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Senate Journal


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sdj-20th day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

REGULAR SESSION, 2009

TWENTIETH DAY

____________

Charleston, W. Va., Monday, March 2, 2009

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

Prayer was offered by the Reverend Father John Patrick Mulcahy, Holy Spirit Catholic Church, Monongah, West Virginia, and St. Anthony Catholic Church, Fairmont, West Virginia.
Pending the reading of the Journal of Friday, February 27, 2009,
On motion of Senator Bowman, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the fourth order of business.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Bill No. 13, Expanding Route 2 and Interstate 68 Authority territory.
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 Government Organization.
Respectfully submitted,
John R. Unger II,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Government Organization.
Senator Wells, from the Committee on Military, submitted the following report, which was received:
Your Committee on Military has had under consideration
Senate Bill No. 245, Requiring state participation in Yellow Ribbon G. I. Education Enhancement Program.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original triple committee reference first be referred to the Committee on Education; and then to the Committee on Finance.
Respectfully submitted,
Erik P. Wells,
Chair.
The bill, under the original triple committee reference, was referred to the Committee on Education; and then to the Committee on Finance, with an amendment from the Committee on Military pending.
Senator Browning, from the Committee on Economic Development, submitted the following report, which was received:
Your Committee on Economic Development has had under consideration
Senate Bill No. 289, Creating WV Innovation and Development Act.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 289 (originating in the Committee on Economic Development)--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5E-3-1, §5E-3-2, §5E-3-3, §5E-3-4, §5E-3-5, §5E-3-6, §5E-3-7, §5E-3-8, §5E-3-9 and §5E-3-10; and to amend and reenact §31-15-6 of said code, all relating to the creation of an innovation and development program; providing a short title and declaration of policy; setting forth purposes; providing definitions; authorizing and directing the Economic Development Authority to propose rules to implement its provisions and provide for the effective and efficient administration of the program; authorizing the authority to provide technical and professional assistance to entrepreneurs in the state; authorizing the authority to make qualified investments and loans; authorizing recoverable revenue credits to private investors for investments in qualified investment companies pursuant to rules to be promulgated by the authority; creating a revolving fund to deposit all profits collected by the economic development authority; and specifying disclosure, conflict of interest and confidentiality standards for the operation of the innovation and development program.
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,
Richard Browning,
Chair.
The bill (Com. Sub. for S. B. No. 289), under the original double committee reference, was then referred to the Committee on Finance.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Bill No. 356, Authorizing Commissioner of Highways promulgate legislative rule relating to use of state road rights-of-way and adjacent areas.
And,
Senate Bill No. 357, Authorizing Commissioner of Highways promulgate legislative rule relating to transportation of hazardous wastes upon roads and highways.
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 the Judiciary.
Respectfully submitted,
John R. Unger II,
Chair.
The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Concurrent Resolution No. 8, Requesting Division of Highways name bridge in Mullens "Charles V. Stewart Memorial Bridge".
Senate Concurrent Resolution No. 12, Requesting Division of Highways name bridge in Lesage "PVT Russell Curtis Knight Memorial Bridge".
And,
Senate Concurrent Resolution No. 13, Requesting Division of Highways name bridge in Berkeley County "Bruce Van Wyk Memorial Bridge".
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were introduced, read by their titles, and referred to the appropriate committees:
By Senators Unger, Tomblin (Mr. President), Snyder, Foster, McCabe, Stollings and White:
Senate Bill No. 404--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §4-13-1, §4-13-2, §4-13-3, §4-13-4, §4-13-5, §4-13-6 and §4-13-7, all relating to establishing a West Virginia sesquicentennial commission and fund; membership; meetings; compensation; powers and duties of the commission; and continuation of the commission.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Kessler, Unger, Minard and White:
Senate Bill No. 405--A Bill to amend and reenact §48-10-401 and §48-10-402 of the Code of West Virginia, 1931, as amended, all relating generally to jurisdiction for petitions by grandparents for visitation of grandchild.
Referred to the Committee on the Judiciary.
By Senators Wells, Deem, Boley, Oliverio, Edgell, Green, Foster, Stollings and Kessler:
Senate Bill No. 406--A Bill to amend and reenact §60A-11-3 of the Code of West Virginia, 1931, as amended, relating to requiring the Department of Health and Human Resources to provide a list of applicable contaminated properties where clandestine drug laboratories had operated for review on the internet by the general public.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
