WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
EIGHTY-SECOND LEGISLATURE
REGULAR SESSION, 2015
THIRTY-SEVENTH DAY
____________
Charleston, W. Va., Thursday, February 19, 2015
The Senate met at 11 a.m.
(Senator Cole, Mr. President, in the Chair.)
Prayer was offered by C. Edward Gaunch, a senator from the eighth district.
The Senate was then led in recitation of the Pledge of Allegiance by the Honorable Michael J. Romano, a senator from the twelfth district.
Pending the reading of the Journal of Wednesday, February 18, 2015,
On motion of Senator D. Hall, 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 Clerk presented a communication from the Court of Claims, submitting its annual report, in accordance with chapter fourteen, article two-a, section twenty-one of the Code of West Virginia.
Which communication and report were received and filed with the Clerk.
The Clerk presented a communication from the Department of Transportation, Office of Administrative Hearings, submitting its annual report as required by chapter seventeen-c, article five-c, section two of the Code of West Virginia.
Which communication and report were received and filed with the Clerk.
The Senate 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 with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 6, Relating to medical professional liability.
On motion of Senator Carmichael, 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:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
§55-7B-1. Legislative findings and declaration of purpose.
The Legislature hereby finds and declares that:
The citizens of this state are entitled to the best medical care and facilities available and that health care providers offer an essential and basic service which requires that the public policy of this state encourage and facilitate the provision of such service to our citizens;
That as As in every human endeavor the possibility of injury or death from negligent conduct commands that protection of the public served by health care providers be recognized as an important state interest;
That our Our system of litigation is an essential component of this state’s interest in providing adequate and reasonable compensation to those persons who suffer from injury or death as a result of professional negligence, and any limitation placed on this system must be balanced with and considerate of the need to fairly compensate patients who have been injured as a result of negligent and incompetent acts by health care providers;
That liability Liability insurance is a key part of our system of litigation, affording compensation to the injured while fulfilling the need and fairness of spreading the cost of the risks of injury;
That a A further important component of these protections is the capacity and willingness of health care providers to monitor and effectively control their professional competency, so as to protect the public and ensure to the extent possible the highest quality of care;
That it It is the duty and responsibility of the Legislature to balance the rights of our individual citizens to adequate and reasonable compensation with the broad public interest in the provision of services by qualified health care providers and health care facilities who can themselves obtain the protection of reasonably priced and extensive liability coverage;
That in In recent years, the cost of insurance coverage has risen dramatically while the nature and extent of coverage has diminished, leaving the health care providers, the health care facilities and the injured without the full benefit of professional liability insurance coverage;
That many Many of the factors and reasons contributing to the increased cost and diminished availability of professional liability insurance arise from the historic inability of this state to effectively and fairly regulate the insurance industry so as to guarantee our citizens that rates are appropriate, that purchasers of insurance coverage are not treated arbitrarily and that rates reflect the competency and experience of the insured health care providers and health care facilities;
That the The unpredictable nature of traumatic injury health care services often result in a greater likelihood of unsatisfactory patient outcomes, a higher degree of patient and patient family dissatisfaction and frequent malpractice claims, creating a financial strain on the trauma care system of our state, increasing costs for all users of the trauma care system and impacting the availability of these services, requires appropriate and balanced limitations on the rights of persons asserting claims against trauma care health care providers, this balance must guarantee availability of trauma care services while mandating that these services meet all national standards of care, to assure that our health care resources are being directed towards providing the best trauma care available; and
That the The cost of liability insurance coverage has continued to rise dramatically, resulting in the state’s loss and threatened loss of physicians, which, together with other costs and taxation incurred by health care providers in this state, have created a competitive disadvantage in attracting and retaining qualified physicians and other health care providers;
The Legislature further finds that medical Medical liability issues have reached critical proportions for the state's long-term health care facilities, as: (1) Medical liability insurance premiums for nursing homes in West Virginia continue to increase and the number of claims per bed has increased significantly; (2) the cost to the state Medicaid program as a result of such higher premiums has grown considerably in this period; (3) current medical liability premium costs for some nursing homes constitute a significant percentage of the amount of coverage; (4) these high costs are leading some facilities to consider dropping medical liability insurance coverage altogether; and (5) the medical liability insurance crisis for nursing homes may soon result in a reduction of the number of beds available to citizens in need of long-term care; and
The modernization and structure of the health care delivery system necessitate an update of provisions of this article in order to facilitate and continue the objectives of this article which are to control the increase in the cost of liability insurance and to maintain access to affordable health care services for our citizens.
Therefore, the purpose of this article is to provide for a comprehensive resolution of the matters and factors which the Legislature finds must be addressed to accomplish the goals set forth in this section. In so doing, the Legislature has determined that reforms in the common law and statutory rights of our citizens must be enacted together as necessary and mutual ingredients of the appropriate legislative response relating to:
(1) Compensation for injury and death;
(2) The regulation of ratemaking and other practices by the liability insurance industry, including the formation of a physicians’ mutual insurance company and establishment of a fund to assure adequate compensation to victims of malpractice; and
(3) The authority of medical licensing boards to effectively regulate and discipline the health care providers under such board.
§55-7B-2. Definitions.
(a) “Board” means the State Board of Risk and Insurance Management.
(b) “Collateral source” means a source of benefits or advantages for economic loss that the claimant has received from:
(1) Any federal or state act, public program or insurance which provides payments for medical expenses, disability benefits, including workers’ compensation benefits, or other similar benefits. Benefits payable under the Social Security Act and Medicare are not considered payments from collateral sources except for Social Security disability benefits directly attributable to the medical injury in question;
(2) Any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the cost of medical, hospital, dental, nursing, rehabilitation, therapy or other health care services or provide similar benefits, but excluding any amount that a group, organization, partnership, corporation or health care provider agrees to reduce, discount or write off of a medical bill;
(3) Any group accident, sickness or income disability insurance, any casualty or property insurance (including automobile and homeowners’ insurance) which provides medical benefits, income replacement or disability coverage, or any other similar insurance benefits, except life insurance, to the extent that someone other than the insured, including the insured's employer, has paid all or part of the premium or made an economic contribution on behalf of the plaintiff; or
(4) Any contractual or voluntary wage continuation plan provided by an employer or otherwise or any other system intended to provide wages during a period of disability.
(c) “Consumer Price Index” means the most recent Consumer Price Index for All Consumers published by the United States Department of Labor.
(d) “Emergency condition” means any acute traumatic injury or acute medical condition which, according to standardized criteria for triage, involves a significant risk of death or the precipitation of significant complications or disabilities, impairment of bodily functions or, with respect to a pregnant woman, a significant risk to the health of the unborn child.
(e) “Health care” means:
(1) Any act, service or treatment provided under, pursuant to or in the furtherance of a physician's plan of care, a health care facility's plan of care, medical diagnosis or treatment;
(2) Any act, service or treatment performed or furnished, or which should have been performed or furnished, by any health care provider or person supervised by or acting under the direction of a health care provider or licensed professional for, to or on behalf of a patient during the patient's medical care, treatment or confinement, including, but not limited to, staffing, medical transport, custodial care or basic care, infection control, positioning, hydration, nutrition and similar patient services; and
(3) The process employed by health care providers and health care facilities for the appointment, employment, contracting, credentialing, privileging and supervision of health care providers.
(f) “Health care facility” means any clinic, hospital, pharmacy, nursing home, or assisted living facility, including personal care home, residential care community, and residential board and care home, or end-stage renal disease facility, home health agency, child welfare agency, group residential facility, behavioral health care facility or comprehensive community mental health/mental retardation center, in and licensed health center intellectual/developmental disability center or program, or other ambulatory health care facility, in and licensed, regulated or certified by the State of West Virginia under state or federal law and any state-operated institution or clinic providing health care and any related entity to the health care facility.
(g) “Health care provider” means a person, partnership, corporation, professional limited liability company, health care facility, entity or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including, but not limited to, a physician, osteopathic physician, physician assistant, advanced practice registered nurse, hospital, health care facility, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, psychologist, speech-language pathologist and audiologist, occupational therapist, psychologist, pharmacist, technician, certified nursing assistant, emergency medical service personnel, emergency medical services authority or agency, any person supervised by or acting under the direction of a licensed professional, any person taking actions or providing service or treatment pursuant to or in furtherance of a physician's plan of care, a health care facility’s plan of care, medical diagnosis or treatment; or an officer, employee or agent thereof of a health care provider acting in the course and scope of such the officer's, employee's or agent's employment.
(h) “Medical injury” means injury or death to a patient arising or resulting from the rendering of or failure to render health care.
(i) “Medical professional liability” means any liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient. It also means other claims that may be contemporaneous to or related to the alleged tort or breach of contract or otherwise provided, all in the context of rendering health care services.
(j) “Medical professional liability insurance” means a contract of insurance or any actuarially sound self-funding program that pays for the legal liability of a health care facility or health care provider arising from a claim of medical professional liability. In order to qualify as medical professional liability insurance for purposes of this article, a self-funding program for an individual physician must meet the requirements and minimum standards set forth in section twelve of this article.
(k) “Noneconomic loss” means losses, including, but not limited to, pain, suffering, mental anguish and grief.
(l) “Patient” means a natural person who receives or should have received health care from a licensed health care provider under a contract, expressed or implied.
(m) “Plaintiff” means a patient or representative of a patient who brings an action for medical professional liability under this article.
(n) “Related entity” means any corporation, foundation, partnership, joint venture, professional limited liability company, limited liability company, trust, affiliate or other entity under common control or ownership, whether directly or indirectly, partially or completely, legally, beneficially or constructively, with a health care provider or health care facility; or which owns directly, indirectly, beneficially or constructively any part of a health care provider or health care facility.
(n) (o) “Representative” means the spouse, parent, guardian, trustee, attorney or other legal agent of another.
§55-7B-7. Testimony of expert witness on standard of care.
(a) The applicable standard of care and a defendant's failure to meet the standard of care, if at issue, shall be established in medical professional liability cases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court. Expert testimony may only be admitted in evidence A proposed expert witness may only be found competent to testify if the foundation therefor for his or her testimony is first laid establishing that: (1) The opinion is actually held by the expert witness; (2) the opinion can be testified to with reasonable medical probability; (3) the expert witness possesses professional knowledge and expertise coupled with knowledge of the applicable standard of care to which his or her expert opinion testimony is addressed; (4) the expert witness' opinion is grounded on scientifically valid peer reviewed studies if available; (5) the expert witness maintains a current license to practice medicine with the appropriate licensing authority of any state of the United States: Provided, That the expert witness’ license has not been revoked or suspended in the past year in any state; and (5) (6) the expert witness is engaged or qualified in a medical field in which the practitioner has experience and/or training in diagnosing or treating injuries or conditions similar to those of the patient. If the witness meets all of these qualifications and devoted, at the time of the medical injury, sixty percent of his or her professional time annually to the active clinical practice in his or her medical field or specialty, or to teaching in his or her medical field or speciality in an accredited university, there shall be a rebuttable presumption that the witness is qualified as an expert. The parties shall have the opportunity to impeach any witness’ qualifications as an expert. Financial records of an expert witness are not discoverable or relevant to prove the amount of time the expert witness spends in active practice or teaching in his or her medical field unless good cause can be shown to the court.
(b) Nothing contained in this section may be construed to limit limits a trial court’s discretion to determine the competency or lack of competency of a witness on a ground not specifically enumerated in this section.
§55-7B-7a. Admissibility and use of certain information.
(a) In an action brought, there is a rebuttable presumption that the following information may not be introduced unless it applies specifically to the injured person or it involves substantially similar conduct that occurred within one year of the particular incident involved:
(1) A state or federal survey, audit, review or other report of a health care provider or health care facility;
(2) Disciplinary actions against a health care provider's license, registration or certification;
(3) An accreditation report of a health care provider or health care facility; and
(4) An assessment of a civil or criminal penalty.
(b) In any action brought, if the health care facility or health care provider demonstrates compliance with the minimum staffing requirements under state law, the health care facility or health care provider is entitled to a rebuttable presumption that appropriate staffing was provided.
(c) Information under this section may only be introduced in a proceeding if it is otherwise admissible under the West Virginia Rules of Evidence.
§55-7B-8. Limit on liability for noneconomic loss.
(a) In any professional liability action brought against a health care provider pursuant to this article, the maximum amount recoverable as compensatory damages for noneconomic loss shall may not exceed $250,000 per for each occurrence, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees, except as provided in subsection (b) of this section.
(b) The plaintiff may recover compensatory damages for noneconomic loss in excess of the limitation described in subsection (a) of this section, but not in excess of $500,000 for each occurrence, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees, where the damages for noneconomic losses suffered by the plaintiff were for: (1) Wrongful death; (2) permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or (3) permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life-sustaining activities.
(c) On January 1, 2004, and in each year thereafter, the limitation for compensatory damages contained in subsections (a) and (b) of this section shall increase to account for inflation by an amount equal to the Consumer Price Index published by the United States Department of Labor, not to exceed one hundred fifty percent of the amounts specified in said subsections. (b) and (c)
(d) The limitations on noneconomic damages contained in subsections (a), (b), (c) and (e) of this section are not available to any defendant in an action pursuant to this article which does not have medical professional liability insurance in the aggregate amount of at least $1 million per for each occurrence covering the medical injury which is the subject of the action.
(e) If subsection (a) or (b) of this section, as enacted during the 2003 regular session of the Legislature, or the application thereof to any person or circumstance, is found by a court of law to be unconstitutional or otherwise invalid, the maximum amount recoverable as damages for noneconomic loss in a professional liability action brought against a health care provider under this article shall thereafter not exceed $1 million.
§55-7B-9. Several liability.
(a) In the trial of a medical professional liability action under this article involving multiple defendants, the trier of fact shall report its findings on a form provided by the court which contains each of the possible verdicts as determined by the court. Unless otherwise agreed by all the parties to the action, the jury shall be instructed to answer special interrogatories, or the court, acting without a jury, shall make findings as to:
(1) The total amount of compensatory damages recoverable by the plaintiff;
(2) The portion of the damages that represents damages for noneconomic loss;
(3) The portion of the damages that represents damages for each category of economic loss;
(4) The percentage of fault, if any, attributable to each plaintiff; and
(5) The percentage of fault, if any, attributable to each of the defendants.
(b) In assessing percentages of fault, the trier of fact shall consider only the fault of the parties in the litigation at the time the verdict is rendered and shall may not consider the fault of any other person who has settled a claim with the plaintiff arising out of the same medical injury: Provided, That, upon the creation of the Patient Injury Compensation Fund provided for in article twelve-c, chapter twenty-nine of this code, or of some other mechanism for compensating a plaintiff for any amount of economic damages awarded by the trier of fact which the plaintiff has been unable to collect, the trier of fact shall, in assessing percentages of fault, consider the fault of all alleged parties, including the fault of any person who has settled a claim with the plaintiff arising out of the same medical injury.
(c) If the trier of fact renders a verdict for the plaintiff, the court shall enter judgment of several, but not joint, liability against each defendant in accordance with the percentage of fault attributed to the defendant by the trier of fact.
(d) To determine the amount of judgment to be entered against each defendant, the court shall first, after adjusting the verdict as provided in section nine-a of this article, reduce the adjusted verdict by the amount of any preverdict settlement arising out of the same medical injury. The court shall then, with regard to each defendant, multiply the total amount of damages remaining, with interest, by the percentage of fault attributed to each defendant by the trier of fact. The resulting amount of damages, together with any post-judgment interest accrued, shall be the maximum recoverable against the defendant.
