sdj-4th day 2es

WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-EIGHTH LEGISLATURE
SECOND EXTRAORDINARY SESSION, 2008
FOURTH DAY
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Charleston, W. Va., Friday, June 27, 2008

The Senate met at 6 p.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Honorable Brooks F. McCabe, Jr., a senator from the seventeenth district.
Pending the reading of the Journal of Thursday, June 26, 2008,
On motion of Senator Bailey, the Journal was approved and the further reading thereof dispensed with.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 2019, Making supplemental appropriations from State Fund, General Revenue, to various accounts.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page nine, section one, line seven, by inserting "52" and a dash before the word "Office";
On page nine, section one, line eight, by striking out "10" and inserting in lieu thereof "5F";
And,
On page nine, section one, line fifteen, by striking out "0300" and inserting in lieu thereof "0294".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 2019, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Caruth, Chafin, Deem, Edgell, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Oliverio, Plymale, Sprouse, Stollings, Sypolt, Unger, White, Yoder and Tomblin (Mr. President)--28.
The nays were: None.
Absent: Bowman, Facemyer, McKenzie, Prezioso, Sharpe and Wells--6.
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. 2019) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Caruth, Chafin, Deem, Edgell, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Oliverio, Plymale, Sprouse, Stollings, Sypolt, Unger, White, Yoder and Tomblin (Mr. President)--28.
The nays were: None.
Absent: Bowman, Facemyer, McKenzie, Prezioso, Sharpe and Wells--6.
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. 2019) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
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. 201--Requesting that a portion of United State Route 250 from the Barbour/Randolph County line to the intersection of United States Route 250 and West Virginia State Route 92 in Belington, be named "The Sgt. R. J. Jimenez Highway".
Whereas, Sgt. Romulo J. (R. J.) Jimenez II, the son of Romulo and Alesia Harris Jimenez, was born on June 28, 1983 in Elkins, Randolph County, West Virginia; and
Whereas, He was raised in Barbour County, West Virginia and attended Philip Barbour High School; and
Whereas, He joined the United States Marine Corps in 2001 to help protect our Country, State and County in the Global War on Terrorism; and
Whereas, While serving his second tour in Iraq, he was killed in action on November 10, 2004 by enemy fire in Fallujah, Iraq; and
Whereas, The untimely and premature death of Sgt. Jimenez has been a tremendous loss to his family, the community of Belington, the county of Barbour, the state of West Virginia and the United States Marine Corps; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name the portion of United States Route 250, beginning at the Barbour/Randolph County line and ending at the intersection of United States Route 250 and West Virginia State Route 92 in Belington, the "The Sgt. R. J. Jimenez Highway"; and, be it
Further Resolved, That the Commissioner of the Division of Highways is hereby requested to cause to be fabricated signs to be erected at each entryway of said roadway, containing bold and prominent letters proclaiming the roadway to be "The Sgt. R. J. Jimenez Highway"; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the Commissioner of the Division of Highways, the Clerk of the Barbour County Commission and R. J.'s parents, Romulo and Alesia.
At the request of Senator Chafin, and by unanimous consent, the message was taken up for immediate consideration and reference of the resolution to a committee dispensed with.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
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. 202--Requesting that bridge number 4303 over Morgans Run in Monongalia County scheduled for completion in the fall of 2008 be named "The Charles L. Miller Bridge".
Whereas, Charles L. Miller was born and raised in Preston County, West Virginia and graduated from West Virginia University with a Bachelors of Science Degree in Civil Engineering in 1961; and
Whereas, Mr. Miller began his extended career with the State Road Commission, now known as the Division of Highways, working as a Cooperative Student in 1954; and
Whereas, After graduating from West Virginia University, Mr. Miller served in the United States Army where he obtained the rank of Captain; and
Whereas, Following his term of service with the United States Army, Mr. Miller rejoined the Division of Highways steadily rising through the ranks until appointed Commissioner of Highways in 1977 by Governor Rockefeller serving as Commissioner until 1984; and
Whereas, In 1985, Mr. Miller served as State Highway Engineer and Director of Highways for the Arizona Department of Transportation until accepting the position of Associate Administrator for Research and Development with the United States Department of Transportation in 1990; and
Whereas, From 1992 to 1993, Mr. Miller returned to the West Virginia Division of Highways as State Highway Engineer. In 1993, Governor Caperton appointed him Secretary of the West Virginia Department of Transportation; and
Whereas, In 1995, Mr. Miller moved to the Governor's Office where he served as Director of Operations and subsequently as Acting Chief of Staff until retirement from state service in 1997; and
Whereas, Following state service, Mr. Miller continued working in the transportation field as an engineer consultant but is now currently retired and again residing in Preston County, West Virginia; and
Whereas, In 2005, Mr. Miller was one of eleven individuals inducted into the charter class of the West Virginia University Department of Civil and Environmental Engineering Academy of Civil Engineers; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 4303 over Morgans Run in Monongalia County scheduled for completion in the fall of 2008 "The Charles L. Miller Bridge"; and, be it
Further Resolved, That the Commissioner of the Division of Highways is hereby requested to cause to be fabricated signs to be erected at each entryway of said bridge, containing bold and prominent letters proclaiming the bridge to be "The Charles L. Miller Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates is hereby directed to forward a certified copy of this resolution to the Commissioner of the Division of Highways, to Mr. Charles L. Miller and to the Federal Highways Administration in Charleston, West Virginia.
