WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SEVENTH LEGISLATURE

REGULAR SESSION, 2006

FIFTEENTH DAY

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Charleston, W. Va., Wednesday, January 25, 2006

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

Lana Ann Bibbee of Charleston, West Virginia, proceeded in the performing of sign language to "God Bless America".
Pending the reading of the Journal of Tuesday, January 24, 2006,
On motion of Senator Dempsey, 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 Education and State Employees Grievance Board, submitting its annual report, in accordance with chapter eighteen, article twenty- nine, section five of the code of West Virginia.
Which report was received and filed with the Clerk.
Senator Tomblin (Mr. President) presented a communication from the West Virginia Lottery, submitting its annual report as required by chapter twenty-nine, article twenty-two, section twenty 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, to take effect from passage, and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4019--A Bill to repeal §4-1-18 of the Code of West Virginia, 1931, as amended, relating to the preparation and distribution of a digest or summary of the budget bill.
Referred to the Committee on Finance.
The Senate proceeded to the fourth order of business.
Senator White, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 24th day of January, 2006, presented to His Excellency, the Governor, for his action, the following bill, signed by the President of the Senate and the Speaker of the House of Delegates:
(Com. Sub. for S. B. No. 247), Creating Mine and Industrial Accident Rapid Response System.
Respectfully submitted,
C. Randy White,
Chair, Senate Committee.
Richard Browning,
Chair, House Committee.
Senator Prezioso, from the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under consideration
Senate Bill No. 75, Prohibiting sale of candy- or fruit-flavored cigarettes.
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,
Roman W. Prezioso, Jr.,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on the Judiciary.
Senator Prezioso, from the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under consideration
Senate Bill No. 112, Establishing Alzheimer's Disease Registry.
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,
Roman W. Prezioso, Jr.,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance.
Senator Minard, from the Committee on Banking and Insurance, submitted the following report, which was received:
Your Committee on Banking and Insurance has had under consideration
Senate Bill No. 162, Creating Affordable Health Insurance Act.
With amendments from the Committee on Health and Human Resources pending;
And has also amended same.
And reports the same back with the recommendation that it do pass as amended by the Committee on Health and Human Resources to which the bill was first referred; and as last amended by the Committee on Banking and Insurance; but under the original triple committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Joseph M. Minard,
Chair.
At the request of Senator Helmick, as chair of the Committee on Finance, unanimous consent was granted to dispense with the third committee reference of the bill contained in the foregoing report from the Committee on Banking and Insurance.
Senator Minard, from the Committee on Banking and Insurance, submitted the following report, which was received:
Your Committee on Banking and Insurance has had under consideration
Com. Sub. for Senate Bill No. 164 (originating in the Committee on Health and Human Resource), Creating preventive care clinic-based pilot program.
And reports back a committee substitute for same with the following title:
Com. Sub. for Com. Sub. for Senate Bill No. 164 (originating in the Committee on Banking and Insurance)--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-2J-1, §16-2J-2, §16-2J-3, §16-2J-4, §16-2J- 5, §16-2J-6, §16-2J-7, §16-2J-8 and §16-2J-9, all relating to a pilot program authorizing participating health care clinics and private medical practitioners to provide primary and preventive health services for a prepaid fee; declaring legislative intent; authorizing approval of participants based on guidelines by the Health Care Authority and the Insurance Commissioner; requiring licensure by the Health Care Authority; authorizing the Insurance Commissioner to approve fees, marketing materials and forms and to certify financial soundness; authorizing study of the program by the Health Care Authority; providing for legislative rules; mandating a Health Care Authority report to the Legislative Oversight Commission on Health and Human Resources Accountability; setting grounds for revocation, suspension and failure to renew licenses; and creating penalties.
With the recommendation that the committee substitute for committee substitute do pass; but under the original triple committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Joseph M. Minard,
Chair.
