WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-EIGHTH LEGISLATURE

REGULAR SESSION, 2008

TWENTY-FIRST DAY

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Charleston, W. Va., Tuesday, January 29, 2008

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 Monday, January 28, 2008,
On motion of Senator Green, 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. 3215--A Bill to amend and reenact §18B-1-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §18B-3C-8 of said code, all relating to defined terms; statewide network of independently accredited community and technical colleges; removing the administrative link between Shepherd University and Blue Ridge Community and Technical College; designating Blue Ridge Community and Technical College as a free-standing community and technical college; and deleting obsolete provisions.
Referred to the Committee on Education; and then to the Committee on Finance.
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. House Bill No. 4072--A Bill to amend and reenact the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §30-13-25, relating to regulatory board review of the Board of Registration for Professional Engineers.
Referred to the Committee on Government Organization.
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. House Bill No. 4073--A Bill to amend and reenact §30-31-15 of the Code of West Virginia, 1931, as amended, relating to regulatory board review of the West Virginia Board of Examiners in Counseling.
Referred to the Committee on Government Organization.
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. House Bill No. 4078--A Bill to amend and reenact º29-8-2, º29-8-3, º29-8-4 and º29-8-5 of the Code of West Virginia, 1931, as amended, all relating to the termination of the Blennerhassett Island Historical State Park Commission; exempting the termination of the commission from the wind down provisions of §4-10-12; and providing for the transfer of all remaining property and authority of the commission to the Division of Natural Resources.
Referred to the Committee on Government Organization.
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. House Bill No. 4085--A Bill to amend and reenact §30-36- 20 of the Code of West Virginia, 1931, as amended, relating to regulatory board review of the West Virginia Acupuncture Board.
Referred to the Committee on Government Organization.
The Senate proceeded to the fourth order of business.
Senator Fanning, from the Committee on Natural Resources, submitted the following report, which was received:
Your Committee on Natural Resources has had under consideration
Senate Bill No. 7, Establishing Flood Protection Planning Council.
And reports the same back with the recommendation that it do pass; but with the further recommendation that it first be referred to the Committee on Finance.
Respectfully submitted,
John Pat Fanning,
Chair.
On motion of Senator Fanning, the bill (S. B. No. 7) contained in the foregoing report from the Committee on Natural Resources was then referred to the Committee on Finance.
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. 217, Reducing compliance time for nonresident traffic violations.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
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. 334, Creating senior status family court judges panel.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 334 (originating in the Committee on the Judiciary)--A Bill
to amend and reenact §51-2A-19 of the Code of West Virginia, 1931, as amended, relating to creating a panel of senior status family court judges; providing temporary assignment of such judges; and providing for reasonable payment.
And,
Senate Bill No. 335, Authorizing Supreme Court to appoint senior status magistrate assistants.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 335 (originating in the Committee on the Judiciary)--A Bill
to amend and reenact §50-1-6a and §50-1-9b of the Code of West Virginia, 1931, as amended, all relating to providing for reasonable payment for senior status magistrates; authorizing the Supreme Court of Appeals to create a panel of senior status magistrate assistants; and providing for reasonable payment.
With the recommendation that the two committee substitutes do pass; but under the original double committee references first be referred to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
The bills (Com. Sub. for S. B. Nos. 334 and 335), under the original double committee references, were then referred to the Committee on Finance.
Senator Fanning, from the Committee on Natural Resources, submitted the following report, which was received:
Your Committee on Natural Resources has had under consideration
House Concurrent Resolution No. 7, Supporting the efforts of the Town of Matewan to obtain National Park status for the Matewan Historic Landmark District.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
John Pat Fanning,
Chair.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were introduced, read by their titles, and referred to the appropriate committees:
By Senator Prezioso:
Senate Bill No. 478--A Bill to amend and reenact §49-7-33 of the Code of West Virginia, 1931, as amended, relating to payment for professional services by the Department of Health and Human Resources pursuant to a court order.
Referred to the Committee on Health and Human Resources; and then to the Committee on Finance.
By Senators Barnes, Love, Green and Hall:
Senate Bill No. 479--A Bill to amend and reenact §15-2B-6 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto thirteen new sections, designated §15-2B-14, §15-2B-15, §15-2B-16, §15-2B-17, §15-2B-18, §15-2B-19, §15-2B-20, §15-2B-21, §15-2B-22, §15-2B-23, §15-2B-24, §15-2B-25 and §15-2B-26, all relating to the collection of DNA samples from persons arrested for certain felonies.
Referred to the Committee on the Judiciary.
By Senators Edgell, Wells, Green, Hall, Plymale, Foster, Hunter, McKenzie, Jenkins, Kessler and Deem:
Senate Bill No. 480--A Bill to amend and reenact §18A-4-2a of the Code of West Virginia, 1931, as amended, relating to payment of National Board for Professional Teaching Standards salary bonus to holders subsequently employed in certain administrative and instructional leadership positions.
Referred to the Committee on Education; and then to the Committee on Finance.
By Senator Prezioso:
Senate Bill No. 481--A Bill to amend and reenact §27-5-2 of the Code of West Virginia, 1931, as amended, relating to authority of physician assistants to conduct examinations in the mental health hygiene process.
Referred to the Committee on Health and Human Resources.
By Senators Edgell, Hunter, McCabe, White, Kessler and Plymale:
Senate Bill No. 482--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §22-5A-1, §22-5A-2, §22-5A-3, §22-5A-4, §22-5A-5, §22-5A-6, §22-5A-7, §22-5A-8, §22-5A-9, §22-5A-10 and §22-5A-11; to amend and reenact §22-6-6 and §22-6-9 of said code; to amend and reenact §22-7-3, §22-7-5 and §22-7-7 of said code; and to amend said code by adding thereto a new section, designated §22-7-9, all relating to rights, administration and enforcement of oil and gas wells; and surface owner bill of rights.
