan for the classified service of the agency or
board in which the employee was employed prior to the agency or board's transfer or incorporation
into the department: Provided, That the employee shall possess the qualifications established for the
job class. The duration of recall rights provided in this subsection shall be limited to two years or the
length of tenure, whichever is less. Except as provided in this subsection, nothing contained in this section shall be construed to abridge the rights of employees within the classified service of the state
as provided in sections ten and ten-a, article six, chapter twenty-nine of this code. or the right of
classified employees of the Board of Regents to the procedures and protections set forth in article
twenty-six-b, chapter eighteen of this code.
(e) Notwithstanding any other provision of this code to the contrary, the secretary of each
department with authority over programs which are payors for prescription drugs, including but not
limited to, the Public Employees Insurance Agency, the Children's Health Insurance Program, the
Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility
Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state
or local institutions including nursing homes and veteran's homes, the Division of Rehabilitation,
public health departments, the Bureau of Medical Services and other programs that are payors for
prescription drugs, shall cooperate with the Office of the Pharmaceutical Advocate established
pursuant to section four, article sixteen-d, chapter five of this code for the purpose of purchasing
prescription drugs for any program over which they have authority.
§5F-2-7. Interdepartmental transfer of permanent state employees. (a) A department secretary
may enter into a memorandum of understanding with another department secretary to transfer a
permanent state employee from a position that is to be consolidated or eliminated, to a funded vacant
position in another Department, in accordance with the provisions of this section and the law. To
support the transfer of the employee, a department secretary may also transfer furniture and
equipment, except motor vehicles and any assets purchased by designated funds for specific uses and
purposes, the removal of which is prohibited by law or would jeopardize federal funds, grants or other
funding sources.
(b) The transferred employee shall receive the same level of benefits and rate of compensation
or higher, and shall retain the same level of seniority.
(c) An employee shall be given notice of the proposed transfer at least fifteen days prior to the
transfer. During the notice period, an affected employee may agree to be voluntarily transferred.
(d) If an employee does not volunteer to be transferred, then an involuntary transfer may be
ordered. An involuntary transfer shall begin with the least senior permanent employee who qualifies for the position.
(e) A classified employee who is transferred shall retain his or her classified status: Provided,
That any transfer shall be made in accordance with the law.
(f) An involuntary transfer may be rejected by an employee if the involuntary transfer would
require the employee to travel thirty miles or more, one way, than the distance the employee currently
travels from his or her current job site.
(g) An employee who qualifies for and chooses to reject a transfer shall be laid off in
accordance with the law.
(h) Nothing in this section shall abridge any other rights provided by law.
(i) Prior to the thirty-first day of December, two thousand five, the Division of Personnel shall
promulgate an emergency rule in accordance with the provisions of article three, chapter twenty-nine-
a of this code, to effectuate the provisions of this section.
(j) The Division of Personnel is authorized to promulgate legislative rules in accordance with
the provisions of article three, chapter twenty-nine-a of this code, to effectuate the provisions of this
section.
(k) Annually, on or before the first day of January, the Division of Personnel shall report to
the Joint Committee on Government and Finance, on all interdepartmental employee transfers,
including but not limited to, voluntary and involuntary transfers, furniture and equipment transfers,
and the Departments involved in the transfers."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 845), and there were--yeas
86, nays 2, absent and not voting 12, with the nays and absent and not voting being as follows:
Nays: Hamilton and Louisos.
Absent And Not Voting: Anderson, Crosier, Duke, Ferrell, Iaquinta, Lane, Longstreth,
Perdue, Romine, Rick Thompson, Tucker and Walters.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 407) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 846), and there were--yeas 85, nays
4, absent and not voting 11, with the nays and absent and not voting being as follows:
Nays: Eldridge, Hamilton, Louisos and Porter.
