WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-EIGHTH LEGISLATURE

REGULAR SESSION, 2007

EIGHTH DAY

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Charleston, W. Va., Wednesday, January 17, 2007

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

Prayer was offered by the Honorable Shirley Love, a senator from the eleventh district.
Pending the reading of the Journal of Tuesday, January 16, 2007,
On motion of Senator White, the Journal was approved and the further reading thereof dispensed with.
The Clerk presented a communication from the Board of Medicine, submitting its annual report, in accordance with chapter thirty, article three, section seven of the code of West Virginia.
Which communication and report were received and filed with the Clerk.
The Senate proceeded to the fourth order of business.
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. 66, Modifying home incarceration fees.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 66 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §62-11C-4 of the Code of West Virginia, 1931, as amended, relating to the West Virginia Community Corrections Fund; establishing fee collected from persons on home incarceration; setting fee amount; and removing provision allowing modification of fee amount by legislative rule.
With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
The bill (Com. Sub. for S. B. No. 66), 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 White, Prezioso, Hunter and Wells:
Senate Bill No. 101--A Bill to amend and reenact §5-1-26 of the Code of West Virginia, 1931, as amended, relating to giving the Office of the Attorney General the power to investigate and charge, at any time, home heating oil, gasoline or other motor fuel price gouging.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Guills, Barnes and Sypolt:
Senate Bill No. 102--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §61-2A-1, §61-2A-2 and §61-2A-3, all relating to the castle doctrine generally; creating a presumption of reasonable fear of imminent peril of death or great bodily harm when using defensive force that is intended or likely to cause death or great bodily harm to another; and granting immunity from criminal prosecution and civil action.
Referred to the Committee on the Judiciary.
By Senators Guills, Barnes, Yoder, Foster and Unger:
Senate Bill No. 103--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17C-14-3, relating to prohibiting use of a handheld cell phone while driving; providing exceptions; providing a penalty for violations; and providing that points may not be assessed against driver's license for a violation.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on the Judiciary.
By Senators Foster, Hall, Oliverio, Edgell, McCabe, Deem, Plymale, Minard and McKenzie:
Senate Bill No. 104--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-10D-9, relating to when the Consolidated Public Retirement Board shall pay annuities.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Foster, Hall, McCabe, Oliverio, Deem, Edgell, Plymale and McKenzie:
Senate Bill No. 105--A Bill to amend and reenact §7-14E-2 of the Code of West Virginia, 1931, as amended, relating to imposing a surcharge on county commissions for delinquent payment of fees due the Deputy Sheriff's Retirement Fund.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Hunter, Minard, Prezioso, Kessler, Wells and Guills:
Senate Bill No. 106--A Bill to amend and reenact §21-1B-5 of the Code of West Virginia, 1931, as amended, relating to penalties for employers who hire undocumented workers; increasing the penalty for a first violation to include a two-year probationary period; and increasing the penalty for a second violation to mandate a five thousand-dollar fine as well as a five-year probationary period.
Referred to the Committee on the Judiciary.
By Senators Jenkins and Plymale:
Senate Bill No. 107--A Bill to amend and reenact §61-2-12 of the Code of West Virginia, 1931, as amended, relating to abolishing the presenting of a firearm or other deadly weapon as an element of robbery in the first degree.
Referred to the Committee on the Judiciary.
By Senators Jenkins, Plymale, Minard, Prezioso, Oliverio, Unger, Wells and Guills:
Senate Bill No. 108--A Bill to amend and reenact §7-8-14 of the Code of West Virginia, 1931, as amended, relating to requiring defendants who are sentenced to jail to pay the costs of incarceration; and requiring the sentencing court to conduct a hearing at or before sentencing to determine the individual's ability to pay the costs.
Referred to the Committee on Finance.
By Senators Jenkins, Plymale, Yoder and Guills:
Senate Bill No. 109--A Bill to amend and reenact §31-20-10 of the Code of West Virginia, 1931, as amended, relating to regional jail per diem charges; and requiring that the charge for a person who is incarcerated for less than twenty-four hours be prorated.
Referred to the Committee on Finance.
By Senators Jenkins, Plymale, Barnes and Guills:
Senate Bill No. 110--A Bill to amend and reenact §3-1-16 of the Code of West Virginia, 1931, as amended; to amend and reenact §3-4A-11 and §3-4A-11a of said code; to amend said code by adding thereto a new section, designated §3-5-6a; to amend and reenact §3- 5-7, §3-5-13 and §3-5-13a of said code; and to amend said code by adding thereto a new section, designated §3-6-2a, all relating to the nonpartisan election of justices of the Supreme Court of Appeals; timing and frequency of election; ballot design and printing; separation from partisan ballot; nonpartisan election of justices; filing announcement of candidacies; withdrawal of announcement of candidacies; refund of paid filing fees; and ballot content and form.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senator Hunter:
