(CLERK'S NOTE: SEE PRINTED JOURNAL FOR OFFICIAL VERSION)

WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SEVENTH LEGISLATURE

REGULAR SESSION, 2005

FOURTEENTH DAY

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Charleston, W. Va., Tuesday, February 22, 2005

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

Prayer was offered by Dr. Earl Hissom III, Hissom Tabernacle Church, Charleston, West Virginia.
Pending the reading of the Journal of Monday, February 21, 2005,
On motion of Senator Deem, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
Senator Tomblin (Mr. President) presented a communication from the Office of Tax Appeals, submitting its annual report as required by chapter eleven, article ten-a, section seven of the code of West Virginia.
Which communication and report were received and filed with the Clerk.
The Senate proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 2328--A Bill to amend and reenact §6-9A-11 of the Code of West Virginia, 1931, as amended, relating to advisory opinions of the West Virginia Ethics Commission committee generally; and providing that reliance on a written advisory opinion is a defense in certain actions.
Referred to the Committee on Government Organization; and then to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 2333--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §22-27-1, §22-27-2, §22-27-3, §22-27-4, §22-27-5, §22- 27-6, §22-27-7, §22-27-8, §22-27-9, §22-27-10, §22-27-11 and §22- 27-12, all relating to establishing a program to encourage voluntary reclamation of lands adversely affected by mining by limiting the liability which could arise as a result of the voluntary reclamation of abandoned lands or reduction and abatement of water pollution; stating legislative purpose and intent; setting forth legislative findings; providing definitions for applicable terms; defining eligibility for the protections and immunities; setting forth specific exemptions from liability for landowners; setting forth specific exemptions from liability for persons who provide equipment at no cost or at cost for a reclamation project; and providing exceptions to coverage under the proposed legislation.
Referred to the Committee on Energy, Industry and Mining; and then to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 2449--A Bill to amend and reenact §21-9-13 of the Code of West Virginia, 1931, as amended, relating to continuation of West Virginia Board of Manufactured Housing Construction and Safety.
Referred to the Committee on Government Organization.
The Senate proceeded to the fourth order of business.
Senator Fanning, from the Committee on Natural Resources, submitted the following report, which was received:
Your Committee on Natural Resources has had under consideration
Senate Bill No. 107, Providing person may not be trespassing if dog pursues animal on another's property.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
John Pat Fanning,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on the Judiciary.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 122, Allowing certain state-chartered banks to organize as limited liability companies.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 208, Establishing marriage license discount if applicants complete premarital counseling.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance, with an amendment from the Committee on the Judiciary pending.
Senator McCabe, from the Committee on Economic Development, submitted the following report, which was received:
Your Committee on Economic Development has had under consideration
Senate Bill No. 218, Providing public employers may participate in workforce development initiative in certain cases.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Brooks F. McCabe, Jr.,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance.
Senator McCabe, from the Committee on Economic Development, submitted the following report, which was received:
Your Committee on Economic Development has had under consideration
Senate Bill No. 221, Creating Self-Employment Assistant Act.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Brooks F. McCabe, Jr.,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were introduced, read by their titles, and referred to the appropriate committees:
By Senators Prezioso, Minard, Dempsey, Kessler, Deem, Oliverio and Hunter:
Senate Bill No. 243--A Bill to amend and reenact §18-5-22 of the Code of West Virginia, 1931, as amended, relating to requiring county boards of education to employ one full-time school nurse for every one thousand five hundred students in kindergarten through the twelfth grade.
Referred to the Committee on Education; and then to the Committee on Finance.
By Senators Love, White, Dempsey, Foster and McCabe:
Senate Bill No. 244--A Bill to amend and reenact §18B-1B-6 of the Code of West Virginia, 1931, as amended; to amend and reenact §18B-2-9 of said code; and to amend and reenact §18B-2A-1 of said code, all relating generally to the consolidation of administrative, information, technological, financial and operating systems and functions of West Virginia University Institute of Technology with and into such systems and functions of West Virginia University; providing that the President of West Virginia University Institute of Technology shall report to the President of West Virginia University or otherwise as the Board of Governors of West Virginia University directs; authorizing the Board of Governors of West Virginia University to combine and consolidate the administrative, information, technological, financial and operating systems and functions of West Virginia University Institute of Technology with and into such systems and functions of West Virginia University; providing that the auxiliary enterprises of West Virginia University Institute of Technology shall be incorporated into the West Virginia University Auxiliary Enterprise System; and providing that two members of the Board of Advisers for West Virginia University Institute of Technology be placed on the Board of Governors at West Virginia University.
Referred to the Committee on Education.
By Senators Chafin, Hunter, Oliverio, Kessler and Jenkins:
Senate Bill No. 245--A Bill to repeal §3-8-5c of the Code of West Virginia, 1931, as amended; to amend and reenact §3-8-1, §3-8- 2, §3-8-4, §3-8-7, §3-8-8 and §3-8-12 of said code; and to amend said code by adding thereto two new sections, designated §3-8-1a and §3-8-2b, all relating to regulating elections; requiring the disclosure of electioneering communications; prohibiting corporate disbursements for electioneering communications; and imposing limitations on contributions to political action committees and political organizations.
Referred to the Committee on the Judiciary.
By Senators Hunter, Minard, Oliverio, White, Harrison, McKenzie, Sharpe, Barnes, Kessler and Jenkins:
Senate Bill No. 246--A Bill to amend and reenact §17B-1-1 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §17C-1-67; and to amend and reenact §17C-5A-3a of said code, all relating to mandatory participation in the Motor Vehicle Alcohol Test and Lock Program for repeat offenders; defining "conviction" to include convictions by pleas of nolo contendere or guilty or by a finding of guilt by a judicial officer or jury; providing for mandatory participation in the Motor Vehicle Alcohol Test and Lock Program for those convicted of certain DUI offenses; expanding eligibility for DUI offenders who are currently ineligible to participate; setting forth eligibility requirements; setting various minimum revocation periods and periods for the use of the interlock device; allowing the Commissioner to extend the minimum revocation and participation periods in certain circumstances; modifying criminal provisions related to attempting to bypass the interlock device; clarifying the "job-site" exception to the prohibition against operating a vehicle without the interlock device; and deleting provisions allowing the Commissioner to provide additional interlock devices for employment purposes as well as others relating to restoration of a revoked license.
Referred to the Committee on the Judiciary.
By Senators Chafin, Hunter, Kessler, Jenkins, White, Foster, McCabe and Dempsey:
Senate Bill No. 247--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §3-12-1, §3-12-2, §3-12-3, §3-12-4, §3-12-5, §3-12-6, §3-12-7, §3-12-8, §3-12-9, §3-12-10, §3-12-11, §3-12-12, §3-12-13, §3-12-14, §3-12-15, §3-12-16, §3-12-17, §3-12-18, §3-12-19, §3-12-20 and §3-12-21, all relating generally to providing a pilot project for the public funding of election campaigns for two Senate districts and three single-member House of Delegates districts; setting forth a short title and certain legislative findings and declarations; defining terms; specifying that the provisions of said article are applicable to candidates for seats in the Legislature, including two Senate districts and three single-member House of Delegates districts; establishing a Public Campaign Financing Fund and sources of revenue for the Fund; requiring an applicant for public campaign funding to complete a declaration of intent and setting forth the manner in which application for funding may be made; setting forth eligibility criteria for a qualifying party and independent candidates; allowing participating candidates to raise from private sources and spend seed money contributions; requiring candidates seeking public campaign funds to collect a required number of qualifying contributions; requiring participating candidates to comply with all provisions of the article; requiring the State Election Commission to certify eligible candidates and setting forth the procedure for certification; providing that qualified candidates receive funding for election campaigns from the Public Campaign Financing Fund; specifying the amount of funds available for each office and when the funds become available; setting forth restrictions on participating candidates' contributions and spending; prohibiting participating candidates from accepting private contributions other than as specifically set forth in said article; prohibiting the use of personal funds for certain purposes; requiring certain disclosures; setting forth provisions in the event of insufficient public funds; requiring candidates to keep records and report to the State Election Commission; providing for matching public campaign funds when an opponent spends in excess of the participating candidate's spending limits; setting forth certain duties of the State Election Commission; providing for the deposit of certain revenue into the Fund; requiring repayment of excessive expenditures by candidates; providing both civil and criminal penalties for violations of provisions of said article; establishing the West Virginia Citizens' Publicly Financed Elections Commission and setting forth its duties; and setting forth an effective date and termination date of the pilot project.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Plymale, Edgell, Dempsey, Minard and Jenkins:
Senate Bill No. 248--A Bill to amend and reenact §18-2J-6 of the Code of West Virginia, 1931, as amended, relating to the requirement that technology expenditures be made in accordance with the Education Technology Strategic Plan.
Referred to the Committee on Education.
By Senators Love and Weeks:
Senate Bill No. 249--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-42-9, relating to providing that when, during the course of an abortion procedure, a fetus is aborted alive, all available medical means be utilized to preserve its life; and prescribing criminal penalties for violations of said section.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
By Senator Plymale:
Senate Bill No. 250--A Bill to amend and reenact §18-2-25 of the Code of West Virginia, 1931, as amended; and to amend and reenact §29A-1-3 of said code, all relating to eliminating authority of Secondary School Activities Commission to promulgate rules; transferring the Commission's rules to the State Board of Education; requiring the rules to be promulgated in accordance with current statutory rule-making procedures for the State Board; and requiring rules relating to the eligibility of students who transfer.
Referred to the Committee on Education.
By Senators Minard, Jenkins and Sharpe:
Senate Bill No. 251--A Bill to amend and reenact §31A-8A-8 of the Code of West Virginia, 1931, as amended, relating to the assessment date for bank holding companies.
Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
By Senators Unger, McKenzie, Minard, Bailey, Dempsey, Barnes, Jenkins, Oliverio and Hunter:
Senate Bill No. 252--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §15-1B-27, relating to creating a fund to reimburse group life insurance premiums paid by members of the National Guard in exchange for and in recognition of their assumption of extended periods of active duty in combat areas; establishing a Service Members' Life Insurance Reimbursement Fund in the state Treasury; requiring promulgation of emergency rules; and providing for appropriations to the Fund.
Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
By Senators Minard and Sharpe:
Senate Bill No. 253--A Bill to amend and reenact §33-43-7 of the Code of West Virginia, 1931, as amended, relating to late filings of tax returns to the Insurance Commissioner; permitting the Commissioner to waive or reduce the penalty; and establishing the standard for granting waiver or reduction.
Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
By Senator Minard:
Senate Bill No. 254--A Bill to amend and reenact §33-38-2, §33-38-3 and §33-38-13 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §33-38-3a and §33-38-14, all relating to reinsurance intermediaries; defining terms; establishing licensing requirements and procedures; setting fees; providing for service of process; and providing for reciprocity in certain instances.
Referred to the Committee on Banking and Insurance.
Petitions