(e) Upon the creation of the Patient Injury Compensation Fund provided for in article twelve-c, chapter twenty-nine of this code, or of some other mechanism for compensating a plaintiff for any amount of economic damages awarded by the trier of fact which the plaintiff has been unable to collect, the court shall, in determining the amount of judgment to be entered against each defendant, first multiply the total amount of damages, with interest, recoverable by the plaintiff by the percentage of each defendant’s fault and that amount, together with any post-judgment interest accrued, is the maximum recoverable against said defendant. Prior to the court’s entry of the final judgment order as to each defendant against whom a verdict was rendered, the court shall reduce the total jury verdict by any amounts received by a plaintiff in settlement of the action. When any defendant’s percentage of the verdict exceeds the remaining amounts due plaintiff after the mandatory reductions, each defendant shall be liable only for the defendant’s pro rata share of the remainder of the verdict as calculated by the court from the remaining defendants to the action. The plaintiff’s total award may never exceed the jury’s verdict less any statutory or court-ordered reductions.
(f) Nothing in this section is meant to eliminate or diminish any defenses or immunities which exist as of the effective date of this section, except as expressly noted in this section.
(g) Nothing in this article is meant to preclude a health care provider from being held responsible for the portion of fault attributed by the trier of fact to any person acting as the health care provider’s agent or servant or to preclude imposition of fault otherwise imputable or attributable to the health care provider under claims of vicarious liability. A health care provider may not be held vicariously liable for the acts of a nonemployee pursuant to a theory of ostensible agency unless the alleged agent does not maintain professional liability insurance covering the medical injury which is the subject of the action in the aggregate amount of at least $1 million for each occurrence.
§55-7B-9a. Reduction in compensatory damages for economic losses for payments from collateral sources for the same injury.
(a) In any action arising after the effective date of this section, a defendant who has been found liable to the plaintiff for damages for medical care, rehabilitation services, lost earnings or other economic losses may present to the court, after the trier of fact has rendered a verdict, but before entry of judgment, evidence of payments the plaintiff has received for the same injury from collateral sources.
(b) In any a hearing held pursuant to subsection (a) of this section, the defendant may present evidence of future payments from collateral sources if the court determines that:
(1) There is a preexisting contractual or statutory obligation on the collateral source to pay the benefits;
(2) The benefits, to a reasonable degree of certainty, will be paid to the plaintiff for expenses the trier of fact has determined the plaintiff will incur in the future; and
(3) The amount of the future expenses is readily reducible to a sum certain.
(c) In the a hearing held pursuant to subsection (a) of this section, the plaintiff may present evidence of the value of payments or contributions he or she has made to secure the right to the benefits paid by the collateral source.
(d) After hearing the evidence presented by the parties, the court shall make the following findings of fact:
(1) The total amount of damages for economic loss found by the trier of fact;
(2) The total amount of damages for each category of economic loss found by the trier of fact;
(3) The total amount of allowable collateral source payments received or to be received by the plaintiff for the medical injury which was the subject of the verdict in each category of economic loss; and
(4) The total amount of any premiums or contributions paid by the plaintiff in exchange for the collateral source payments in each category of economic loss found by the trier of fact.
(e) The court shall subtract the total premiums the plaintiff was found to have paid in each category of economic loss from the total collateral source benefits the plaintiff received with regard to that category of economic loss to arrive at the net amount of collateral source payments.
(f) The court shall then subtract the net amount of collateral source payments received or to be received by the plaintiff in each category of economic loss from the total amount of damages awarded the plaintiff by the trier of fact for that category of economic loss to arrive at the adjusted verdict.
(g) The court shall may not reduce the verdict rendered by the trier of fact in any category of economic loss to reflect:
(1) Amounts paid to or on behalf of the plaintiff which the collateral source has a right to recover from the plaintiff through subrogation, lien or reimbursement;
(2) Amounts in excess of benefits actually paid or to be paid on behalf of the plaintiff by a collateral source in a category of economic loss;
(3) The proceeds of any individual disability or income replacement insurance paid for entirely by the plaintiff;
(4) The assets of the plaintiff or the members of the plaintiff’s immediate family; or
(5) A settlement between the plaintiff and another tortfeasor.
(h) After determining the amount of the adjusted verdict, the court shall enter judgment in accordance with the provisions of section nine of this article.
§55-7B-9c. Limit on liability for treatment of emergency conditions for which patient is admitted to a designated trauma center; exceptions; emergency rules.
(a) In any action brought under this article for injury to or death of a patient as a result of health care services or assistance rendered in good faith and necessitated by an emergency condition for which the patient enters a health care facility designated by the Office of Emergency Medical Services as a trauma center, including health care services or assistance rendered in good faith by a licensed EMS emergency medical services authority or agency, certified emergency medical service personnel or an employee of a licensed EMS emergency medical services authority or agency, the total amount of civil damages recoverable shall may not exceed $500,000 for each occurrence, exclusive of interest computed from the date of judgment, and regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees.
(b) The limitation of liability in subsection (a) of this section also applies to any act or omission of a health care provider in rendering continued care or assistance in the event that surgery is required as a result of the emergency condition within a reasonable time after the patient’s condition is stabilized.
(c) The limitation on liability provided under subsection (a) of this section does not apply to any act or omission in rendering care or assistance which:
(1) Occurs after the patient’s condition is stabilized and the patient is capable of receiving medical treatment as a nonemergency patient; or
(2) Is unrelated to the original emergency condition.
(d) In the event that: (1) A physician provides follow-up care to a patient to whom the physician rendered care or assistance pursuant to subsection (a) of this section; and (2) a medical condition arises during the course of the follow-up care that is directly related to the original emergency condition for which care or assistance was rendered pursuant to said subsection, there is rebuttable presumption that the medical condition was the result of the original emergency condition and that the limitation on liability provided by said subsection applies with respect to that medical condition.
(e) There is a rebuttable presumption that a medical condition which arises in the course of follow-up care provided by the designated trauma center health care provider who rendered good faith care or assistance for the original emergency condition is directly related to the original emergency condition where the follow-up care is provided within a reasonable time after the patient’s admission to the designated trauma center.
(f) The limitation on liability provided under subsection (a) of this section does not apply where health care or assistance for the emergency condition is rendered:
(1) In willful and wanton or reckless disregard of a risk of harm to the patient; or
(2) In clear violation of established written protocols for triage and emergency health care procedures developed by the office of emergency medical services in accordance with subsection (e) of this section. In the event that the office of emergency medical services has not developed a written triage or emergency medical protocol by the effective date of this section, the limitation on liability provided under subsection (a) of this section does not apply where health care or assistance is rendered under this section in violation of nationally recognized standards for triage and emergency health care procedures.
(g) The Office of Emergency Medical Services shall, prior to the effective date of this section, develop a written protocol specifying recognized and accepted standards for triage and emergency health care procedures for treatment of emergency conditions necessitating admission of the patient to a designated trauma center.
(h) In its discretion, the Office of Emergency Medical Services may grant provisional trauma center status for a period of up to one year to a health care facility applying for designated trauma center status. A facility given provisional trauma center status is eligible for the limitation on liability provided in subsection (a) of this section. If, at the end of the provisional period, the facility has not been approved by the Office of Emergency Medical Services as a designated trauma center, the facility will is no longer be eligible for the limitation on liability provided in subsection (a) of this section.
(i) The Commissioner of the Bureau for Public Health may grant an applicant for designated trauma center status a one-time only extension of provisional trauma center status, upon submission by the facility of a written request for extension, accompanied by a detailed explanation and plan of action to fulfill the requirements for a designated trauma center. If, at the end of the six-month period, the facility has not been approved by the Office of Emergency Medical Services as a designated trauma center, the facility will no longer have has the protection of the limitation on liability provided in subsection (a) of this section.
(j) If the Office of Emergency Medical Services determines that a health care facility no longer meets the requirements for a designated trauma center, it shall revoke the designation, at which time the limitation on liability established by subsection (a) of this section shall cease ceases to apply to that health care facility for services or treatment rendered thereafter.
(k) The Legislature hereby finds that an emergency exists compelling promulgation of an emergency rule, consistent with the provisions of this section, governing the criteria for designation of a facility as a trauma center or provisional trauma center and implementation of a statewide trauma/emergency care system. The Legislature therefore directs the Secretary of the Department of Health and Human Resources to file, on or before July 1, 2003, emergency rules specifying the criteria for designation of a facility as a trauma center or provisional trauma center in accordance with nationally accepted and recognized standards and governing the implementation of a statewide trauma/emergency care system. The rules governing the statewide trauma/emergency care system shall include, but not be limited to:
(1) System design, organizational structure and operation, including integration with the existing emergency medical services system;
(2) Regulation of facility designation, categorization and credentialing, including the establishment and collection of reasonable fees for designation; and
(3) System accountability, including medical review and audit to assure system quality. Any medical review committees established to assure system quality shall include all levels of care, including emergency medical service providers, and both the review committees and the providers shall qualify for all the rights and protections established in article three-c, chapter thirty of this code.
(l) On January 1, 2016, and in each year after that, the limitation for civil damages contained in subsection (a) of this section shall increase to account for inflation by an amount equal to the Consumer Price Index published by the United States Department of Labor, not to exceed one hundred fifty percent of said subsection.
§55-7B-9d. Adjustment of verdict for past medical expenses.
A verdict for past medical expenses is limited to:
(1) The total amount of past medical expenses paid by or on behalf of the plaintiff; and
(2) The total amount of past medical expenses incurred but not paid by or on behalf of the plaintiff for which the plaintiff or another person on behalf of the plaintiff is obligated to pay.
§55-7B-10. Effective date; applicability of provisions.
(a) The provisions of House Bill 149, enacted during the first extraordinary session of the Legislature, 1986, shall be effective at the same time that the provisions of Enrolled Senate Bill 714, enacted during the regular session, 1986, become effective, and the provisions of said House Bill 149 shall be deemed to amend the provisions of Enrolled Senate Bill 714. The provisions of this article shall not apply to injuries which occur before the effective date of this said Enrolled Senate Bill 714.
The amendments to this article as provided in House Bill 601, enacted during the sixth extraordinary session of the Legislature, 2001, apply to all causes of action alleging medical professional liability which are filed on or after March 1, 2002.
The amendments to this article provided in Enrolled Committee Substitute for House Bill No. 2122 during the regular session of the Legislature, 2003, apply to all causes of action alleging medical professional liability which are filed on or after the first day of July, two thousand three.
(b) The amendments to this article provided in Enrolled Committee Substitute for Senate Bill No. 6 during the regular session of the Legislature, 2015, apply to all causes of action alleging medical professional liability which arise on or after the first day of July, 2015.
§55-7B-11. Severability.
(a) If any provision of this article as enacted during the First Extraordinary Session of the Legislature, 1986, in House Bill 149, or as enacted during the regular session of the Legislature, 1986, in Senate Bill 714, or as enacted during the regular session of the Legislature, 2015, or the application thereof to any person or circumstance is held invalid, such the invalidity shall does not affect other provisions or applications of this article, and to this end, the provisions of this article are declared to be severable.
(b) If any provision of the amendments to section five of this article, any provision of new section six-d of this article or any provision of the amendments to section eleven, article six, chapter fifty-six of this code as provided in House Bill 601, enacted during the Sixth Extraordinary Session of the Legislature, 2001, is held invalid, or the application thereof to any person is held invalid, then, notwithstanding any other provision of law, every other provision of said House Bill 601 shall be deemed invalid and of no further force and effect.
(c) If any provision of the amendments to section six or ten of this article or any provision of new section six-a, six-b or six-c of this article as provided in House Bill 60l, enacted during the Sixth Extraordinary Session of the Legislature, 2001, is held invalid, such the invalidity shall does not affect other provisions or applications of this article, and to this end, such provisions are deemed severable.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 6--A Bill to amend and reenact §55-7B-1, §55-7B-2, §55-7B-7, §55-7B-8, §55-7B-9, §55-7B-9a, §55-7B-9c, §55-7B-10 and §55-7B-11 of the Code of West Virginia, 1931; and to amend said code by adding thereto two new sections, designated §55-7B-7a and §55-7B-9d, all relating to medical professional liability generally; providing additional legislative findings and purposes related to medical professional liability; providing definitions; modifying the qualifications for the competency of experts who testify in medical professional liability actions; providing rebuttable presumptions and evidentiary requirements related to the admission of certain government, health care provider or health care facility information; modifying the maximum amount of recovery for, and availability of, noneconomic damages; clarifying that a health care provider is not vicariously liable unless the alleged agent does not maintain certain insurance; clarifying eligibility for, and application of, emergency medical services caps; providing a methodology for determining the amount of trauma care caps to account for inflation; providing certain limitations of verdicts for past medical expenses of the plaintiff; establishing effective date; and providing for severability.
On motion of Senator Trump, the following amendments to the House of Delegates amendments to the bill were reported by the Clerk and adopted:
On page three, section two, subsection (b), subdivision (1), after the word “Medicare” by inserting the words “set aside”;
And,
On page seventeen, section ten, subsection (b), by striking out the word “arise” and inserting in lieu thereof the words “are filed”.
On motion of Senator Carmichael, the Senate concurred in the House of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 6, as amended, was then put upon its passage.
On the passage of the bill, the yeas were: Blair, Boley, Boso, Carmichael, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Nohe, Palumbo, Plymale, Prezioso, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel, Yost and Cole (Mr. President)--30.
The nays were: Beach, Facemire, Romano and Snyder--4.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 6) passed with its House of Delegates amended title.
Senator Carmichael moved that the bill take effect from passage.
On this question, the yeas were: Blair, Boley, Boso, Carmichael, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Nohe, Palumbo, Plymale, Prezioso, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel, Yost and Cole (Mr. President)--30.
The nays were: Beach, Facemire, Romano and Snyder--4.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 6) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of the committee of conference report, passage as amended by the conference report with its conference amended title, to take effect from passage, of
Eng. Com. Sub. for Senate Bill No. 13, Reinstating open and obvious doctrine for premises liability.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 262, Transferring CHIP and Children's Health Insurance Agency from Department of Administration to DHHR.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 389, Relating to Board of Registration for Professional Engineers license renewals and reinstatements.
On motion of Senator Carmichael, 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:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §30-13-13a, §30-13-17 and §30-13-18 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 13. ENGINEERS.
§30-13-13a. Designations of nonpracticing status.
The board may designate a professional engineer as ineligible to practice or offer to practice engineering in this state using one of the following terms:
(1) Professional engineer-retired. -- A registrant may apply for retired status upon certification that he or she is no longer practicing or offering to practice engineering in this state for remuneration.
(2) Professional engineer-inactive. -- A registrant may request inactive status upon affirmation that he or she is no longer practicing or offering to practice engineering in this state.
(3) Professional engineer-lapsed. -- A registrant’s license is lapsed when the registrant does not respond to renewal notices or pay the required renewal fees.
(4) Professional engineer-invalidated. -- A registrant’s license is invalidated when he or she is unable to provide sufficient proof that any condition of renewal set forth in this article or by board rule has been met.
§30-13-17. Certificates of authorization required; naming of engineering firms.
(a) No person or firm is authorized to practice or offer to practice engineering in this state until the person or firm has been issued a certificate of authorization by the board.
(b) A person or firm desiring a certificate of authorization must file all the required information with the board on an application form specified by the board. The required information shall include the sworn statement of the engineer in responsible charge who is a professional engineer registered in this state. The board shall issue a certificate of authorization to an applicant who has met all the requirements and paid the fees set forth in board rules.
(c) No person or firm is relieved of responsibility for the conduct or acts of its agents, employees, officers or partners due to compliance with the provisions of this article. No individual practicing engineering under the provisions of this article is relieved of responsibility for engineering services performed due to his or her employment or other relationship with a person or firm holding a certificate of authorization.
(d) An engineer who renders occasional, part-time or contract engineering services to or for a firm may not be designated as being in responsible charge for the professional activities of the firm unless that engineer is an owner or principal of the firm.
(e) The Secretary of State shall not issue a certificate of authority or business registration or license to an applicant whose business includes, among the objectives for which it is established, the words engineer, engineering or any modification or derivation thereof unless the board of registration for this profession has issued to the applicant a certificate of authorization or a letter indicating eligibility to receive the certificate. The certificate or letter from the board shall be filed with the application filed with the Secretary of State to do business in West Virginia.
