sdj-8th day
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
EIGHTIETH LEGISLATURE
REGULAR SESSION, 2011
EIGHTH DAY
____________
Charleston, W. Va., Wednesday, January 19, 2011
The Senate met at 11 a.m.
(Senator Kessler, Acting President, in the Chair.)
Prayer was offered by the Reverend David W. Johns, Winfield
Baptist Church, Winfield, West Virginia.
Pending the reading of the Journal of Tuesday, January 18,
2011,
On motion of Senator Wills, 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 proceeded to the fourth order of business.
Senator Palumbo, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 60, Authorizing probation officers'
supervision of sex offenders pending availability of multijudicial
officer.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 60 (originating in the Committee
on the Judiciary)--A Bill to amend and reenact §62-12-5 and §62-12-
26 of the Code of West Virginia, 1931, as amended, all relating to
probation and parole; probation officers and assistants; providing
that multijudicial circuit probation officers may supervise sex
offenders who are on probation with authorization of the
administrative director of the Supreme Court of Appeals or his or
her designee; and clarifying that circuit court probation officers
continue to supervise extended release supervisees until a
multijudicial circuit officer is in place
.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Corey Palumbo,
Chair.
Senator Palumbo, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 61, Authorizing Supreme Court appoint hearing
officers for juvenile drug courts.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Corey Palumbo,
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 Klempa, Yost, Snyder and Kessler (Acting
President):
Senate Bill No. 199--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §47-26-1, §47-26-2, §47-26-3, §47-26-4, §47-26-5,
§47-26-6, §47-26-7, §47-26-8 and §47-26-9, all relating to
pawnbrokers; definitions; requiring pawnbrokers to comply with the
provisions of this article; establishing operating requirements for
pawnbrokers; confiscation of pledged or purchased goods;
establishing requirements for pawn tickets; requiring pawn
transaction reporting; establishing disclosure requirements for
pawn transactions to law-enforcement officers; authorizing the
Commissioner of Banking to promulgate forms and propose necessary
legislative rules; establishing misdemeanor offenses for persons
engaging in the business of pawnbrokers in violation of the
provisions of this article and for persons using false or altered
identification to pawn or sell property to a pawnbroker; and
criminal penalties upon conviction thereof.
Referred to the Committee on Government Organization; and then
to the Committee on the Judiciary.
By Senators Kessler (Acting President), McCabe, Stollings,
Plymale, Prezioso, Yost and Klempa:
Senate Bill No. 200--A Bill to amend and reenact §18B-2A-1 of
the Code of West Virginia, 1931, as amended, relating to fixing an error in the code that incorrectly named West Liberty University.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators McCabe, Browning, Foster, Wells, Stollings, Klempa
and Kessler (Acting President):
Senate Bill No. 201--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §11-13BB-1, §11-13BB-2, §11-13BB-3, §11-13BB-4, §11-
13BB-5, §11-13BB-6, §11-13BB-7, §11-13BB-8, §11-13BB-9, §11-13BB-
10, §11-13BB-11, §11-13BB-12, §11-13BB-13 and §11-13BB-14, all
relating to authorizing a tax credit against business franchise
tax, corporate net income tax or personal income tax for eligible
expenditures incurred in placing in service a residential or
nonresidential energy-efficient building; defining terms;
establishing the amount of tax credit permitted; providing that the
tax credit is transferrable; authorizing rulemaking; and requiring
reports to be made.
Referred to the Committee on Economic Development; and then to
the Committee on Finance.
By Senators Kessler (Acting President), Hall, Unger, Wells,
Stollings, Plymale, Prezioso, Wills and Klempa:
Senate Bill No. 202--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §18-21-1, §18-21-2, §18-21-3 and §18-21-4, all relating
to creating a commission to develop a pilot program to help at-risk
youth in West Virginia; creation of commission; composition of the commission; powers and duties of the commission; outcome
recommendations for pilot program; goals of the pilot program; and
operation of the pilot program.
Referred to the Committee on Health and Human Resources; and
then to the Committee on Finance.