Senator Guills presented a petition from Darlene Zobrist and numerous West Virginia residents, requesting the Legislature to enact strict and more enforceable laws pertaining to juvenile offenders.
Referred to the Committee on the Judiciary.
Senator Oliverio presented a petition from Janis H. Savage and numerous Magistrate Court employees, supporting Senate Bill No. 242 (Increasing salaries for magistrate clerks, assistants and deputy clerks) and House Bill No. 2235 (Increasing salaries for magistrate clerks, magistrate assistants and magistrate deputy clerks).
Referred to the Committee on the Judiciary.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 23, Requesting Joint Committee on Government and Finance study post-construction stormwater runoff.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Rules.
Senate Concurrent Resolution No. 24, Recognizing and supporting continued promotion of state apiary industry.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Agriculture.
Senate Concurrent Resolution No. 25, Requesting Joint Committee on Government and Finance study creating small disadvantaged business loan pool.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Rules.
The Senate proceeded to the eighth order of business.
Eng. Senate Bill No. 213, Continuing Oral Health Program.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 213) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 213) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 214, Continuing Acupuncture Board.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 214) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 214) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 215, Continuing Board of Accountancy.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 215) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 215) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the ninth order of business.
Com. Sub. for Senate Bill No. 17, Establishing requirements for receipt of public money by business entities.
On second reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Oliverio, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senators Sprouse, Bowman, Prezioso and Kessler.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Wednesday, February 23, 2005, at 11 a.m.
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