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sdj-03rd day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTIETH LEGISLATURE

REGULAR SESSION, 2011

THIRD DAY

____________

Charleston, W. Va., Friday, January 14, 2011

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

Prayer was offered by the Reverend Dennis Sparks, Executive Director, West Virginia Council of Churches, Charleston, West Virginia.
Pending the reading of the Journal of Thursday, January 13, 2011,
On motion of Senator Miller, 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 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 Palumbo, Foster, Plymale, McCabe and Klempa:
Senate Bill No. 90--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5- 30-1, §5-30-2, §5-30-3, §5-30-4, §5-30-5, §5-30-6, §5-30-7 and §5- 30-8, all relating to the establishment of an Equal Employment Opportunity Office within the Office of the Governor; providing public policy declarations; providing definitions; appointment of director; staffing; duties and responsibilities; investigations of noncompliant agencies; authority for proposal of rules; and requirement for annual reports.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Laird, Barnes, Green, Yost, Foster and Plymale:
Senate Bill No. 91--A Bill to amend and reenact §23-4-1e of the Code of West Virginia, 1931, as amended, relating to the temporary total disability benefits not to be paid for periods of correctional center or jail confinement; denial of workers' compensation benefits for injuries or disease incurred while confined; and providing that individuals confined in a state correctional facility or jail and working for a
c orrectional i ndustries program shall be eligible to receive workers' compensation benefits.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Laird, Barnes, Green, Yost, Foster and Plymale:
Senate Bill No. 92--A Bill to amend and reenact §25-4-6 of the Code of West Virginia, 1931, as amended, relating to assignment of offenders to center; period of center confinement; return to court; sentence or probation; and revocation of probation.
Referred to the Committee on the Judiciary.
By Senators Laird, Barnes, Green, Yost, Foster and Plymale:
Senate Bill No. 93--A Bill to amend and reenact §61-5-12b of the Code of West Virginia, 1931, as amended, relating to escape from custody of the Director of Juvenile Services; and penalties.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
By Senator Sypolt:
Senate Bill No. 94--A Bill to amend and reenact §22-6-12 and §22-6-14 of the Code of West Virginia, 1931, as amended, all relating to surveyors and registered professional engineers; and plat preparation for drilling or fracturing wells or introducing liquids or wastes into wells.
Referred to the Committee on Energy, Industry and Mining; and then to the Committee on the Judiciary.
By Senators Sypolt, Barnes, Klempa and Williams:
Senate Bill No. 95--A Bill to amend and reenact §52-1-8 of the Code of West Virginia, 1931, as amended, relating to redefining the basis for disqualification of prospective jurors to include those who have been convicted of any crime punishable by imprisonment in excess of one year or any crime involving dishonesty or false statement, regardless of the punishment.
Referred to the Committee on the Judiciary.
Senators Browning, Green, Stollings, Plymale, Klempa and Yost offered the following resolution:
Senate Concurrent Resolution No. 2--Requesting the Division of Highways name County Routes 1 and 3 between Jesse and Glen Rogers in Wyoming County the "Glen Rogers Coal Miner Memorial Highway".
Whereas, The community of Glen Rogers was the site of the first major coal mine in Wyoming County, having opened in 1921 and reaching highs of employment of nearly 1,000 men and annual production of nearly one million tons of coal annually during the 1930's and 1940's before it was closed in 1960; and
Whereas, Glen Rogers was home to several prominent individuals, including William C. Marland, Governor of West Virginia from 1953 to 1957; and
Whereas, Sadly, coal production at Glen Rogers came at the cost of 160 working fatalities, including four disasters; and
Whereas, A methane gas explosion November 6, 1923, killed 27 men, the worst accident of any kind in Wyoming County history; and
Whereas, Five workers died September 23, 1922, when equipment fell on them during construction of the mine's 720-foot deep shaft; eight lives were lost in an underground explosion January 6, 1931; and a roof fall claimed the lives of five miners on December 9, 1957; and
Whereas, It is fitting that tribute be paid to both the sacrifices and contributions of the coal miners and residents of this area of Wyoming County
; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways name County Routes 1 and 3 between Jesse and Glen Rogers in Wyoming County the "Glen Rogers Coal Miner Memorial Highway"
; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be placed signs identifying the highway as the "Glen Rogers Coal Miner Memorial Highway"
; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation and to the Wyoming County Historical Museum in Oceana.

Which, under the rules, lies over one day.
Senators Barnes, Stollings, Klempa and Wells offered the following resolution:
Senate Concurrent Resolution No. 3--
Requesting the Division of Highways name bridge number 36-3-3.4 on Route 3 at mile marker 3.4 in the area of Fort Seybert, Pendleton County, West Virginia, the "Korean War Veterans Bridge".
Whereas, The Korean War began on June 25, 1950 and ended on January 31, 1955; and
Whereas, Over 112,000 West Virginians served with the United States Armed Forces in Korea during the Korean War; and
Whereas, West Virginia had the nation's highest service rate during the Korean War with over sixteen percent of its male population serving in that war; and
Whereas, West Virginia also had the highest death rate of all the states in the nation in the Korean War and over eight hundred of its citizens perished during that war; and
Whereas, Those one hundred and twelve thousand West Virginians served their country with honor and distinction during the Korean War with over eight hundred of its citizens having given the ultimate sacrifice; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 36-3-3.4 on Route 3 at mile marker 3.4 in the area of Fort Seybert, Pendleton County, West Virginia, the "Korean War Veterans Bridge"; and, be it
Further Resolved, That the Commissioner of the Division of Highways is hereby requested to erect signs at both ends of the bridge containing bold and prominent letters proclaiming the bridge the "Korean War Veterans Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Commissioner of the Division of Highways and the Pendleton County Commission.

Which, under the rules, lies over one day.
Senators Kessler (Acting President), Foster, Palumbo, Snyder, Stollings, Barnes, Edgell, Browning, Chafin, Plymale, Klempa, Unger, Jenkins, D. Facemire, Sypolt, Yost, Wells, Prezioso, McCabe, Williams, Green, Wills, Fanning and Hall offered the following resolution:
Senate Resolution No. 7--
Memorializing the life of Michael Edward Millner, friend, brother, patron of local Charleston establishments, former per diem employee of the West Virginia Senate and full-time employee of the Joint Committee of the West Virginia Legislature.