Absent And Not Voting: Anderson, Crosier, Duke, Ferrell, Iaquinta, Lane, Longstreth,
Perdue, Romine, Tucker and Walters.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 407) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with
amendment, and the passage, as amended, of
S. B. 4006, Relating to accountability of persons receiving state funds or grants.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment to the House of Delegates amendment was reported by the
Clerk:
On page four, section fourteen, line thirty-seven, by striking out the word "twenty-five" and
inserting in lieu thereof the word "fifty";
On page four, section fourteen, line thirty-eight, by striking out the word "person's" and
inserting in lieu thereof the word "state's";
On page four, section fourteen, line forty, after the word "audit" by inserting a comma and the
words "by an independent certified public accountant,";
On page four, section fourteen, line forty-nine, by striking out the word "twenty-five" and
inserting in lieu thereof the word "fifty";
On page five, section fourteen, line fifty, by striking out the word "done" and inserting in lieu
thereof the words "conducted or substituted"
;
On page six, section fourteen, line sixty-nine, after the word "statement" by inserting the words "of expenditures";
And,
On page eight, section fourteen, line one hundred fourteen, by striking out the word
"performed" and inserting in lieu thereof the word "submitted".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 847),
and there were--yeas 92, nays none, absent and not voting 8, with the absent and not voting being as
follows:
Absent And Not Voting: Anderson, Ferrell, Iaquinta, Lane, Longstreth, Perdue, Romine
and Walters.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 4006) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 848), and there were--yeas 93, nays
none, absent and not voting 7, with the absent and not voting being as follows:
Absent And Not Voting: Anderson, Ferrell, Iaquinta, Lane, Perdue, Romine and Walters.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 4006) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
At 3:07 p.m., on motion of Delegate Staton, the House of Delegates recessed until 4:45 p.m.,
and reconvened at that time.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the
House of Delegates as follows:
H. B. 413, Providing an increase in the annual base salary of all sworn state police personnel.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page four, section five, by striking out all of lines forty-three through fifty-seven and
inserting in lieu thereof the following:
Cadet During Training$2,331.00 Mo.$27,972
Cadet Trooper After Training 2,734.00 Mo.32,808
Trooper Second Year33,272
Trooper Third Year 33,644
Trooper Fourth & Fifth Year33,944
Senior Trooper 36,032
Trooper First Class38,020
Corporal 40,208
Sergeant 44,384
First Sergeant 46,472
Second Lieutenant48,560
First Lieutenant 50,648
Captain52,736
Major54,724
Lieutenant Colonel 56,012;
On page five, section five, by striking out all of lines sixty-nine through seventy-six and
inserting in lieu thereof the following:
I33,944
II36,032
III38,020
IV40,208
V44,384
VI46,472
VII48,560
VIII50,648;
And,
On page six, section five, by striking out all of lines eighty-six through ninety-two and
inserting in lieu thereof the following:
I33,944
II36,032
III38,020
IV40,208
V44,384
VI46,472
VII48,560
VIII50,648.
On motion of Delegate Staton, the House of Delegates refused to concur in the Senate
amendment and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Messages from the Executive
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
September 12, 2005
Executive Message No. 3
The Honorable Robert S. Kiss
Speaker of the House of Delegates
State Capitol
Charleston, West Virginia
Dear Mr. Speaker:
The following amends and replaces the "FY 2006 Official Estimate" "General Revenue Fund
- Statement of Revenues by Source" which I submitted to you on June 30, 2005, for the fiscal year
ending June 30, 2006:
General Revenue Fund
Statement of Revenues by Source
(Expressed in Thousands)
FY 2006
Official
Source of RevenueEstimate
Business and Occupation Tax$178,000
Consumers Sales Tax972,300
Personal Income Tax1,152,500
Liquor Profit Transfers9,100
Racing Fees3,000
Beer Tax and Licenses8,400
Cigarette Tax95,500
Estate Tax200
Business Franchise Fees1,800
Charter Tax5,600
Use Tax96,500
Property Transfer Tax10,900
Property Tax4,400
Insurance Tax103,000
Departmental Collections15,100
Corporate Income/Business Franchise Tax244,500
Miscellaneous Transfers500
Interest Income13,000
Severance Tax278,0001
Telecommunication Tax6,000
Miscellaneous Receipts1,000
Smokeless Tobacco Tax4,700
HB102 - Lottery Transfers77,900
Senior Citizen Tax Credit Reimbursement 5,000
Total$3,286,9002
1 Revised from$ 248,000to$ 278,000-Increase of$30,000.
2 Revised from3,256,900to3,286,900-Increase of30,000.
The purpose of this Executive Message is to adjust the revenue estimate upward, reflecting
a stronger than anticipated economy in the Severance Tax area due to higher than anticipated energy
prices.
