________*__________
Monday, August 20, 2007
SECOND DAY
[Mr. Speaker, Mr. Thompson, in the Chair]
The House of Delegates met at 6:00 p.m., and was called to order by the Honorable Richard
Thompson, Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
Quorum Call
The roll being called (Roll No. 574), and 95 members having answered to their names, the
Speaker declared the presence of a quorum.
The Clerk proceeded to read the Journal of Sunday, August 19, 2007, being the first order
of business, when the further reading thereof was dispensed with and the same approved.
Committee Reports
Chairman Webster, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
H. B. 202, Relating to the receipt and transfer of scrap metal,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
At the respective requests of Delegate DeLong, and by unanimous consent, the bill was taken
up for immediate consideration and read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk,
amending the bill a on page twelve, section forty-nine, line one hundred forty-three, after the word
"the", by striking out the word "circuit".
And,
On page thirteen, section forty-nine, line one hundred fifty-one, preceding the word "court",
by striking out the word "circuit".
At the respective requests of Delegate DeLong, and by unanimous consent, the bill was then
advanced to third reading with the amendment pending and the rule was suspended to permit the
offering and consideration of amendments on that reading.
Chairman Webster, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
H. B. 203, Creating the Address Confidentiality Program,
And reports the same back with the recommendation that it do pass.
At the respective requests of Delegate DeLong, and by unanimous consent, the bill was taken up for immediate consideration, read a second time and ordered to engrossment and third reading.
Chairman White, from the Committee on Finance, submitted the following report, which was
received:
Your Committee on Finance has had under consideration:
H. B. 210, Supplementing, amending and increasing items of existing appropriations, State
Road Fund,
H. B. 211, Supplemental appropriation, Special Revenue, New Funds,
H. B. 212, Supplemental appropriation, Special Revenue Funds, spending authority
increases,
H. B. 213, Supplemental appropriation, Federal Funds, spending authority,
H. B. 214, Expiring funds from School Building Authority to State School Building Fund,
And,
H. B. 215, Expiring funds from PSC Pipeline Safety Fund to PSC Fund,
And reports the same back with the recommendation that they each do pass.
At the respective requests of Delegate DeLong, and by unanimous consent, the bills (H. B.
210, H. B. 211, H. B. 212, H. B. 213, H. B. 214 and H. B. 215) were each taken up for immediate
consideration, read a second time and ordered to engrossment and third reading.
Chairman White, from the Committee on Finance, submitted the following report, which was
received:
Your Committee on Finance has had under consideration:
H. B. 201, Allowing a reducing modification of federal adjusted gross income to individuals
for the cost of certain turnpike tolls for state income tax purposes,
H. B. 206, Administering Tourism Promotion Fund moneys for the Courtesy Patrol and
direct advertising promoting state tourism through the internet,
And,
H. B. 209, Supplemental appropriation, State Fund, General Revenue, unappropriated
surplus,
And reports the same back, with amendment, with the recommendation that they each do
pass, as amended.
At the respective requests of Delegate DeLong, and by unanimous consent, H. B. 201 was
taken up for immediate consideration and read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page three, section twelve-h, line twenty-two, following the words
"total amount deducted" by inserting the words "for a taxable year".
And,
On page three, section twelve-h, beginning on line twenty-eight, by striking out the
following: "The tax commissioner may, but shall not be required to, adopt regulations necessary or
convenient for the implementation of this section."
There being no further amendments, the bill was then ordered to engrossment and third
reading.
At the respective requests of Delegate DeLong, and by unanimous consent, H. B. 206 was
then taken up for immediate consideration and read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.
§5B-2-12. Tourism promotion fund created; use of funds.
There is hereby continued in the State Treasury the special revenue fund known as the
'Tourism Promotion Fund' created under prior enactment of section nine, article one of this chapter.
(a) The Legislature finds that a courtesy patrol program providing assistance to motorists on
the state's highways is one of the most beneficial methods to introduce a tourist visiting the state of
the state's hospitality and good will. For that reason, four million seven hundred thousand dollars
of the moneys deposited in the fund each year shall be deposited in a special revenue account in the
State Treasury to be known as the 'Courtesy Patrol fund Fund'. Expenditures from the fund shall
be used solely to fund the courtesy patrol program providing assistance to motorists on the state's
highways. Amounts collected in the fund which are found from time to time to exceed funds needed
for the purposes set forth in this subsection may be transferred to other accounts or funds and
redesignated for other purposes by appropriation of the Legislature.