At the request of Senator Chafin, and by unanimous consent, the message was taken up for immediate consideration and reference of the resolution to a committee dispensed with.
The question being on the adoption of the resolution,
At the request of Senator Oliverio, unanimous consent being granted, further consideration of the resolution was deferred until the conclusion of bills on today's second reading calendar.
The Senate proceeded to the sixth order of business.
At the request of Senator Hall, unanimous consent being granted, Senator Hall offered the following resolution from the floor:
Senate Concurrent Resolution No. 201--Requesting the Division of Highways name bridge number 40-869-0.27 (4380) on Route 869 crossing the Kanawha River and U. S. Route 35 near Eleanor, Putnam County, the "Johnathon David Higginbotham Memorial Bridge" in recognition of Johnathon David Higginbotham and the many other persons who have lost their lives on U. S. Route 35 and W. Va. State Route 62.
Whereas, Bridge number 40-869-0.27 (4380) on Route 869, completed in 1998, crosses the Kanawha River near Eleanor, in Putnam County, connecting U. S. Route 35, which follows the southwest side of the river, with W. Va. State Route 62, which follows the northeast side of the river; and
Whereas, U. S. Route 35 and W. Va. Route 62 are both older designed two-lane highways that border the Kanawha River from Point Pleasant through Mason and Putnam counties and both highways, particularly U. S. Route 35, are heavily traveled thoroughfares, traveled by a large number of tractor-trailers and other commercial vehicles in interstate commerce; and
Whereas, During a ten-year time period from January 1, 1998, through December 31, 2007, on U. S. Route 35 alone, 1,040 traffic accidents occurred between the intersection with W. Va. State Route 34 in Putnam County and the town of Henderson in Mason County, 29 of which resulted in 33 fatalities; one of the most tragic of those accidents resulted in the untimely loss of Johnathon David Higginbotham; and
Whereas, Johnathon David Higginbotham grew up in the Eleanor and Midway areas of Putnam County and he frequently crossed the bridge and traveled U. S. Route 35 to visit his grandparents in Pliny and to stay with his father; and
Whereas, Johnathon attended Buffalo High School where he was to be a starting guard on the basketball team for the upcoming fall season; and
Whereas, On June 3, 2004, Johnathon crossed the bridge enroute to his father's home and while traveling on U. S. Route 35 just a few miles from the bridge, Johnathon, at age 17, died in a tragic collision with a tractor-trailer; and
Whereas, It is fitting that this bridge be named the "Johnathon David Higginbotham Memorial Bridge" for Johnathon and the many other persons who have lost their lives in accidents on U. S. Route 35 and State Route 62 to honor and memorialize their passing, as well as to honor their memory by families and friends as they cross the bridge; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 40-869-0.27 (4380) on Route 869 crossing the Kanawha River and U. S. Route 35 near Eleanor, Putnam County, the "Johnathon David Higginbotham Memorial Bridge" in recognition of Johnathon David Higginbotham and the many other persons who have lost their lives on U. S. Route 35 and W. Va. State Route 62; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the "Johnathon David Higginbotham 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 and Johnathon David Higginbotham's stepfather and mother, Jim and Vallery Withrow.
At the request of Senator Hall, unanimous consent being granted, the resolution was taken up for immediate consideration and reference to a committee dispensed with.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the eighth order of business.
Com. Sub. for Senate Bill No. 2010, Relating to regulation and control of elections.
On third reading, coming up in regular order, with the right having been granted on yesterday, Thursday, June 26, 2008, for amendments to be received on third reading, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar, and with the right for amendments to be considered on third reading remaining in effect.
The Senate proceeded to the ninth order of business.
Eng. House Bill No. 219, Relating to the regulation and control of elections.
On second reading, coming up in regular order, was read a second time.
On motion of Senator Sprouse, the following amendments to the bill were reported by the Clerk and considered simultaneously:
On page nine, section one-a, after line twenty-four, by inserting a new paragraph, designated paragraph (B), to read as follows:
(B) "Electioneering communication" includes any paid communication, including, but not limited to, public service announcements, distributed by means of broadcast, cable or satellite signal, telephone, billboard advertising or published in any newspaper, magazine or other periodical that depicts by name, likeness or unambiguous reference, an incumbent governor, secretary of state, attorney general, treasurer, commissioner of agriculture, supreme court justice or legislator who is seeking reelection or election to any office set forth in this paragraph, and is publicly disseminated during the time frames prior to any primary, general or special election set forth above in this subdivision: Provided, That this paragraph does not prohibit legislators from promoting their own personal business or a business which they represent as an owner, officer or as an employee, through any means of advertising of such business, nor is this intended to prevent the normal operation of governmental responsibilities of any elected official through correspondence by letter, e-mail, telephone or other accepted means of personal communication.;
And,
By relettering the remaining paragraph.