Sincerely,
Joe Manchin III,
Governor.
Subsequent to the adjournment of the session, communications were received from His
Excellency, the Governor, advising that on September 19, 2005, he approved Com. Sub. for H. B.414,
H. B. 420, Com. Sub. for H. B. 417, H. B. 422, S. B. 4014, S. B. 4015, S. B. 4016 and S. B. 4017;
and on September 28, 2005, he approved H. B. 401, H. B. 403, H. B. 405, H. B. 406, H. B. 407, Com.
Sub. for H. B. 413, S. B. 4002 and S. B. 4010; and on September 30, he approved H. B. 402, H. B.
411, Com. Sub. for H. B. 412, S. B. 4006 and S. B. 4008.
House Calendar
Com. Sub. for H. B. 417, Making a supplementary appropriation to the West Virginia
Conservation Agency, to the Department of Health and Human Resources, Division of Human
Services, ....etc.; on third reading, having been postponed in earlier proceedings, was reported by the
Clerk.
The bill was then read a third time.
The Speaker inquired if there were members seeking to be excused from voting under the provisions of House Rule 49, and numerous members of the House indicated affirmatively.
The Speaker then requested any member having a relative who may possibly benefit from the
passage of the bill to so indicate, and those members were Delegates Argento, Ashley, Browning,
Duke, Fragale, Paxton, Perry, Poling, Roberts, Sumner and Varner.
To the requests of the abovementioned members, the Speaker replied that they demonstrated
no direct pecuniary interest in the bill and further stated that the passage of the bill simply provided
moneys for pay raises but did not mandate that such pay raises be given, and refused to excuse the
members from voting.
The Speaker then requested members having a spouse who was a public employee to so
indicate and Delegate Palumbo so indicated.
Unanimous consent having been obtained, it was agreed by all members of the House that the
ruling of the Speaker concerning who must vote under the provisions of House Rule 49 would be
applicable to himself.
The Speaker observed that while the passage of the bill may create the possibility of pay
raises, such was not a certainty and stated that he would require the aforementioned also to vote on
the bill.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent
right to make, interpret and enforce our rules of procedure as established by our sovereign, non-
reviewable Constitutional authority, and shall be binding in all other potential venues.
On the passage of the bill, the yeas and nays were taken (Roll No. 849), and there were--yeas
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Iaquinta and Wakim.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 417) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 850), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Iaquinta and Wakim.
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. 417) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. B. 420, Expiring funds into the unappropriated surplus balance in the state fund, general
revenue, and supplementing and increasing an item of appropriation in the aforesaid account; on third
reading with right to amend, having been postponed in earlier proceedings, was reported by the Clerk.
On motion of Delegate Michael the bill was amended on page three, line three of the first
paragraph of the enacting section, following the words "amount of", by striking out the word "thirty-
three" and insert in lieu thereof the word "three";
And,
On page four, line ten, by striking out the number "58,000,000" and inserting in lieu thereof
the number "28,000,000".
Having been amended, the bill was then ordered to engrossment and read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 851), and there were--yeas
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Iaquinta and Wakim.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 420) passed.
On motion of Delegate Michael the title of the bill was amended to read as follows:
H. B. 420 - "A Bill expiring funds to the unappropriated surplus balance in the state fund,
general revenue, for the fiscal year ending the thirtieth day of June, two thousand six, in the amount
of three million dollars from the tax reduction and federal funding increased compliance fund, fund
1732, fiscal year 2006, organization 2300, in the amount of five million dollars from the tax reduction
and federal funding increased compliance lottery fund, fund 1735, fiscal year 2003, organization
2300, in the amount of thirteen million dollars from the special income tax refund reserve fund, fund
1313, fiscal year 2006, organization 1300, in the amount of four million dollars from the joint
expenses, fund 0175, fiscal year 2005, organization 2300, activity 642, and in the amount of three million dollars from the joint expenses, fund 0175, fiscal year 2004, organization 2300, activity 642,
and making a supplementary appropriation of public moneys out of the treasury from the
unappropriated surplus balance for the fiscal year ending the thirtieth day of June, two thousand six,
to the department of administration - consolidated public retirement board, fund 0195, fiscal year
2006, organization 0205."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 852), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Iaquinta and Wakim.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 420) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. B. 422, Supplemental appropriation to the Department of Administration, consolidated
public retirement board; on third reading with right to amend, having been postponed in earlier
proceedings, was reported by the Clerk.