Senate Bill No. 111--A Bill to amend and reenact §22-3-9 of the Code of West Virginia, 1931, as amended, relating to surface mining applications generally; and requiring the Director of the Division of Environmental Protection to cause a title search to be conducted to determine the ownership of the real estate and to establish that the applicant has present ownership or lessee rights to mine the real estate involved.
Referred to the Committee on Energy, Industry and Mining; and then to the Committee on the Judiciary.
By Senator Hunter:
Senate Bill No. 112--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §11-28-1, §11-28-2, §11-28-3, §11-28-4, §11-28-5, §11- 28-6, §11-28-7, §11-28-8, §11-28-9, §11-28-10, §11-28-11, §11-28- 12, §11-28-13 and §11-28-14, all relating to authorizing county commissions to impose a recreation and amusement tax; requiring approval by voters; providing legislative findings; specifying maximum rate of tax; calculation of tax; taxable events, fees, services and sales; accounting and reporting by vendor; exempted fees, services and sales; collection and recordkeeping by county sheriffs; and dedication of funds.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 113--A Bill to amend and reenact §11-21-9 of the Code of West Virginia, 1931, as amended, relating to updating meaning of federal adjusted gross income and certain other terms used in West Virginia Personal Income Tax Act; and specifying effective dates.
Referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 114--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-5-6, relating to a monetary incentive for eligible employees.
Referred to the Committee on Finance.
By Senator Jenkins:
Senate Bill No. 115--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17A-3-14a, relating to providing an extension for members of the West Virginia Bar Association to apply for special motor vehicle registration plates.
Referred to the Committee on Transportation and Infrastructure.
By Senator McKenzie:
Senate Bill No. 116--A Bill to amend and reenact §61-8-28 of the Code of West Virginia, 1931, as amended, relating to criminal invasion of privacy generally; adding criminal offense of voyeurism where an individual has an expectation of privacy; providing misdemeanor penalties; providing exception for law-enforcement and security surveillance; and limiting criminal prosecution pursuant to said section to three years.
Referred to the Committee on the Judiciary.
By Senators Oliverio and Hunter:
Senate Bill No. 117--A Bill to amend and reenact §27-6A-1, §27-6A-2, §27-6A-3, §27-6A-4, §27-6A-5, §27-6A-6, §27-6A-7, §27-6A-8 and §27-6A-9 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §27-6A-10 and §27-6A-11, all relating to the determination of a person's competency to stand trial and of criminal responsibility; addressing court jurisdiction over persons found not guilty by reason of mental illness; requiring release from jurisdiction of the court under certain circumstances; requiring periodic review of person found incompetent to stand trial; adding provisions for forensic evaluations and evaluators; addressing evaluations of diminished capacity and dangerousness; and providing responsibility of costs.
Referred to the Committee on the Judiciary.
By Senators Kessler, White, Foster, Hunter, Sprouse, McCabe, Jenkins, Wells, Yoder, Edgell, Plymale, Love and Guills:
Senate Bill No. 118--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 and §3-12-19, all relating generally to providing an alternative public funding option of election campaigns for candidates for the state Senate and House of Delegates; setting forth short title and certain legislative findings and declarations; defining terms; specifying that the provisions of the act are applicable to candidates for the offices of state Senate and House of Delegates; establishing a Public Campaign Financing Fund and sources of revenue for the fund; requiring an additional penalty assessment be imposed against violators of administrative orders, rules of state governmental agencies, boards and commissions; requiring an applicant for public campaign funding to complete a declaration of intent and setting forth the manner in which an application for funding may be made; setting forth eligibility criteria for 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 act; requiring the State Election Commission to certify eligible candidates and setting forth the procedure for certification; providing that qualified candidates shall 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 the act; prohibiting the use of personal funds for certain purposes; requiring certain disclosures; requiring candidates keep records and report to the State Election Commission; providing for matching public campaign funds when an opponent spends in excess of the initial funding available to a certified candidate and for independent expenditures on behalf of a nonparticipating or certified opponent; 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 the act; and setting forth an effective date.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Tomblin (Mr. President) and Hall:
Senate Bill No. 119--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-15-9i, relating generally to exempting commissions paid to telecommunications brokers from consumers sales and service tax; and defining certain terms.
Referred to the Committee on Finance.
By Senators Hunter, Minard, Love, Prezioso and Unger:
Senate Bill No. 120--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 seven, until the Legislature enacts a cost of living adjustment for retired employees receiving annuities from public retirement plans administered by the Consolidated Public Retirement Board.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Tomblin (Mr. President), Minard, Barnes and Stollings:
Senate Bill No. 121--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §15-1F-1b, relating to tolling any state licensure or registration requirement for persons on active duty in the United States military.