By Senators Klempa, Browning, Yost and Kessler (Acting
President):
Senate Bill No. 203--A Bill to amend and reenact §5-22-1 of
the Code of West Virginia, 1931, as amended, relating to requiring
the disclosure of subcontractors within two hours of the close of
bids for public construction contracts.
Referred to the Committee on the Judiciary.
By Senators Klempa, Miller, Stollings, Prezioso, Wills, Yost
and Kessler (Acting President):
Senate Bill No. 204--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §21-3-22, relating to requiring onsite employees at
certain public works construction projects to complete an
Occupational Safety and Health Administration-approved ten-hour
construction safety program prior to beginning work; civil
penalties; and exemptions.
Referred to the Committee on Transportation and
Infrastructure; and then to the Committee on Finance.
By Senators Kessler (Acting President) and Hall (By Request of
the Executive):
Senate Bill No. 205--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; and
specifying effective dates.
Referred to the Committee on Finance.
By Senators Prezioso, Palumbo, Edgell, Foster, Kessler (Acting
President), Minard, Unger, Williams, Boley, Jenkins, Snyder, Wells,
Stollings, Plymale, Laird, Miller, Yost and Klempa:
Senate Bill No. 206--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §49-6F-1, §49-6F-2, §49-6F-3, §49-6F-4, §49-6F-5, §49-
6F-6, §49-6F-7 and §49-6F-8, all relating to establishing the
Office of Child Advocacy; defining terms; providing powers and
duties of the Office of Child Advocacy; providing qualifications,
term of office and salary of the director; granting authority for
the director to hire staff; providing the director and staff of the
Office of Child Advocacy to investigate and monitor the Division of
Child Protective Services and Division of Juvenile Services;
authorizing access by Office of Child Protective Services and to
certain records and information; allowing communication with
children involved in Child Protective Services investigations and
in the custody of the Division of Juvenile Services; providing for
confidentiality of certain information; and granting immunity to
office from liability in specified circumstances.
Referred to the Committee on Health and Human Resources; and
then to the Committee on Finance.
By Senators Kessler (Acting President) and Hall (By Request of
the Executive):
Senate Bill No. 207--A Bill to amend and reenact §11-15-3a of
the Code of West Virginia, 1931, as amended, relating to reducing
the consumers sales and service tax on sales, purchases and uses of
food and food ingredients intended for human consumption on a date
certain.
Referred to the Committee on Finance.
By Senators Unger, Klempa, Jenkins, Plymale, Snyder, Browning,
McCabe and Stollings:
Senate Bill No. 208--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §31-15D-1, §31-15D-2, §31-15D-3, §31-15D-4, §31-15D-5,
§31-15D-6, §31-15D-7, §31-15D-8, §31-15D-9 and §31-15D-10, all
relating to establishing the West Virginia Transportation Finance
Commission; definitions; creating a governing board of the
commission; appointment, terms, qualifications, compensation and
expenses of board members; powers and duties of the commission;
creating the West Virginia Transportation Finance Commission Fund;
deposits and capitalization; disbursements; subaccounts;
requirements for loans and other financial assistance from the
commission; requirements for applications for loans and other
financial assistance and for approval of qualified projects;
finance agreements; payments and repayments of loans; withholding
of defaulted payments from funds allotted or payable to a
defaulting government unit; annual reports to Governor and Legislature; annual audits of the commission; and assistance of the
Department of Transportation to the board.
Referred to the Committee on Transportation and
Infrastructure; and then to the Committee on Finance.
By Senators Unger, Klempa, K. Facemyer, Jenkins, Plymale,
Foster, Snyder, Browning, McCabe, Stollings, Palumbo, Minard,
Williams, Yost, Sypolt, Barnes and Kessler (Acting President):
Senate Bill No. 209--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §17C-14-15, relating to establishing the misdemeanor
offense of operating a motor vehicle while sending, reading or
receiving a text message; providing exceptions; providing
definitions; and establishing misdemeanor criminal penalties.
Referred to the Committee on Transportation and
Infrastructure; and then to the Committee on the Judiciary.