Referred to the Committee on Energy, Industry and Mining; then to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Barnes, Sprouse, Sypolt, Boley and Deem:
Senate Bill No. 483--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §29-22B-1715, relating to the prohibition of operating a video lottery game or video lottery terminal between six a.m and one p.m. on Sundays; exceptions; and establishment of criminal penalties.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Plymale and Love:
Senate Bill No. 484--A Bill to amend and reenact §62-6-6a of the Code of West Virginia, 1931, as amended, relating to the disposition of prisoners.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
By Senator Caruth:
Senate Bill No. 485--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-42-9, relating to requiring that every woman seeking an abortion be given the opportunity to see an ultrasound image of the fetus; prescribing a criminal penalty for violations of said section; and providing that nothing in said section can be construed as approving of abortion.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
By Senators Barnes and Hall:
Senate Bill No. 486--A Bill to amend and reenact §18A-3-2a of the Code of West Virginia, 1931, as amended, relating to the qualifications of certified professional educators to be state athletic coaches and other extracurricular activity coaches.
Referred to the Committee on Education.
By Senators Hunter and Foster:
Senate Bill No. 487--A Bill to amend and reenact §5A-3B-1 and §5A-3B-2 of the Code of West Virginia, 1931, as amended, all relating to authorizing counties and municipalities to enter into contracts for energy-savings contracts.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senator Sprouse:
Senate Bill No. 488--A Bill to amend and reenact §33-42-3 of the Code of West Virginia, 1931, as amended, relating to providing that when any body part of an unborn child is outside the mother's womb, the child is born and is considered a citizen of the state with same rights and privileges under the law as any other citizen.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
By Senator Sprouse:
Senate Bill No. 489--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-42-9, relating to ensuring that medical workers have the right to refuse to participate in any abortion-related activity without fear of disciplinary action or dismissal; and prescribing criminal penalties for violations of section.
Referred to the Committee on the Judiciary.
Senators Edgell, Wells, Green, Hall, Plymale, Foster, Jenkins, Hunter, Stollings and Kessler offered the following resolution:
Senate Concurrent Resolution No. 32--
Requesting the Joint Committee on Government and Finance study methods of implementing daily physical education classes for all students in a cost- efficient manner, as well as methods of promoting adequate sleep for all students.
Whereas, Subcommittee A of the Joint Standing Committee on Education heard testimony on the costs and benefits of requiring daily physical education for all students during the 2007-2008 interim period; and
Whereas, The testimony indicated that medical costs attributed to obesity in West Virginia are $588 million annually; and
Whereas, The testimony indicated that physical activity is a proven strategy for obesity prevention; and
Whereas, Inadequate sleep could make it more difficult for students to participate in daily physical education classes and more difficult for students to learn; and
Whereas, Subcommittee A of the Joint Standing Committee on Education recommended that further study be conducted during the 2008-2009 interim period on implementing daily physical education classes in a cost-efficient manner while promoting adequate sleep for all students; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study methods of implementing daily physical education classes for all students in a cost-efficient manner, as well as methods of promoting adequate sleep for all students; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2009, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report 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.
Senators Bailey, Love and Hunter offered the following resolution:
Senate Concurrent Resolution No. 33--
Requesting the Joint Committee on Government and Finance study feasibility of a four-day work week, consisting of 10-hour days, for city, county and state employees.
Whereas, Access to government entities is necessary and vital to effective and efficient government services; and
Whereas, Normal business hours limit citizens' ability to access their government because citizens of this state are working during those hours, too; and
Whereas, The rising cost of gas prices puts a strain on government employees finances. Limiting the number of times they must drive to work will leave more income at their disposal; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the feasibility of a four-day work week, consisting of 10-hour days for city, county and state employees; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2009, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report 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.
Senator Edgell offered the following resolution:
Senate Resolution No. 10--Designating January 29, 2008, as "West Virginia State Grange Day".
Whereas, The Grange is the world's first farm fraternal association; and
Whereas, The West Virginia State Grange is our state's oldest agricultural and rural communities organization; and
Whereas, The Grange has been a tireless champion for West Virginia's farmers and their rural communities through a vigorous grassroots advocacy of the mutual interests of its members; and
Whereas, The Grange provides opportunities for families and individuals to develop their highest potential in order to build stronger communities; and
Whereas, Voluntary association with the Grange not only provides the benefits of economic and political cooperation for its members, but also elevates their character by providing social, cultural and educational programs, along with opportunities for personal growth; and
Whereas, The Grange increases the influence of each of its members by giving them an opportunity to serve their community through projects and programs that make a difference in the lives of children, youth and neighbors in need of assistance; and
Whereas, The West Virginia State Grange has served the State of West Virginia since June 1873; therefore, be it
Resolved by the Senate:
That the Senate hereby designates January 29, 2008, as "West Virginia State Grange Day"; and, be it
Further Resolved, That the Clerk is hereby requested to forward a copy of this resolution to the appropriate representatives of the West Virginia State Grange.