(f) The Secretary of State shall decline to register a trade name or service mark which includes the words engineer, engineering or modifications or derivatives thereof in its business name or logotype except those businesses holding a certificate of authorization issued under the provisions of this article.
(g) The certificate of authorization may be renewed or reinstated in accordance with board rule and upon payment of the required renewal fee fees.
(h) Every holder of a certificate of authorization has a duty to notify the board promptly of any change in information previously submitted to the board in an application for a certificate of authorization.
§30-13-18. Renewals and reinstatement.
(a) Certificates of registration and certificates of authorization for firms expire on the last day of the month of June following issuance December of the year indicated on the certificate, and are invalid after that date unless renewed the holder of any certificate that is not timely renewed is ineligible to practice or offer to practice engineering in this state until the certificate has been reinstated in accordance with rules promulgated by the board.
(b) The secretary of the board shall notify every person registered and every firm holding a certification of authorization under this article of the pending expiration of a certificate of registration or certificate of authorization issued to that person or firm, including notice of the fee required to renew the registration or certificate. The notice shall be mailed to the registrant or firm at their last known address at the last mailing address or email address provided to the board, at least one month in advance of the date of the expiration. Certificates may be renewed only in accordance with board rule, which may include payment of a late fee for renewals not postmarked by December 31 of the year in which renewal is required. The board shall notify every person or firm holding an active certificate under this article of the certificate renewal requirements at least one month prior to the renewal date. The notice shall be made by mail or electronic means using the contact information provided to the board.
(c) An expired A certificate that was not timely renewed or for other reason was given a nonpracticing status may be renewed reinstated under rules promulgated by the board and may require reexamination and payment of penalty fees set forth in board rules.
(d) Effective July 1, 2015, the board may renew certificates on a biennial basis.
(e) The board shall promulgate emergency rules pursuant to section fifteen, article three, chapter twenty-nine-a of this code to implement the provisions of this section.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 389--A Bill to amend and reenact §30-13-13a, §30-13-17 and §30-13-18 of the Code of West Virginia, 1931, as amended, all relating to the Board of Registration for Professional Engineers; changing time period for renewal from fiscal year to calendar year; authorizing renewal notification by mail or electronically; requiring reinstatement of nonrenewed licenses; and authorizing annual or biennial renewal periods.
On motion of Senator Carmichael, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 389, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Beach, Blair, Boley, Boso, Carmichael, Facemire, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Nohe, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel, Yost and Cole (Mr. President)--34.
The nays were: None.
Absent: None.
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. 389) passed with its House of Delegates amended title.
Senator Carmichael moved that the bill take effect from passage.
On this question, the yeas were: Beach, Blair, Boley, Boso, Carmichael, Facemire, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Nohe, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel, Yost and Cole (Mr. President)--34.
The nays were: None.
Absent: None.
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. 389) 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 passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2391--A Bill to amend and reenact §18-5-44 of the Code of West Virginia, 1931, as amended, relating to minimum instructional days per week, minimum instructional minutes per week and minimum instructional days per year for early childhood education programs.
Referred to the Committee on Education.
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. 2523--A Bill to amend and reenact §15-2-3 of the Code of West Virginia, 1931, as amended, relating to creating a special revenue account to offset costs for the West Virginia State Police 100th Anniversary in 2019.
Referred 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. Com. Sub. for House Bill No. 2527--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §49-2-8, relating to establishing the Task Force on Prevention of Sexual Abuse of Children; authorizing section to be called “Erin Merryn’s Law”; specifying membership; specifying responsibilities, including report of recommendations to Legislature and Governor; precluding member compensation or expense reimbursement.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 2776--A Bill to amend and reenact §30-3E-12 of the Code of West Virginia, 1931, as amended; to amend and reenact §30-7-15a of said code; and to amend and reenact §30-8-9 of said code, all relating to prescribing hydrocodone combination drugs for a duration of no more than three days.
Referred to the Committee on Health and Human Resources.
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. 2777--A Bill to amend the Code of West Virginia, 1931, as amended, by repealing §30-27-11a and §30-27-12; to amend and reenact §30-27-1, §30-27-3, §30-27-4, §30-27-5, §30-27-6, §30-27-8, §30-27-8a, §30-27-10, §30-27-11, §30-27-13 and §30-27-16 of the code; and to amend said code by adding thereto two new sections, designated §30-27-8b and §30-27-8c, all relating to licensing of aestheticians, barbers, cosmetologists, hairstylists and nail technicians; revising the membership requirements of the Board of Barbers and Cosmetologists; exempting shampoo assistants and hair braiding from licensure by the Board of Barbers and Cosmetologists; creating certifications; modifying barber apprentice program; limiting continuing education requirements for barbers and cosmetologists; and modifying the requirements to be an instructor in a school.
Referred to the Committee on Government Organization.
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. 74--Extending the Committee of Conference relating to consideration of Com. Sub. for H. B. 2002, Predicating actions for damages upon principles of comparative fault.
Resolved by the Legislature of West Virginia:
That pursuant to Rule No. 3 of the Joint Rules of the Senate and House of Delegates, the Committee of Conference is hereby extended for a period of three days for the express purpose of consideration of matters of disagreement between the two houses as to Com. Sub. for H. B. 2002.
At the request of Senator Carmichael, 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.
Executive Communications
The Clerk then presented a communication from His Excellency, the Governor, advising that on February 18, 2015, he had approved Enr. House Bill No. 2138, Enr. Committee Substitute for House Bill No. 2217 and Enr. Committee Substitute for House Bill No. 2227.
The Senate proceeded to the fourth order of business.
Senator Maynard, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 18th day of February, 2015, presented to His Excellency, the Governor, for his action, the following bill, signed by the President of the Senate and the Speaker of the House of Delegates:
(H. B. No. 2201), Requiring the Public Service Commission to adopt certain net metering and interconnection rules and standards.
Respectfully submitted,
Mark R. Maynard,
Chair, Senate Committee.
John B. McCuskey,
Chair, House Committee.
Senator Maynard, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 19th day of February, 2015, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:
(Com. Sub. for S. B. No. 7), Requiring CPR and care for conscious choking instruction in public schools.
(Com. Sub. for S. B. No. 237), Creating Captive Cervid Farming Act.
And,
(Com. Sub. for S. B. No. 335), Creating Access to Opioid Antagonists Act.
Respectfully submitted,
Mark R. Maynard,
Chair, Senate Committee.
John B. McCuskey,
Chair, House Committee.
Senator M. Hall, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 89, Providing Prosecuting Attorneys Institute's council establish Executive Director's salary.
And,
Senate Bill No. 445, Relating to investment of RJCFA excess funds.
And reports the same back with the recommendation that they each do pass.
Respectfully submitted,
Mike Hall,
Chair.
Senator Karnes, 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. 167, Authorizing DEP promulgate legislative rule relating to requirements governing water quality standards.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
Robert Karnes,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on the Judiciary.
Senator Blair, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Senate Bill No. 234, Exempting water and sewer utilities owned by political subdivisions from PSC jurisdiction.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 234 (originating in the Committee on Government Organization)--A Bill to repeal §8-16-19 of the Code of West Virginia, 1931, as amended; to amend and reenact §8-12-17 of said code; to amend and reenact §8-19-4 of said code; to amend and reenact §16-13A-1a, §16-13A-9 and §16-13A-25 of said code; to amend and reenact §24-1-1 and §24-1-1b of said code; to amend and reenact §24-2-1, §24-2-2, §24-2-3, §24-2-4a, §24-2-4b, §24-2-7 and §24-2-11 of said code; and to amend and reenact §24-3-5 of said code, all relating to removing from the jurisdiction of the Public Service Commission certain water and sewer utilities owned or operated by political subdivisions of the state; providing that bondholders may petition the court for redress in the event of significant insufficiencies; expanding jurisdiction of Public Service Commission to provide assistance to Public Service Districts regarding proposed rate changes; expanding powers of certain Public Service Boards; limiting use of certain information collected by Public Service Commission; providing mechanism for Public Service Commission to address deficiencies in the measurements, practices acts or services provided by certain public utility that is a political subdivision of the state; and providing mechanisms for various functions of political subdivisions related to water and sewer services.
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,
Craig Blair,
Chair.
The bill (Com. Sub. for S. B. No. 234), under the original double committee reference, was then referred to the Committee on Finance.
Senator Trump, 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. 283, Relating to branch banking.
And,
Senate Bill No. 292, Relating to licenses for business of currency exchange, transportation or transmission.
And reports the same back with the recommendation that they each do pass.
Respectfully submitted,
Charles S. Trump IV,
Chair.
Senator Trump, 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. 285, Relating to primary and subordinate mortgage loans.
With amendments from the Committee on Banking and Insurance pending;
And has also amended same.
And reports the same back with the recommendation that it do pass as amended by the Committee on Banking and Insurance to which the bill was first referred; and as last amended by the Committee on the Judiciary.
Respectfully submitted,
Charles S. Trump IV,
Chair.
Senator Gaunch, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Senate Bill No. 300, Relating to military service credit for PERS members.
Senate Bill No. 305, Relating to state retirement system participation and concurrent employment provisions.
Senate Bill No. 420, Relating to retirement benefits for certain employees in kindergarten programs.
Senate Bill No. 481, Relating to municipal policemen's and firemen's pension and relief funds' investment.
And,
Senate Bill No. 514, Relating to investments of local policemen's and firemen's pension and relief funds.
And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on Finance.
Respectfully submitted,
C. Edward Gaunch,
Chair.
The bills, under the original double committee references, were then referred to the Committee on Finance.
Senator Gaunch, from the Committee on Interstate Cooperation, submitted the following report, which was received:
Your Committee on Interstate Cooperation has had under consideration
Senate Bill No. 330, Adopting Interstate Medical Licensure Compact.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 330 (originating in the Committee on Interstate Cooperation)--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §30-3F-1, §30-1C-2, §30-1C-3, §30-1C-4, §30-1C-5, §30-1C-6, §30-1C-7, §30-1C-8, §30-1C-9, §30-1C-10, §30-1C-11, §30-1C-12, §30-1C-13, §30-1C-14, §30-1C-15, §30-1C-16, §30-1C-17, §30-1C-18, §30-1C-19, §30-1C-20, §30-1C-21, §30-1C-22, §30-1C-23 and §30-1C-24, all relating to adopting the Interstate Medical Licensure Compact; strengthening access to health care; developing comprehensive process that complements current statutes regarding medical practices; providing streamlined process that allows physicians to become licensed in multiple states, thereby enhancing portability of a medical license and ensuring safety of patients; creating another pathway for licensure; adopting prevailing standard for licensure and affirming that practice of medicine occurs where the patient is located at the time of physician-patient encounter; and requiring physician to be under jurisdiction of state medical board where the patient is located.
With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Health and Human Resources.
Respectfully submitted,
C. Edward Gaunch,
Chair.
The bill (Com. Sub. for S. B. No. 330), under the original double committee reference, was then referred to the Committee on Health and Human Resources.
Senator Gaunch, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Senate Bill No. 342, Clarifying scope, application and methods for corrections by CPRB.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 342 (originating in the Committee on Pensions)--A Bill to amend and reenact §5-10-44 of the Code of West Virginia, 1931, as amended; to amend and reenact §7-14D-7a of said code; to amend and reenact §8-22A-8 of said code; to amend said code by adding thereto a new section, designated §8-22A-8a; to amend said code by adding thereto a new section, designated §15-2-54; to amend said code by adding thereto a new section, designated §15-2A-23; to amend and reenact §16-5V-8a of said code; to amend and reenact §18-7A-14c of said code; to amend and reenact §18-7B-21 of said code; and to amend said code by adding thereto a new section, designated §51-9-18, all relating to correction of errors under the West Virginia Public Employees Retirement System, West Virginia Deputy Sheriff Retirement System, West Virginia Municipal Police Officers and Firefighters Retirement System, West Virginia Emergency Medical Services Retirement System, the State Teachers Retirement System, Teachers’ Defined Contribution Retirement System, the West Virginia State Police Death, Disability and Retirement System, West Virginia State Police Retirement System and the Judges’ Retirement System; and clarifying scope, application and requirements for error correction by Consolidated Public Retirement Board.
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,
C. Edward Gaunch,
Chair.
The bill (Com. Sub. for S. B. No. 342), under the original double committee reference, was then referred to the Committee on Finance.
Senator Karnes, 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. 352, Exempting certain solid waste common carriers from obtaining certificate of convenience and necessity.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 352 (originating in the Committee on Natural Resources)--A Bill to amend and reenact §19-4-1, §19-4-2, §19-4-3, §19-4-4, §19-4-5, §19-4-13, §19-4-16 and §19-4-22 of the Code of West Virginia, 1931, as amended; and to amend and reenact §24A-1-3 of said code, all relating to cooperative associations; clarifying definitions; expanding scope of cooperative associations to goods and services, including recycling; limiting scope of recycling cooperatives; expanding membership of cooperative associations; and revising exemptions for motor carriers to allow nonprofit recycling cooperatives.
With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
Robert Karnes,
Chair.
The bill (Com. Sub. for S. B. No. 352), under the original double committee reference, was then referred to the Committee on the Judiciary.
Senator M. Hall, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 370, Reorganizing Governor's Committee on Crime, Delinquency and Correction and its subcommittees.
With an amendment from the Committee on the Judiciary pending;
And reports the same back with the recommendation that it do pass as amended by the Committee on the Judiciary to which the bill was first referred.
Respectfully submitted,
Mike Hall,
Chair.
Senator Gaunch, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Senate Bill No. 483, Clarifying continuing election of municipal policemen's and firemen's pension and relief funds' trustees.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
C. Edward Gaunch,
Chair.
At the request of Senator Gaunch, unanimous consent being granted, the bill (S. B. No. 483) contained in the preceding report from the Committee on Pensions was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Karnes, 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. 508, Reorganizing Hatfield-McCoy Regional Recreation Authority.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
Robert Karnes,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on the Judiciary.
Senator Gaunch, from the Committee on Interstate Cooperation, submitted the following report, which was received:
Your Committee on Interstate Cooperation has had under consideration
Senate Concurrent Resolution No. 21, Urging Congress call convention for proposal of constitutional amendments imposing fiscal restraints, limiting jurisdiction and setting term limits.
And reports the same back with the recommendation that it be adopted; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
C. Edward Gaunch,
Chair.
The resolution, under the original double committee reference, was then referred to the Committee on the Judiciary.
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 Gaunch and Plymale:
Senate Bill No. 515--A Bill to amend and reenact §8-22-18a and §8-22-18b of the Code of West Virginia, 1931, as amended, all relating to Municipal Pensions Oversight Board; and retention and investment of funds.
Referred to the Committee on Finance.