At the request of Senator Helmick, as chair of the Committee on Finance, unanimous consent was granted to dispense with the third committee reference of the bill contained in the foregoing report from the Committee on Banking and Insurance.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were introduced, read by their titles, and referred to the appropriate committees:
By Senator Hunter:
Senate Bill No. 262--A Bill to amend and reenact §61-8-14 of the Code of West Virginia, 1931, as amended, relating to providing fines imposed following convictions for desecrating cemeteries be paid directly to the cemetery for the purpose of repairing the damage caused by the desecration.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senator Bailey:
Senate Bill No. 263--A Bill to repeal §3-4-1, §3-4-2, §3-4-3, §3-4-4, §3-4-5, §3-4-6, §3-4-7, §3-4-8, §3-4-9, §3-4-10, §3-4-11, §3-4-12, §3-4-12a, §3-4-13, §3-4-14, §3-4-15, §3-4-16, §3-4-17, §3-4-18, §3-4-19, §3-4-20, §3-4-21, §3-4-22, §3-4-23, §3-4-24, §3-4-25, §3-4-26, §3-4-27, §3-4-28, §3-4-29, §3-4-30, §3-4-31 and §3-4-32 of the Code of West Virginia, 1931, as amended; to repeal §3-4A-1, §3-4A-2, §3-4A-3, §3-4A-4, §3-4A-5, §3-4A-6, §3-4A-7, §3-4A-8, §3-4A-9, §3-4A-9a, §3-4A-9b, §3-4A-10, §3-4A-10a, §3-4A-11, §3-4A-11a, §3-4A-12, §3-4A-13, §3-4A-13a, §3-4A-14, §3-4A-15, §3-4A-16, §3-4A-17, §3-4A-18, §3-4A-19, §3-4A-19a, §3-4A-20, §3-4A-21, §3-4A-22, §3-4A-23, §3-4A-24, §3-4A-24a, §3-4A-25, §3-4A-26, §3-4A-27, §3-4A-28, §3-4A-29, §3-4A-30, §3-4A-31, §3-4A-32, §3-4A-33 and §3-4A-34 of said code; and to amend and reenact §3-1-21 of said code, relating to the requirement that only paper ballots be used in all elections in this state; and that voting machines and electronic voting machines are not to be utilized for election purposes.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Bailey, McKenzie, Minear, Harrison and Love:
Senate Bill No. 264--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §2-1-3, relating to making English the official language of West Virginia.
Referred to the Committee on the Judiciary.
By Senators Hunter, Dempsey, Edgell, Jenkins, Unger and Love:
Senate Bill No. 265--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated º29-1I-6, relating to adding to the West Virginia Veterans Memorial Monument the names of West Virginia veterans who died in action in Kosovo, Afghanistan and Iraq.
Referred to the Committee on Military; and then to the Committee on Finance.
By Senator Bailey:
Senate Bill No. 266--A Bill to amend and reenact §17A-3-2 of the Code of West Virginia, 1931, as amended, relating to providing that any trailer that is pulled by a motor vehicle exhibit its vehicle identification number via an attached plate.
Referred to the Committee on Transportation and Infrastructure.
By Senators Hunter, Dempsey, Unger and Love:
Senate Bill No. 267--A Bill to amend and reenact §5-16-5 of the Code of West Virginia, 1931, as amended, relating to preventing the Public Employees Insurance Agency from raising retired employees' premiums more than five percent above premium rates in effect on the first day of January, two thousand six, until the Legislature enacts a cost of living adjustment for retired employees receiving annuities from public retirement plans administered by the Consolidated Retirement Board.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators McKenzie and Bowman:
Senate Bill No. 268--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §24B-1-3, relating to requiring a mandatory alert when natural gas or other petroleum product pipeline facilities are observed in a damaged state during commercial activities in the vicinity of pipeline facilities; and providing for civil and criminal penalties.
Referred to the Committee on the Judiciary.
By Senators Minard, Jenkins, Barnes and Plymale:
Senate Bill No. 269--A Bill to amend and reenact §31A-4-26 of the Code of West Virginia, 1931, as amended, relating to limitations on loans and extensions of credit; providing for a limitation on investments; limiting loans to executive officers and directors of banks and employees of the banking department; outlining exceptions; and creating a valuation of securities.
Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
By Senators Minard, Jenkins, Barnes and Plymale:
Senate Bill No. 270--A Bill to amend and reenact §31A-3-1 of the Code of West Virginia, 1931, as amended, relating to the appointment of members of banking institutions to the Board of Banking and Financial Institutions; and qualifications of members appointed to represent the public on the board.
Referred to the Committee on Banking and Insurance.