Whereas, Michael Edward Millner was born June 2, 1957, in McDowell County, West Virginia, where he grew up in a coal camp, raised by his mother and grandmother; and
Whereas, Michael Edward Millner graduated from Charleston High School in 1976; and
Whereas, Michael Edward Millner worked for the West Virginia Senate Judiciary Committee for twelve years, and began working full time for the Joint Committee on Government and Finance in 2010, while also working at Joe's Fish Market; and
Whereas, Michael Edward Millner also worked at Barlow-Bonsall Funeral Home and the Summit Conference Center as the facilities coordinator; and
Whereas, Michael Edward Millner was an avid NASCAR fan, with a particular affection for the late Dale Earnhardt, Sr. He was a West Virginia Mountaineer fan and a Pittsburgh Steelers fan; and
Whereas, Michael Edward Millner touched the lives of all those who crossed his path, whether it was in the state capitol, a local establishment, in your home or on the street; and
Whereas, Sadly, Michael Edward Millner passed away on January 2, 2011, leaving behind a large extended family, including many "brothers" and "sisters", friends, dignitaries, patrons of the Red Carpet Lounge, Joe's Fish Market and the Lee Street Deli; therefore, be it
Resolved by the Senate:
That the Senate hereby memorializes the life of Michael Edward Millner, friend, brother, patron of local Charleston establishments, former per diem employee of the West Virginia Senate and full-time employee of the Joint Committee of the West Virginia Legislature; and, be it
Further Resolved, That the Senate expresses its deepest sympathy to the extended family of Michael Edward Millner on his passing; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to members of Michael Edward Millner's extended family.

At the request of Senator Unger, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Thereafter, at the request of Senator Snyder, and by unanimous consent, the remarks by Senators Unger and Browning regarding the adoption of Senate Resolution No. 7 were ordered printed in the Appendix to the Journal.
On motion of Senator Unger, the Senate requested the return from the House of Delegates of
Senate Concurrent Resolution No. 1, Authorizing payment of supplies, services, printing and other expenses.
Adopted by the Senate on Wednesday, January 12, 2011.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence as to the recall of Senate Concurrent Resolution No. 1.
Petitions

Senators Miller and Wills presented a petition from Dick and Betty Thomson and numerous West Virginia residents, requesting the Legislature strengthen DUI laws.
Referred to the Committee on the Judiciary.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senator Unger.
The Senate then proceeded to the thirteenth order of business.
The remarks by Senators Unger, Hall, Jenkins, Barnes and K. Facemyer on Wednesday, January 12, 2011, regarding the adoption of Senate Resolution No. 1 (Adopting rules of Senate) are extended in the Journal of this day as follows:
SENATOR UNGER: Thank you, Presiding Officer. This rule [sic] is basically the Rules for the Senate. This is what we govern ourselves with, and under Article VI, Section 24 of the Constitution it states that "Each House shall determine the rules of its proceedings and be the judge of the elections, returns and qualifications of its own members."
We have done that. We have done the elections and the qualifications of the members and what we are now doing is our constitutional obligation to adopt the rules and procedures and that is what we are doing here.
________

SENATOR CHAFIN: Senator from Berkeley now moves that we adopt Senate Resolution No. 1 (Adopting rules of Senate).
The Minority Leader is recognized.
SENATOR HALL: Would the gentleman yield?
SENATOR CHAFIN: Senator yields.
SENATOR HALL: Obviously, this is not news to anyone but there is . . . .
SENATOR CHAFIN: Senator from Cabell. State your point.
SENATOR JENKINS: I'm concerned under the Constitution, Article VI, Section 18. The Constitution reads "Upon the convening of the Legislature in each odd-numbered year, each House shall proceed to organize by the election of its officers . . . ." Do we have officers at this point?
SENATOR CHAFIN: We do not. Would you state your authority there again, please?
SENATOR JENKINS: Again, I guess I am just calling attention to our Constitution that has a provision, again, Article VI, Section 18. It states specifically "Upon the convening of the Legislature in each odd-numbered year, each House shall proceed to organize by the election of its officers . . . ."
I just wonder procedurally if we are getting one step ahead by doing the rules by this motion and not first electing our officers?
SENATOR CHAFIN: Remarks are noted for the record. Does the Senator from Berkeley want to respond?
SENATOR UNGER: Thank you, Mr. Presiding Officer. Actually, if you look at Article VI, Section 24 . . . . If you take the first order of business, it says, as I read, "Each House shall determine the rules of its proceedings and be the judge of the elections, returns and qualifications of its own members." And then it goes on to say "The Senate shall choose, from its own body, a President; and the House of Delegates, from its own body, a Speaker. Each House shall appoint its own officers, and remove them at pleasure." So, even in the Constitution it talks about adopting the rules and bringing in the election returns before it ever talks about election of officers.
SENATOR CHAFIN: Senator from Cabell, I will let your respond.
SENATOR JENKINS: Will the Senator yield?
SENATOR UNGER: I will.
SENATOR JENKINS: Thank you, Senator. You are discussing from Article VI, Section 24. What I was citing from is Article VI, Section 18, which precedes obviously Section 24.
Secondly, you referenced in your remarks that Section 24 sets forth the order. It doesn't say that. It does describe a series of actions but in no where does it state that the order shall be in this sequence. I think what challenges that is at the bottom of Section 24 which outlines the provision of how the Senator from Mingo is standing up at the front--the longest continuous service.
Though we have already, from your interpretation of 24, we have already violated that by following the provisions of 24 by having the Senator from Mingo up front. Again, I just point out that Section 18 is very clear: "The Legislature shall assemble annually . . . . Upon the convening of the Legislature . . . each House shall proceed to organize by the election . . . ." There's the statement of process. And you point to a word of process or order under Section 24 as you suggest. Is there any word that suggests that what you are proffering is the process under 24?
SENATOR UNGER: I thank you, Mr. Presiding Officer.
Your point is well taken, Senator, because in regards we have also judged also the elections returns and qualifications of our own members. So we have already done that first and now we are adopting the rules. And the other thing is, how can you hold an election if you don't know how to hold an election without rules? And so it could be by lot, it could be by vote, secret ballot. It could be in any manner if you don't adopt the rules on the procedures of election. So, what we are doing here is we are adopting the rules so we can proceed with the election of the officers.
SENATOR JENKINS: Thank you. I understand. That is the unique aspect of where we are. This is a unique circumstance. There has been a lot that has gone on in the past weeks that really is not provided for in the rules because we have just been following tradition. And what we've got before us today is a true question that is about to be put to this body when we get to it about what the Constitution says. And I am trying to make the point: Let's not just proceed in this manner in this process haphazardly--this is the way we have always done it. Let's follow the Constitution. I simply point out that the Constitution is clear. It says that we are to organize and proceed to the election of officers. All I am doing is pointing out that we are not following the constitutional letter of the law.
You are looking at Section 24 and reading into that additional words. Those are not the words that are in 24. Ultimately, probably on this question and other questions, our state's highest court will have to determine what is constitutionally proper.
So, I know the real focus is whether when we get to this position of Acting Governor. All I am doing is, I think if we are going to follow the letter of the law, let's do it in every respect. Let's not just follow tradition. Let's not say, well, we need some rules. The Constitution does not say we need rules to select a President. It says this gentleman, the longest in continuous service shall come forward and preside and that we are to proceed to a selection of an officer, a presiding officer. And I am just suggesting that we follow the Constitution.
Thank you, Mr. Leader.
SENATOR UNGER: I would say that we are following the Constitution because it doesn't necessarily specify when we elect our officers. It just says we will elect the officers. And one of the aspects of parliamentary procedure this body has followed from day one has been Jefferson's Manual for Parliamentary Practices. Now granted we haven't adopted that yet because we have no rules before this committee except for the fact of parliamentary law.