Referred to the Committee on Military; and then to the Committee on Finance.
By Senators Tomblin (Mr. President), Plymale, Barnes, Unger and Hall:
Senate Bill No. 122--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-15-9i, relating generally to consumers sales and service tax liability of homeowners' associations and their members; exempting from tax dues, fees and assessments paid to homeowners' associations by members thereof; providing for taxability and exemption of purchases by homeowners' associations; and defining certain terms.
Referred to the Committee on Finance.
By Senators Bailey, Minard and Barnes:
Senate Bill No. 123--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17C-7-14, relating to traffic regulations; prohibiting driving in the passing lane of a highway where the speed limit is sixty-five miles per hour or more unless passing other vehicles, turning left or unless the volume of traffic does not permit the vehicle to safely merge into the nonpassing lane; and providing a misdemeanor penalty for violations.
Referred to the Committee on Transportation and Infrastructure.
Senators Hunter, Foster, Kessler, Minard, Oliverio, White, Unger and Wells offered the following resolution:
Senate Concurrent Resolution No. 15--Requesting the Joint Committee on Government and Finance study the effects of underground injection of coal slurry on human health and the environment.
Whereas, The underground injection of coal slurry is an accepted method of coal slurry disposal for which the Department of Environmental Protection issues permits; and
Whereas, The most recent information on the effects of underground injection of coal slurry available to the Legislature indicates the potential for harmful effects; and
Whereas, The effects of the underground injection of coal slurry may present serious public health and environmental questions; therefore be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the effects of underground injection of coal slurry on human health and the environment; and, be it
Further Resolved, That the Department of Environmental Protection, in conjunction with the Bureau for Public Health, conduct or contract to have conducted a comprehensive study on the effects of underground injection of coal slurry, including the following:
(1)An analysis of the chemical composition of coal slurry, including an inventory of organic and inorganic compounds;
(2)A hydrogeological study of the migration of coal slurry or its constituent contaminants from injection wells into the ground waters or surface waters of West Virginia;
(3)A toxicological analysis of the effects of the coal slurry and its constituent contaminants on human health;
(4)An epidemiological study of the effects of coal slurry and its constituent contaminants on public health in communities where it is determined that coal slurry or its constituent contaminants have migrated into ground waters currently or historically used for domestic purposes;
(5)An environmental assessment of the effects on surface water and aquatic ecosystems of the migration of coal slurry or its constituent contaminants into surface waters; and
(6)Any other considerations that the Department of Environmental Protection and the Bureau for Public Health deem to be important; and, be it
Further Resolved, That the Department of Environmental Protection and the Bureau for Public Health ensure through multiple sampling dates and locations that the resulting data identify possible regional variation in the contents of coal slurry and collect samples of sufficient quantity to provide testable quantities; and, be it
Further Resolved, That the Department of Environmental Protection and the Bureau for Public Health report to the Joint Committee on Government and Finance on their findings, conclusions and recommendations on or before the thirty-first day of December, 2007; and, be it
Further Resolved, That the Department of Environmental Protection and the Bureau for Public Health prepare and submit a request to the Joint Committee on Government and Finance setting forth the anticipated time necessary to conduct each phase of the study and, if any funds in addition to the current amounts appropriated to the Department of Environmental Protection and the Bureau for Public Health may be necessary to carry out the study required herein, a specific proposal for additional funds; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare reports and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Which, under the rules, lies over one day.
Petitions

Senator Hunter presented a petition from Woodrow Williams, requesting the Legislature declare December 7 each year a state holiday.
Referred to the Committee on Military.
Senator Hunter presented a petition from the members of the Huntington Detachment #340 Marine Corps League, requesting the Legislature to allow National Guard members to retire at age fifty- five with twenty years of honorable service.
Referred to the Committee on Pensions.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 14, Urging Supreme Court design additional data collection process for divorce and child custody matters.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on the Judiciary.
The Senate proceeded to the eleventh order of business and the introduction of guests.
The Senate then proceeded to the twelfth order of business.
Remarks were made by Senators Fanning and Stollings.
The Senate next proceeded to the thirteenth order of business.
At the request of Senator Plymale, the name of Senator Plymale was removed as a sponsor of Senate Bill No. 110 (Relating to nonpartisan election of Supreme Court justices).
Pending announcement of meetings of standing committees of the Senate, including a majority party caucus,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Thursday, January 18, 2007, at 11 a.m.
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