(b) If there are funds remaining after the distribution required in subsection (a) of this section,
a minimum of five percent of the moneys deposited remaining in the fund each year shall be used
solely for direct advertising for West Virginia travel and tourism. Provided, That no less than twenty
percent of these funds be expended, with the approval of the Director of the Division of Natural
Resources, to effectively promote and market the state's parks, state forests, state recreation areas
and wildlife recreational resources. Direct advertising means advertising which is limited to
television, radio, mailings, newspaper, magazines, the internet and outdoor billboards, or any
combination thereof.
(c) The balance of the moneys deposited in the fund shall be used for direct advertising
within the state's travel regions as defined by the commission. The funds shall be made available
to these districts beginning the first day of July, one thousand nine hundred ninety-five, according
to legislative rules authorized for promulgation by the Tourism Commission.
(d) All advertising expenditures over twenty-five thousand dollars from the tourism
promotion fund require prior approval by recorded vote of the commission. No member of the
commission or of any committee created by the commission to evaluate applications for advertising
or other grants may participate in the discussion of, or action upon, an application for or an award
of any grant in which the member has a direct financial interest."
There being no further amendments, the bill was then ordered to engrossment and third
reading.
At the respective requests of Delegate DeLong, and by unanimous consent, H. B. 209 was
next taken up for immediate consideration and read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page twenty-one, line one, following the words "That chapter", by
striking out the word "seven" and inserting in lieu thereof the word "twelve".
There being no further amendments, the bill was then ordered to engrossment and third
reading.
Chairman Poling, from the Committee on Education, submitted the following report, which
was received:
Your Committee on Education has had under consideration:
H. B. 205, Relating to higher education,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
At the respective requests of Delegate DeLong, and by unanimous consent, H. B. 205 was
taken up for immediate consideration and read a second time.
An amendment, recommended by the Committee on Education, was reported by the Clerk
and adopted, amending the bill on page ten, section three, line one hundred forty-two, by changing
the period to a colon and inserting the following: "Provided, That before such action, the
Commission shall provide notice to the public by a Class II legal advertisement as defined in section
two, article three, chapter fifty-nine of this code, and shall hold a public hearing on the issue."
There being no further amendments, the bill was then ordered to engrossment and third
reading.
Chairman Webster, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
H. B. 204, Establishing requirements for intercepting communications in the home of a
non-consenting party,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
At the respective requests of Delegate DeLong, and by unanimous consent, H. B. 204 was
taken up for immediate consideration and read a second time.
An amendment, recommended by the Committee on Education, was reported by the Clerk,
amending the bill on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §62-1D-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted;
and that said code be amended by adding thereto a new article, designated §62-1F-1, §62-1F-2, §62-
1F-3, §62-1F-4, §62-1F-5, §62-1F-6, §62-1F-7, §62-1F-8 and §62-1F-9, all to read as follows:
ARTICLE 1D. WIRETAPPING AND ELECTRONIC SURVEILLANCE ACT.
º62-1D-3. Interception of communications generally.
(a) Except as otherwise specifically provided in this article it is unlawful for any person to:
(1) Intentionally intercept, attempt to intercept or procure any other person to intercept or
attempt to intercept, any wire, oral or electronic communication; or
(2) Intentionally disclose or intentionally attempt to disclose to any other person the contents
of any wire, oral or electronic communication, knowing or having reason to know that the
information was obtained through the interception of a wire, oral or electronic communication in
violation of this article; and
(3) Intentionally use or disclose or intentionally attempt to use or disclose the contents of any
wire, oral or electronic communication or the identity of any party thereto, knowing or having reason
to know that such information was obtained through the interception of a wire, oral or electronic
communication in violation of this article.
(b) Any person who violates subsection (a) of this section is guilty of a felony, and, upon
conviction thereof, shall be imprisoned in the penitentiary for not more than five years or fined not
more than ten thousand dollars or both fined and imprisoned.
(c) It is lawful under this article for an operator of a switchboard or an officer, employee, or
provider of any wire or electronic communication service whose facilities are used in the
transmission of a wire communication to intercept, disclose or use that communication or the identity of any party to that communication in the normal course of his or her employment while engaged
in any activity which is a necessary incident to the rendition of his or her service or to the protection
of the rights or property of the carrier of the communication. Providers of wire or electronic
communication services may not utilize service observing or random monitoring except for
mechanical or service quality control checks.