But even in Jefferson's Manual, Section 1, the very first thing in Jefferson's Manual says: Importance of a hearing to rules. Mr. Presiding Officer, we will be electing not only the President of the Senate, but we will be electing the next Governor of the State of West Virginia. And this body has an obligation to follow rules in that process and that's what we're trying to do. We want to establish the rules in the election and then elect the officers.
SENATOR CHAFIN: Mr. Minority Leader is recognized.
SENATOR HALL: I just request a ruling of the Chair on the question before the body.
SENATOR CHAFIN: The Chair cannot rule on the constitutionality of this body--this body cannot rule on the constitutionality of the motion that we adopt the rules. The motion before the body is the adoption of the rules set forth by the Senator from Berkely.
Are there others desiring to speak to the motion that we adopt the rules? The motion before the body is the adoption of the rules set forth by the Senator from Berkeley.
Are there others desiring to speak to the adoption of the rules?
Mr. Minority Leader.
SENATOR HALL: Would the presiding officer, gentlemen, yield?
SENATOR CHAFIN: Will the Senator from Berkeley yield?
SENATOR HALL: If we are at the rule, the rule does contain this concept of an Acting President which in discussions with you and others there is some debate as to whether or not that's a constitutional activity. It was addressed yesterday at the Supreme Court proceedings I understand. I didn't hear them personally, but I heard about them.
Would you make some comments on how it is you justify in this rule that several of the members proposed that there be an Acting Senate President?
SENATOR UNGER: Thank you, Senator. You know, again, under Article VI, Section 24, the only officer that's mentioned in the Constitution for this body is the Senate President. But then it goes on--it says "Each House shall appoint its own officers, and remove them at pleasure." We also proceed in electing the Clerk, the Sergeant at Arms and the Doorkeeper, as well as officers, and they are not listed in the Constitution either.
You know, we are at a very historic time right now and what happened back in 1869--this very situation happened to this body here in 1869--the President of the Senate resumed the office of Governor. And what these senators did at that time in 1869 is that they actually changed the rule (just like we're doing) in having an elected presiding officer (just like what we're proposing). They did exactly what we're doing here today. They even went so far that after the President returned from being Governor to the body, they passed a resolution accepting that person back into the fold. Again, upholding the very principle of this country's constitutional right of separation of powers.
Three years later, three years later, they reformed the Constitution and added Article V, and Article V I will read, and I know many of you know this, but it says, "The Legislative, Executive and Judicial Department shall be separate and distinct so that neither shall exercise the powers probably belonging to either of the others." Then it goes on, one step further, "nor shall any person exercise the powers of more than one of them at the same time and the only exception is that the Justices of Peace shall be eligible to the Legislature". Of course, there is no such thing as Justices of Peace today.
But right there it was enshrined in our Constitution the separations of powers and this rule is going to ensure that that's upheld and we are following the tradition this body did back in 1869.
SENATOR HALL: Can I just follow up? You said that we are doing the same thing, but I think back then they had a pro tem title and this time you have a different title. It's called Acting Senate President. That's not the same. Would you want to address that?
SENATOR UNGER: Basically it's a presiding officer and the body determined that it would be Acting President so that with all of our Joint Rules and other things that person can act as President as long as our President is acting as Governor. And so that's what we did. We wanted to make sure that there wasn't any confusions.
What they did back then is they created an entity called President pro tem that over the years has been more ceremonial in the bodies but does hold a lot of strength and power, and I understand that this body is going to strengthen that position. But as far as so we can get away from the confusion, we used the term Acting President.
SENATOR HALL: Well, in all due respect, the use of the term President may create confusion in that there will be two of them in existence. Do you want to address that?
SENATOR UNGER: Yes, actually there won't be two Presidents. There will be a President and then an Acting President.
SENATOR HALL: They will have the same title.
SENATOR UNGER: The President is acting as Governor and his term is Governor, and this person, a presiding officer that we are going to elect, will be acting as President and, therefore, hold the title but he is not going to be President. He will be Acting President.
SENATOR HALL: He will be . . . . I think your point of electing other officers and coming up with titles and so forth is the prerogative of the Senate. But in this case, isn't it not true that you are creating this title so that this person can actually sign and enroll engrossed bills and send them to the House and have them become law? Isn't that it--that you have to have somebody with that title because that's what is required? That name is required to be on those legal documents? Is that it?
SENATOR UNGER: That's been some interpretation of some members of the legislative body from the other house--that the President pro tem wouldn't qualify under our Joint Rules, but someone with a title of President would.
SENATOR HALL: So, you are driven by what you have heard from the House to deal with their objection in the creation of this particular title? Is that what I am hearing you say?
SENATOR UNGER: Actually, I am driven, for me personally, I am driven to uphold the Constitution that I just stood up here a couple minutes ago and took an oath to uphold. And I think it is our duty as senators to uphold those constitutions--both the U. S. and the West Virginia Constitution. And I think this rule change does that. And that is what I am driven with.
SENATOR HALL: OK. So, the separation of powers which is a sacred doctrine of our history which you've well delineated is at the core issue here. Now, we will elect a Senate President before we elect an Acting President. At what point do you define that he is not exercising his power?
If we elect him, he walks in here. Isn't there some modicum of exercise of power just in that process in and of itself? How are you going to divest him of that particular statement on the separation of powers that you quote in Article V even by that activity?
SENATOR UNGER: You can divest anybody with a title and they don't necessarily have to exercise the powers of that title. And I would say, no, if he comes here, we elect him, he is sworn in as President, as long as he doesn't vote, make an appointment or exercise the power of that office, then he would be in line with the Constitution because he is acting as Governor.
SENATOR HALL: Those are official actions. You don't envision in the activity of that person any sort of influence by conversations with members of this body or so forth? Would that not be exercising influence? You know we just swore an oath that we would not withhold or promote, I believe the language was, a certain activity for pecuniary interest which had nothing to do necessarily with how we vote but even influence. The word "influence" is there.
With that title of Senate President, no matter where he might find himself, there is some sort of influence that we might argue that he still has over this body in some maybe indirect or modest kind of way.
SENATOR UNGER: Well, I'll tell you this, Senator, my mother has influence on me on some of the things I vote on and it is not for any monetary reasons. I would imagine with the friendship of President Tomblin that many of us would listen to him and take that into consideration, but that doesn't mean he is exercising any power at all. I mean he may be exercising influence just as anybody in our families would or any friends or any of our constituents would exercise influence.
SENATOR HALL: Excepting the point. So you are clarifying the point that . . . . As I understand what is going to happen here today, we are going to elect the President and he is going to come forward and he is going to be sworn in and so forth. He is not going to take his seat, is that correct?
SENATOR UNGER: That's right.
SENATOR HALL: And that's in Article VI, Section 24. If he takes his seat, would that in your mind, since he is not going to do that by the agenda that we have been given . . . . In your mind is he then at that point--if he did that he would be exercising power if he took the seat?