By Senators Minard, Jenkins, Barnes and Plymale:
Senate Bill No. 271--A Bill to amend and reenact §31A-4-35 of the Code of West Virginia, 1931, as amended, relating to the time period for which state banks must retain records.
Referred to the Committee on Banking and Insurance.
By Senators Minard, Jenkins, Barnes and Plymale:
Senate Bill No. 272--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §31A-2-8b, relating to the authority of the Commissioner of Banking to enter into contracts with depository institutions to provide loan review services; and providing that funds obtained from contracts for loan review services shall be treated the same as bank assessment funds established by said code.
Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
By Senators Minard, Jenkins and Plymale:
Senate Bill No. 273--A Bill to amend and reenact §32A-2-5 of the Code of West Virginia, 1931, as amended, relating to increasing fees for licensing of money service businesses.
Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
By Senators Prezioso, Bailey, Barnes, Guills, Hunter, Dempsey, Minear, Minard, White, Jenkins, Unger, Plymale, Caruth and Foster:
Senate Bill No. 274--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §15-2-9, relating to the creation of a special unit within the State Police specializing in child abuse and neglect investigations.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Foster, Bailey, Caruth, Dempsey, White, Barnes, Plymale, McCabe and Love:
Senate Bill No. 275--A Bill to amend and reenact §62-12-2 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §62-12-27, all relating to the administration of polygraph examinations for risk assessment and treatment purposes for sex offenders who are on probation or parole.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Barnes, Yoder, Guills, Lanham, McKenzie, Minear, Harrison, Deem, Weeks, Caruth, Sprouse, Facemyer, Dempsey, Minard, White and Love:
Senate Bill No. 276--A Bill to amend and reenact §15-12-1a, §15-12-2a, §15-12-2b, §15-12-5 and §15-12-8 of the Code of West Virginia, 1931, as amended; to amend and reenact §17B-2-3 of said code; to amend and reenact §61-2-14 of said code; to amend and reenact §61-8-6, §61-8-7 and §61-8-12 of said code; to amend and reenact §61-8B-3, §61-8B-4, §61-8B-5, §61-8B-7, §61-8B-8, §61-8B-9 and §61-8B-10 of said code; to amend and reenact §61-8C-2 and §61-8C-3 of said code; to amend and reenact §61-8D-5 and §61-8D-6 of said code; to amend said code by adding thereto a new article, designated §61-8G-1, §61-8G-2, §61-8G-3 and §61-8G-4; and to amend said code by adding thereto a new article, designated §62-11D-1, §62-11D-2, §62-11D-3, §62-11D-4, §62-11D-5, §62-11D-6, §62-11D-7, §62-11D-8, §62-11D-9, §62-11D-10, §62-11D-11, §62-11D-12, §62-11D-13, §2-11D-14, 62-11D-15, §62-11D-16, §62-11D-17, §62-11D-18, §62-11D-19 and §62-11D-20, all relating to registration of sex offenders generally; listing certain legislative findings; requiring notice to certain residents; identifying sexually violent predators; increasing prison terms of persons found guilty of violating sex offender registration requirements; providing for supervised electronic monitoring upon release; providing for special operator's license for convicted sex offender; increasing certain fines and penalties for perpetrators of sex offenses; requiring the issuance of a special motor vehicle operator's license to convicted sex offenders; establishing the "Protect Our Children Act"; establishing a rebuttable presumption that release on bond of certain sex offenders would not protect the community; providing for mandatory supervised probation; establishing a procedure for committing sexually violent predators; setting forth certain findings; requiring notice to prosecuting attorney of proposed release of sexually violent predator; providing for the filing of a commitment petition for a sexually violent predator; providing for a probable cause hearing on the petition; setting forth certain rights of the parties; requiring the filing of a petition for conditional release; setting forth procedures for determining unconditional discharge of sexually violent predator; providing for hearing on least restrictive alternative; conditional release to a less restrictive setting; providing for a global positioning system monitoring requirement for release to less restrictive community setting; providing for the apprehension of persons placed in less restrictive alternatives; hearing and revocation of placement; setting forth certain responsibilities of the Department of Health and Human Resources; approval of community service personnel by Department of Health and Human Resources; providing for the release of certain information; establishing a procedure on escape or disappearance of violent sexual offenders; notice of escape and recapture; and providing for the proposing of rules for legislative approval.