By Senators Kessler and Jenkins:
Senate Bill No. 407--A Bill to amend and reenact §50-3-1 of the Code of West Virginia, 1931, as amended, relating to authorizing magistrate court clerks to collect a fee for preparing an abstract of judgement in civil matters.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Minard, Jenkins, Stollings and Kessler:
Senate Bill No. 408--A Bill to repeal §33-48-11 of the Code of West Virginia, 1931, as amended; to amend and reenact §33-48-4 of said code; and to amend said code by adding thereto a new section, designated §33-48-7b, all relating to the model health plan for uninsurable individuals; removing obsolete sunset provision; permitting the Insurance Commissioner to waive the waiting period under certain circumstances; and authorizing the use of surpluses to subsidize premiums.
Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
By Senators Bowman, K. Facemyer, Guills, Prezioso, Unger and White:
Senate Bill No. 409--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §7-18-16, relating to limitations on expending hotel occupancy tax proceeds.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 410--A Bill to amend and reenact §11-24-3 of the Code of West Virginia, 1931, as amended, relating to updating the meaning of "federal taxable income" and certain other terms used in the West Virginia Corporation Net Income Tax Act in order for the definitions to conform with the Internal Revenue Code's definitions.
Referred to the Committee on Finance.
By Senators Prezioso, Foster, Jenkins, Stollings, Unger and Kessler:
Senate Bill No. 411--A Bill to amend and reenact §5-16-7 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §33-3-14e, all relating to creating a temporary health information technology reinvestment fee for health insurers; providing definitions; establishing penalties for noncompliance; providing rule-making authority; and establishing an effective date.
Referred to the Committee on Health and Human Resources; and then to the Committee on Finance.
By Senators Prezioso, Foster, Jenkins, Stollings and Laird:
Senate Bill No. 412--A Bill to amend and reenact §16-29H-1, §16-29H-2, §16-29H-3, §16-29H-4 and §16-29H-5 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §16-29H-6, all relating generally to the creation of the Governor's Office of Health Enhancement and Lifestyle Planning; setting forth legislative findings; setting forth the powers and duties of the office; creating the position of director; setting forth the qualifications of the director; setting forth the powers and duties of the director; providing for staff; requiring the development of a five-year strategic plan; providing for legislative rule-making authority; providing for coordination with various state agencies, departments, boards, bureaus and commissions; and requiring reporting to the Governor and the Legislature.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Prezioso, Foster, Jenkins, Stollings, Barnes, Unger and Kessler:
Senate Bill No. 413--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §11-13Z-1, relating to providing a temporary tax credit for small group employers to cover fifty percent of the premium for the first year times the percentage of the employees' premiums that are paid by the employer; twenty-five percent of the premium for the second year times the percentage of the employees' premiums paid by the employer, establishing limits on the amount of the tax credit; establishing the order of taxes potentially receiving the tax credit; and determining that an employer must provide insurance coverage for three years to be eligible.
Referred to the Committee on Finance.
By Senators Prezioso, Foster, Jenkins, Stollings, Caruth, Laird, Unger, Minard and Kessler:
Senate Bill No. 414--A Bill to amend and reenact §16-2J-2 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §16-2L-1, §16-2L-2, §16-2L-3, §16-2L-4 and §16-2L-5, all relating generally to establishing pilot projects for patient-centered medical homes; setting forth legislative findings; defining terms; establishing criteria for pilot projects for patient-centered medical homes; defining three types of pilot projects; setting forth evaluation criteria; and granting rule-making authority.
Referred to the Committee on Health and Human Resources; and then to the Committee on Finance.
By Senators Foster, Wells, Unger and Minard:
Senate Bill No. 415--A Bill to amend and reenact §5-10-15 of the Code of West Virginia, 1931, as amended; to amend and reenact §15-2A-19 of said code; to amend and reenact §18-7A-17 of said code; to amend said code by adding thereto a new section, designated §18-7A-17a; to amend and reenact §18-7B-8a and §18-7B-11 of said code; and to amend and reenact §51-9-4 and §51-9-6 of said code, all relating to providing up to twenty-four months of military service credit for the time served in active military duty to any qualified member of the West Virginia Public Employees Retirement Act, the West Virginia State Police Retirement System, the State Teachers Retirement System, the Teachers' Defined Contribution Retirement System and the Retirement System for Judges hired for the first time on or after July 1, 2009, or for any qualified member who is not vested on June 30, 2009.
Referred to the Committee on Military; then to the Committee on Pensions; and then to the Committee on Finance.