By Senators Leonhardt, Karnes and Blair:
Senate Bill No. 516--A Bill to repeal §30-7-15a, §30-7-15b and §30-7-15c of the Code of West Virginia, 1931, as amended; to repeal §30-15-1, §30-15-2, §30-15-3, §30-15-4, §30-15-5, §30-15-6, §30-15-7, §30-15-7a, §30-15-7b and §30-15-7c of said code; to amend and reenact §16-5-19 of said code; to amend and reenact §30-7-1 of said code; and to amend said code by adding thereto a new article, designated §30-7F-1, §30-7F-2, §30-7F-3, §30-7F-4, §30-7F-5, §30-7F-6, §30-7F-7, §30-7F-8, §30-7F-9, §30-7F-10, §30-7F-11, §30-7F-12, §30-7F-13, §30-7F-14, §30-7F-15, §30-7F-16, §30-7F-17, §30-7F-18, §30-7F-19, §30-7F-20, §30-7F-21, §30-7F-22, §30-7F-23, §30-7F-24, §30-7F-25, §30-7F-26, §30-7F-27 and §30-7F-28, all relating to the practice of advance practice registered nurses; allowing advance practice registered nurses to sign death certificates; setting up West Virginia Board of Examiners for Advance Practice Registered Nurses; establishing board membership; setting forth terms of office; setting forth requirements for board membership; setting forth meeting requirements; setting forth powers and duties of board; granting rule-making authority to board; setting forth matters that should be included in legislative rules; creating special revenue account for fees and fines; setting forth licensing requirements; providing for licensing of individuals from outside United States; providing for circumstances that are exceptions to licensing; setting forth license renewal process; providing for special volunteer license; setting out elements which must be included on license or certificate; providing limitations on use of certain terms and titles relative to advance practice registered nurses; setting forth procedure for disciplinary action, including complaints and investigations; providing due process; setting out what matters require disciplinary action by board; setting forth what actions are acceptable disciplinary action; providing for reinstatement of licensee following disciplinary action; providing for enjoinder for violations of article; granting an appeal right; setting forth hearing procedures; allowing for judicial review; providing for action which may be taken in criminal matters; creating misdemeanor for fraudulent activities associated with the practice of an advance practice registered nurse; providing for criminal penalties; allowing injunctive relief for improperly engaging in the practice of an advance practice registered nurse; allowing for a voluntary agreement for treatment of alcohol or chemical dependency; providing for single act evidence of practice; setting forth requirements for administration of anesthetics; allowing for prescriptive authority for advance practice registered nurses; providing for collaborative agreement with a physician to allow prescriptive authority; setting forth specified drugs and dosage level of certain drugs; setting forth procedure for granting prescriptive authority; setting forth requirements for prescriptive authority; setting out form of prescriptions; providing for termination of prescriptive authority; allowing for prescriptive authority without a collaborative agreement in specified instances; requiring an annual report; and setting forth exceptions to applicability of article.
Referred to the Committee on Health and Human Resources; and then to the Committee on Finance.
By Senator D. Hall:
Senate Bill No. 517--A Bill to amend and reenact §11-13A-3d of the Code of West Virginia, 1931, as amended, relating to exempting privilege of producing coalbed methane gas from severance tax; and providing effective date.
Referred to the Committee on Finance.
By Senators Blair, Carmichael, Snyder, Trump and Unger:
Senate Bill No. 518--A Bill to amend and reenact §7-12-7 and §7-12-12 of the Code of West Virginia, 1931, as amended, all relating generally to granting the power to county and municipal economic development authorities to invest funds received from the sale, lease or other disposition of real or personal property owned by such authority in a manner determined by the authority's board of directors to be in the best interest of the authority.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Laird, Carmichael, Gaunch, Mullins, Palumbo, Prezioso, Stollings, Walters, Williams, Nohe, Snyder and Plymale:
Senate Bill No. 519--A Bill to amend and reenact §11-3-9 of the Code of West Virginia, 1931, as amended, relating to exempting from property tax certain properties in this state owned by nonprofit youth organizations and built at cost of at least $100 million; setting forth restrictions affecting the property; setting forth permitted activities; requiring property owner to pay four percent of net revenues; establishing how that four percent is to be allocated; requiring reports; and defining terms.
Referred to the Committee on Finance.
By Senators Walters, Blair, Miller, Snyder and Woelfel:
Senate Bill No. 520--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5B-2I-1, §5B-2I-2, §5B-2I-3, §5B-2I-4, §5B-2I-5, §5B-2I-6 and §5B-2I-7, all relating to authorizing local units of government to adopt local energy efficiency partnership programs and to create districts to promote the use of energy efficiency improvements by owners of certain real property; providing for financing of programs through voluntary property assessments, commercial lending and other means; authorizing local unit of government to issue bonds, notes and other evidences of indebtedness and to pay the cost of energy efficiency improvements from the proceeds thereof; providing for the repayment of bonds, notes and other evidences of indebtedness; authorizing certain fees; prescribing powers and duties of certain governmental officers and entities; and providing remedies.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senator Kessler:
Senate Bill No. 521--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-14-2a, relating to requiring certain disclosures with respect to group life insurance policies.
Referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.
By Senators Laird, Miller and Kessler:
Senate Bill No. 522--A Bill to amend and reenact §60-3A-17 of the Code of West Virginia, 1931, as amended, relating generally to wholesale sales of liquor; and directing commissioner to increase wholesale prices of liquor purchased from state to generate funds to promote travel and tourism in West Virginia.
Referred to the Committee on Finance.
By Senators Cole (Mr. President) and Kessler (By Request of the Executive):
Senate Bill No. 523--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-47-1, §16-47-2, §16-47-3, §16-47-4, §16-47-5 and §16-47-6, all relating to obtaining emergency medical assistance for persons who may be experiencing alcohol or drug overdose; establishing short title; stating legislative findings; defining terms; providing immunity from prosecution in limited circumstances for persons who call for emergency medical assistance for person who reasonably appears to be experiencing drug or alcohol overdose; specifying actions that must be taken to be eligible for immunity from prosecution for certain misdemeanor offenses; providing seeking emergency medical assistance may be raised as mitigating factor at sentencing in certain criminal proceedings; clarifying limited immunity does not preclude civil claims based on violation of misdemeanor criminal statutes at issue; providing option of limited immunity from prosecution; and providing deferred prosecution, pretrial diversion, adjudication in drug court and other clemency options for prosecution to consider for persons who experienced drug or alcohol overdose for whom emergency medical assistance was sought; allowing persons to plead guilty to certain exempted criminal offenses if desired; and providing limited civil immunity to law-enforcement officers except in cases of willful, wanton and reckless misconduct in arresting or issuing citations.
Referred to the Committee on the Judiciary.
By Senators Prezioso, Sypolt and Blair:
Senate Bill No. 524--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18B-14-2, relating to transfer of course credit among higher education institutions; and requiring all state higher education institutions award credit to transfer students for similar courses completed at different institution.
Referred to the Committee on Education.
By Senator M. Hall:
Senate Bill No. 525--A Bill to amend and reenact §11-15-9 of the Code of West Virginia, 1931, as amended, relating to exempting services of enrolled agents, enrolled retirement plan agents or registered tax return preparers from consumers sales and service tax and use tax.
Referred to the Committee on Finance.
By Senators Kessler, Miller, Laird and Yost:
Senate Bill No. 526--A Bill to amend and reenact §61-11-26 of the Code of West Virginia, 1931, as amended, relating to expungement of certain criminal convictions generally; permitting expungement of certain felony convictions; establishing amount of time after felony conviction before expungement may be sought; creating exceptions; clarifying retirement or employment benefits lost due to conviction are not reinstated due to expungement; declaring expungement does not preclude person who has received expungement from being subject to sentencing enhancements for second and subsequent violations; declaring information in State Police database sufficient to prove existence of prior convictions; establishing fee to offset State Police costs associated with administering this section and the Criminal Identification Bureau; establishing special revenue account in State Treasury for funds received; and prohibiting expiration of funds.
Referred to the Committee on the Judiciary.
Senator Cole (Mr. President) offered the following resolution:
Senate Concurrent Resolution No. 31--Authorizing the Joint Select Committee on Tax Reform, created under the authority of Joint Rule 12, to meet to study tax reform in West Virginia.
Resolved by the Legislature of West Virginia:
That the Legislature hereby authorizes the Joint Select Committee on Tax Reform to study the West Virginia tax system for the purpose of preparing a report with recommendations for comprehensive tax reform; and, be it
Further Resolved, That the Joint Select Committee on Tax Reform may meet after the adjournment sine die of the Regular Session of the 2015 Legislature, under the supervision of the Joint Committee on Government and Finance, and all members of the committee are entitled to compensation and reimbursement for expenses as authorized for members of the Legislature in accordance with the performance of their interim duties; and, be it
Further Resolved, That, at the conclusion of its study, the Joint Select Committee on Tax Reform report to the Joint Committee on Government and Finance 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 Kirkendoll, Stollings, Williams, Unger, Kessler and Yost offered the following resolution:
Senate Resolution No. 38--Recognizing the West Virginia Auxiliary of Wives Behind the Badge for its dedication to providing support and resources to the law-enforcement community.
Whereas, Established in 2006, Wives Behind the Badge is a nonprofit organization dedicated to helping police families across the country; and
Whereas, Wives Behind the Badge is growing in numbers and support and includes the programs Families Behind the Badge, Blue Line Kids and H.A.L.O.S.; and
Whereas, Wives Behind the Badge provides support for two scholarship funds, the Law Enforcement Children’s Scholarship and the Law Enforcement Spouse’s Scholarship; and
Whereas, The West Virginia Auxiliary of Wives Behind the Badge is proud to be a strong supporter of local law-enforcement agencies throughout West Virginia; and
Whereas, The West Virginia Auxiliary of Wives Behind the Badge has organized the “Paint the Town Blue” campaign, which designates February 19, 2015, as a day to honor fallen law enforcement and their families; and
Whereas, Law-enforcement officers give generously of themselves both in spirit and deed so others might share in the joy of living in a free and democratic society, so it is fitting and proper that they be commended, encouraged and honored for their contributions; and
Whereas, The Senate extends its sincere gratitude to the West Virginia Auxiliary of Wives Behind the Badge for their support of law-enforcement officers who have distinguished themselves with unselfish and exemplary service to the community and its citizens; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes the West Virginia Auxiliary of Wives Behind the Badge for its dedication to providing support and resources to the law-enforcement community; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the West Virginia Auxiliary of Wives Behind the Badge.
At the request of Senator Stollings, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
On motion of Senator D. Hall, the Senate reconsidered the vote by which on yesterday, Wednesday, February 18, 2015, it rejected
Eng. Com. Sub. for Senate Bill No. 421, Relating to punitive damages in civil actions.
The vote thereon having been reconsidered,
The question being on the passage of the bill,
At the request of Senator Palumbo, unanimous consent was granted to offer amendments to the bill on third reading.
Thereupon, on motions of Senators Trump and Palumbo, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
On page three, section twenty-seven, line twenty-eight, by striking out the word “three” and inserting in lieu thereof the word “four”;
And,
On page four, section twenty-seven, after line thirty, by striking out the remainder of the bill.
The bill, as just amended, was again ordered to engrossment.
Engrossed Committee Substitute for Senate Bill No. 421 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Beach, Blair, Boley, Boso, Carmichael, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kirkendoll, Leonhardt, Maynard, Mullins, Nohe, Palumbo, Plymale, Prezioso, Stollings, Sypolt, Takubo, Trump, Walters, Williams, Woelfel and Cole (Mr. President)--26.
The nays were: Facemire, Kessler, Laird, Miller, Romano, Snyder, Unger and Yost--8.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 421) passed.
On motion of Senator Trump, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for Senate Bill No. 421--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §55-7-27, relating generally to treatment of punitive damages in civil actions; providing for limitations on punitive damages in civil actions; providing for when punitive damages may be awarded in civil actions; and providing for a bifurcated trial, upon request, for civil actions involving punitive damages.
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.
Eng. Com. Sub. for Senate Bill No. 42, Relating to sale of alcoholic beverages on Sundays prior to 1 p.m.
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: Beach, Blair, Boley, Boso, Carmichael, Facemire, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Nohe, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel, Yost and Cole (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 42) passed with its title.
Senator Carmichael moved that the bill take effect from passage.
On this question, the yeas were: Beach, Blair, Boley, Boso, Carmichael, Facemire, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Nohe, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel, Yost and Cole (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 42) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 294, Eliminating certain unnecessary, inactive or redundant councils, committees and boards.
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: Beach, Blair, Boley, Boso, Carmichael, Facemire, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Nohe, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel, Yost and Cole (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 294) 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. 412, Relating to Real Estate Commission complaint filings.
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: Beach, Blair, Boley, Boso, Carmichael, Facemire, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Nohe, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel, Yost and Cole (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 412) 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. 316, Exempting new veteran-owned business from certain fees paid to Secretary of State.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Com. Sub. for Senate Bill No. 344, Relating to limitations on back and front pay and punitive damages.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Com. Sub. for Senate Bill No. 384, Permitting wine sales by specialty shop located in dry county, magisterial district or municipality.
On second reading, coming up in regular order, was read a second time.
On motion of Senator Blair, the following amendment to the bill was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 8. SALE OF WINES.
§60-8-3. Licenses; fees; general restrictions.
(a) No person may engage in business in the capacity of a winery, farm winery, supplier, distributor, retailer, private wine bed and breakfast, private wine restaurant, private wine spa or wine specialty shop without first obtaining a license from the commissioner, nor shall a person continue to engage in any activity after his or her license has expired, been suspended or revoked. No person may be licensed simultaneously as a distributor and a retailer. No person, except for a winery or farm winery, may be licensed simultaneously as a supplier and a retailer. No person may be licensed simultaneously as a supplier and a private wine bed and breakfast, private wine restaurant or a private wine spa. No person may be licensed simultaneously as a distributor and a private wine bed and breakfast, a private wine restaurant or a private wine spa. No person may be licensed simultaneously as a retailer and a private wine bed and breakfast, a private wine restaurant or a private wine spa.
(b) The commissioner shall collect an annual fee for licenses issued under this article as follows:
(1) One hundred fifty dollars per year for a supplier’s license;
(2) Two thousand five hundred dollars per year for a distributor’s license and each separate warehouse or other facility from which a distributor sells, transfers or delivers wine shall be separately licensed and there shall be collected with respect to each location the annual license fee of $2,500 as herein provided;
(3) One hundred fifty dollars per year for a retailer’s license;
(4) Two hundred fifty dollars per year for a wine specialty shop license, in addition to any other licensing fees paid by a winery or retailer holding a license, except for the amount of the license fee and the restriction to sales of winery or farm winery wines, a winery or farm winery acting as a wine specialty shop retailer is subject to all other provisions of this article which are applicable to a wine specialty shop retailer as defined in section two of this article; : Provided, That notwithstanding any provision of this code to the contrary, the commissioner may issue a license to a wine specialty shop consistent with the provisions of section two, article eight, chapter six of this code that is located on the premises of an existing resort area in a county that has elected not to permit the sale of wine or alcohol beverages. “Resort area” shall mean an area encompassing one or more resort hotels, and attachments of the resort hotels, and the traditional, immediate grounds of such resort hotels.
(5) One hundred fifty dollars per year for a wine tasting license;
(6) One hundred fifty dollars per year for a private wine bed and breakfast license and each separate bed and breakfast from which a licensee sells wine shall be separately licensed and there shall be collected with respect to each location the annual license fee of $150 as herein provided;
(7) Two hundred fifty dollars per year for a private wine restaurant license and each separate restaurant from which a licensee sells wine shall be separately licensed and there shall be collected with respect to each location the annual license fee of $250 as herein provided;
(8) One hundred fifty dollars per year for a private wine spa license and each separate private wine spa from which a licensee sells wine shall be separately licensed and there shall be collected with respect to each location the annual license fee of $150 as herein provided;
(9) One hundred fifty dollars per year for a wine sampling license issued for a wine specialty shop under subsection (n) of this section;
(10) No fee shall be charged for a special one-day license under subsection (p) of this section or for a heritage fair and festival license under subsection (q) of this section; and
(11) One hundred fifty dollars per year for a direct shipper’s license for a licensee who sells and ships only wine and $250 per year for a direct shipper’s license who ships and sells wine, nonfortified dessert wine, port, sherry or Madeira wines;
(12) Three hundred dollars per year for a multicapacity winery or farm winery license which shall enable the holder to operate as a retailer, wine specialty shop, supplier and direct shipper without obtaining an individual license for each capacity.
(c) The license period shall begin on July 1 of each year and end on June 30 of the following year and if granted for a lesser period, the same shall be computed semiannually in proportion to the remainder of the fiscal year.
(d) No retailer may be licensed as a private club as provided by article seven of this chapter, except as provided by subsection (k) of this section.
(e) No retailer may be licensed as a Class A retail dealer in nonintoxicating beer as provided by article sixteen, chapter eleven of this code: Provided, That a delicatessen, a caterer or party supply store which is a grocery store as defined in section two of this article and which is licensed as a Class A retail dealer in nonintoxicating beer may be a retailer under this article: Provided, however, That any delicatessen, caterer or party supply store licensed in both capacities must maintain average monthly sales exclusive of sales of wine and nonintoxicating beer which exceed the average monthly sales of nonintoxicating beer.