Referred to the Committee on the Judiciary.
Senators Foster and McCabe offered the following resolution:
Senate Concurrent Resolution No. 27--Requesting the Division of Highways name the bridge on County Route 47, at the intersection of New Hope Road in Pinch, Kanawha County, the "Cross Brothers' Bridge".
Whereas, World War II brought a nation together as defenders of peace and freedom to areas of the world that were being overpowered and ruled by tyrannous dictators; and
Whereas, Americans, outraged by the brutality and degradation taking place in other parts of the world, feared that America would be targeted next. Americans joined the United States military, anxious to help eliminate such abuse of power; and
Whereas, In Kanawha County, five brothers from the same family became active in military service. Raymond T. Cross and Kenneth H. Cross joined the United States Army in 1942, Arvil L. Cross joined the United States Army in 1943, Melvin M. Cross joined the United States Navy in 1943 and Dorsel E. Cross joined the United States Marine Corps in 1946; and
Whereas, Proudly, all five of the Cross brothers, who served their nation with pride and distinction, returned safely to the United States following World War II; and
Whereas, It is fitting that a lasting tribute be made not only to honor five brothers who served their nation with pride and distinction during World War II, but to also recollect a time when the nation was unified to help defeat tyranny and oppression; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name the bridge on County Route 47, at the intersection of New Hope Road in Pinch, Kanawha County, the "Cross Brothers' Bridge"; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the "Cross Brothers' Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation.
Which, under the rules, lies over one day.
Senators Hunter and Minear offered the following resolution:
Senate Concurrent Resolution No. 28--Requesting the Division of Highways name the bridge on Route 46 and Armstrong Street crossing New Creek in Keyser, Mineral County, the "Jonah E. Kelley, World War II Congressional Medal of Honor Recipient, Memorial Bridge".
Whereas, Jonah E. Kelley of Keyser, Mineral County, was born April 13, 1923, in Rada, Hampshire County; and
Whereas, Jonah E. Kelley served his nation with pride and distinction in the United States Army during World War II and attained the rank of Staff Sergeant; and
Whereas, S/Sgt. Jonah E. Kelley served with the 311th Infantry of the U. S. 78th Infantry Division; and
Whereas, During World War II, S/Sgt. Jonah E. Kelley was in charge of an E Company squad. On January 30, 1945, he led his men through intense mortar and small arms fire in Kesternich, Germany. S/Sgt. Kelley was wounded twice by mortar fragments, once in the back and once in his left hand. S/Sgt. Kelley continued to lead his men in their slow but steady advancement and never left them to seek medical attention for his wounds; and
Whereas, At dawn on January 31, 1945, S/Sgt. Jonah E. Kelley and his men resumed their attack and advanced to a point where heavy automatic and small arms fire stalled their advancement. S/Sgt. Kelley moved out alone, encountering an enemy machine gun nest. Despite being shot several times, S/Sgt. Kelley emptied his rifle at the enemy position. He died minutes later from the wounds he received. The courage that S/Sgt. Kelley displayed inspired his men to push forward and penetrate the last line of defense held by the enemy; and
Whereas, In recognition of his heroic efforts and selfless dedication to his men and the nation he served, S/Sgt. Jonah E. Kelley was posthumously awarded the Congressional Medal of Honor; and
Whereas, It is fitting that a bridge be named in honor of S/Sgt. Jonah E. Kelley as a lasting tribute to his service and sacrifice to this nation; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name the bridge on Route 46 and Armstrong Street crossing New Creek in Keyser, Mineral County, the "Jonah E. Kelley, World War II Congressional Medal of Honor Recipient, Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the "Jonah E. Kelley, World War II Congressional Medal of Honor Recipient, Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation.
Which, under the rules, lies over one day.
Senators Unger, Dempsey, Edgell, Jenkins, Oliverio and Prezioso offered the following resolution:
Senate Concurrent Resolution No. 29--Designating the month of December, 2006, as West Virginia Legislature's Back to School Month.