On motion of Delegate Michael the bill was amended on page one, following the first
preamble by inserting the following:
"Whereas, The governor, by executive message dated the twelfth day of September, two
thousand five, has revised the revenue estimates for the fiscal year ending the thirtieth day of June,
two thousand six; and",
On page two, line two of the preamble, following the word "revenue" by inserting the words
"and the executive message",
On page two, line ten, by striking out the number "3,000,000 " and inserting in lieu thereof
the number "30,000,000 ",
And,
On page three, line thirteen, after the words "West Virginia" by striking out the remainder of
the sentence and inserting in lieu thereof the words "Department of Public Safety Death, Disability and Retirement Fund (Fund 2160)."
Having been amended, the bill was then ordered to engrossment and read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 853), and there were--yeas
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Iaquinta and Wakim.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 422) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 854), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Iaquinta and Wakim.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 422) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 4008, Relating to salaries for teachers and school service personnel
; on third reading
having been postponed in earlier proceedings, was reported by the Clerk and read a third time.
The Speaker requested that any members who were participants or beneficiaries or who had
spouses who were participants or beneficiaries in the either the old or new retirement systems to so
indicate. Those indicating affirmatively were:
Delegates Anderson, Browning, Duke, Ennis, Evans, Fragale, Hall, Leggett, Louisos,
Palumbo, Paxton, Perry, Pethtel, Poling, Proudfoot, Roberts, Romine, Rowan, Schadler, Spencer,
Stalnaker, Stephens, Sumner, Talbott, Varner, Webster and H. White.
The Speaker stated that there was uncertainty that any of the members or their spouses would
be affected by the bill and that they were also members of a class of persons who could possibly be
affected by the passage of the bill and that for those reasons he would require the members to vote.
The Speaker requested that any members who had parents, children or siblings who were
participants or beneficiaries in the either the old or new retirement systems to so indicate. Those indicating affirmatively were:
Delegates Argento, Ashley, Beach, Boggs, Caputo, Crosier, DeLong, Perdue, Pethtel,
Proudfoot, Schadler, Schoen, Sumner, Susman and Rick Thompson.
The Speaker stated that if the enumerated parents, children or siblings were not members of
the immediate household, the aforementioned House members had no direct pecuniary interest in the
bill and must vote thereon.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent
right to make, interpret and enforce our rules of procedure as established by our sovereign, non-
reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 855),
and there were--yeas 96, nays none, absent and not voting 2, paired 2, with the absent and not voting
and paired being as follows:
Absent And Not Voting: Ferrell and Wakim.
Paired: Iaquinta (For) Lane (Against)
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 4008) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 846), and there were--yeas 85, nays
4, absent and not voting 11, with the nays and absent and not voting being as follows:
Nays: Eldridge, Hamilton, Louisos and Porter.
Absent And Not Voting: Anderson, Crosier, Duke, Ferrell, Iaquinta, Lane, Longstreth,
Perdue, Romine, Tucker and Walters.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 407) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Delegate Staton asked and obtained unanimous consent that all speeches regarding H. B. 401
be printed in the Appendix to the Journal.
On motion of Delegate Staton, the Senate was requested the return of
H. B. 406, Providing that the fourth Thursday and Friday of November are "Thanksgiving
Holidays", and combining Lincoln's Birthday and Washington's Birthday into a single holiday known
as Presidents' Day to match the federal holiday.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
At 5:27 p.m., on motion of Delegate Staton, the House of Delegates recessed until 6:30 p.m.,
and reconvened at that time.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the
House of Delegates as follows:
H. B. 401, Reducing the six percent sales tax on food and food ingredients intended for human
consumption to five percent beginning January 1, 2006.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by amending the title of the bill to read as follows:
H. B. 401 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto
a new section, designated §11-15-3a; and to amend and reenact §11-15B-2 and §11-15B-2a of said
code, all relating generally to consumers sales and use taxes on food and food ingredients intended
for human consumption; reducing rate of tax on sales, purchases and uses of food and food
ingredients to five percent beginning on specified date; defining food and food ingredients and certain
other terms; providing that lower rate does not apply to sales, purchases and uses of prepared food;
authorizing legislative and emergency rules; and specifying internal effective dates.
