WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SEVENTH LEGISLATURE

REGULAR SESSION, 2006

THIRTY-FOURTH DAY

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Charleston, W. Va., Monday, February 13, 2006

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

Prayer was offered by Sanford Lee Johnston, Judith A. Herndon Legislative Fellows Program intern, Huntington, West Virginia.
Pending the reading of the Journal of Friday, February 10, 2006,
On motion of Senator Oliverio, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4004--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17C-6-7a, relating to prohibiting the use of a traffic law photo-monitoring device by police officers to detect traffic law violations; defining "traffic law photo-monitoring device"; providing that evidence obtained by the use of a traffic law photo-monitoring device may not be used to prove a violation of a traffic law; and providing that this section does not prohibit the use of microwave devices to prove violations of a traffic law.
Referred to the Committee on Transportation and Infrastructure; 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. Com. Sub. for House Bill No. 4129--A Bill to amend and reenact §29-19-13 of the Code of West Virginia, 1931, as amended, relating to providing that a professional solicitor may not solicit a person over the telephone for a contribution on behalf of a charitable organization unless, upon request, the professional solicitor provides a full disclosure to the person of the percentage of the contribution that will go to the professional solicitor and the percentage of the contribution that will go to the charitable organization.
Referred 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. Com. Sub. for House Bill No. 4313--A Bill to amend and reenact §48-27-510 of the Code of West Virginia, 1931, as amended, relating to petitions of appeal of domestic violence protective orders.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 26--Naming the new bridge spanning the Elk River in Clendenin, West Virginia, the "Hardman Brothers Bridge".
Whereas, The Hardman Brothers, Harper, Harry, Jack, Robert and Lawrence, grew up and attended school in Clendenin, West Virginia, and each later unselfishly served this country in the armed services; and
Whereas, Harper Hardman, now deceased, served in the Air Force from 1941 to 1971 in World War II, Korea and Vietnam; and
Whereas, Harry Hardman served in the Navy from 1941 to 1974 in World War II, Korea and Vietnam; and
Whereas, Jack Hardman served in the Navy from 1948 to 1971 in Korea and Vietnam; and
Whereas, Richard Hardman served in the Army from 1949 to 1954 in Korea; and
Whereas, Robert Hardman served in the Air Force from 1951 to 1973 in Korea and Vietnam; and
Whereas, These five brothers served, combined, over one hundred years of active duty military service, including service during World War II, the Korean War and the Vietnam War; therefore, be it
Resolved by the Legislature of West Virginia:
That the new bridge spanning the Elk River in Clendenin, West Virginia, be named the "Hardman Brothers Bridge"; and, be it
Further Resolved, That the Commissioner of the Division of Highways is hereby requested to cause to be manufactured appropriate signs with the prominent display of the words "Hardman Brothers Bridge" and to erect same at either end of the bridge spanning the Elk River in Clendenin, West Virginia; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the West Virginia Chapter of the Veterans of Foreign Wars, Post 3522 of the Fourth District, located in this state and to the Commissioner of the Division of Highways.
Referred to the Committee on Transportation and Infrastructure.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills and joint resolution were introduced, read by their titles, and referred to the appropriate committees:
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 558-- A Bill to amend and reenact §6-7-2a of the Code of West Virginia, 1931, as amended; to amend and reenact §9A-1-5 of said code; to amend and reenact §15-2-2 of said code; to amend and reenact §16-5P-5 of said code; to amend and reenact §17- 2A-3 of said code; to amend and reenact §19-1A-5 of said code; to amend and reenact §20-1-5 of said code; to amend and reenact §21-1- 2 of said code; to amend and reenact §22-1-6 of said code; to amend and reenact §24-1-3 of said code; to amend and reenact §29-1-1 of said code; and to amend and reenact §60-2-9 of said code, all relating to compensation of state officials; providing for salary adjustments for certain appointive state officers; and adjusting annual stipend for the Chair of the Public Service Commission.
 Referred to the Committee on Finance.
By Senator Bailey:
Senate Bill No. 559-- A Bill to amend and reenact §32A-3-1 and §32A-3-3 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §32A-4-1, §32A-4-2, §32A-4-3, §32A-4-4, §32A-4-5, §32A-4-6, §32A-4-7, §32A-4-7a, §32A-4-8, §32A-4-9, §32A-4-10, §32A-4-11, §32A-4-12, §32A-4-13, §32A-4-14, §32A-4-15, §32A-4-16, §32A-4-17, §32A-4-18, §32A-4-19, §32A-4-20, §32A-4-21, §32A-4-22, §32A-4-23, §32A-4-24, §32A-4-25, §32A-4-26, §32A-4-27, §32A-4-28, §32A-4-29 and §32A-4-30, all relating to regulating deferred deposit loans by establishing the Deferred Deposit Loan Consumer Protection Act.
 Referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.
By Senator Bowman:
Senate Bill No. 560--A Bill to amend and reenact §21A-1A-28 of the Code of West Virginia, 1931, as amended, relating to the Unemployment Compensation Fund generally; and providing a new method of calculating the taxable wage base for unemployment compensation at thirty-six percent of the state's average annual wage.
Referred to the Committee on Finance.
By Senators Edgell, Kessler and Hunter:
Senate Joint Resolution No. 11-- Proposing an amendment to the Constitution of the State of West Virginia, amending article X thereof, by adding thereto a new section, designated section eleven-a, relating to county and municipal excess levies; allowing excess levies of county commissions and municipalities to be approved by a majority of the votes cast for and against the excess levies; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