By Senators Kessler, Jenkins and Minard:
Senate Bill No. 416--A Bill to amend and reenact §51-2A-6 of the Code of West Virginia, 1931, as amended, relating to increasing the salary of family court judges.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senator Foster:
Senate Bill No. 417--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5-10E-1, §5-10E-2, §5-10E-3, §5-10E-4, §5-10E-5, §5- 10E-6, §5-10E-7, §5-10E-8, §5-10E-9, §5-10E-10, §5-10E-11 and §5- 10E-12; and to amend and reenact §36-8-13 of said code, all relating to establishing the West Virginia Voluntary Employee Retirement Accounts Program in the office of the State Treasurer; establishing findings; defining terms; creating program as a body corporate; providing for liberal construction; requiring compliance with federal and state law; providing for plan administration; authorizing Treasurer to propose rules; establishing participation; requiring all federal approvals be received before operations begin; creating trust; prohibiting assignment, except for qualified domestic relations orders; authorizing investments; specifying that the corpus, assets and earnings of trust do not constitute public funds; deferring compensation from federal, state and municipal income taxes; authorizing collection of fees from accounts; acknowledging the Legislature has no obligation to appropriate funds; creating administration account; requiring any funds appropriated by the Legislature be reimbursed; specifying the state and the Treasurer are not liable for losses; specifying certain information is confidential; requiring payroll information be provided to the Treasurer; and providing for the transfer of money from the Unclaimed Property Trust Fund for start-up of the program.
Referred to the Committee on Pensions; and then to the Committee on Finance.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 239, Allowing majority vote for certain metro government approval.
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: Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger, Wells, White, Yost and Tomblin (Mr. President)--29.
The nays were: Barnes, Boley, Sypolt and Williams--4.
Absent: Fanning--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 239) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bowman, Browning, Caruth, Chafin, Deem, Edgell,
D. Facemire, K. Facemyer, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger, Wells, White, Yost and Tomblin (Mr. President)--29.
The nays were: Barnes, Boley, Sypolt and Williams--4.
Absent: Fanning--1.
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 Com. Sub. for S. B. No. 239) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 259, Clarifying certain terminology within Courthouse Facilities Improvement Authority.
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: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Fanning--1.
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. 259) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell,
D. Facemire, K. Facemyer, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Fanning--1.

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. 259) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 341, Transferring juvenile justice database administration to Supreme Court.
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: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell,
D. Facemire, K. Facemyer, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Fanning--1.

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. 341) 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. 346, Correcting code reference related to bear tagging.
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: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell,
D. Facemire, K. Facemyer, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Fanning--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 346) 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. 347, Correcting code reference related to extended supervision for certain sex offenders.
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: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell,
D. Facemire, K. Facemyer, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Fanning--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 347) 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. 99, Sentencing discretion for certain youthful offenders.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
The Senate proceeded to the tenth order of business.
Com. Sub. for Senate Bill No. 307, Creating Maternal Screening Act.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Senate Bill No. 403, Making supplemental appropriation from State Road Fund to Department of Transportation.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Fanning--1.

The bill was read a second time and ordered to engrossment and third reading.
Engrossed Senate Bill No. 403 was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Fanning--1.

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. 403) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Fanning--1.

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. 403) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senator Stollings.
On motion of Senator Chafin, a leave of absence for the day was granted Senator Fanning.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Tuesday, March 3, 2009, at 11 a.m.
____________

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