(f) A wine specialty shop under this article may also hold a wine tasting license authorizing the retailer to serve complimentary samples of wine in moderate quantities for tasting. Such The wine specialty shop shall organize a wine taster’s club, which has at least fifty duly elected or approved dues-paying members in good standing. Such The club shall meet on the wine specialty shop’s premises not more than one time per week and shall either meet at a time when the premises are closed to the general public or shall meet in a separate segregated facility on the premises to which the general public is not admitted. Attendance at tastings shall be limited to duly elected or approved dues-paying members and their guests.
(g) A retailer who has more than one place of retail business shall obtain a license for each separate retail establishment. A retailer’s license may be issued only to the proprietor or owner of a bona fide grocery store or wine specialty shop.
(h) The commissioner may issue a special license for the retail sale of wine at any festival or fair which is endorsed or sponsored by the governing body of a municipality or a county commission. Such The special license shall may be issued for a term of no longer than ten consecutive days and the fee therefor shall be is $250 regardless of the term of the license unless the applicant is the manufacturer of said the wine on a winery or a farm winery as defined in section five-a, article one of this chapter, in which event the fee shall be is $50 if the event is held on the premises of the winery or farm winery. The application for the license shall contain information as the commissioner may reasonably require and shall be submitted to the commissioner at least thirty days prior to the first day when wine is to be sold at the festival or fair. A winery or a farm winery licensed under this subsection may exhibit, conduct tastings or sell samples, not to exceed a reasonable serving of three ounces, and may sell wine samples for consumption on the premises during the operation of a festival or fair: Provided, That for licensed wineries or farm wineries at a licensed festival or fair the tastings, samples and off-premises sales shall occur under the hours of operation as required in this article, except that on Sunday tastings, samples and off-premises sales are unlawful between the hours of 2:00 a. m. and 10:00 a. m. A special license issued other than to a winery or a farm winery may be issued to a “wine club” as defined herein below. The festival or fair committee or the governing body shall designate a person to organize a club under a name which includes the name of the festival or fair and the words “wine club”. The license shall be issued in the name of the wine club. A licensee may not commence the sale of wine as provided in this subsection until the wine club has at least fifty dues-paying members who have been enrolled and to whom membership cards have been issued. Thereafter, new members may be enrolled and issued membership cards at any time during the period for which the license is issued. A wine club licensed under the provisions of this subsection may sell wine only to its members, and in portions not to exceed eight ounces per serving. The sales shall take place on premises or in an area cordoned or segregated so as to be closed to the general public, and the general public shall not be admitted to the premises or area. A wine club licensee under the provisions of this subsection shall be is authorized to serve complimentary samples of wine in moderate quantities for tasting.
A license issued under the provisions of this subsection and the licensee holding the license shall be is subject to all other provisions of this article and the rules and orders of the commissioner relating to the special license: Provided, That the commissioner may by rule regulation or order provide for certain waivers or exceptions with respect to the provisions, rules regulations or orders as the circumstances of each festival or fair may require, including, without limitation, the right to revoke or suspend any license issued pursuant to this section prior to any notice or hearing notwithstanding the provisions of sections twenty-seven and twenty-eight of this article: Provided, however, That under no circumstances shall may the provisions of subsection (c) or (d), section twenty of this article be waived nor shall or any exception be granted with respect thereto.
A license issued under the provisions of this subsection and the licensee holding the license is not subject to the provisions of subsection (g) of this section.
(i) (A) The commissioner may issue a special license for the retail sale of wine in a professional baseball stadium. A license to sell wine granted pursuant to this subsection entitles the licensee to sell and serve wine, for consumption in a professional baseball stadium. For the purpose of this subsection, “professional baseball stadium” means a facility constructed primarily for the use of a major or minor league baseball franchisee affiliated with the National Association of Professional Baseball Leagues, Inc., or its successor, and used as a major or minor league baseball park. Any special license issued pursuant to this subsection shall be for a term beginning on the date of issuance and ending on the next following June 30 and its fee is $250 regardless of the length of the term of the license. The application for the special license shall contain information as the commissioner may reasonably require and must be submitted to the commissioner at least thirty days prior to the first day when wine is to be sold at the professional baseball stadium. The special license may be issued in the name of the baseball franchisee or the name of the primary food and beverage vendor under contract with the baseball franchisee. These sales must take place within the confines of the professional baseball stadium, provided that the exterior of the area where wine sales may occur are surrounded by a fence or other barrier prohibiting entry except upon the franchisee’s express permission, and under the conditions and restrictions established by the franchisee so that the wine sales area is closed to free and unrestricted entry by the general public.
(B) A license issued under this subsection and the licensee holding the license is subject to all other provisions of this article and the rules and orders of the commissioner relating to the special license: Provided, That the commissioner may by rule or order grant certain waivers or exceptions to those rules or orders as the circumstances of each professional baseball stadium may require, including, without limitation, the right to revoke or suspend any license issued pursuant to this section prior to any notice or hearing notwithstanding sections twenty-seven and twenty-eight of this article: Provided, however, That under no circumstances may subsection (c) or (d), section twenty of this article be waived nor shall any or an exception be granted concerning those subsections.
(C) The commissioner has the authority to propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to implement this subsection.
(j) A license to sell wine granted to a private wine bed and breakfast, private wine restaurant, private wine spa or a private club under the provisions of this article entitles the operator to sell and serve wine, for consumption on the premises of the licensee, when the sale accompanies the serving of food or a meal to its members and their guests in accordance with the provisions of this article: Provided, That a licensed private wine bed and breakfast, private wine restaurant, private wine spa or a private club may permit a person over twenty-one years of age to purchase wine, consume wine and recork or reseal, using a tamper resistant cork or seal, up to two separate bottles of unconsumed wine in conjunction with serving of food or a meal to its members and their guests in accordance with the provisions of this article and in accordance with regulations rules promulgated by the commissioner for the purpose of consumption of said the wine off premises: Provided, however, That for this article, food or a meal provided by the private licensee means that the total food purchase, excluding beverage purchases, taxes, gratuity or other fees is at least $15: Provided further, That a licensed private wine restaurant or a private club may offer for sale for consumption off the premises sealed bottles of wine to its customers provided that no more than one bottle is sold per each person over twenty-one years of age, as verified by the private wine restaurant or private club, for consumption off the premises. Such The licensees are authorized to keep and maintain on their premises a supply of wine in quantities as may be appropriate for the conduct of operations thereof. Any sale of wine so made shall be is subject to all restrictions set forth in section twenty of this article. A private wine restaurant may also be licensed as a Class A retail dealer in nonintoxicating beer as provided by article sixteen, chapter eleven of this code.
(k) With respect to subsections (h), (i), (j), (o) and (p) of this section, the commissioner shall promulgate propose legislative rules in accordance with the provisions of chapter twenty-nine-a of this code with regard to the form of the applications, the suitability of both the applicant and location of the licensed premises and other legislative rules deemed necessary to carry the provisions of the subsections into effect.
(l) The commissioner shall promulgate propose legislative rules in accordance with the provisions of chapter twenty-nine-a of this code to allow restaurants to serve wine with meals and to sell wine by the bottle for off-premises consumption as provided in subsection (j) of this section. Each restaurant so licensed shall be charged an additional $100 per year fee.
(m) The commissioner shall establish guidelines to permit wines to be sold in all stores licensed for retail sales.
(n) Wineries and farm wineries may advertise off premises as provided in section seven, article twenty-two, chapter seventeen of this code.
(o) A wine specialty shop under this article may also hold a wine sampling license authorizing the wine specialty shop to conduct special wine sampling events at a licensed wine specialty shop location during regular hours of business. The wine specialty shop may serve up to three complimentary samples of wine, consisting of no more than one ounce each, to any one consumer in one day. Persons serving the complimentary samples must be twenty-one years of age and an authorized representative of the licensed wine specialty shop, winery, farm winery or a representative of a distributor or registered supplier. Distributor and supplier representatives attending wine sampling events must be registered with the commissioner. No licensee, employee or representative may furnish, give or serve complimentary samples of wine to any person less than twenty-one years of age or to a person who is physically incapacitated due to the consumption of alcoholic liquor or the use of drugs. The wine specialty shop shall notify and secure permission from the commissioner for all wine sampling events one month prior to the event. Wine sampling events may not exceed six hours per calendar day. Licensees must purchase all wines used during these events from a licensed farm winery or a licensed distributor.
(p) The commissioner may issue special one-day licenses to duly organized, nonprofit corporations and associations having received federal tax exempt status allowing the sale and serving of wine when raising money for artistic, athletic, charitable, educational or religious purposes. The nonrefundable fee is $25 for the one-day license. The license application shall contain information as the commissioner may reasonably require and shall be submitted to the commissioner at least thirty fifteen days prior to the event. Wines used during these events may be donated by or purchased from a licensed retailer, a distributor or a farm winery. Under no circumstances may the provision of subsection (c), section twenty of this article be waived nor or may any an exception be granted with respect thereto.
(q) The commissioner may issue special licenses to heritage fairs and festivals allowing the sale, serving and sampling of wine from a licensed farm winery. The license application shall contain information required by the commissioner and shall be submitted to the commissioner at least thirty days prior to the event. Wines used during these events may be donated by or purchased from a licensed farm winery. Under no circumstances may the provision of subsection (c), section twenty of this article be waived nor may any exception be granted with respect thereto. The commissioner shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to implement the provisions of this subsection.
(r) (1) The commissioner may issue a special license for the retail sale of wine in a college stadium. A license to sell wine granted pursuant to this subsection entitles the licensee to sell and serve wine for consumption in a college stadium. For the purpose of this subsection, “college stadium” means a facility constructed primarily for the use of a Division I college that is a member of the National Collegiate Athletic Association, or its successor, and used as a football, basketball, baseball, soccer or other Division I sports stadium. A special license issued pursuant to this subsection shall be for a term beginning on the date of its issuance and ending on the next following June 30 and its fee is $250 regardless of the length of the term of the license. The application for the special license shall contain information as the commissioner may reasonably require and must be submitted to the commissioner at least thirty days prior to the first day when wine is to be sold. The special license may be issued in the name of the National Collegiate Athletic Association Division I college or university or the name of the primary food and beverage vendor under contract with that college or university. These sales must take place within the confines of the college stadium: Provided, That the exterior of the area where wine sales may occur are surrounded by a fence or other barrier prohibiting entry except upon the college or university’s express permission, and under the conditions and restrictions established by the college or university, so that the wine sales area is closed to free and unrestricted entry by the general public.
(2) A license issued under this subsection and the licensee are subject to the other requirements of this article and the rules and orders of the commissioner relating to the special license: Provided, That the commissioner may by rule or order grant certain waivers or exceptions to those rules or orders as the circumstances of each college stadium may require, including, without limitation, the right to revoke or suspend any license issued pursuant to this section prior to any notice or hearing notwithstanding sections twenty-seven and twenty-eight of this article: Provided, however, That subsection (c) or (d), section twenty of this article may not be waived, nor shall any may an exception be granted concerning those subsections.
(3) The commissioner may propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to implement this subsection.
The bill (Com. Sub. for S. B. No. 384), as amended, was then ordered to engrossment and third reading.
Senate Bill No. 415, Relating to circuit judges.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Senate Bill No. 425, Providing WVU, MU and WVSOM more authority to invest assets.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Eng. Com. Sub. for House Bill No. 2010, Requiring the elections of justices of the West Virginia Supreme Court of Appeals, circuit court judges, family court judges and magistrates be nonpartisan and by division.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §3-1-16 and §3-1-17 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §3-4A-11a of said code be amended and reenacted; that §3-5-4 of said code be amended and reenacted; that said code be amended by adding thereto four new sections, designated §3-5-6a, §3-5-6b, §3-5-6c and §3-5-6d; that §3-5-7, §3-5-13 and §3-5-13a of said code be amended and reenacted; that §3-10-3 of said code be amended and reenacted; that §3-12-3, §3-12-6, §3-12-10, §3-12-11, §3-12-12 and §3-12-14 of said code be amended and reenacted; that §6-5-1 of said code be amended and reenacted; that §50-1-1 and §50-1-6 of said code be amended and reenacted; that §51-1-1 of said code be amended and reenacted; and that §51-2A-5 of said code be amended and reenacted, all to read as follows:
CHAPTER 3. ELECTIONS.
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-16. Election of state officers.
(a) At the general election to be held in 1968, and in every fourth year thereafter, there shall be elected a Governor, Secretary of State, Treasurer, Auditor, Attorney General and Commissioner of Agriculture. At the general election in 1968, and in every second year thereafter, there shall be elected a member of the State Senate for each senatorial district, and a member or members of the House of Delegates of the state from each county or each delegate district.
(b) At the general time of the primary election to be held in the year 1968 2016, and in every twelfth year thereafter, there shall be elected one judge justice of the Supreme Court of Appeals, and at the general time of the primary election to be held in 1972 2020, and in every twelfth year thereafter, two judges justices of the Supreme Court of Appeals and at the general time of the primary election to be held in 1976 2024, and in every twelfth year thereafter, two judges justices of the Supreme Court of Appeals. Effective with the primary election held in the year 2016, the election of justices of the Supreme Court of Appeals shall be on a nonpartisan basis and by division as set forth more fully in article five of this chapter.
§3-1-17. Election of circuit judges; county and district officers; magistrates.
(a) There shall be elected, at the general time of the primary election to be held in 1992 2016, and in every eighth year thereafter, one judge of the circuit court of every judicial circuit entitled to but one judge, and one judge for each numbered division of the judicial circuit in those judicial circuits entitled to two or more circuit judges; and at the time of the primary election to be held in 2016, and in every fourth year thereafter, the number of magistrates prescribed by law for the county. Beginning with the election held in the year 2016, an election for the purpose of electing judges of the circuit court, or an election for the purpose of electing magistrates, shall be upon a nonpartisan ballot printed for the purpose.
(b) and at At the general election to be held in 1992, and in every fourth year thereafter, a sheriff, prosecuting attorney, surveyor of lands, and the number of assessors prescribed by law for the county, and the number of magistrates prescribed by law for the county; and at the general election to be held in 1990, and in every second year thereafter, a commissioner of the county commission for each county; and at the general election to be held in 1992, and in every sixth year thereafter, a clerk of the county commission and a clerk of the circuit court for each county.
(c) Effective with the primary election of 2016, all elections for judge of the circuit courts in the respective circuits and magistrates in each county will be elected on a nonpartisan basis and by division as set forth more fully in article five of this chapter.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-11a. Ballots tabulated electronically; arrangement, quantity to be printed, ballot stub numbers.
(a) The board of ballot commissioners in counties using ballots upon which votes may be recorded by means of marking with electronically sensible ink or pencil and which marks are tabulated electronically shall cause the ballots to be printed or displayed upon the screens of the electronic voting system for use in elections.
(b) (1) For the primary election, the heading of the ballot, the type faces, the names and arrangement of offices and the printing of names and arrangement of candidates within each office are to conform as nearly as possible to the provisions of sections thirteen and thirteen-a, article five of this chapter.
(2) For the general election, the heading of the ballot, the straight ticket positions, the instructions to straight ticket voters, the type faces, the names and arrangement of offices and the printing of names and the arrangement of candidates within each office are to conform as nearly as possible to the provisions of section two, article six of this chapter, except as otherwise provided in this article.
(3) (A) Effective with the primary election held in 2016, and thereafter, for the nonpartisan judicial offices, by division, of:
(i) Justice of the Supreme Court of Appeals;
(ii) Judge of the circuit court;
(iii) Family court judge; and
(iv) Magistrate;
(B) Nonpartisan elections for Board of Education: and
(C) Any question to be voted upon;
are to be separated from the partisan ballot and separately headed in display type with a title clearly identifying the purpose of the election and constituting a separate ballot wherever a separate ballot is required under the provisions of this chapter.
(4) Both the face and the reverse side of the ballot may contain the names of candidates only if means to ensure the secrecy of the ballot are provided and lines for the signatures of the poll clerks on the ballot are printed on a portion of the ballot which is deposited in the ballot box and upon which marks do not interfere with the proper tabulation of the votes.