Senators Minear and Hunter offered the following resolution:
Senate Resolution No. 15-Congratulating the Grafton High School golf team on winning the 2005 Class AA championship.
Whereas, The Grafton High School golf team had an exceptional season which earned it the opportunity to participate in the 2005 Class AA championship tournament; and
Whereas, The Grafton High School golf team won the 2005 Class AA championship; and
Whereas, The coaching staff of the Grafton High School golf team, consisting of Mike Crutchfield and Alan DePiano, is commended for its outstanding leadership ability; and
Whereas, The members of the Grafton High School golf team, consisting of Alex DePiano, Cody Efaw, Andrew Henderson, Adam Lucas, Jordan Manning, Josh Smith, Josh Ware, Nathaniel Wright and Todd Williams, also a member of the AA All Tournament Team, are commended for their outstanding athletic ability, team spirit and sportsmanship; therefore, be it
Resolved by the Senate:
That the Senate hereby congratulates the Grafton High School golf team on winning the 2005 Class AA championship; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the Grafton High School golf team.
At the request of Senator Minear, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
 Senator Unger offered the following resolution:
Senate Resolution No. 16- Recognizing Leadership Berkeley for its service, dedication and commitment to Berkeley County.
Whereas, The objective of Leadership Berkeley is to promote knowledge and awareness of the problems, opportunities and issues facing Berkeley County; and
Whereas, Leadership Berkeley is designed to provide a series of educational and participatory experiences, as well as an opportunity for dialogue and the development of a correlation among participants in order to encourage local participation in the growth of Berkeley County; and
Whereas, The membership of Leadership Berkeley includes individuals from nearly every facet of Berkeley County's business, professional, religious, governmental, educational, civic, the arts, organized labor and minority organizations who demonstrate a commitment to the community; and
Whereas, The 2005-2006 membership of Leadership Berkeley consists of Thomas Armbrester, James Rumsey Technical Institute; Andrew Blake, Bowles, Rice, McDavid, Graff and Love Law Firm; Debbie Bonnewell, EastRidge Health Systems; Connie Burk, Premier Bank; Layne Diehl, Mountain State University; Jeanne Flowers, Big Brothers and Big Sisters; Eric Goff, Hedgesville High School; Kristy Griffith, CoxHollida; Michael Groves, City Hospital; Patricia Heck, Veterans Administration Medical Center; Kim Holmes, Veterans Administration Medical Center; Kevin Justice, Susquehanna Bank; Barry Linger, West Virginia University Health Sciences Center; Robert Lowe II, Martinsburg Rotary Club; Rick Manning, Centra Bank; Kimberly Moss, Williamsport Retirement Village; Charlotte Norris, Girl Scouts of Shawnee Council; Stefani Pierson, Boys and Girls Club; Sabrina Rebrook, Centra Bank; Ronald Rossi, Martin and Seibert; and John Woynicz, Veterans Administration Medical Center; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes Leadership Berkeley for its service, dedication and commitment to Berkeley County; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate officials of Leadership Berkeley.
At the request of Senator Unger, 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 resumed business under the sixth order.
 Senators Sprouse, Unger, Hunter, Jenkins and Minard offered the following resolution:
Senate Resolution No. 17- Designating the month of March, 2006, as "American Red Cross Month".
Whereas, The American Red Cross was founded in 1881 by Clara Barton and chartered by the United States Congress in 1905; and
Whereas, From terrorist attacks in 2001, to record-breaking hurricanes in the south and fires in the west, disasters in America have challenged our nation; and
Whereas, The American Red Cross is recognized as a humanitarian organization that provides compassionate care in times of disaster; and
Whereas, American Red Cross volunteers from West Virginia responded to more than 700 disasters in 2005 by providing food, clothing, shelter and support to victims; and
Whereas, In West Virginia, the American Red Cross has trained nearly 65,000 people in life-saving techniques such as CPR, first aid, lifeguard training, water safety and HIV/AIDS education; and
Whereas, The American Red Cross recruits West Virginians to donate life-saving blood for medical treatments; and
Whereas, The American Red Cross could not supply the vital services it provides without the generous contributions from the American people; therefore, be it
Resolved by the Senate:
That the Senate hereby designates the month of March, 2006, as "American Red Cross Month"; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate representatives of the American Red Cross.
At the request of Senator Sprouse, 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. 38, Requesting Division of Highways install traffic signals at certain U. S. Route 60 intersections.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation and Infrastructure.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for Senate Bill No. 270, Continuing Board of Banking and Financial Institutions; membership qualifications.
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, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Facemyer and Yoder--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 270) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 462, Relating to filing interstate compacts with Secretary of State.
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, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Facemyer and Yoder--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 462) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the ninth order of business.
Senate Bill No. 166, Restructuring Parole Board.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
 On page three, section twelve, line twelve, after the word "four" by inserting the words "and no less than two".