SENATOR UNGER: That's right. It has two aspects that has to occur. One is he shall call the Senate to order, preside over the same until a President of the Senate shall have been chosen. That is what we are going to do is choose.
SENATOR HALL: We're going to choose.
SENATOR UNGER: And then it says, and have taken a seat. I would contend that taking the seat would be exercising power.
SENATOR HALL: Question: What does that sentence say happens if he does both those things?
SENATOR UNGER: Well, I don't . . . .
SENATOR HALL: He leaves the podium, is that correct?
SENATOR UNGER: I'm sorry?
SENATOR HALL: I mean the longest standing presiding officer leaves the podium if he takes the seat, is that correct? Isn't that what that's about?
SENATOR UNGER: If the President is elected, chosen by us, and chooses to take the seat, then our presiding officer would have to relinquish the seat. But that would be a choice of the President and I know that in tradition of the Legislature sometimes the presiding officer, the person that is elected President or Speaker, allows for ceremonial reasons for the longest serving, continuous serving member to continue to be presiding and there is no reason why he couldn't do that.
SENATOR HALL: Is there no reason why he couldn't continue to preside for 60 days?
SENATOR UNGER: Well, Senator, I am just a humble theologian. I am not a lawyer.
SENATOR HALL: I know. So am I. We've got plenty of lawyers in this room that might deal with that though.
SENATOR UNGER: I study God's law and man's law makes me very confused at times, but we would have to get the legal scholars in here to . . . .
SENATOR HALL: But it is an interesting question, isn't it?
SENATOR UNGER: It is an interesting question.
SENATOR HALL: If the seat has not been taken by the President that we elect here in just a bit, then the person of continuous standing is still standing, smiling as he is. I mean he doesn't leave.
SENATOR UNGER: Well, that's why our rule will allow that if the President becomes Acting Governor and is unable to take the seat constitutionally because of violation of Article V of separations of power, then this body can then move to elect an Acting President that would take the seat at that time. And that is exactly what this body did back in 1869 is when the President vacated the seat to become Governor, this body passed a rule that created a position and elected that person to take that seat until such time the President came back and was no longer acting as Governor.
SENATOR HALL: You're a great historian. I'm just looking at the language I see here and it seems to indicate that this person presides until the President is chosen and takes his seat. And I am informed by the order of service, I am informed by our docket today that he will not do that. So, I guess I am asking the question and you are struggling to answer it: When then does he vacate that particular spot?
SENATOR UNGER: According to the rule that we are adopting-- and that is what we are focused in on--according to the rule that we are adopting, he will remain in that seat until we elect a presiding officer.
SENATOR HALL: Obviously, you are comfortable with the fact that in adopting that rule you are not violating this provision of the Constitution?
SENATOR UNGER: I don't believe we are.
SENATOR HALL: Well, I think it is maybe somewhat of a question. I believe that is all I have to add. I guess at the end of the day here we are going to proceed with the rule, we are going to propose an Acting Senate President with that title who will then assume . . . . This will be a new arrangement and we have 147, I think, years of tradition of rules. This will be a change. So, anyway, I thank you for your comments.
SENATOR UNGER: If I could, Senator, respond to that.
Mr. Presiding Officer, in 1869 when this body did this, at least from my research, that was never challenged. It actually changed the rules, elected a presiding officer and allowed for that presiding officer to run the Senate. So, to say we are changing tradition, actually, I would submit to you, Mr. Presiding Officer, that we are in tradition. We are following what our predecessors had done. At this very example and time, we are doing the same thing here by adopting this rule.
SENATOR BARNES: Thank you, Mr. Presiding Officer.
A question of the Chair first, and then I would like to ask the gentleman from Berkeley to yield.
Mr. Presiding Officer, you have already stated that you are not in a position to rule. At this particular time, we have no rules. We have only the Constitution to go by. So, therefore, who is in position to rule on this issue so that we could move forward?
Question has been raised.
SENATOR CHAFIN: I don't think there is anything to rule on. The question is on the adoption of the rules that we are debating.
SENATOR BARNES: Well, there was a point of order made by the Senator from Cabell that, I believe, does require a ruling.
SENATOR CHAFIN: Stand at ease here and let's get this thing . . . .
Senator, I am advised and agree with the parliamentarians that when he raised his point of order as to whether it is constitutional or not, this chair cannot rule whether something is constitutional. That is for the body to vote upon and that is obviously for somebody in the circuit court or Supreme Court to actually rule on whether something is or is not constitutional. You are making a record here and I think these remarks need to be placed in the Journal which they are being recorded so the question is on the adoption of the motion by the Senator from Berkeley that we adopt these rules. That is what we are debating now. Whether or not they are constitutional I can't, as a presiding officer, rule. I have my opinion certainly but I can't do, I'm advised, an official ruling on the constitutionality of it.
SENATOR BARNES: Then, at this point, I would ask that all remarks be placed in the Journal if we need to make that official.
SENATOR CHAFIN: Without objection.
SENATOR BARNES: Then is there a potential, since you have placed this in the hands of the court and you are not able to rule on this, is there a potential that if we are operating today in any manner that is not consistent with the Constitution that these proceedings in their entirety until we are operating by the Constitution should be, could be, considered out of order?
SENATOR CHAFIN: Senator, I will say that I know of no higher authority in the State of West Virginia than the state Constitution of the State of West Virginia. I agree with your comments, but I cannot make any constitutional rulings.
SENATOR BARNES: Will the gentleman from Berkeley yield?
SENATOR CHAFIN: Will the gentleman from Berkeley yield? He so yields.
SENATOR BARNES: Senator, I am somewhat confused by your sermon. You have preached the Constitution to us. You have said your highest objective here is to uphold the Constitution. And then in the discussion with the Minority Leader you have placed the rules higher than the Constitution. The Constitution is very clear on the issue of the Senate President taking his seat. This gentleman shall call the Senate to order and preside over the same until a President of the Senate shall have been chosen and have taken his seat. Now, how much clearer does that need to be?
It doesn't say until the rules have been adopted and we choose who is going to take that seat. The Constitution says he shall take his seat.
SENATOR UNGER: I think it says, Senator, and preside over the same until a President of the Senate shall have been chosen and have taken his seat. I think it is the choice of the Senate President to take the seat or not. And I think you need to take that issue up with the Senate President when we elect that person.
I don't accept the fact that I am placing rules above the Constitution. Actually, the Constitution says that "Each House shall determine the rules of its proceedings and be the judge of the elections . . . ." So it says in the Constitution it empowers us to do the rules.
SENATOR BARNES: Was I mistaken in hearing your statement that once the rules are passed and if an Acting President is elected, then this gentleman will retire and be replaced by that individual in leading these proceedings?
SENATOR UNGER: I said that as far as once a President elected [sic] and the President acts as Governor, then our rules would allow for us to elect another presiding officer in order to preside over the body. And it says that in the Constitution.
SENATOR BARNES: Therefore, you have just told me that the rules that we are going to adopt precede the Constitution.
SENATOR UNGER: Senator, come on. You know, you are almost like saying it depends on what "is" is. OK, it's clear here: "Each House shall appoint its own officers." So, this body can appoint its own officers.