By Senators Wells, Browning, Foster, Stollings and Plymale:
Senate Bill No. 210--A Bill to amend and reenact §18A-3-3a of
the Code of West Virginia, 1931, as amended, relating to
reimbursement of tuition, registration and other required fees for
course work completed by teachers; removing priority for
reimbursement for courses for additional endorsements in shortage
areas; and placing certain limits on number of courses per teacher
eligible within certain time period and lifetime.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Wells, Browning, Foster, Laird, Snyder, Stollings, Plymale and Miller:
Senate Bill No. 211--A Bill to amend and reenact §18A-2-3 of
the Code of West Virginia, 1931, as amended, relating to resetting
the expiration date of provisions that allow the employment of
retired teachers as substitutes beyond the post-retirement
employment limit in certain circumstances; and requiring certain
additional information to be reported to the Consolidated Public
Retirement Board and the State Board of Education, and included in
the state board's report to the Legislative Oversight Commission on
Education Accountability.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Wells, Foster, Browning and Stollings:
Senate Bill No. 212--A Bill to amend and reenact §18A-2-1 of
the Code of West Virginia, 1931, as amended; to amend and reenact
§18A-4-7a of said code; and to amend and reenact §18A-5-8 of said
code, all relating to the employment of personnel in public
schools; providing for inclusion of school's faculty senate members
in interview and recommendation process when employing professional
and paraprofessional personnel at the school; authorizing ranking
of preferences and reposting; authorizing nomination of prospective
graduates for employment with conditions; revising criteria for
judging qualifications affecting hiring of professional personnel;
and changing date prior to instructional term after which
professional personnel, autism mentors and certain aides,
paraprofessionals and interpreters may not transfer to another position in county during instructional term subject to certain
conditions.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Foster, Kessler (Acting President), Chafin,
Jenkins, Laird, Minard, Palumbo, Snyder, Williams, Hall, Unger,
Browning, Wells, Stollings, Plymale, Prezioso, Miller, Yost, Klempa
and Beach:
Senate Bill No. 213--A Bill to amend and reenact §61-3C-14a of
the Code of West Virginia, 1931, as amended; and to amend and
reenact §61-8-16 of said code, all relating to crimes using
computers, telephones and electronic devices; creating offenses for
the unlawful transmission of obscene, anonymous, harassing and
threatening communications and data by mobile phone, personal
digital assistant or other mobile device; clarifying provisions
pertaining to unlawful obscene, anonymous, harassing and
threatening communications by traditional voice communication by
telephone; creating a felony offense for certain repeat offenses
using a computer, mobile phone or other mobile device; and
establishing penalties.
Referred to the Committee on the Judiciary.
By Senators Foster, Jenkins, Prezioso, Yost, Wells, McCabe,
Stollings, Plymale, Laird, Minard, Klempa and Kessler (Acting
President):
Senate Bill No. 214--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article, designated §5-26-1 and §5-26-2, all relating to the creation of the
Herbert Henderson Office of Minority Affairs; establishing the
powers and duties of the office; providing for an executive
director, staff and office; requiring annual reports to the
Governor and the Joint Committee on Government and Finance; and
creating a Minority Affairs Fund.
Referred to the Committee on Government Organization; and then
to the Committee on Finance.
By Senators Kessler (Acting President) and Hall (By Request of
the Executive):
Senate Bill No. 215--A Bill to amend and reenact §11-21-9 of
the Code of West Virginia, 1931, as amended, relating to updating
the meaning of "federal adjusted gross income" and certain other
terms used in the West Virginia Personal Income Tax Act; and
providing effective dates.
Referred to the Committee on Finance.
By Senators Prezioso, Palumbo, Edgell, Foster, Kessler (Acting
President), Minard, Unger, Williams, Boley, Jenkins, Snyder,
Browning, McCabe, Stollings, Plymale, Laird, Miller, Klempa and
Nohe:
Senate Bill No. 216--A Bill to amend and reenact §49-1-3 of
the Code of West Virginia, 1931, as amended, relating to the
expansion of the definition of "imminent danger to the physical
well-being of a child" with regard to child abuse and neglect to
include alcohol and substance abuse on the part of the parent,
guardian or custodian.