On motion of Senator Sprouse, the following amendment to the bill was next reported by the Clerk:
 On page six, section thirteen, line twenty-two, after the word "greater" by changing the period to a colon and inserting the following proviso: Provided, however, That any person who committed, or attempted to commit, any violation of section twelve, article eight, chapter sixty-one of this code; article eight-a of said chapter; article eight-b of said chapter; article eight-c of said chapter; or section three-a, five or six, article eight-d of said chapter is not eligible for parole unless the following conditions are satisfied: (i) He or she has served a minimum of ten years of his or her sentence or one half of his or her definite term sentence, whichever is greater; and (ii) it is determined by the board, with the aid of psychological or psychiatric testimony, evidence or review of mental health records, that parole would be in the best interests of the person and conditions can be imposed that would adequately protect the community.
Senator Bowman then moved that the bill be referred to the Committee on Finance.
Thereafter, at the request of Senator Bowman, and by unanimous consent, his aforestated motion was withdrawn.
Senator Bowman then arose to a point of order that Senator Sprouse's amendment was not germane to the bill.
Which point of order, the President ruled well taken.
 On motion of Senator Weeks, the following amendments to the bill (S. B. No. 166) were next reported by the Clerk and considered simultaneously:
 On page two, after the enacting section, by inserting the following:
§62-3-15. Verdict and sentence in murder cases.
If a person indicted for murder be found by the jury guilty thereof, they shall in their verdict find whether he or she is guilty of murder of the first degree or second degree. If the person indicted for murder is found by the jury guilty thereof, and if the jury find in their verdict that he or she is guilty of murder of the first degree, or if a person indicted for murder pleads guilty of murder of the first degree, he or she shall be punished by imprisonment in the penitentiary for life, and he or she, notwithstanding the provisions of article twelve of this chapter, shall not be eligible for parole: Provided, That the jury may, in their discretion, recommend mercy, and, if such recommendation is added to their verdict, such person shall be eligible for parole in accordance with the provisions of said article, except that, notwithstanding any other provision of this code to the contrary, such person shall not be eligible for parole until he or she has served fifteen twenty-five years: Provided, however, That if the accused pleads guilty of murder of the first degree, the court may, in its discretion, provide that such person shall be eligible for parole in accordance with the provisions of said article, and, if the court so provides, such person shall be eligible for parole in accordance with the provisions of said article in the same manner and with like effect as if such person had been found guilty by the verdict of a jury and the jury had recommended mercy, except that, notwithstanding any provision of said article or any other provision of this code to the contrary, such person shall not be eligible for parole until he or she has served fifteen twenty-five years.;
On page nine, section thirteen, line ninety, by striking out the word "ten" and inserting in lieu thereof the word "twenty";
On page nine, section thirteen, line ninety-three, by striking out the word "fifteen" and inserting in lieu thereof the word "twenty-five";
And,
On page nine, section thirteen, line ninety-six, by striking out the word "fifteen" and inserting in lieu thereof the word "twenty-five".
 Senator Bowman arose to a point of order that the amendments offered by Senator Weeks were not germane to the bill.
 Which point of order, the President ruled well taken.
Senator Weeks then appealed the ruling of the Chair.
The question being "Shall the Chair be sustained?"
The same was put and prevailed; and the ruling of the Chair was sustained.
 The bill (S. B. No. 166), as amended, was then ordered to engrossment and third reading.
Com. Sub. for Senate Bill No. 473, Creating crime of reckless driving resulting in serious bodily injury.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Senate Bill No. 505, Extending time for Fairmont city council to meet as levying body.
 On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
 On page two, section one, line six, after the word "Auditor" by inserting the words "and the State Tax Commissioner".
 The bill (S. B. No. 505), as amended, was ordered to engrossment and third reading.
 On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Facemyer and Yoder--2.
Engrossed Senate Bill No. 505 was then 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, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Facemyer and Yoder--2.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 505) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Facemyer and Yoder--2.
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. 505) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the tenth order of business.
Com. Sub. for Senate Bill No. 183, Creating certain special license plates.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Senate Bill No. 556, Relating to state parks and recreation system operational contracts.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
 Senate Bill No. 557, Removing requirement for Shady Spring Turnpike interchange construction; restoring tolls to prior rates.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
 The Senate proceeded to the twelfth order of business .
Remarks were made by Senators Bowman, Sprouse and Caruth.
Thereafter, at the request of Senator Guills, and by unanimous consent, the remarks by Senator Caruth were ordered printed in the Appendix to the Journal.
On motion of Senator Chafin, leaves of absence for the day were granted Senators Facemyer and Yoder.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Tuesday, February 14, 2006, at 11 a.m.
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