(1)(d) Notwithstanding any other law, any provider of wire or electronic communications
services, or the directors, officers, employees, agents, landlords or custodians of any such provider,
are authorized to provide information, facilities or technical assistance to persons authorized by this
article to intercept wire, oral or electronic communication if such provider or its directors, officers,
employees, agents, landlords or custodians has been provided with a duly certified copy of a court
order directing such assistance and setting forth the period of time during which the provision of the
information, facilities, or technical assistance is authorized and specifying the information, facilities
or assistance required. No cause of action shall lie in any court against any such provider of wire or
electronic communication services, its directors, officers, agents, landlords or custodians for
providing information facilities or assistance in accordance with the terms of any such order.
(2)(e) It is lawful under this article for a person to intercept a wire, oral or electronic
communication where the person is a party to the communication or where one of the parties to the
communication has given prior consent to the interception unless the communication is intercepted
for the purpose of committing any criminal or tortious act in violation of the constitution or laws of
the United States or the constitution or laws of this state: Provided, That notwithstanding the
provisions of this article or any other provision of law, an electronic interception as defined by
section one, article one-f of this chapter, undertaken in good faith, is regulated by article one-f of this
chapter, and no penalties or other requirements of this article are applicable.
ARTICLE 1F. ELECTRONIC INTERCEPTION OF PERSON'S CONDUCT OR ORAL
COMMUNICATIONS IN HOME BY LAW ENFORCEMENT
º62-1F-1. Definitions.
(a) For the purposes of this article, the following terms have the following meanings.
(1) 'Body wire' means: (a) an audio and/or video recording device surreptitiously carried on
or under the control of an investigative or law enforcement officer or informant to simultaneously
record a non-consenting party's conduct or oral communications; or (2) radio equipment
surreptitiously carried on or under the control of an investigative or law enforcement officer or
informant to simultaneously transmit a non-consenting party's conduct or oral communications to
recording equipment located elsewhere or to other law-enforcement officers monitoring the radio
transmitting frequency.
(2) 'Home' means the residence of a non-consenting party to an electronic interception,
provided that access to the residence is not generally permitted to members of the public and the
party has a reasonable expectation of privacy in the residence under the circumstances.
(3) 'Informant' means a person acting in concert with and at the direction of a law-
enforcement officer in investigation of possible violations of the criminal laws of the United States
or this State.
(4) 'Investigative or law-enforcement officer' means any officer empowered by law to
conduct investigations of or to make arrests for offenses enumerated in this code or an equivalent
offense in another jurisdiction.
(5) 'Electronically intercept' or 'electronic interception' mean the simultaneous recording
with a body wire of a non-consenting party's conduct or oral communications in his or her home by
an investigative or law-enforcement officer or informant who is invited into the home and physically present with the non-consenting party in the home at the time of the recording.
(b) Words and phrases that are not defined in this section, but which are defined in article
one-d of this chapter, shall have the same meanings established in article one-d unless otherwise
noted.
º62-1F-2. Electronic interception of conduct or oral communications in the home authorized.
Prior to engaging in electronic interception, as defined in section one of this article, an
investigative or law-enforcement officer shall, in accordance with this article, first obtain from a
magistrate or a judge of a circuit court within the county wherein the non-consenting party's home
is located an order authorizing said interception. The order shall be based upon an affidavit by the
investigative or law-enforcement officer or an informant that establishes probable cause that the
interception would provide evidence of the commission of a crime under the laws of the United
States or this State. No such order or affidavit shall be required where probable cause and exigent
circumstances exist.
(b) The Legislature hereby requests the supreme court of appeals to promptly undertake all
necessary actions and promulgate any requisite rules to assure a magistrate or circuit judge is
available after normal business hours to authorize warrants.
º62-1F-3. Application for an order authorizing interception.
(a) Each application for an order authorizing electronic interception in accordance with the
provisions of this article shall be made only to the magistrate or judge of the circuit court by petition
in writing upon oath or affirmation and shall state the applicant's authority to make the application.
Each application shall set forth the following:
(1) The identity of the investigative or law-enforcement officer making the application, and
of the person authorizing the application, who shall be the head of the investigative or law-enforcement agency or an officer of the investigative or law enforcement agency designated in
writing by the head of that agency: Provided, That an application made by a member of the State
Police or an officer assigned to a multijurisdictional task force authorized under section four, article
ten, chapter fifteen of this code also may be authorized by the supervisor of that member or officer
if the supervisor holds a rank of sergeant or higher;
(2) A full and complete statement of the facts and circumstances relied upon by the applicant,
to justify his or her belief that an order should be issued, including (i) details as to the particular
offense that has been, is being, or is about to be committed, (ii) a particular description of the nature
and location of the home from which the conduct or communications are to be intercepted, unless
the identity of the person committing the offense and whose conduct or communications are to be
intercepted is known and the applicant makes an adequate showing that there is probable cause to
believe that the actions of the person could have the effect of thwarting interception from a specified
location, (iii) a particular description of the type of conduct or communications sought to be
intercepted, and (iv) the identity of the person, if known, committing the offense and whose conduct
or communications are to be intercepted;
(3) A statement of the period of time for which the interception is required to be maintained.