Referred to the Committee on the Judiciary.
By Senator Minard:
Senate Bill No. 217--A Bill to amend and reenact §33-4-14 of
the Code of West Virginia, 1931, as amended, relating to providing
that certain information provided by insurance companies to the
Insurance Commissioner is confidential and exempt from the freedom
of information disclosure requirements; providing that the
information is not subject to subpoena or discoverable in a private
civil action; and authorizing rulemaking.
Referred to the Committee on Banking and Insurance; and then
to the Committee on the Judiciary.
By Senators Jenkins, Kessler (Acting President), Palumbo,
Stollings, Williams, Yost, Browning, Wells, Plymale, Laird, Miller,
Fanning, Minard and Klempa:
Senate Bill No. 218--A Bill to amend and reenact §5-16-7 of
the Code of West Virginia, 1931, as amended; and to amend and
reenact §33-16-3a of said code, all relating to requiring insurance
coverage for autism spectrum disorders.
Referred to the Committee on Banking and Insurance; and then
to the Committee on Finance.
By Senators Kessler (Acting President) and Hall (By Request of
the Executive):
Senate Bill No. 219--A Bill to amend and reenact §11B-2-20 of
the Code of West Virginia, 1931, as amended; and to amend and
reenact §21A-8-1 and §21A-8-10 of said code, all relating to
maintaining solvency of the Unemployment Compensation Fund; providing a mechanism for the Governor to borrow funds from the
Revenue Shortfall Reserve Fund and deposit those funds into the
Unemployment Compensation Fund if the balance of the Unemployment
Compensation Fund drops below $20 million; providing that no amount
borrowed shall exceed $20 million; and providing for repayment of
any outstanding loans from the Revenue Shortfall Reserve Fund.
Referred to the Committee on Finance.
The Senate then proceeded to the seventh order of business.
Senate Concurrent Resolution No. 4, Requesting Joint Committee
on Government and Finance continue studying issues facing veterans.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on Military;
and then to the Committee on Rules.
Senate Concurrent Resolution No. 5, Requesting Joint Committee
on Government and Finance study U. S. Department of Defense's
TRICARE health care system.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on Health and
Human Resources; and then to the Committee on Rules.
Senate Concurrent Resolution No. 6, Urging Governor include
funding in 2012 budget to fully implement WV OSHA for public
employees.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on Finance; and
then to the Committee on Rules.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senators Jenkins.
Thereafter, at the request of Senator Sypolt, and by unanimous
consent, the remarks by Senator Jenkins were ordered extended in
the Journal as follows:
SENATOR JENKINS: Thank you, Mr. President. I don't want to
let this day go by without having a few brief comments about the
significant ruling from our State Supreme Court yesterday.
Obviously, this body was very patient last week, a week ago today,
over two hours of really what ended up to be a constitutional law
class on what we were doing vis-a?-vis the adoption of proposed new
Senate Rules.
And the Senator from Berkeley and I and others had a good
dialogue and I think it was a productive dialogue. But I think
that it is important that we take note today of some new
information. A lot of the questions we raised last week for, we
knew, subject to the State Supreme Court rendering an opinion about
what we were claiming or suggesting.
I want to make two points this morning. Point number one is
I hope everybody will think about the fundamental proffered reason
why it was suggested that we had to adopt a new set of rules. Not
just last Wednesday but for the weeks leading up to that, the
chorus of folks who said our Constitution is clear, that Article V
says that no person can serve in both the Legislative branch and
the Executive branch and, therefore, we must amend our Senate Rules
to scrub the President of the Senate of all powers, duties and
authority. So as he is downstairs in that capacity, acting as Governor, that he would not have any role or responsibility or
authority up here that would be in violation of the Constitution.
I and others said, "No. That's not an accurate reading of the
Constitution." And the Constitution provides an exception to that
rule and the Constitution clearly anticipates that the President of
the Senate doesn't have to give up his presidency to act as
Governor.