SENATOR BARNES: It surely can and there is no disagreement in that.
SENATOR UNGER: And we can elect our officers and we can run our . . . . And we have our proceedings.
Senator, the way I see it if you don't like the rules, you can vote against them. OK. The rules . . . .
SENATOR BARNES: The question that I am asking you, though, is not about whether or not we like the rules. We will have the opportunity to vote "yea" or "nay" on the rules. The issue was brought up as to who presides over this body, and your answer is that an Acting President that we choose presides over this body.
My challenge to you is how can that be when the Constitution that you have touted so highly today specifically says that he will retain that position until the President takes his seat. Now, how much clearer can that be?
SENATOR UNGER: Senator, it also is in our rules that if the President is absent, then the President pro tem takes over or a member can be selected to run the proceedings of this body for up to three days. It gives provisions that if the President is unable or decides not to do it, that someone will continue the proceedings of this body. What we are saying is we want to elect that person to continue the proceedings of this body as our President acts as Governor. That's what we are saying. Which is fully constitutional.
SENATOR BARNES: And I certainly understand the provisions of the rules calling for a pro tem, which at this point we do not have. I am just simply saying we are starting today. This is the beginning. We have no rules right now to go by. And the question has now arisen that you intend to relieve this gentleman of his duties in running the Senate before the Senate President, or without the Senate President, taking his seat which is required by the Constitution.
SENATOR UNGER: I disagree with you, Senator, respectfully.
SENATOR CHAFIN: Senator from Cabell is recognized.
SENATOR JENKINS: Will the gentleman continue to yield?
SENATOR CHAFIN: Will the gentleman from Berkeley continue to yield? The gentleman yields.
SENATOR JENKINS: Thank you. A couple of things. One, I want to go back and walk us through what you have said because, again, I think this is an important point in history and eventually our court will decide and the more we can kind of put on the record here essentially of what the intent and purpose of the actions we are taking . . . . I understand you and I will have a fundamental disagreement. I respect that. But, again, it is important for us to go through this so the court can understand the intent behind our actions.
First is: During your remarks earlier you emphasized and you used the word "exactly" several times in your historical perspective. Let me ask you: I think what you are saying is that they did the same kind of thing of adopting a rule that put somebody else in power. But, when you said "exactly" a couple of times in suggesting--because I think the public out there would hear you and say, oh, they're doing just today adopting rules that have the exact same words that were put into the rules back in the 1800s. They did not do that, did they?
SENATOR UNGER: That's not what I meant, Senator.
SENATOR JENKINS: OK. I just wanted to make sure that we were clear.
Secondly, I am intrigued by your opinion about the House. And you said that the House had done some research about this and the question came up about an enrolled bill if it came over. And you said someone with the title of President. I about fell out of my chair. That the opinion is that if we send something over there with just someone with the title of President that as a signature on an enrolled bill that it would be OK. Is the Acting President . . . do they have the title as President?
SENATOR UNGER: They will have the title as Acting President.
SENATOR JENKINS: OK. So, if we sent a bill over there with the signature of Acting President, there is a chance that they would not recognize that because it does not have, by your own words, the signature of somebody called President. Isn't that true?
SENATOR UNGER: Senator, I don't know. You would have to ask them about that. I can't speak for the House.
SENATOR JENKINS: Well, again, I am just going back to your words. You said as long as you send something over there with the name President on it, it is going to be OK and you just acknowledged . . . .
SENATOR UNGER: I don't know. If I did that, I misspoke. I didn't mean things would be OK. I am not sure if I said that, but the idea is that we were trying to get it so that we could be in line with the Joint Rules and that we can proceed as our presiding officer in order to conduct business while our President is acting as Governor.
SENATOR JENKINS: Well, have you read the Joint Rules?
SENATOR UNGER: Well, actually right now we don't have any Joint Rules because we haven't adopted any. That's what we are trying to argue, Senator. We are trying to adopt some rules.
SENATOR JENKINS: Do we have before us Joint Rules that have a similar amendment to what you are trying to do for the Senate Rules?
SENATOR UNGER: Point of order from Presiding Chair.
SENATOR CHAFIN: State your point.
SENATOR UNGER: The question is on these particular rules, our Senate Rules, not about Joint Rules. I always thought we had to keep to the issue at hand. I mean, Joint Rules will be later on, but right now we are discussing Senate Rules.
SENATOR CHAFIN: Senator, he asked you to yield and you graciously did so. So, he is asking the question and if you want to continue to yield . . . .
SENATOR UNGER: OK. So, my answer is what I just told the presiding officer.
SENATOR JENKINS: Well, the concern is if we adopt these rules with the contemplation of an Acting Senate President and if during the course of this session we have enrolled bills and those enrolled bills go with the signature of the Acting Senate President, we could have a problem. Those bills may be refused on the spot. Or maybe they are going to be challenged in the months and years ahead.
If you look at the Joint Rules, under Rule 15 (Authentication of Enrolled Bills), the last sentence "After enrolled bills and joint resolutions are authenticated as aforesaid, they shall be signed by the Speaker of the House and by the President of the Senate." That's what the current Joint Rules say. So, I guess my question to you is: Absent some change of the Joint Rules, how can the Acting Senate President sign an enrolled bill? Let's just assume for a minute, a moment, there is no change in the Joint Rules. How does an enrolled bill go over there with the signature of an Acting President and not the signature of a President?
SENATOR UNGER: Senator, first of all, we don't have any Joint Rules. Because under parliamentary law it is clear through case law and rulings--and I can list all of them if you like--it says rules of procedure passed by one legislature or statutory provisions governing the legislative process are not binding on subsequent legislatures. So right now we have no rules before us. We don't have Senate Rules; we don't have Joint Rules. And we can play hypothetical theories of what the rules could say or not say, but right now at hand we are discussing the Senate Rules, and if you have questions pertaining to the Senate Rules, I would be more than glad to answer those. I don't have the Joint Rules in front of me right now so I cannot answer that. That is what comes later on.
SENATOR JENKINS: But what we are doing here--and I understand your argument is let's worry about that later. And what I'm saying is: Let's worry about it now because we are setting our feet in stone as to what our position is. And we are setting up by the adoption of an Acting President position a train wreck coming ahead when we get to--at some point--the Joint Rules.
Let's say the House says, no way. We're not going to amend the Joint Rules to add that provision. What are we going to do then? Then we are in a world of hurt. That's why I think it is important.
And there is another provision under the Joint Rules and it says--it is section 5a--and it says "In the case . . . ." I thought you might be going, well, there's going, well, yes, it says President, but we've got an Acting President and our rules say Acting President really is President, we're going to run with it anyway, send it over there with the Acting President because we say he is really the President. But under the Joint Rules, it says "In the case of any conflict between this rule and a standing rule of the Senate or the House of Delegates, the provisions of this rule shall control." So, it doesn't matter what we say in here in our rules if we end up with a set of rules in conflict with the House under this Joint Rule it says the Joint Rule--and the Joint Rule talks about a President. And it talks about a President throughout. It doesn't talk about an Acting President. So, again, I understand your point is suggesting this is not a ripe argument; let's worry about that another day. My point is we better be worrying about it today, because if we adopt it today, we are heading for real trouble when the House says we aren't going to agree to a Joint Rule that recognizes an Acting President. Then where are we?