If the nature of the investigation is such that the authorization for interception should not
automatically terminate when the described conduct or communication has been first obtained, a
particular description of facts establishing probable cause to believe additional conduct or
communications of the same type will occur thereafter; and
(4) Where the application is for the extension of an order, a statement setting forth the results
obtained pursuant to such order from the interception or a reasonable explanation of the failure to
obtain any such results.
(b) The magistrate or judge of the circuit court may require the applicant to furnish additional
testimony or documentary evidence in support of the application.
(c) Instead of the application by petition in writing upon oath or affirmation described in
subsection (a) of this section, the magistrate or judge may take an oral statement under oath in which
the applicant must set forth the information required in subsection (a) of this section. Requisite
applicant may swear the oath by telephone. A magistrate or judge administering an oath
telephonically under this subsection must execute a declaration that recites the manner and time of
the oath's administration. The oral statement shall be recorded and transcribed. The transcribed
statement shall be considered to be an application for the purposes of this section. In such cases, the
recording of the sworn oral statement and the transcribed statement shall be certified by the
magistrate or judge receiving it and shall be retained as a part of the record of proceedings for the
issuance of the order.
º62-1F-4. Order authorizing interception.
(a) Upon the application, the magistrate or judge of the circuit court may enter an ex parte
order, as requested or as modified or moulded, authorizing an electronic interception if the magistrate
or judge determines on the basis of the evidence and argument presented by the applicant that:
(1) There is probable cause to believe that one or more individuals are committing, have
committed, or are about to commit one or more crimes under the laws of the United States or this
State;
(2) There is probable cause for belief that particular conduct or communications concerning
such offense or offenses will be obtained through the interception; and
(3) There is probable cause to believe that the home where the electronic interception is to
occur is being used, or is about to be used, in connection with the commission of the offense, or offenses: Provided, That such determination shall not be required where the identity of the person
committing the offense and whose conduct or communications are to be intercepted is known, and
the applicant makes an adequate showing as required under paragraph (ii), subdivision two,
subsection (a), section three of this article.
(b) Each order authorizing an electronic interception in accordance with the provisions of this
article shall specify: (i) the identity of the person, if known, whose conduct or communications are
to be intercepted, (ii) the nature and location of the home where authority to intercept is granted, if
necessary under subdivision three, subsection (a) of this section, (iii) a particular description of the
type of conduct or communications sought to be intercepted and a statement of the particular offense
to which it relates, (iv) the identity of the law-enforcement officer or officers applying for
authorization to electronically intercept and of the officer authorizing the application and (v) the
period of time during which the interception is authorized, including a statement as to whether or
not the interception automatically terminates when the described conduct or communication is first
obtained.
(c) An order entered pursuant to this section may authorize the electronic interception for a
period of time that is necessary to achieve the objective of the authorization, not to exceed twenty
days. Such twenty-day period begins on the day on which the law-enforcement officer first begins
to conduct an interception under the order or ten days after the order is entered, whichever is earliest.
Extensions of an order may be granted, but only upon application for an extension made as provided
in subsection (a) of this section and upon the magistrate or judge of the circuit court making the
findings required by subsection (b) of this section. The period of extension may be no longer than
the magistrate or judge deems necessary to achieve the purposes for which it was granted and, in no
event, for longer than twenty days. Every order and extension thereof shall contain a provision that the authorization to electronically intercept be executed as soon as practicable, be conducted in such
a way as to minimize the interception of conduct or communications not otherwise subject to
interception under this article and terminate upon attainment of the authorized objective, or in any
event within the hereinabove described twenty-day period relating to initial applications.
º62-1F-5. Recording of intercepted communications.
(a) If recorded, the contents of any conduct or oral communications electronically intercepted
shall be recorded on tape or wire or other comparable device and done in such a way or ways as will
protect the recording from editing or alterations thereto.