At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Senators
Bailey, Tomblin (Mr. President), Boley, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Wells, White and Yoder offered the following resolution:
Senate Resolution No. 11--
Designating January 29, 2008, as "Community Action Day".
Whereas, Community action agencies in West Virginia work to assist low-income citizens; and
Whereas, Community action agencies try to find the causes of poverty and how to achieve self-sufficiency; and
Whereas, Community action agencies have been serving low- income families throughout the 55 counties for more than 35 years; and
Whereas, Community action agencies conduct programs to meet the needs of low-income West Virginians; and
Whereas, These programs consist of Head Start, weatherization, housing, energy assistance, home rehabilitation, job training and placement, nutrition for the elderly and children, counseling, health, education, welfare reform, family mentoring and many others; and
Whereas, Community action agencies, in partnerships with elected officials, the private sector and citizens of West Virginia, continue to identify low-income conditions and pursue solutions; therefore, be it
Resolved by the Senate:
That the Senate hereby designates January 29, 2008, as "Community Action Day"; and, be it
Further Resolved, That the Senate invites all members of the Legislature and all citizens of West Virginia to join in recognizing the value and importance of community action programs in West Virginia; and, be it
Further Resolved, That the Clerk is hereby requested to forward a copy of this resolution to the West Virginia Community Action Partnership.

At the request of Senator Chafin, 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.
Petitions

Senator Jenkins presented a petition from Cindy Dixon and sixteen faculty and staff members of Prichard Elementary School, supporting Senate Bill No. 68 (Providing one-time option for certain Defined Contribution Retirement System members to opt in to State Teachers Retirement System).
Referred to the Committee on Pensions.
At the request of Senator Chafin, and by unanimous consent, the Senate returned to the fourth order of business.
Senator Tomblin (Mr. President), from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 34 (originating in the Committee on Rules)--
Amending the Joint Rules of the Senate and House of Delegates.
Resolved by the Legislature of West Virginia:
That the Joint Rules of the Senate and House of Delegates be amended by adding thereto a new rule, designated Joint Rule No. 32, to read as follows:

Receipt of Constitutional Petitions and Resolutions.
32.Any application from a county commission or a verified petition from the voters of a county seeking to reform, alter or modify a county commission pursuant to Article IX, Section 13 of the West Virginia Constitution and any related documents that may be subsequently submitted shall be filed with the Clerk of the Senate and the Clerk of the House of Delegates. The Clerk of the Senate and the Clerk of the House of Delegates shall verify that the application, petition or related document has been properly submitted to the other clerk before processing it in his or her respective house.
Such applications, petitions and related documents not submitted to both the Clerk of the Senate and the Clerk of the House of Delegates will not be submitted to either house for processing or consideration by the Legislature.
When the Legislature is not sitting in regular session, upon receipt of an application, petition or related document from a county commission by the Clerk of Senate and the Clerk of the House of Delegates, it shall be processed as a regular order of business at the next regular session following receipt of the application, petition or related document.
Effective with the 2009 regular session of the Legislature, an application or petition to reform, alter or modify a county commission filed with the Legislature on or after the tenth day of a regular legislative session may not be processed or considered by the Legislature until the next regular legislative session.

An application or petition to reform, alter or modify a county commission filed with the Legislature
is only valid for the session in which it was processed and such application or petition not acted upon during that session is null and void.
If an application or petition to reform, alter or modify a county commission filed with the Legislature is determined to have an unconstitutional provision, then the President or Speaker may: (a) Request that the application or petition be corrected and resubmitted; or (b) the Legislature may make changes necessary to meet the constitutional objection. A corrected application or petition may be processed by the Legislature if there is sufficient time remaining in the session for full consideration. If any request by the Legislature to correct an application or petition prevents full consideration of that application or petition during the session in which it would have been considered, the House and the Senate may process the corrected application or petition at the next regular session.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 31, Requesting Division of Highways name bridge in Delbarton, Mingo County, "Thomas Elbert Muncy, Jr., Memorial Bridge".
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation and Infrastructure.
Senate Resolution No. 8, Expressing support for West Virginia University Institute of Technology.
On unfinished business, coming up in regular order, was reported by the Clerk.
At the request of Senator White, and by unanimous consent, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
The Senate proceeded to the eighth order of business.
Eng. Senate Bill No. 72, Expanding Route 2 and Interstate 68 Authority territory.
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, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Love, McCabe, Minard, Plymale, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--28.
The nays were: Chafin, Kessler, McKenzie, Oliverio and Prezioso--5.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 72) 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. 236, Eliminating obsolete election language.
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, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 236) 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. 270, Eliminating provisions requiring circuit clerks handle and disburse inmate moneys.
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, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. 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.
The Senate proceeded to the ninth order of business.

Com. Sub. for Senate Bill No. 234, Creating Maternal Mortality Review Team.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Senate Bill No. 337, Eliminating obsolete language concerning Supreme Court clerk.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Senate Bill No. 459, Authorizing rules of School Building Authority and Higher Education Policy Commission.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
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 Prezioso, Kessler, Jenkins, Yoder, Hunter, Caruth and Plymale.
Thereafter, at the request of Senator Edgell, and by unanimous consent, the remarks by Senator Kessler were ordered printed in the Appendix to the Journal.
At the request of Senator Plymale, unanimous consent being granted, the remarks by Senator Jenkins were ordered printed in the Appendix to the Journal.
At the request of Senator Barnes, and by unanimous consent, the remarks by Senator Yoder were ordered printed in the Appendix to the Journal.
At the request of Senator Hunter, unanimous consent being granted, the remarks by Senator Prezioso were ordered printed in the Appendix to the Journal.
At the request of Senator Hall, and by unanimous consent, the remarks by Senators Hunter and Caruth were ordered printed in the Appendix to the Journal.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Unger, the name of Senator Unger was removed as a sponsor of Senate Bill No. 456, (Authorizing Department of Environmental Protection promulgate legislative rule relating to antidegradation implementation procedures), Senate Bill No. 457 (Authorizing Ethics Commission promulgate legislative rule relating to solicitation and receipt of gifts and charitable contributions by public employees and officials) and Senate Bill No. 458 (Authorizing Lottery Commission promulgate legislative rule relating to racetrack table games).
On motion of Senator Chafin, a leave of absence for the day was granted Senator Sharpe.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Wednesday, January 30, 2008, at 11 a.m.
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