(5) The arrangement of candidates within each office is to be determined in the same manner as for other electronic voting systems, as prescribed in this chapter. On the general election ballot for all offices, and on the primary election ballot only for those offices to be filled by election, except delegate to national convention, lines for entering write-in votes are to be provided below the names of candidates for each office, and the number of lines provided for any office shall equal the number of persons to be elected, or three, whichever is fewer. The words "WRITE-IN, IF ANY" are to be printed, where applicable, directly under each line for write-ins. The lines are to be opposite a position to mark the vote.
(c) Except for electronic voting systems that utilize screens upon which votes may be recorded by means of a stylus or by means of touch, the primary election ballots are to be printed in the color of ink specified by the Secretary of State for the various political parties, and the general election ballot is to be printed in black ink. For electronic voting systems that utilize screens upon which votes may be recorded by means of a stylus or by means of touch, the primary ballots and the general election ballot are to be printed in black ink. All ballots are to be printed, where applicable, on white paper suitable for automatic tabulation and are to contain a perforated stub at the top or bottom of the ballot, which is to be numbered sequentially in the same manner as provided in section thirteen, article five of this chapter, or are to be displayed on the screens of the electronic voting system upon which votes are recorded by means of a stylus or touch. The number of ballots printed and the packaging of ballots for the precincts are to conform to the requirements for paper ballots provided in this chapter.
(d) In addition to the official ballots, the ballot commissioners shall provide all other materials and equipment necessary to the proper conduct of the election.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-4. Nomination of candidates in primary elections.
(a) At each primary election, the candidate or candidates of each political party for all offices to be filled at the ensuing general election by the voters of the entire state, of each congressional district, of each state senatorial district, of each delegate district, of each judicial circuit of West Virginia, and of each county, and of each magisterial district in the state shall be nominated by the voters of the different political parties, except that no presidential elector shall be nominated at a primary election.
(b) In primary elections a plurality of the votes cast shall be sufficient for the nomination of candidates for office. Where only one candidate of a political party for any office in a political division, including party committeemen and delegates to national conventions, is to be chosen, or where a judicial circuit has two or more circuit judges and one circuit judge is to be chosen for each numbered division within the circuit, the candidate receiving the highest number of votes therefor in the primary election shall be declared the party nominee for such office. Where two or more such candidates are to be chosen in the primary election, the candidates constituting the proper number to be so chosen who shall receive the highest number of votes cast in the political division in which they are candidates shall be declared the party nominees and choices for such offices, except that:
(1) Candidates for the office of commissioner of the county commission shall be nominated and elected in accordance with the provisions of section ten, article nine of the Constitution of the State of West Virginia and the requirements of section one-b, article one, chapter seven of this code;
(2) Members of county boards of education shall be elected at primary elections in accordance with the provisions of sections five and six of this article;
(3) Candidates for the House of Delegates shall be nominated and elected in accordance with the residence restrictions provided in section two, article two, chapter one of this code.; and
(4) In judicial circuits having numbered divisions, each numbered division shall be tallied separately and the candidate in each division receiving a plurality of the votes cast shall be declared the party nominee for the office in that numbered division.
(c) In case of tie votes between candidates for party nominations or elections in primary elections, the choice of the political party shall be determined by the executive committee of the party for the political division in which such persons are candidates.
§3-5-6a. Election of justices of the Supreme Court of Appeals.
(a) An election for the purpose of electing a justice or justices of the Supreme Court of Appeals shall be held on the same date as the primary election, as provided by law, upon a nonpartisan ballot by division printed for this purpose. For election purposes, in each election at which shall be elected more than one justice of the Supreme Court of Appeals, the election shall be by numbered division corresponding to the number of justices being elected. Each justice shall be elected at large from the entire state.
(b) In each nonpartisan election by division for a justice of the Supreme Court of Appeals, the candidates for election in each numbered division shall be tallied separately, and the board of canvassers shall declare and certify the election of the eligible candidate receiving the highest numbers of votes cast within a numbered division to fill any full terms.
(c) In case of a tie vote under this section, section twelve, article six of this chapter controls in breaking the tie vote.
§3-5-6b. Election of circuit judges.
(a) An election for the purpose of electing a circuit court judge or judges shall be held on the same date as the primary election in their respective circuits, as provided by law, upon a nonpartisan ballot by division printed for this purpose.
(b) In each nonpartisan election by division for a circuit court judge, the candidates for election in each numbered division shall be tallied separately, and the board of canvassers shall declare and certify the election of the eligible candidate receiving the highest numbers of votes cast within a numbered division to fill any full terms.
(c) In case of a tie vote under this section, section twelve, article six of this chapter controls in breaking the tie vote.
§3-5-6c. Election of family court judges.
(a) An election for the purpose of electing a family court judge or judges shall be held on the same date as the primary election in their respective circuits, as provided by law, upon a nonpartisan ballot by division printed for this purpose.
(b) In each nonpartisan election by division for a family court judge, the candidates for election in each numbered division shall be tallied separately, and the board of canvassers shall declare and certify the election of the eligible candidate receiving the highest numbers of votes cast within a numbered division to fill any full terms.
(c) In case of a tie vote under this section, section twelve, article six of this chapter controls in breaking the tie vote.
§3-5-6d. Election of magistrates.
(a) An election for the purpose of electing a magistrate or magistrates by division shall be held on the same date as the primary election in their respective circuits, as provided by law, upon a nonpartisan ballot by division printed for this purpose.
(b) In each nonpartisan election by division for a magistrate, the candidates for election in each numbered division shall be tallied separately, and the board of canvassers shall declare and certify the election of the eligible candidate receiving the highest numbers of votes cast within a numbered division to fill any full terms.
(c) In case of a tie vote under this section, section twelve, article six of this chapter controls in breaking the tie vote.
§3-5-7. Filing announcements of candidacies; requirements; withdrawal of candidates when section applicable.
(a) Any person who is eligible and seeks to hold an office or political party position to be filled by election in any primary or general election held under the provisions of this chapter shall file a certificate of announcement declaring his or her candidacy for the nomination or election to the office.
(b) The certificate of announcement shall be filed as follows:
(1) Candidates for the House of Delegates, or the State Senate, circuit judge, family court judge, and any other office or political position to be filled by the voters of more than one county shall file a certificate of announcement with the Secretary of State.
(2) Candidates for an office or political position to be filled by the voters of a single county or a subdivision of a county, except for candidates for the House of Delegates, or State Senate, circuit judge or family court judge, shall file a certificate of announcement with the clerk of the county commission.
(3) Candidates for an office to be filled by the voters of a municipality shall file a certificate of announcement with the recorder or city clerk.
(c) The certificate of announcement shall be filed with the proper officer not earlier than the second Monday in January next preceding before the primary election day and not later than the last Saturday in January next preceding before the primary election day and must be received before midnight, eastern standard time, of that day or, if mailed, shall be postmarked by the United States Postal Service before that hour. This includes the offices of justice of the Supreme Court of Appeals, circuit court judge, family court judge and magistrate, which are to be filled on a nonpartisan and division basis at the primary election.
(d) The certificate of announcement shall be on a form prescribed by the Secretary of State on which the candidate shall make a sworn statement before a notary public or other officer authorized to administer oaths, containing the following information:
(1) The date of the election in which the candidate seeks to appear on the ballot;
(2) The name of the office sought; the district, if any; and the division, if any;
(3) The legal name of the candidate and the exact name the candidate desires to appear on the ballot, subject to limitations prescribed in section thirteen, article five of this chapter;
(4) The county of residence and a statement that the candidate is a legally qualified voter of that county; and the magisterial district of residence for candidates elected from magisterial districts or under magisterial district limitations;
(5) The specific address designating the location at which the candidate resides at the time of filing, including number and street or rural route and box number and city, state and zip code;
(6) For partisan elections, the name of the candidate's political party and a statement that the candidate: (A) Is a member of and affiliated with that political party as evidenced by the candidate's current registration as a voter affiliated with that party; and (B) has not been registered as a voter affiliated with any other political party for a period of sixty days before the date of filing the announcement;
(7) For candidates for delegate to national convention, the name of the presidential candidate to be listed on the ballot as the preference of the candidate on the first convention ballot; or a statement that the candidate prefers to remain "uncommitted";
(8) A statement that the person filing the certificate of announcement is a candidate for the office in good faith;
(9) The words "subscribed and sworn to before me this ______ day of _____________, 20____" and a space for the signature of the officer giving the oath.
(e) The Secretary of State or the board of ballot commissioners, as the case may be, may refuse to certify the candidacy or may remove the certification of the candidacy upon receipt of a certified copy of the voter's registration record of the candidate showing that the candidate was registered as a voter in a party other than the one named in the certificate of announcement during the sixty days immediately preceding the filing of the certificate: Provided, That unless a signed formal complaint of violation of this section and the certified copy of the voter's registration record of the candidate are filed with the officer receiving that candidate's certificate of announcement no later than ten days following the close of the filing period, the candidate may not be refused certification for this reason.
(f) The certificate of announcement shall be subscribed and sworn to by the candidate before some officer qualified to administer oaths, who shall certify the same. Any person who knowingly provides false information on the certificate is guilty of false swearing and shall be punished in accordance with section three, article nine of this chapter.
(g) Any candidate for delegate to a national convention may change his or her statement of presidential preference by notifying the Secretary of State by letter received by the Secretary of State no later than the third Tuesday following the close of candidate filing. When the rules of the political party allow each presidential candidate to approve or reject candidates for delegate to convention who may appear on the ballot as committed to that presidential candidate, the presidential candidate or the candidate's committee on his or her behalf may file a list of approved or rejected candidates for delegate and the Secretary of State shall list as "uncommitted" any candidate for delegate who is disapproved by the presidential candidate.
(h) A person may not be a candidate for more than one office or office division at any election: Provided, That a candidate for an office may also be a candidate for President of the United States, for membership on political party executive committees or for delegate to a political party national convention: Provided, however, That an unsuccessful candidate for a nonpartisan office in an election held concurrently with the primary election may be appointed under the provisions of section nineteen of this article to fill a vacancy on the general ballot.
(i) A candidate who files a certificate of announcement for more than one office or division and does not withdraw, as provided by section eleven, article five of this chapter, from all but one office prior to the close of the filing period may not be certified by the Secretary of State or placed on the ballot for any office by the board of ballot commissioners.
(j) The provisions of this section enacted during the regular session of the Legislature in the year 1991 shall apply to the primary election held in the year 1992 and every primary election held thereafter. The provisions of this section enacted during the regular session of the Legislature in the year 2009 shall apply to the primary election held in the year 2010 and every primary election held thereafter.
§3-5-13. Form and contents of ballots.
The following provisions apply to the form and contents of election ballots:
(1) The face of every primary election ballot shall conform as nearly as practicable to that used at the general election.
(1) (2) The heading of every ballot is to be printed in display type. The heading is to contain a ballot title, the name of the county, the state, the words "Primary Election" and the month, day and year of the election. The ballot title of the political party ballots is to contain the words "Official Ballot of the (Name) Party" and the official symbol of the political party may be included in the heading.
(A) The ballot title of any separate paper ballot or portion of any electronic or voting machine ballot for all judicial officer shall commence with the words "Nonpartisan Ballot of Election of Judicial Officers" and each such office shall be listed in the following order:
(i) The ballot title of any separate paper ballot or portion of any electronic or voting machine ballot for all justices of the Supreme Court of Appeals shall contain the words "Nonpartisan Ballot of Election of Justice(s) of the Supreme Court of Appeals of West Virginia". The names of the candidates for the Supreme Court of Appeals shall be printed by division without references to political party affiliation or registration.
(ii) The ballot title of any separate paper ballot or portion of any electronic or voting machine ballot for all circuit court judges in the respective circuits shall contain the words “Nonpartisan Ballot of Election of Circuit Court Judge(s)”. The names of the candidates for the respective circuit court judge office shall be printed by division without references to political party affiliation or registration.
(iii) The ballot title of any separate paper ballot or portion of any electronic or voting machine ballot for all family court judges in the respective circuits shall contain the words "Nonpartisan Ballot of Election of Family Court Judge(s)". The names of the candidates for the respective family court judge office shall be printed by division without references to political party affiliation or registration.
(iv) The ballot title of any separate paper ballot or portion of any electronic or voting machine ballot for all magistrates in the respective circuits shall contain the words "Nonpartisan Ballot of Election of Magistrate(s)". The names of the candidates for the respective magistrate office shall be printed by division without references to political party affiliation or registration.
(B) The ballot title of any separate paper ballot or portion of any electronic or voting machine ballot for the Board of Education is to contain the words "Nonpartisan Ballot of Election of Members of the ______________ County Board of Education". The districts for which less than two candidates may be elected and the number of available seats are to be specified and the names of the candidates are to be printed without reference to political party affiliation and without designation as to a particular term of office.
(C) Any other ballot or portion of a ballot on a question is to have a heading which clearly states the purpose of the election according to the statutory requirements for that question.
(2) (3) (A) For paper ballots, the heading of the ballot is to be separated from the rest of the ballot by heavy lines and the offices shall be arranged in columns with the following headings, from left to right across the ballot: "National Ticket", "State Ticket", "County Ticket" and, in a presidential election year, "National Convention" or, in a nonpresidential election year, "District Ticket". The columns are to be separated by heavy lines. Within the columns, the offices are to be arranged in the order prescribed in section thirteen-a of this article.
(B) For voting machines, electronic voting devices and any ballot tabulated by electronic means, the offices are to appear in the same sequence as prescribed in section thirteen-a of this article and under the same headings as prescribed in subsection paragraph (A) of this section subdivision. The number of pages, columns or rows, where applicable, may be modified to meet the limitations of ballot size and composition requirements subject to approval by the Secretary of State.
(C) The title of each office is to be separated from preceding offices or candidates by a line and is to be printed in bold type no smaller than eight point. Below the office is to be printed the number of the district, if any, the number of the division, if any, and the words "Vote for ________" with the number to be nominated or elected or "Vote For Not More Than ________" in multicandidate elections. For offices in which there are limitations relating to the number of candidates which may be nominated, elected or appointed to or hold office at one time from a political subdivision within the district or county in which they are elected, there is to be a clear explanation of the limitation, as prescribed by the Secretary of State, printed in bold type immediately preceding the names of the candidates for those offices on the ballot in every voting system. For counties in which the number of county commissioners exceeds three and the total number of members of the county commission is equal to the number of magisterial districts within the county, the office of county commission is to be listed separately for each district to be filled with the name of the magisterial district and the words "Vote for One" printed below the name of the office: Provided, That the office title and applicable instructions may span the width of the ballot so as it is centered among the respective columns.
(D) The location for indicating the voter's choices on the ballot is to be clearly shown. For paper ballots, other than those tabulated electronically, the official primary ballot is to contain a square formed in dark lines at the left of each name on the ballot, arranged in a perpendicular column of squares before each column of names.
(3) (4) (A) The name of every candidate certified by the Secretary of State or the board of ballot commissioners is to be printed in capital letters in no smaller than eight point type on the ballot for the appropriate precincts. Subject to the rules promulgated by the Secretary of State, the name of each candidate is to appear in the form set out by the candidate on the certificate of announcement, but in no case may the name misrepresent the identity of the candidate nor may the name include any title, position, rank, degree or nickname implying or inferring any status as a member of a class or group or affiliation with any system of belief.
(B) The city of residence of every candidate, the state of residence of every candidate residing outside the state, the county of residence of every candidate for an office on the ballot in more than one county and the magisterial district of residence of every candidate for an office subject to magisterial district limitations are to be printed in lower case letters beneath the names of the candidates.
(C) The arrangement of names within each office must be determined as prescribed in section thirteen-a of this article.
(D) If the number of candidates for an office exceeds the space available on a column or ballot page and requires that candidates for a single office be separated, to the extent possible, the number of candidates for the office on separate columns or pages are to be nearly equal and clear instructions given the voter that the candidates for the office are continued on the following column or page.