A couple more things.
SENATOR CHAFIN: Is that your question now? Will you let him respond?
Do you want to respond to that, Senator from Berkeley?
SENATOR UNGER: Yes, thank you. Again, I want to emphasize that we have no Joint Rules before us. Those things can be amended and that is part of the process of amending it. And as far as trying to avoid that conflict, I look forward to your expertise and help in helping us so we can avoid it. So, I look forward to your help in that area.
SENATOR JENKINS: The second area . . . .
SENATOR CHAFIN: Do you have another question, Senator from Cabell?
SENATOR JENKINS: Yes, continue to yield. Again, I was stunned by your statement that "He's not going to take his seat."
Now, we are about to elect a Senate President--proudly going to vote for the Senator from Logan--but you said, he's not going to take his seat. How do you know that? Has this been predetermined? That you have talked with him and he has said publicly or said to you or to others, I'm not going to take my seat? What is the basis of your statement "He is not going to take his seat"?
SENATOR UNGER: I think the question centered around that in order for him to exercise power he would have to take a seat. And if he didn't take a seat, he wouldn't be exercising the power. So, I think that's what the Senator from Putnam was referring to that separation of we choose our President and then the President will take the seat and he asked me the question of: Is the power resting in the choice or is he exercising power when he takes the seat? And, I think, my response was: He would take the seat. Now, in order to fulfill, in my opinion, only my opinion, in order so that he doesn't violate Article V of exercising powers of two or more branches of government at the same time, he wouldn't be able to take his seat because he would be exercising the power of the Executive and the Legislature at the same time. But that is just my opinion. And, like I said, I am just a humble theologian. I am not a high-paid lawyer.
SENATOR JENKINS: Well, you've been to law school so . . . .
SENATOR UNGER: Only one year, sir, but I am in seminary so . . . .
SENATOR JENKINS: I think constitutional law was in first year anyway so you probably . . . .
SENATOR UNGER: Then I wish you would listen to what I am saying and agree with me.
SENATOR JENKINS: Maybe it's that second and third year of law school that really teaches you about the Constitution and not just the first year.
In all seriousness and, again, I respect the role you are playing and this dialogue, I think, is very helpful. Again, we have been 100 years plus-plus and this kind of issue has never come about. So, it is time to talk about it.
Under the rules--we had this discussion in the caucus--is it your opinion that the Acting President is an officer? We know and we talked about it because, I think, we had multiple answers. First, there was a suggestion, no, it's not an officer because the officer is defined as a President and a Clerk, Sergeant at Arms and a Doorkeeper. Is it your belief proffering these rules that the Acting President is an officer by definition?
SENATOR UNGER: Well, the only thing I would say on that--I would go back again to Article VI, Section 24, where it says "Each House shall appoint its own officers, and remove them at pleasure." I would say that the Acting President, the Clerk, the Sergeant at Arms and the Doorkeeper could be considered an officer; but, again, that doesn't come from my professional legal background or anything like that. But I read that as a layperson. "Each House shall appoint its own officers . . . ." The Acting President will be the presiding officer.
SENATOR JENKINS: Again, your statement could be considered and officer. My question is: Under the rules you have proffered, it says "The Senate, at the commencement of each new Legislature, shall elect as its officers a President, Clerk, Sergeant at Arms and Doorkeeper." Period. I'm not talking about what somebody could be considered as being. It is again a question of fact that I am trying to figure out based on your intent. Is it your intent or belief in proffering these rules that the Acting President is an officer of this body and that we then essentially are electing five officers not just four?
SENATOR UNGER: Senator, let's do a Paul Harvey. Let's read the rest of the story here. But you are right. It is under "Officers" in the rule. It says, Officers, the title. Then it says: "Rule 3. The Senate, at the commencement of each new Legislature, shall elect as its officers a President, Clerk, Sergeant at Arms and Doorkeeper." But then it goes on. It says: "If at any time the President becomes Acting Governor pursuant to Article VII, Section 16 of the West Virginia Constitution, the Senate shall immediately elect one of its remaining members to serve as Acting President." So, it is under the title "Officers".
SENATOR JENKINS: Again, this is for the record. You believe that the Acting Senate President under the rules . . . . It is the intent for that position to be an officer of the Senate.
SENATOR UNGER: I would say that the Acting Senate President or the Acting President is the presiding officer of this body.
SENATOR JENKINS: Again, it's a simple question and, again, I think maybe this is probative of the lack of clarity about what we are doing here. You are not able to indicate to me whether you believe the Acting President is an officer of the Senate.
SENATOR UNGER: I believe the Acting President will be the presiding officer of the Senate.
SENATOR JENKINS: And, of course, my question is: Is the position of Acting President an officer?
SENATOR UNGER: It depends on what a rose is a rose is a rose, Senator.
SENATOR JENKINS: Gertrude Stein.
SENATOR UNGER: There you go.
SENATOR JENKINS: Made it. I do.
Let's explore for just a minute, again, this issue of what you think the Senator from Logan when elected Senate President and the Rules of the Senate have been adopted . . . . Is he able to vote in this body? Can he cast a vote?
SENATOR UNGER: That's going to be his decision.
SENATOR JENKINS: Well, we are setting up a situation with these rules that--and part of your proffering of these rules is to create a wall, a separation of this person who is the Acting Governor, our President, and separate him from this body. And what I am trying to do since you are saying that is your intent by adopting these rules, I am interested in trying to figure out what you believe he can do as an elected senator from the Seventh Senatorial District.
SENATOR UNGER: Well, I think as an elected senator he can do whatever any senator can do. But that would be questioned, I think, and be challenged by others if he is actually in violation of Article V of the West Virginia Constitution. And that would be taken to court and I imagine the judges would decide on that. But, you know, when he comes down here and he is sworn in as our Senate President, if he chooses to take the chair, he can take the chair. Nothing is going to prevent him from doing that--even our rule change doesn't do that.
Our rule change only addresses if the President becomes Acting Governor and then we select an Acting President. So, if we elect the President and he is here and he decides to go ahead and go up there, this Rule 3 would never go in effect. The Acting President would never have to be discussed. We would just go on and life will be fine because our President of the Senate will be here presiding over us as presiding officer. But if he is not, if he doesn't choose to do that--and that is his choice--then it does allow for provision of this body to elect a presiding officer.
SENATOR JENKINS: Let's go back to my question: Can the duly elected Senate President, who represents the citizens from the Seventh Senatorial District, can he come up here today, tomorrow or next week and cast a vote as a senator representing the people of the Seventh or do you think he is violating the Constitution because under these adopted rules we have separated him from this legislative process?