(b) Whenever practicable, the investigative or law enforcement officer overseeing the
recording of an electronic interception shall keep a signed, written record of:
(1) The date and hours of the surveillance;
(2) The time and duration of each electronic interception;
(3) The participant, if known, in each electronic interception; and
(4) A summary of the content of each intercepted communication.
(c) Immediately upon the expiration of the period of time during which interception and
recording is authorized by the order, or extensions thereof, such recordings shall be made available,
if requested, to the magistrate or judge issuing such order. Custody of the recordings shall be with
the law-enforcement officer authorizing the application underlying the order. Such recordings may
not be destroyed except upon an order of the magistrate or judge to whom application was made or
a circuit judge presiding over any subsequent prosecution related to the electronic interception and
in any event shall be retained for a period of ten years or until conclusion of a prosecution related
to the interception, post habeas corpus proceeding and decision, whichever is earlier. In the event
the magistrate or judge shall leave office prior to the expiration of this ten-year period, he or she shall transfer possession of said record to another magistrate or judge in the circuit. Duplicate recordings
may be made for use or disclosure pursuant to the provisions of subsections (a) and (b), section nine,
article one-d of this chapter for investigations by law-enforcement agencies.
º62-1F-6. Sealing of applications, orders and supporting papers.
Applications made and orders granted under this article shall be ordered sealed by the
magistrate or judge of the circuit court to whom the application is made, and shall remain in the
custody of the magistrate court clerk or the circuit clerk of the county in which the application was
made and order was granted. The applications and orders are discoverable and may be disclosed only
in accordance with the applicable provisions of this code and the rules of criminal procedure for the
State of West Virginia, and may not be destroyed except upon order of such magistrate or judge, and
in any event shall be kept for not less than ten years.
§62-1F-7. Investigative disclosure or use of contents of wire, electronic or oral communications
or derivative evidence.
(a) Any law enforcement officer who has obtained knowledge of the contents of any
electronic interception, or evidence derived therefrom, may disclose such contents or evidence to
another law enforcement officer to the extent that such disclosure is appropriate to the proper
performance of the official duties of the officer making or receiving the disclosure.
(b) Any law enforcement officer who, by any means authorized by this article, has obtained
knowledge of the contents of any electronic interception or any evidence derived therefrom may use
such contents or evidence to the extent such use is appropriate to the proper performance of his or
her official duties.
(c) Any person who by any means authorized by this article, has obtained knowledge of the
contents of any electronic interception or evidence derived therefrom, may disclose such contents or evidence to a law enforcement officer and may disclose such contents or evidence while giving
testimony under oath or affirmation in any criminal proceeding in any court of this State or of
another state or of the United States or before any state or Federal grand jury or investigating grand
jury.
§62-1F-8. Interception of communications relating to other offenses.
When a law enforcement officer, while engaged in court authorized electronic interception
in the manner authorized herein, intercepts communications relating to offenses other than those
specified in the order of authorization, the contents thereof, and evidence derived therefrom, may
be disclosed or used as provided in section seven. Such contents and evidence may be disclosed in
testimony under oath or affirmation in any criminal proceeding in any court of this State or of
another state or of the United States or before any state or Federal grand jury when authorized by a
judge who finds on subsequent application that the contents were otherwise intercepted in
accordance with the provisions of this article. Such application shall be made as soon as practicable.
º62-1F-9. Retroactive authorization.
Notwithstanding any other provision of this article, when (1) a situation exists with respect
to engaging in electronic interception before an order authorizing such interception can with due
diligence be obtained;(2) the factual basis for issuance of an order under this article exists; and (3)
it is determined that exigent circumstances exist which prevent the submission of an application
under section three of this article, conduct or oral communications in the person's home may be
electronically intercepted on an emergency basis if an application submitted in accordance with
section three of this article is made to a magistrate or judge of the circuit within the county wherein
the person's home is located as soon as practicable, but not more than three business days after the
aforementioned determination. If granted, the order shall recite the exigent circumstances present and be retroactive to the time of such determination. In the absence of an order approving such
electronic interception, the interception shall immediately terminate when the communication sought
is obtained or when the application for the order is denied, whichever is earliest."
At the respective requests of Delegate DeLong, and by unanimous consent, the bill was
advanced to third reading with the amendment pending and the rule was suspended to permit the
offering and consideration of amendments on that reading.
Leaves of Absence
At the request of Delegate DeLong, and by unanimous consent, leaves of absence for the day
were granted Delegates Ashley, Azinger, Tabb, Wysong and Yost.
At 6:16 p.m., the House of Delegates adjourned until 12:00 p.m., Tuesday, August 21, 2007.