"
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 859), and there were--yeas
91, nays 4, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Ashley, Hall, Porter and Schoen.
Absent And Not Voting: Cann, Ferrell, Iaquinta, Rick Thompson, and Wakim.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 402) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 860), and there were--yeas 93, nays
2, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Hall and Schoen.
Absent And Not Voting: Cann, Ferrell, Iaquinta, Thompson, Rick and Wakim.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 402) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the
House of Delegates as follows:
H. B. 411, Relating to amending certain provisions of the code involving horse and dog racing
and distribution of certain proceeds.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page five, by striking out everything after the enacting section and inserting in lieu thereof
the provisions of Com. Sub. for S. B. 4013.
And,
On pages one through five, by striking out the title and substituting therefor a new title, to read
as follows:
Com. Sub. for H. B. 411 - "A Bill to amend and reenact §19-23-9, §19-23-13b and §19-23-13c of the Code of West Virginia, 1931, as amended; and to amend and reenact §29-22A-10b
of said code, all relating to amending certain provisions of the code involving horse and dog racing
and distribution of certain proceeds; providing special funds, to be established by the Racing
Commission, to be used for the payment of breeders' awards, restrictive races and stakes purses;
deleting obsolete provisions; deleting the stated objective for the Fund to aid in the rejuvenation and
development of horse tracks in the state for capital improvements and other purposes; providing that
the Commission establish funds and accounts for each association and licensee rather than holding
funds in deposit in one fund; deleting current provisions concerning the distribution of balances
remaining in breeders, raisers, sire owners and purse supplement funds; clarifying the meaning of the
phrase 'sufficient horses' for purposes of pari-mutuel thoroughbred horse tracks' provision of
restricted races; providing that the requirement increasing certain purses in restricted races is only
applicable to thoroughbred racetracks that have participated in the West Virginia Thoroughbred
Development Fund for more than four consecutive years; providing the Racing Commission may
transfer funds back to the general purse fund if less than seventy-five percent of the restricted races
fail to receive enough entries; deleting the provision that prohibits associations and licensees who
qualify for alternate tax provisions contained in subsection (b), section ten, article twenty-three,
chapter nineteen of this code from eligibility for treatment under the provisions of section thirteen-b
of said article; providing that on the first day of January, two thousand six, licensed racing
associations must have a West Virginia Thoroughbred Racing Breeders' Program; clarifying
disbursement of funds for the benefit of the West Virginia Breeders' Classic; requiring Racing
Commission to conduct a study of the adequacy of funding of certain thoroughbred development
funds and requiring a report thereon to the Legislature; allowing for different uses of thoroughbred
development funds by thoroughbred racing tracks based upon differences in circumstance; deleting
provisions of the Racetrack Video Lottery Act exempting certain licensees from paying into the
thoroughbred and greyhound breeders' funds; increasing maximum amount from the general purse
fund for purposes of restricted races for the thoroughbred racetrack which participated in the
Thoroughbred Development Fund for at least four consecutive years prior to the thirty-first day of
December, one thousand nine hundred ninety-two; and making technical corrections and providing reversion of racetrack video lottery excess net terminal income diverted from the racetrack purse
funds to Workers' Compensation Debt Reduction Fund pursuant to Enrolled Senate Bill No. 1004
which took effect the twenty-ninth day of January, two thousand five, to revert to racetrack purse after
a total amount of eleven million dollars of net terminal income and excess net terminal income has
been diverted each fiscal year from the purse funds to the workers' compensation debt."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 861), and there were--yeas
90, nays 5, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Armstead, Howard, Overington, Sobonya and Walters.
Absent And Not Voting: Cann, Ferrell, Iaquinta, Thompson, Rick and Wakim.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 411) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 862), and there were--yeas 92, nays
3, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Armstead, Sobonya and Walters.
Absent And Not Voting: Cann, Ferrell, Iaquinta, Thompson, Rick and Wakim.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 411) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had receded from its amendment and
passed, a bill of the House of Delegates as follows:
H. B. 413, Providing an increase in the annual base salary of all sworn state police personnel.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had acceded to the request of the House for the return of
H. B. 406, Providing that the fourth Thursday and Friday of November are "Thanksgiving
Holidays", and combining Lincoln's Birthday and Washington's Birthday into a single holiday known
as Presidents' Day to match the federal holiday.