The question being on the adoption of Senator Sprouse's amendments to the bill (Eng. H. B. No. 219), the same was put and did not prevail.
On motion of Senator Barnes, the following amendment to the bill was next reported by the Clerk:
On page eleven, section one-a, line seven, after the words "Section 501(c)(3)" by inserting a comma and the words "Section 502(c)(4) and Section 501(c)(5)".
Following discussion,
The question being on the adoption of the amendment offered by Senator Barnes to the bill (Eng. H. B. No. 219), and on this question, Senator Barnes demanded the yeas and nays.
The roll being taken, the yeas were: Barnes, Boley, Caruth, Deem, Guills, Hall, Sprouse, Sypolt and Yoder--9.
The nays were: Bailey, Chafin, Edgell, Fanning, Foster, Green, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Oliverio, Plymale, Stollings, Unger, White and Tomblin (Mr. President)--19.
Absent: Bowman, Facemyer, McKenzie, Prezioso, Sharpe and Wells--6.
So, a majority of those present and voting not having voted in the affirmative, the President declared the amendment offered by Senator Barnes to the bill rejected.
On motion of Senator Kessler, the following amendment to the bill (Eng. H. B. No. 219) was next reported by the Clerk and adopted:
On page nine, section one-a, line twenty-four, after the word "electorate" by changing the period to a colon and inserting the following proviso: Provided, That for purposes of the general election of two thousand eight the amendments to this article shall be effective the first day of October, two thousand eight.
On motion of Senator Kessler, the following amendments to the bill (Eng. H. B. No. 219) were next reported by the Clerk, considered simultaneously, and adopted:
On page twenty-three, section eight, line thirteen, after the word "committees;" by inserting the word "and";
And,
On pages twenty-three and twenty-four, section eight, by striking out all of paragraphs (D) and (E) and inserting in lieu thereof the following:
(D) Corporations may make disbursements for political purposes, as such are defined by the provisions of subdivision (25), subsection (a), section one-a of this article, that do not expressly advocate for the election or defeat of a clearly identified candidate. A disbursement for political purposes is permissible if it:
(i) Does not reference an election, candidacy, political party, opposing candidate or voting by the general public;
(ii) Does not take a position on any candidate's or officeholder's character, qualifications, or fitness for office; and
(iii) Focuses on a legislative, executive, or judicial matter or issue which either:
(I) Urges a candidate to take a particular position or action with respect to the matter or issue; or
(II) Urges the public to adopt a particular position and to contact the candidate with respect to the matter or issue; or
(iv) Proposes a commercial transaction, such as purchase of a book, video, or other product or service, or attendance (for a fee) at a film exhibition or other event.
On motion of Senator Kessler, the following amendment to the bill (Eng. H. B. No. 219) was next reported by the Clerk:
On page twenty-eight, section eight, after line twenty-one, by adding two new subsections, designated subsections (i) and (j), to read as follows:
(i) The amendments to this section enacted during the second extraordinary session of two thousand eight are intended to conform to the existing proscription to constitutionally permissible limits and not to create a new offense or offenses.
(j) The effective date of the amendments to this section enacted during the second extraordinary legislative session of two thousand eight shall be the first day of October, two thousand eight.
Following discussion,
The question being on the adoption of Senator Kessler's amendment to the bill (Eng. H. B. No. 219), the same was put and prevailed.
Thereafter, at the request of Senator Barnes, and by unanimous consent, the remarks by Senators Caruth and Kessler regarding the adoption of Senator Kessler's amendment to Engrossed House Bill No. 219 were ordered printed in the Appendix to the Journal.
On motion of Senator Kessler, the following amendment to the bill was next reported by the Clerk and adopted:
On page twenty-nine, section fourteen, line twenty-four, by striking out the word "September" and inserting in lieu thereof the word "October".
The bill (Eng. H. B. No. 219), as amended, was then ordered to third reading.
Senator Chafin moved that the constitutional rule requiring a bill to be read on three separate days be suspended.
The roll being taken, the yeas were: Bailey, Chafin, Edgell, Fanning, Foster, Green, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Oliverio, Plymale, Stollings, Unger, White and Tomblin (Mr. President)--19.
The nays were: Barnes, Boley, Caruth, Deem, Guills, Hall, Sprouse, Sypolt and Yoder--9.
Absent: Bowman, Facemyer, McKenzie, Prezioso, Sharpe and Wells--6.
So, less than four fifths of the members present and voting having voted in the affirmative, the President declared the motion to suspend the constitutional rejected.
The end of today's second reading calendar having been reached, the Senate returned to the consideration of
House Concurrent Resolution No. 202, The Charles L. Miller Bridge.
Having been taken up for immediate consideration and reference to a committee dispensed with in earlier proceedings today, and now coming up in deferred order, was again reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the resolution was laid over as a matter of unfinished business for tomorrow, Saturday, June 28, 2008.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senator Kessler.
On motion of Senator Chafin, the Senate adjourned until tomorrow, Saturday, June 28, 2008, at 11 a.m.
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