(4) (5) When an insufficient number of candidates has filed for a party to make the number of nominations allowed for the office or for the voters to elect sufficient members to the board of Education or to executive committees, the vacant positions on the ballot shall be filled with the words "No Candidate Filed": Provided, That in paper ballot systems which allow for write-ins to be made directly on the ballot, a blank line shall be placed in any vacant position in the office of board of education or for election to any party executive committee. A line shall separate each candidate from every other candidate for the same office. Notwithstanding any other provision of this code, if there are multiple vacant positions on a ballot for one office, the multiple vacant positions which would otherwise be filled with the words "No Candidate Filed" may be replaced with a brief detailed description, approved by the Secretary of State, indicating that there are no candidates listed for the vacant positions.
(5) (6) In presidential election years, the words "For election in accordance with the plan adopted by the party and filed with the Secretary of State" is to be printed following the names of all candidates for delegate to national convention.
(6) (7) All paper ballots are to be printed in black ink on paper sufficiently thick so that the printing or marking cannot be discernible from the back: Provided, That no paper ballot voted pursuant to the provisions of 42 U. S. C. §1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, or federal write-in absentee ballot may be rejected due to paper type, envelope type, or notarization requirement. Ballot cards and paper for printing ballots using electronically sensible ink are to meet minimum requirements of the tabulating systems and are to conform in size and weight to ensure ease in tabulation.
(7) (8) Ballots are to contain perforated tabs at the top of the ballots and are to be printed with unique sequential numbers from one to the highest number representing the total number of ballots printed. On paper ballots, the ballot is to be bordered by a solid line at least one sixteenth of an inch wide and the ballot is to be trimmed to within one-half inch of that border.
(8) (9) On the back of every official ballot or ballot card the words "Official Ballot" with the name of the county and the date of the election are to be printed. Beneath the date of the election there are to be two blank lines followed by the words "Poll Clerks".
(9) (10) The face of sample paper ballots and sample ballot labels are to be like other official ballots or ballot labels except that the word "sample" is to be prominently printed across the front of the ballot in a manner that ensures the names of candidates are not obscured and the word "sample" may be printed in red ink. No printing may be placed on the back of the sample.
§3-5-13a. Order of offices and candidates on the ballot; uniform drawing date.
(a) The order of offices for state and county elections on all ballots within the state shall be as prescribed herein. When the office does not appear on the ballot in an election, then it shall be omitted from the sequence. When an unexpired term for an office appears on the ballot along with a full term, the unexpired term shall appear immediately below the full term.
NATIONAL TICKET: President (and Vice President in the general election), United States Senator, member of the United States House of Representatives
STATE TICKET: Governor, Secretary of State, Auditor, Treasurer, Commissioner of Agriculture, Attorney General, Justice of the Supreme Court of Appeals, State Senator, member of the House of Delegates, circuit judge in multicounty districts, family court judge in multicounty districts, any other multicounty office, state executive committee.
COUNTY TICKET: Circuit judge in single-county districts, Family court judge in single-county districts, clerk Clerk of the circuit court, county commissioner, clerk of the county commission, prosecuting attorney, sheriff, assessor, magistrate, surveyor, congressional district executive committee, senatorial district executive committee in multicounty districts, delegate district executive committee in multicounty districts.
NATIONAL CONVENTION: Delegate to the national convention -- at-large, delegate to the national convention -- congressional district
DISTRICT TICKET: County executive committee.
(b) Except for office divisions in which no more than one person has filed a certificate of announcement, the arrangement of names for all offices shall be determined by lot according to the following provisions:
(1) On the fourth Tuesday following the close of the candidate filing, beginning at nine o'clock a. m., a drawing by lot shall be conducted in the office of the clerk of the county commission in each county. Notice of the drawing shall be given on the form for the certificate of announcement and no further notice shall be required. The clerk of the county commission shall superintend and conduct the drawing and the method of conducting the drawing shall be prescribed by the Secretary of State.
(2) Except as provided herein, the position of each candidate within each office division shall be determined by the position drawn for that candidate individually: Provided, That if fewer candidates file for an office division than the total number to be nominated or elected, the vacant positions shall appear following the names of all candidates for the office.
(3) Candidates for delegate to national convention who have filed a commitment to a candidate for president shall be listed alphabetically within the group of candidates committed to the same candidate for president and uncommitted candidates shall be listed alphabetically in an uncommitted category. The position of each group of committed candidates and uncommitted candidates shall be determined by lot by drawing the names of the presidential candidates and for an uncommitted category.
(4) A candidate or the candidate's representative may attend the drawings.
ARTICLE 10. FILLING VACANCIES.
§3-10-3. Vacancies in offices of state officials, United States Senators and judges.
(a) Any vacancy occurring in the offices of Secretary of State, Auditor, Treasurer, Attorney General, Commissioner of Agriculture, Justice of the Supreme Court of Appeals or in any office created or made elective to be filled by the voters of the entire state, judge of a circuit court or judge of a family court is filled by the Governor of the state by appointment and subsequent election to fill the remainder of the term, if required by section one of this article.
(b) Any vacancy occurring in the offices of Justice of the Supreme Court of Appeals, judge of a circuit court or judge of a family court is filled by the Governor of the state by appointment and subsequent election to fill the remainder of the term, as required by subsection (d) of this section. If an election is required under subsection (d) of this section, the Governor, circuit court or the chief judge thereof in vacation, is responsible for the proper proclamation by order and notice required by section one of this article.
(c) Any vacancy in the office of magistrate is appointed according to the provisions of section one, article six, chapter fifty of this code, and subsequent election to fill the remainder of the term, as required by subsection (d) of this section.
(d) (1) When the vacancy in Justice of the Supreme Court of Appeals, judge of the circuit court, judge of a family court or magistrate occurs after the eighty-fourth day before a general election, and the affected term of office ends on the thirty-first day of December following the next election, the person appointed to fill the vacancy shall continue in office until the completion of the term.
(2) When the vacancy occurs before the close of the candidate filing period for the primary election, the vacancy shall be filled by election in the nonpartisan judicial election held concurrently with the primary election, and the appointment shall continue until a successor is elected and certified.
(3) When the vacancy occurs after the close of candidate filing for the primary election and not later than eighty-four days before the general election, the vacancy shall be filled by election in a nonpartisan judicial election held concurrently with the general election, and the appointment shall continue until a successor is elected and certified.
(e) When an election to fill a vacancy is required to be held at the general election according to the provisions of subsection (d) of this section, a special candidate filing period shall be established. Candidates seeking election to any unexpired term for Justice of the Supreme Court of Appeals, judge of a circuit court, judge of the family court or magistrate shall file a certificate of announcement and pay the filing fee no earlier than the first Monday in August and no later than seventy-seven days before the general election.
ARTICLE 12. WEST VIRGINIA SUPREME COURT OF APPEALS PUBLIC CAMPAIGN FINANCING PILOT PROGRAM.
§3-12-3. Definitions.
As used in this article, the following terms and phrases have the following meanings:
(1) “Candidate’s committee” means a political committee established with the approval of or in cooperation with a candidate or a prospective candidate to explore the possibilities of seeking a particular office or to support or aid his or her nomination or election to an office in an election cycle. If a candidate directs or influences the activities of more than one active committee in a current campaign, those committees shall be considered one committee for the purpose of contribution limits.
(2) “Certified candidate” means an individual seeking election to the West Virginia Supreme Court of Appeals who has been certified in accordance with section ten of this article as having met all of the requirements for receiving public campaign financing from the fund.
(3) “Contribution” means a gift subscription, assessment, payment for services, dues, advance, donation, pledge, contract, agreement, forbearance or promise of money or other tangible thing of value, whether conditional or legally enforceable, or a transfer of money or other tangible thing of value to a person, made for the purpose of influencing the nomination, election or defeat of a candidate. An offer or tender of a contribution is not a contribution if expressly and unconditionally rejected or returned. A contribution does not include volunteer personal services provided without compensation: Provided, That a nonmonetary contribution is to be considered at fair market value for reporting requirements and contribution limitations.
(4) “Exploratory contribution” means a contribution of no more than $1,000 made by an individual adult, including a participating candidate and members of his or her immediate family, during the exploratory period but prior to filing the declaration of intent. Exploratory contributions may not exceed $20,000 in the aggregate.
(5) “Exploratory period” means the period during which a participating candidate may raise and spend exploratory contributions to examine his or her chances of election and to qualify for public campaign financing under this article. The exploratory period begins on January 1 the year before the primary election in which the candidate may run for Justice of the Supreme Court of Appeals and ends on the last Saturday in January of the election year.
(6) “Financial agent” means any individual acting for and by himself or herself, or any two or more individuals acting together or cooperating in a financial way to aid or take part in the nomination or election of any candidate for public office, or to aid or promote the success or defeat of any political party at any election.
(7) “Fund” means the Supreme Court of Appeals Public Campaign Financing Fund created by section five of this article.
(8) “General election campaign period” means the period beginning the day after the primary election and ending on the day of the general election.
(9) “Immediate family” or “immediate family members” means the spouse, parents, step-parents, siblings and children of the participating candidate.
(10) (9) “Nonparticipating candidate” means a candidate who is:
(A) Seeking election to the Supreme Court of Appeals;
(B) Is neither certified nor attempting to be certified to receive public campaign financing from the fund; and
(C) Has an opponent who is a participating or certified candidate.
(10) “Nonpartisan judicial election campaign period” means the period beginning on the first day of the primary election filing period, as determined under section seven, article five of this chapter, and ending on the day of the nonpartisan judicial election.
(11) “Participating candidate” means a candidate who is seeking election to the Supreme Court of Appeals and is attempting to be certified in accordance with section ten of this article to receive public campaign financing from the fund.
(12) “Person” means an individual, partnership, committee, association and any other organization or group of individuals.
(13) “Primary election campaign period” means the period beginning on the first day of the primary election filing period, as determined under section seven, article five of this chapter, and ending on the day of the subsequent primary election.
(14) “Qualifying contribution” means a contribution received from a West Virginia registered voter of not less than $1 nor more than $100 in the form of cash, check or money order, made payable to a participating candidate or the candidate’s committee, or in the form of an electronic payment or debit or credit card payment, received during the qualifying period.
(15) (14) “Qualifying period” means the period during which participating candidates may raise and spend qualifying contributions in order to qualify to receive public campaign financing.
(A) For candidates seeking nomination on the primary election ballot, to be placed on the general nonpartisan judicial election ballot, the qualifying period begins on September 1 preceding the election year and ends on the last Saturday in January of the election year.
(B) For candidates, other than those nominated during the primary election, seeking to be placed on the general election ballot, the qualifying period begins on June 1 of the election year and ends on October 1 of the election year.
§3-12-6. Sources of revenue for the fund.
Revenue from the following sources shall be deposited in the fund:
(1) All exploratory and qualifying contributions in excess of the established maximums;
(2) Money returned by participating or certified candidates who fail to comply with this article;
(3) Unspent or unobligated moneys allotted to certified candidates and remaining unspent or unobligated on the date of the general nonpartisan judicial election for which the money was distributed;
(4) If a certified candidate loses, all remaining unspent or unobligated moneys after the primary election;
(5) Civil penalties levied by the State Election Commission against candidates for violations of this article;
(6) Civil penalties levied by the Secretary of State pursuant to section seven, article eight of this chapter;
(7) Voluntary donations made directly to the fund;
(8) Any interest income or other return earned on the money’s investment;
(9) On or before July 1, 2010, and for two successive years thereafter, the State Auditor shall authorize the transfer of the amount of $1 million from the Purchasing Card Administration Fund established in section ten-d, article three, chapter twelve of this code to the fund created by this article;
(10) On or before July 1, 2015, the state Auditor shall authorize the transfer of the amount of $400,000 from the Purchasing Card Administration Fund established in section ten-d, article three, chapter twelve of this code to the fund created by this article; and
(11) Money appropriated to the fund.
§3-12-10. Certification of candidates.
(a) To be certified, a participating candidate shall apply to the State Election Commission for public campaign financing from the fund and file a sworn statement that he or she has complied and will comply with all requirements of this article throughout the applicable campaign.
(b) Upon receipt of a notice from the Secretary of State that a participating candidate has received the required number and amount of qualifying contributions, the State Election Commission shall determine whether the candidate or candidate's committee:
(1) Has signed and filed a declaration of intent as required by section seven of this article;
(2) Has obtained the required number and amount of qualifying contributions as required by section nine of this article;
(3) Has complied with the contribution restrictions of this article;
(4) Is eligible, as provided in section nine, article five of this chapter, to appear on the primary or general nonpartisan judicial election ballot; and
(5) Has met all other requirements of this article.
(c) The State Election Commission shall process applications in the order they are received and shall verify a participating candidate’s compliance with the requirements of subsection (b) of this section by using the verification and sampling techniques approved by the State Election Commission.
(d) The State Election Commission shall determine whether to certify a participating candidate as eligible to receive public campaign financing no later than three business days after the candidate or the candidate’s committee makes his or her final report of qualifying contributions or, if a challenge is filed under subsection (g) of this section, no later than six business days after the candidate or the candidate’s committee makes his or her final report of qualifying contributions. A certified candidate shall comply with this article through the general nonpartisan judicial election campaign period.
(e) No later than two business days after the State Election Commission certifies that a participating candidate is eligible to receive public campaign financing under this section, the State Election Commission, acting in concert with the State Auditor's office and the State Treasurer's office, shall cause a check to be issued to the candidate's campaign depository account an amount equal to the public campaign financing benefit for which the candidate qualifies under section eleven of this article, minus the candidate's qualifying contributions, and shall notify all other candidates for the same office of its determination.
(f) If the candidate desires to receive public financing benefits by electronic transfer, the candidate shall include in his or her application sufficient information and authorization for the State Treasurer to transfer payments to his or her campaign depository account.
(g) Any person may challenge the validity of any contribution listed by a participating candidate by filing a written challenge with the State Election Commission setting forth any reason why the contribution should not be accepted as a qualifying contribution. If a contribution is challenged under this subsection, the State Election Commission shall decide the validity of the challenge no later than the end of the next business day after the day that the challenge is filed, unless the State Election Commission determines that the candidate whose contribution is challenged has both a sufficient qualifying number and amount of qualifying contributions to be certified as a candidate under this section without considering the challenge. Within five business days of a challenge, the candidate or candidate's committee who listed any contribution that is the subject of a challenge may file a report with the State Election Commission of an additional contribution collected pursuant to section nine of this article for consideration as a qualifying contribution.
(h) A candidate's certification and receipt of public campaign financing may be revoked by the State Election Commission, if the candidate violates this article. A certified candidate who violates this article shall repay all moneys received from the fund to the State Election Commission.
(i) The determination of any issue before the State Election Commission is the final administrative determination. Any meetings conducted by the State Elections Commission to certify a candidate's eligibility to receive funds under this article shall not be subject the public notice and open meeting requirements of article nine-a, chapter six of this code, but the commission shall concurrently provide public notice of any decision and determination it makes which impacts the candidate's eligibility to receive funds pursuant to this article. Any person adversely affected by a decision of the State Election Commission under this article may appeal that decision to the circuit court of Kanawha County.
(j) A candidate may withdraw from being a certified candidate and become a nonparticipating candidate at any time with the approval of the State Election Commission. Any candidate seeking to withdraw shall file a written request with the State Election Commission, which shall consider requests on a case-by-case basis. No certified candidate may withdraw until he or she has repaid all moneys received from the fund: Provided, That the State Election Commission may, in exceptional circumstances, waive the repayment requirement. The State Election Commission may assess a penalty not to exceed $10,000 against any candidate who withdraws without approval.
§3-12-11. Schedule and amount of Supreme Court of Appeals Public Campaign Financing Fund payments.
(a) The State Election Commission, acting in concert with the State Auditor’s office and the State Treasurer’s office, shall have a check issued within two business days after the date on which the candidate is certified, to make payments from the fund for the 2012 primary nonpartisan judicial election campaign period available to a certified candidate.