SENATOR UNGER: Senator, with all due respect, the rules don't really address that. The Constitution addresses that. And, again, I'm not a constitutional scholar; but I would say that choice is left up to our Senator from Logan. He has every right to vote in this chamber because he has been duly elected by the people of his constituents. If he chooses to do so, that's his choice. My opinion doesn't even matter. My opinion doesn't matter, Senator.
SENATOR JENKINS: Because you indicated he wasn't going to take his seat but if he did, he would be violating the Constitution.
SENATOR UNGER: That's my opinion in the sense of Article V that says that no person shall exercise the powers of two or more branches at the same time. And, if you are exercising the powers of the Governor and you are exercising the powers of the legislative branch, I think it is very clear that could be in violation of Article V of our Constitution. Now, again, the courts would have to rule on that.
SENATOR JENKINS: Then you are suggesting the Constitution is unconstitutional because the Constitution provides that it is the Senate President who shall serve as Acting Governor. Again, there is well-grounded constitutional interpretation provision that the specific controls the general and the provision that you are talking about--the separation of powers--has an exception to that provision. And that exception is that the Constitution itself says that the Senate President is the Acting Governor. So, the Constitution sends him to the position. It doesn't say anything about having to give up what he does up here in the Senate.
SENATOR UNGER: Senator, I want to correct you on something. The Constitution doesn't say he is Acting Governor. The Constitution says the Senate President shall act as Governor. So, if we are going to parse words, we've got to make sure we are clear on that.
Also, the idea of title versus exercising power. One can hold a title but doesn't necessarily have to exercise the power of that position. So, I don't think the Constitution is unconstitutional. That's just not logical. I think that back in 1869 when this body passed the rule that it did that is similar to what we are working on today, that three years later when they wrote that Article V they had anticipated that you can be President of the Senate, act as Governor but not necessarily have to act as President of the Senate at the same time. I think they had a rule in place which would allow for both of those provisions to coexist without violating the Constitution.
SENATOR JENKINS: Can we have two presidents or two presiding officers?
SENATOR UNGER: You cannot have two presiding officers because there is only one seat up there. And so, whoever is up there right now, which is the Senator from Mingo, he is our presiding officer and, therefore, he is one. So, no, you can't have more than one presiding officer.
SENATOR JENKINS: I agree, because throughout, again, the Constitution and the statute we talk about a President or a presiding officer. And what your suggestion is that we elect a President but under the rules with this scenario that person is divested of all of their "power" as President and it is vested in another individual. So the Senator from the Seventh, while being elected President, under these rules, is completely divested of all power of that position.
SENATOR UNGER: Well, Senator, what I will say to you: Under previous rules the old language reads, "The President of the Senate shall appoint a President pro tempore, who, during the absence of the President, shall preside and perform all the duties of the President." So, actually, under even the old rules from last year, if the President is absent, then the President pro tem acquires all the powers and duties and responsibilities of the President. So, we are not changing anything in this rule. The only thing we are doing differently is that we are allowing for the Acting President to obtain those duties and responsibilities when our President is acting as Governor. Only during the time when our President is Acting Governor. If Governor Tomblin would wish to come back and just serve as Senate President and not exercise his powers as Governor, then we won't have to worry about electing an Acting President. We will just go on our way and we will have our presiding officer. But if we don't have our presiding officer and our presiding officer is absence [sic] because of his constitutional duty as being Governor, then we have to then among ourselves decide on who is going to be up there in that chair and preside over us so we can conduct the people's business.
SENATOR JENKINS: Thank you.
SENATOR CHAFIN: The question is on the adoption of the motion to adopt Senate Resolution No. 1 by the Senator from Berkeley. Roll call has been requested. Is the demand sustained? Demand is sustained. The Senator from Jackson is recognized.
SENATOR K. FACEMYER: Thank you, Mr. Presiding Officer. I take it we are at the stage of speaking to and for the resolution. SENATOR CHAFIN: That's correct. You have the floor.
SENATOR K. FACEMYER: Thank you. In all of the debates going on, it comes down to basically our opinions. But I'm still of the opinion how can we have two Senate Presidents--both elected-- because the Constitution as we have stated here before, Article VI, Section 24, says we have one presiding officer, one President. One Senate President is elected.
Seventeen senators just stood here and swore to uphold this Constitution and I know they will do their best to do so. I believe what has happened in this Chamber since the party caucuses is unprecedented, it's unconstitutional and it's illegal.
Our Senate President, Acting Governor, has many times stated publicly that he's opposed to any rule change. These rules have served the Senate well for 147 years. In fact, the Senator from Logan joined the 16 others of us to make 17 to defeat this Senate Rule change which is a direct attack on his Senate presidency and his authority. I hope he would be true to his word and join us that signed in blood that sheet of paper saying that we were opposed to any rule change.
What a shame it is that he is sitting downstairs listening to this now, to this body that he has always upheld in the highest integrity. What a shame he is sitting down there and not sitting up here as a senator that he was elected to be--listening to this debate and possibly responding to it.
I hope that he would be true to his word that he told the 16 of us in his office that he was against the rule change and would vote against the rule change. I implore him to do so now. He is the Senator from Logan first, and the people of West Virginia need him to be in this Chamber and voting. I just don't get it when someone stands before us, over the past 18 years or so, (let's see I have been here 11 years now--this is my 11th term in the Senate) and listen to the argument at how our code of dress, our manner of speech, how we address each other on the floor is all with the integrity of the Senate and he doesn't have the decency to come to the opening day and listen to the debate and take the chair if he is chosen and elected to do so.
Mr. Presiding Officer, I still stand by the rules that have been in effect for 147 years and implore each of us to vote to keep the rules in place.
Thank you.
SENATOR BARNES: Thank you, Mr. Presiding Officer. I have another question of the Chair. According to Article [sic] 24 of the Constitution, the ". . . majority of the members elected to each House of the Legislature shall constitute a quorum. But a smaller number may adjourn from day to day, and shall be authorized to compel the attendance of absent members, . . . ." Do you believe you have the authority to compel the attendance of an absent member today?
SENATOR CHAFIN: The Senate will stand at ease.
SENATOR BARNES: It's Article VI, Section 24, by the way.
SENATOR CHAFIN: The Senate will be in order. To the question that is posed by the Senator from Randolph, Section 24, Article VI, that you read deals with whether or not we can compel, a smaller number can compel a member or members to attend to establish a quorum. Now in our rules, which we don't have any rules because we haven't adopted rules yet, there is [sic] provisions in those rules if we get there that can compel members to attend--that we might want to take that up if we ever get to adopting the rules.
But it would be my ruling that this relates to compelling attendance to establish a quorum.
SENATOR BARNES: Thank you. Another question of the Chair.
SENATOR CHAFIN: State your question.
SENATOR BARNES: You know, every issue that's been discussed here today, thus far, has been an issue of constitutionality. By your admission at the Chair that you cannot rule on many of these issues because you did not have the authority of the courts to rule . . . .
SENATOR CHAFIN: I would like to; I just don't have the authority.
SENATOR BARNES: Yes, I understand that and then I'm not sure I want you to have that authority.