Delegate Staton asked and obtained unanimous consent that the bill be taken up for immediate
consideration.
The Clerk again reported amendments by the Senate to the bill.
On page two, section one, lines fourteen and fifteen, by striking out all of subdivision (10) and
inserting in lieu thereof the following:
"(10) The fourth Thursday of November is 'Thanksgiving Day';
(11) The fourth Friday of November is 'Family Values Day';".
And renumbering the remaining subdivisions.
On page three, section one, line thirty-four, by striking out the words "subdivision (13)" and
inserting in lieu thereof the words "subdivisions (13), (14) and (15)".
And,
By amending the title of the bill to read as follows:
H. B. 406 - "A Bill to amend and reenact §2-2-1 of the Code of West Virginia, 1931, as
amended, relating to state holidays; providing that the fourth Thursday and Friday of November shall
be legal holidays; combining Lincoln's and Washington's birthdays into a single Presidents' Day
holiday."
On motion of Delegate Staton, the House of Delegates concurred in part and refused to concur
in part as to the foregoing amendments, as follows:
The House concurred in the Senate amendment with an amendment on page three, section one,
line thirty-four, by striking out the words "subdivisions (13), (14) and (15)" and inserting in lieu
thereof the words "subdivisions (12), (13) and (14)".
The House refused to concur in the Senate amendment on page two, section one, lines
fourteen and fifteen.
The bill, as amended by the Senate and as further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 863), and there were--yeas
67, nays 28, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Anderson, Ashley, Azinger, Blair, Border, Canterbury, Eldridge, Ellem, Evans, Hall,
Hamilton, Howard, Lane, Leggett, Louisos, Overington, Porter, Roberts, Romine, Rowan, Schadler,
Schoen, Sobonya, Stephens, Stevens, Sumner, Trump and Walters.
Absent And Not Voting: Cann, Ferrell, Iaquinta, Thompson, Rick and Wakim.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 406) passed.
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 that the Senate had passed, without amendment, to take
effect from passage, bills of the House of Delegates as follows:
H. B. 420, Expiring funds into the unappropriated surplus balance in the state fund, general
revenue, and supplementing and increasing an item of appropriation in the aforesaid account,
And,
H. B. 422, Supplemental appropriation to the Department of Administration, consolidated
public retirement board.
At 7:24 p.m., on motion of Delegate Staton, the House of Delegates recessed until 8:00 p.m.,
and reconvened at that time.
Miscellaneous Business
Delegate Frich announced that she was absent when the vote was taken on Roll Call No. 808,
and had she been present, she would have voted "Nay" thereon.
Delegate Duke announced that he was absent when the votes were taken on Roll Call Nos.
845 and 846, and had he been present, she would have voted "Yea" thereon.
Delegate Perdue announced that he was absent when the votes were taken on Roll Call Nos.
845 through 848, and had he been present, he would have voted "Yea" thereon.
Delegate Romine announced that he was absent when the votes were taken on Roll Call Nos.
847 and 848, and had he been present, he would have voted "Yea" thereon.
At the request of Delegate Staton, and by unanimous consent, permission was granted the
Joint Committee on Enrolled Bills, after it had examined, found truly enrolled and presented to His
Excellency, the Governor, for his action, bills passed but not presented to him prior to adjournment
of this session of the Legislature, to file its report with the Clerk and that such reports be included in
the final Journal of this session, and that communications from His Excellency, the Governor, as to
his action on bills after adjournment of the session, also be included in the Journal.