Whereas, West Virginia was created as a representative democracy in which all governmental power is inherent in the people who exercise that power through the legislative, executive and judicial branches; and
Whereas, In recent years, citizen interest in government and knowledge of the political system has declined, in part, due to a weakening belief in, and a lack of understanding of, the virtues and knowledge needed for a successful democratic form of government; and
Whereas, Benjamin Rush, signer of the Declaration of Independence, stated, "There is but one method of rendering a republican form of government durable, and that is by disseminating the seeds of virtue and knowledge through every part of the state by means of proper places and modes of education and this can be done effectively only by the aid of the legislature"; and
Whereas, The National Conference of State Legislatures (NCSL) has adopted a resolution which states that the operation of state legislatures and the roles of individual legislators are often little understood by citizens and that public understanding of the institutions and processes of the government is critical to building public trust and confidence; and
Whereas, The NCSL resolution also states that state legislatures need to bring about better understanding of the concept of representative democracy and should emphasize the importance of compromise and the difficulty of resolving competing interests in a diverse society; and
Whereas, Civic education is a vital tool to promote greater understanding of the legislative institution and the role of legislators in representative democracy; and
Whereas, The NCSL urges state legislatures to promote civic education about representative democracy; and
Whereas, The NCSL has established America's Legislators Back to School Program, a national event in which state legislators across the nation visit schools and classrooms to talk about the legislature and to observe activities in the schools; and
Whereas, To meet the specific civic education needs of the students of West Virginia, the West Virginia Legislature developed the West Virginia Legislature's Back to School Program, modeled and supported by the NCSL's America's Legislators Back to School Program; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby designates the month of December, 2006, as West Virginia Legislature's Back to School Month; and, be it
Further Resolved, That the Legislature hereby supports civic education to promote greater understanding of the legislative institution and the role of legislators in a representative democracy; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the National Conference of State Legislatures.
Which, under the rules, lies over one day.
Senators Prezioso, Dempsey, Edgell, Minear, Minard, Jenkins, Unger, Oliverio, Plymale, McCabe and Hunter offered the following resolution:
Senate Resolution No. 6--Designating January 25, 2006, as "Disability Advocacy Day".
Whereas, There are approximately 400,000 West Virginians with disabilities; and
Whereas, People with disabilities have the right to receive the support they need to exercise self-determination, achieve independence and become productive employees in the workplace; and
Whereas, West Virginia's citizens with disabilities have banded together in a collective group, called the Fair Shake Network, to help bring their concerns to the forefront of public awareness; and
Whereas, Such organizations as the Appalachian Center for Independent Living, Mental Health Association of Monongalia County, Mountain State Centers for Independent Living, Northern West Virginia Center for Independent Living, West Virginia Advocates, West Virginia Assistive Technology System, West Virginia Developmental Disabilities Council, West Virginia Mental Health Consumers Association, West Virginia Statewide Independent Living Council, West Virginia Division of Rehabilitation Services, ARC of the Three Rivers, West Virginia Real Choice, West Virginia Autism Training Center and West Virginia Senior Medicare Patrol program have joined together to help increase public awareness of issues involving the many concerns of West Virginians with disabilities; and
Whereas, The purpose of Disability Advocacy Day is to increase the awareness of legislators, administrators, policymakers and the public of the public policy issues that are important to people with disabilities; therefore, be it
Resolved by the Senate:
That the Senate hereby designates January 25, 2006, as "Disability Advocacy Day"; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate representatives of the Fair Shake Network.
At the request of Senator Prezioso, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and proceeded to the seventh order of business.
Senate Concurrent Resolution No. 25, Requesting Joint Committee on Government and Finance study state agencies' use of certain state-owned facilities.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Rules.
Senate Concurrent Resolution No. 26, Requesting Joint Committee on Government and Finance study state and local tax structure.
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 twelfth order of business.
Remarks were made by Senators Deem, Fanning, Boley, Chafin, Oliverio and Plymale.
Thereafter, at the request of Senator Oliverio, and by unanimous consent, the remarks by Senator Chafin were ordered printed in the Appendix to the Journal.
At the request of Senator Sprouse, unanimous consent being granted, the remarks by Senators Deem and Boley were ordered printed in the Appendix to the Journal.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Love, and by unanimous consent, it was ordered that the Journal show had Senator Love been present in the chamber on yesterday, Tuesday, January 24, 2006, he would have voted "yea" on the passage of Engrossed Senate Bill No. 13.
Pending announcement of meetings of standing committees of the Senate, including a minority party caucus,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Thursday, January 26, 2006, at 11 a.m.
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