SENATOR CHAFIN: I notice that . . . . Maybe we could get the Sergeant at Arms to get Justice Workman to preside here.
SENATOR BARNES: And, also by the statements made by the gentleman from Berkeley that many of these questions cannot be answered, do you believe it might be in the best interest of this body to adjourn or to be in recess until such proper documents could be prepared and filed with the courts of this state to answer these questions and we could be assured that we are moving in an orderly, legal and proper fashion?
SENATOR CHAFIN: Senator, I can't state my opinion on that. You are free to make any kind of motion you want. I am just the presiding officer here this morning.
SENATOR BARNES: I so move.
SENATOR CHAFIN: Motion that we adjournby the Senator from Randolph. It is a nondebatable motion.
Roll call has been demanded. Is the demand sustained? The demand is sustained. All in favor that we stand adjourned on the motion from the Senator from Randolph will vote "aye"; those opposed will vote "no". The Clerk will prepare the machine.
On that question, 9 "yea", 23 "nay", 2 "absent and not voting". The motion is defeated.
Question is now on the motion of the Senator from Berkeley that we adopt Senate Resolution No. 1 which is the adoption of Senate Rules. Are there further senators who would like to speak to the motion? Senator from Putnam, Senate Minority Leader.
SENATOR HALL: Just a brief addendum to my time and inquiry with the Senator from Berkeley. He makes an argument which is somewhat of a compelling argument about the separation of powers, and he argues that that separation of powers language was produced three years after this situation came up and, surely, they would have, when they wrote that, certainly seen this problem. But, apparently, they got a little myopic or something and didn't see in putting in "shall take his seat" when that other section, they didn't see that section. I contend that they probably, in the absence of a Governor, viewed the Senate President perhaps having his feet more in the Senate presidency as operating as a legislative person--not wanting that person to encroach the Governor's responsibilities and may have envisioned, because they left that language in there, that the President would exercise his powers of President, stay the President of the body to which he will be elected, assume the seat and be careful to not exercise that executive power since his vested elected office is Senate President or member of this body. Why they called for an election to occur and I would--and I have said this to many, that truly we are here because this particular (and this is just not about persons or anything but just in this instance philosophically) it looks to me like it makes more sense for the Senate President to be more of a Senate President than act as Governor.
I see "act as Governor" as actually in a weaker language than "Acting Governor". So that when it says "act as Governor", I think they were asking the Senate President, if this should occur, to remain in that presidency, assume his seat and immediately proceed to try to get that vacancy filled in some manner. And, you know, the more I thought about this, it may be almost impossible for the presiding officers of both of these bodies, Senate and House, if that can't happen to go to the third process they put in the Constitution to get to a Governor who may be totally devoid of legislative authority. And that would be to have a joint session of the Legislature and elect that person to be Governor. And I kind of wonder if maybe this conundrum is not so great for both presiding officers of both houses, House and Senate, that that may be what I would actually recommend we might end up doing. But that is just a little editorial comment.
But I wanted to read into the record what I thought in answer to his historic argument that they kind of missed taking something out while they were trying to, you know, didn't want the Senate President to be the Senate President.
Thank you very much, Mr. Presiding Officer.
SENATOR CHAFIN: . . . desiring to debate the issue? Senator from Cabell.
SENATOR JENKINS: Thank you, and hopefully I will be brief.
I want to encourage you to vote "no" on the adoption of these rules. Obviously, the focus has been on whether or not we allow for the creation of an Acting President position.
You know, yesterday a parade of people went into the State Supreme Court over a question of what does the word "new" mean--on the gubernatorial succession where the Constitution says, obviously, more than a years [sic] left in a term, that there shall be a "new" election. So, we had a parade of interest groups and citizens and others saying, please, Justices, tell us if "new" means now or does "new" mean later? Or what does that mean? It is a little bit about what does "is" mean.
Today what we are trying to do is define what does "President" mean. We are on the verge of adopting a set of rules that changes in a significant way what the term "President" is. It is pretty important to recognize that through this dialogue--and I know it's long--but still the anticipated Majority Leader cannot tell us whether or not the Acting President is an officer or not. It is interesting that we don't know what the Joint Rules will be and whether or not even this Acting President position will be recognized in that all of our work in the days and weeks ahead may be for naught. It may be that we take some action that years down the road a criminal conviction for murder or an appropriation gets challenged because what we did was flawed and it gets raised at that point the court tosses out because we changed the context of what the word "President" means.
At the core of what I am suggesting is that we do not have the power without any limitation to do whatever we want. And that is what this rule change is trying to do. That we as a body can adopt a rule that defines a President however we want. There is a limitation to that. And that is the Constitution.
Just think of the outrage if we adopted a rule here that said a Jewish person couldn't serve in a particular capacity. We could adopt that rule, but that rule would be unconstitutional. We can't do that.
And just in this case of creating an Acting President and stripping of all the authority of what the Constitution says we are to elect a President, similarly, in my opinion, would render that rule which creates that position as being unconstitutional. And it's going beyond what our constitutional authority would be.
You know, the court--and we didn't get into it because it was unclear to me . . . . At the outset I thought the anticipated Leader was saying that the Senate President may not be able to come up here and cast a vote, but we have case law that clearly says that he does have the power to come into this body at any time and cast votes and that his position as Senate President is separate and distinct from his role as the elected representative of the good people of the Seventh Senatorial District.
I think we are . . . . Let me, I guess, finish up by suggesting what happened over 100 years ago, I think, is very clear. They did come into a situation where the presiding officer, the President, vacated. A couple of years later they adopted the ability to have a pro tem and we have lived with that ever since. And it is fundamental to what is going on here today that we have under our existing historic rules--if the President is down as Acting Governor, then the President's designated pro tem would serve in that capacity. It worked just fine.
The problem is that process wasn't satisfactory to a group of folks who said: No, we don't want a President and the President's
pro tem running the show. We are going to seize this moment--a moment of weakness and confusion on the part of our President and Acting Governor--to come in and undermine the history of this deliberative body and the rules of this body to craft a process that they could say: It's not about you, Mr. President. It's just that we want to create another position.
If they really wanted and felt they had the authority and the power and the numbers to take over the presidency, they should have run for President. But they didn't have the numbers; they didn't have the gumption to do that. So, what they are trying to do is to achieve their goal of taking control and seizing power in a moment of our state's history where our leader is in an awkward, difficult position of trying to understand what he can and can't do constitutionally.
Our President and Acting Governor has said that he is intending to run for Governor. His seat is up for election in 2012 for the Senate. He could have chosen which to run for and we could have had this shakeout of our leadership at that point in time. But instead we have seized this moment and this mechanism to try to achieve a goal, an objective that they were unwilling to pursue directly. And I think that their mechanism and avenue clearly on a number of fronts--and I appreciate people's patience to try to point out many of those here today--is unconstitutional. And I encourage you to reject the rules containing this provision of the creation of an Acting Senate President.
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Pending announcement of a meeting of a standing committee of the Senate,
On motion of Senator Unger, the Senate adjourned until Monday, January 17, 2011, at 11 a.m.
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