(1) In a contested primary nonpartisan judicial election, a certified candidate shall receive $300,000 $525,000 in campaign financing from the fund, minus the certified candidate’s qualifying contributions.
(2) In an uncontested primary election, a certified candidate shall receive $50,000 from the public campaign financing fund, minus the certified candidate’s qualifying contributions.
(b) Within two business days after the primary election results are certified by the Secretary of State, the State Election Commission, acting in concert with the State Auditor’s office and the State Treasurer’s office, shall cause a check to be issued to make payments from the fund for the general election campaign period available to a certified candidate.
(1) In a contested general election, a certified candidate shall receive from the fund an amount not to exceed $525,000.
(2) In an uncontested general election, a certified candidate shall receive $35,000 from the public campaign financing fund.
(c) (b) The State Election Commission shall authorize the distribution of campaign financing moneys to certified candidates in equal amounts. The commission shall propose a legislative rule on distribution of funds.
(d) (c) The State Election Commission may not authorize or direct the distribution of moneys to certified candidates in excess of the total amount of money deposited in the fund pursuant to section six of this article. If the commission determines that the money in the fund is insufficient to totally fund all certified candidates, the commission shall authorize the distribution of the remaining money proportionally, according to each candidate’s eligibility for funding. Each candidate may raise additional money in the same manner as a nonparticipating candidate for the same office up to the unfunded amount of the candidate’s eligible funding.
§3-12-12. Restrictions on contributions and expenditures.
(a) A certified candidate or his or her committee may not accept loans or contributions from any private source, including the personal funds of the candidate and the candidate’s immediate family, during the primary or general nonpartisan judicial election campaign periods except as permitted by this article.
(b) After filing the declaration of intent and during the qualifying period, a participating candidate may not spend or obligate more than he or she has collected in exploratory and qualifying contributions. After the qualifying period and through the nonpartisan judicial general election campaign period, a certified candidate may spend or obligate any unspent exploratory or qualifying contributions and the moneys he or she receives from the fund under the provisions of section eleven of this article.
(c) A participating or certified candidate may expend exploratory and qualifying contributions and funds received from the fund only for lawful election expenses as provided in section nine, article eight of this chapter. Moneys distributed to a certified candidate from the fund may be expended only during the primary and general nonpartisan judicial election campaign period for which funds were dispersed. Money from the fund may not be used:
(1) In violation of the law;
(2) To repay any personal, family or business loans, expenditures or debts; or
(3) To help any other candidate.
(d) A certified candidate or his or her committee shall return to the fund any unspent and unobligated exploratory contributions, qualifying contributions or moneys received from the fund within forty-eight hours after:
(1) The the date on which the candidate ceases to be certified; or
(2) The date on which the individual loses the primary election or otherwise ceases to be a candidate.
(e) Funds remaining unspent or unobligated after the close of the primary election campaign period may be retained by the candidate for use during the general election campaign period but shall be deducted from the amount the candidate is eligible to receive under subsection (b), section eleven of this article.
(f) A certified candidate or his or her committee shall return to the fund any unspent or unobligated public campaign financing funds no later than five business days after the general nonpartisan judicial election.
(g) (f) A contribution from one person may not be made in the name of another person.
(h) (g) A participating or certified candidate or his or her committee receiving qualifying contributions or exploratory contributions from a person not listed on the receipt required by sections eight and nine of this article is liable to the State Election Commission for the entire amount of that contribution and any applicable penalties.
(i) (h) A certified candidate accepting any benefits under the provisions of this article shall continue to comply with all of its provisions throughout the primary election campaign period and general nonpartisan judicial election campaign period.
(j) (i) A participating or certified candidate or his or her financial agent shall provide the Secretary of State with all requested campaign records, including all records of exploratory and qualifying contributions received and campaign expenditures and obligations, and shall fully cooperate with any audit of campaign finances requested or authorized by the State Election Commission.
§3-12-14. Duties of the State Election Commission; Secretary of State.
(a) In addition to its other duties, the State Election Commission shall carry out the duties of this article and complete the following as applicable:
(1) Prescribe forms for reports, statements, notices and other documents required by this article;
(2) Make an annual report to the Legislature accounting for moneys in the fund, describing the State Election Commission’s activities and listing any recommendations for changes of law, administration or funding amounts;
(3) Propose emergency and legislative rules for legislative approval, in accordance with article three, chapter twenty-nine-a of this code, as may be necessary for the proper administration of this article;
(4) Enforce this article to ensure that moneys from the fund are placed in candidate campaign accounts and spent as specified in this article;
(5) Monitor reports filed pursuant to this article and the financial records of candidates to ensure that qualified candidates receive funds promptly and to ensure that moneys required by this article to be paid to the fund are deposited in the fund;
(6) Cause an audit of the fund to be conducted by independent certified public accountants ninety days after a general nonpartisan judicial election. The State Election Commission shall cooperate with the audit, provide all necessary documentation and financial records to the auditor and maintain a record of all information supplied by the audit;
(7) In consultation with the State Treasurer and the State Auditor, develop a rapid, reliable method of conveying funds to certified candidates. In all cases, the commission shall distribute funds to certified candidates in a manner that is expeditious, ensures accountability and safeguards the integrity of the fund;
(8) Regularly monitor the receipts, disbursements, obligations and balance in the fund to determine whether the fund will have sufficient moneys to meet its obligations and sufficient moneys available for disbursement during the primary and general nonpartisan judicial election campaign period; and
(9) Transfer a portion of moneys maintained in the fund to the West Virginia Investment Management Board for their supervised investment, after consultation with the State Treasurer, the State Auditor and the West Virginia Investment Management Board.
(b) In addition to his or her other duties, the Secretary of State shall carry out the duties of this article and complete the following as applicable:
(1) Prescribe forms for reports, statements, notices and other documents required by this article;
(2) Prepare and publish information about this article and provide it to potential candidates and citizens of this state;
(3) Prepare and publish instructions setting forth methods of bookkeeping and preservation of records to facilitate compliance with this article and to explain the duties of candidates and others participating in elections under this article;
(4) Propose emergency and legislative rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code as may be necessary for the proper administration of this article;
(5) Enforce this article to ensure that moneys from the fund are placed in candidate campaign accounts and spent as specified in this article;
(6) Monitor reports filed pursuant to this article and the financial records of candidates to ensure that qualified candidates receive funds promptly and to ensure that moneys required by this article to be paid to the fund are deposited in the fund;
(7) Ensure public access to the campaign finance reports required pursuant to this article, and whenever possible, use electronic means for the reporting, storing and display of the information; and
(8) Prepare a voters’ guide for the general public listing the names of each candidate seeking election to the Supreme Court of Appeals. Both certified and nonparticipating candidates shall be invited by the State Election Commission to submit a statement, not to exceed five hundred words in length, for inclusion in the guide. The guide shall identify the candidates that are certified candidates and the candidates that are nonparticipating candidates. Copies of the guide shall be posted on the website of the Secretary of State, as soon as may be practical.
(c) To fulfill their responsibilities under this article, the State Election Commission and the Secretary of State may subpoena witnesses, compel their attendance and testimony, administer oaths and affirmations, take evidence and require, by subpoena, the production of any books, papers, records or other items material to the performance of their duties or the exercise of their powers.
(d) The State Election Commission may also propose and adopt procedural rules to carry out the purposes and provisions of this article and to govern procedures of the State Election Commission as it relates to the requirements of this article.
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 5. TERMS OF OFFICE; MATTERS AFFECTING THE RIGHT TO HOLD OFFICE.
§6-5-1. When terms of office to begin.
The terms of officers, except when elected or appointed to fill vacancies, shall begin respectively as follows: That of Governor, Secretary of State, state superintendent of free schools, treasurer, Auditor, Attorney General and commissioner of agriculture, on the first Monday after the second Wednesday of January next after their election; that of a member of the Legislature, on December 1, next after his or her election; and that of the judges of the Supreme Court of Appeals, the judges of the several circuit courts, the judges of the criminal, intermediate, common pleas family and other inferior courts, the county commissioners, prosecuting attorneys, surveyors of land, assessors, sheriffs, clerks of the circuit, criminal, intermediate, common pleas, or other inferior courts, clerks of the county courts commissions, justices of the peace and constables magistrates, on January 1, next after their election.
Whenever a person is elected or appointed to fill a vacancy, his or her term shall be as prescribed by chapter three of this code.
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 1. COURTS AND OFFICERS.
§50-1-1. Magistrate court created.
There is hereby created in each county of this state a magistrate court with such numbers of magistrates for each court as are hereafter provided. There shall be elected by the voters of each county, at the general election to be held in the year 1976, and in every fourth year thereafter, such number of magistrates as is provided in section two of this article. The filing fee for the office of magistrate shall be one percent of the annual salary. The term of magistrates shall be for four years and shall begin on January 1, of the year following the year of election.
Effective with the primary election of 2016, all elections for magistrates will be on a nonpartisan basis by division. Beginning in 2016, there will no longer be primary elections held for magistrates and all elections for magistrates are to be held in the nonpartisan judicial election as set forth in article five, chapter three of this code. All indications of party identification on election ballots for magistrate shall be omitted.
In counties where voting machines or electronic voting systems are used, the procedures of section eleven, article four, chapter three and section twelve, article four-a of said chapter three of this code shall apply respectively to the election of magistrates in the same manner as they apply to the election of members of the House of Delegates.
Notwithstanding the provisions of section seven, article five, chapter three of this code, for purposes of the primary election to be held in the year one thousand nine hundred seventy- six, the last day for filing certificates of candidacy for the office of magistrate shall be extended to the twenty-seventh day of February of that year.
§50-1-6. Vacancy in office of magistrate.
Subject to the provisions of section one, article ten, chapter three of this code, when a vacancy occurs in the office of magistrate, the judge of the circuit court, or the chief judge thereof if there is more than one judge of the circuit court, shall fill the same by appointment of a person of the same political party as the officeholder vacating the office.
At a general nonpartisan judicial election in which a magistrate is elected for an unexpired term, the circuit judge, or the chief judge thereof if there is more than one judge of the circuit court, shall cause a notice of such election to be published prior to such election as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county involved. If the vacancy occurs before the primary election held to nominate candidates to be voted for at the general election, at which any such vacancy is to be filled, candidates to fill such vacancy shall be nominated at such primary election in accordance with the time requirements and the provisions and procedures prescribed in article five, chapter three of this code. Otherwise, they shall be nominated by the county executive committee in the manner provided in section nineteen, article five, chapter three of this code, as in the case of filling vacancies in nominations, and the names of the persons so nominated and certified to the clerk of the circuit court of such county shall be placed upon the ballot to be voted at such next general election.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 1. SUPREME COURT OF APPEALS.
§51-1-1. Justices.
The Supreme Court of Appeals shall consist of five justices, elected and qualified according to the Constitution and the laws of this state, any three of whom shall constitute a quorum. Effective with the primary election of 2016, all elections for justices will be on a nonpartisan basis by division. Beginning in 2016, there will no longer be primary elections held for the office of justice and all elections for justice are to be held in the nonpartisan judicial election as set forth in article five, chapter three of this code. All indications of party identification on election ballots for that office shall be omitted.
ARTICLE 2A. FAMILY COURTS.
§51-2A-5. Term of office of family court judge; initial appointment; elections.
(a) Beginning with the primary and general elections election to be conducted in the year 2002 2016, family court judges shall be elected. In family court circuits having two or more family court judges there shall be, for election purposes, numbered divisions corresponding to the number of family court judges in each area. Each family court judge shall be elected at large by the entire family court circuit. In each numbered division of a family court circuit, the candidates for nomination or election shall be voted upon and the votes cast for the candidates in each division shall be tallied separately from the votes cast for candidates in other numbered divisions within the family court circuit. The candidate or candidates receiving the highest number of the votes cast within a numbered division shall be nominated or elected, as the case may be. Effective with the primary election of 2016, all elections for family court judges in the respective circuits will be on a nonpartisan basis by division. Beginning in 2016, there will no longer be primary elections held for family court judges and all elections for family court judges are to be held in the nonpartisan judicial election as set forth in article five, chapter three of this code. All indications of party identification on election ballots for family court judge shall be omitted.
(b) The term of office for all family court judges elected in 2002 shall be for six years, commencing on January 1, 2003, and ending on December 31, 2008. Subsequent terms of office for family court judges elected thereafter shall be for eight years.
(c) The primary and general elections conducted in the year 2008 shall be conducted to fill the family court judge positions in the reconfigured districts set forth by subsection (c), section three of this article, for terms to commence on January 1, 2009.
On motion of Senator Trump, the following amendment to the Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B. No. 2010) was reported by the Clerk and adopted:
On page thirty-seven, section six, after the words “county involved.” by striking out the remainder of the section.
The question now being on the adoption of the Judiciary committee amendment to the bill, as amended, the same was put and prevailed.
The bill (Eng. Com. Sub. for H. B. No. 2010), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2234, Requiring a court to permit a party in a divorce proceeding to resume using the name he or she used prior to the marriage.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 5. DIVORCE.
§48-5-613. Former name of party; restoration.
(a) The court, upon the entry of a final order of divorce shall, if requested to do so by a party, allow such party to resume a surname used prior to the marriage that is being dissolved: Provided, That the court may only allow a party to return to the surname of a former spouse if the person seeking the name change has a living child or children with said former spouse.
(b) Upon granting a change of name pursuant to subsection (a) of this section, the court shall issue a certificate of divorce reflecting the change in name. The certificate shall be no more than one page in length and shall contain the docket number and style of the divorce action, the birth name of the person requesting the change of name, said person’s date of birth, social security number and the effective date of the change of surname.
(c) For a change of surname pursuant to this section to be valid it must be attested to by the circuit clerk.
(d) A valid certificate of divorce issued pursuant to this section may be used for any lawful purpose and shall serve as proof of legal change of name for purposes of obtaining a driver’s license or state-issued identification card.
The bill (Eng. Com. Sub. for H. B. No. 2234), as amended, was then ordered to third reading.
The Senate proceeded to the tenth order of business.
The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
Com. Sub. for Com. Sub. for Senate Bill No. 30, Permitting shared animal ownership agreement to consume raw milk.
Com. Sub. for Senate Bill No. 170, Authorizing Bureau of Commerce promulgate legislative rules.
Com. Sub. for Senate Bill No. 182, Authorizing Department of Military Affairs and Public Safety promulgate legislative rules.
Com. Sub. for Senate Bill No. 192, Authorizing Department of Transportation promulgate legislative rules.
Com. Sub. for Senate Bill No. 334, Relating to practice of medicine and surgery or podiatry.
Com. Sub. for Senate Bill No. 343, Exempting chiropractors from continuing education requirement on mental health conditions common to veterans.
Senate Bill No. 350, Establishing criminal penalties for assault or battery on utility workers.
Senate Bill No. 364, Exempting State Police Forensic Laboratory from state purchasing guidelines.
Com. Sub. for Senate Bill No. 390, Authorizing PSC approve expedited cost recovery of natural gas utility infrastructure projects.
Senate Bill No. 398, Extending expiration date for health care provider tax on eligible acute care hospitals.
Com. Sub. for Senate Bill No. 435, Creating WV Sheriffs' Bureau of Professional Standards.
Eng. Com. Sub. for House Bill No. 2008, Auditing the Division of Highways.
And,
Eng. House Bill No. 2274, Authorizing the Commissioner of Corrections to enter into mutual aid agreements.
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 Miller and Ferns.
Thereafter, at the request of Senator D. Hall, and by unanimous consent, the remarks by Senator Miller were ordered printed in the Appendix to the Journal.
At the request of Senator Carmichael, unanimous consent being granted, the remarks by Senator Ferns were ordered printed in the Appendix to the Journal.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Beach, the name of Senator Beach was removed as a sponsor of Senate Bill No. 439 (Relating to higher education).
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Carmichael, the Senate adjourned until tomorrow, Friday, February 20, 2015, at 11 a.m.
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