In accordance with the foregoing unanimous consent request, Delegate Browning filed reports
of the Joint Committee on Enrolled Bills as follows:
September 16, 2005
(H. B. 401), Reducing the six percent sales tax on food and food ingredients intended for
human consumption to five percent beginning January 1, 2006,
(Com. Sub. for H. B. 402), Requiring the disclosure of electioneering communications and
prohibiting political organizations from accepting contributions in excess of one thousand dollars per
election,
(H. B. 403), Providing for a technical correction relating to benefits of spouses and children
of state troopers who die in the line of duty,
(H. B. 405), Changing West Virginia's Unemployment Compensation law to conform it to
federally mandated legislation,
(H. B. 406), Providing that the fourth Thursday and Friday of November are "Thanksgiving
Holidays", and combining Lincoln's Birthday and Washington's Birthday into a single holiday known
as Presidents' Day to match the federal holiday
(H. B. 407), Providing that department secretaries may transfer employees between
departments in certain instances,
(Com. Sub. for H. B. 411), Relating to amending certain provisions of the code involving
horse and dog racing and distribution of certain proceeds,
(Com. Sub. for H. B. 412), Relating generally to Workers' Compensation,
(Com. Sub. for H. B. 413), Providing an increase in the annual base salary of all sworn state
police personnel,
(Com. Sub. for H. B. 414), Supplementing and amending chapter sixteen, Acts of the
Legislature, regular session, two thousand five, as amended known as the budget bill, providing for
salary increases for public employees,
(Com. Sub. for H. B. 417), Making a supplementary appropriation to the West Virginia
Conservation Agency, to the Department of Health and Human Resources, Division of Human
Services, ....etc.,
(H. B. 420), Expiring funds into the unappropriated surplus balance in the state fund, general
revenue, and supplementing and increasing an item of appropriation in the aforesaid account,
(H. B. 422), Supplemental appropriation to the Department of Administration, consolidated
public retirement board.
(S. B. 4002), Allowing additional elections at primary elections; removing certain language,
(S. B. 4006), Relating to accountability of persons receiving state funds or grant,
(S. B. 4008), Relating to salaries for teachers and school service personnel,
(S. B. 4010), Relating to proposed merger of Teachers' Defined Contribution Retirement
System with State Teachers Retirement System,
(S. B. 4014), Making supplementary appropriation of Lottery Commission, Excess Lottery
Revenue Fund Surplus,
(S. B.4015), Supplementing, amending, reducing and increasing items of existing
appropriation from Department of Agriculture, Fees Funds,
(S. B. 4016), Making supplementary appropriation to Department of Agriculture, Agricultural
Land Protection Authority,
And,
(S. B. 4017), Supplementing, amending, reducing and increasing items of existing
appropriations from State Fund, General Revenue, to Division of Human Services and Higher
Education Policy Commission.
On motion of Delegate Staton, the Speaker was authorized to appoint a committee of three to notify the Senate that the House of Delegates had completed the business of the Fourth
Extraordinary Session of the Seventy-seventh Legislature and was ready to adjourn sine die.
Whereupon,
The Speaker appointed as members of such committee the following:
Delegates Hunt, Williams and Frich.
On motion of Delegate Staton, the Speaker was authorized to appoint a committee of three
on the part of the House of Delegates, to join with a similar committee of the Senate, to inform His
Excellency, the Governor, that the Legislature was ready to adjourn sine die.
Whereupon,
The Speaker appointed as members of such committee:
Delegates Hrutkay, Manchin and Carmichael.
Leaves of Absence
At the request of Delegate Staton, and by unanimous consent, leave of absence for the day was
granted Delegate Ferrell.
Messages from the Senate
A message from the Senate, by
Senators Jenkins, White and Minear, announced that the Senate had completed the business
of this Fourth Extraordinary Session and was ready to adjourn sine die.
Delegate Hunt, from the committee to notify the Senate of impending sine die adjournment,
announced that the committee had performed that duty.
Delegate Hrutkay, from the committee to inform His Excellency, the Governor, that the
Legislature had completed the business of this Fourth Extraordinary Session and was ready to adjourn
sine die, announced the performance of that duty.
Messages from the Executive
Subsequent to the adjournment of the session, communications were received from His
Excellency, the Governor, advising that on September 19, 2005, he approved Com. Sub. for H. B.414,
H. B. 420, Com. Sub. for H. B. 417, H. B. 422, S. B. 4014, S. B. 4015, S. B. 4016 and S. B. 4017;
and on September 28, 2005, he approved H. B. 401, H. B. 403, H. B. 405, H. B. 406, H. B. 407, Com. Sub. for H. B. 413, S. B. 4002 and S. B. 4010; and on September 30, he approved H. B. 402, H. B.
411, Com. Sub. for H. B. 412, S. B. 4006 and S. B. 4008.
There being no further business to come before the House, at 8:29 p.m., on motion of Delegate
Staton, the House of Delegates adjourned sine die.