Point number one: The court yesterday said there is not a
constitutional problem about having a Senate President, having that
individual serve in the capacity to act as Governor. So for all of
the talk that we had to do what we did last week in order to
preserve a constitutionally required separation is out the window
today. So I invite those who voted for a rule change last week on
the basis that we needed to do it for the Constitution that we were
sworn to uphold I ask you to rethink your position on that.
Now I really have thought over the last 24 hours, was there
any other reason constitutionally or statutorily that is the basis
for them doing what we did if the constitutional issue was thrown
out the window as the court did yesterday? And I can't think of
any.
So, we then go to the second point that I want to make. Yes,
we have a lot of autonomy to do whatever we want but that is not
without limitation. So I think the talking point, suggestion today
is, okay, well, maybe, we didn't have to do what we did last week--
that reason is no longer valid. But we still have the right to do
it and we can do it just because we wanted to do it. And in a lot of cases we can do that. We have the authority to run this body
under our rules.
But the decision yesterday also pointed out what I mentioned
last week is that we cannot just do anything we want. There are
some constitutional limits to what we are able to do. I raised
last week and I think the decision from yesterday provides some
strong clues about how the court views of what we have done. And
the question now is: Is our actions [sic] last week just within
the scope of our authority or did we go too far? And did we
actually cross the line and act unconstitutionally.
Now that's still another issue for discussion and debate here
and, ultimately, maybe once again, it's going to take the court to
decide whether or not we did. But I have espoused last week and I
continue today that I think that we did go too far. And there's
multiple reasons why I think we went too far. But the most glaring
is and, again, the opinion yesterday gave a great constitutional
interpretation outline that says where do you start when
interpreting the Constitution? It said that you look for the clear
meaning in the words of the Constitution themselves.
Our Constitution says, we shall have "a" president. It
doesn't say we shall have "presidents". And I think what we did
last week in our effort to put into a new rule that crafts this
title of "Acting President" and triggers that position when our
President is down, acting as Governor, and the words that are in
that rule that say that all power and authority (and I don't have
it in front of me) but clearly as you know the intent was to strip, other than maybe ceremonial, strip the President of any duties,
responsibilities, authority in this body.
And I think the court, if asked, would say we went too far--
that that is an unconstitutional act. And I gave a description
last week that there would be things so obvious in our rules that
would be unconstitutional.
So this debate is not about separation of powers anymore. I
think this debate now centers whether or not we have exceeded the
limit of the Constitution--stripped the Office of President of
effectively being President.
Now I did a little employment law and there is such a concept
called "constructive discharge". And that is where you are still
employed but you've been taken . . . you have all of your duties
and responsibilities taken away from you. And, regrettably, I
think what we have done here is while we have given the Senator
from Logan the title of President, some would suggest we have
constructively discharged him from that position because he has no
power, duty and authority under the new rules to act as such.
And all of the rumblings yesterday, I am worried--and I bring
to your attention--is that there are those who interpret that maybe
under the Constitution our President (the one who is acting as
Governor) really is no longer our President by our own rules and
that triggers the issue of who's really in the capacity to act as
Governor.
So, I hope that the Senator from Logan, our President, the one
who constitutionally is down . . . and performing the functions to act as Governor, looks at this decision, reads it carefully, which
I'm sure he has, and gets some clarity on the issues that he has
been concerned about because he has been pulled from all sides:
Can I be up here? Can I take my seat? Do I have to divest myself
in the Senate? Do I only focus . . . ? It is now clear he can re-
engage. And I invite him and encourage him to come back here to
assume his leadership position.
I think we need to go back and change our rules to take out
this divestiture of the Office of President under this unique
circumstance. And I think we need to reorganize the Senate as the
traditional rules apply in the past--however the Senate President
would like that done.
So, unfortunately, I am concerned that the comments made
publicly over the last day, day and a half, suggest that maybe the
leadership of this body as well as the Senate President, believes
status quo is fine. Let's just let things continue as they are.
My opinion continuing as they are jeopardizes his status in
reality in the court's eye as to whether or not he truly is the
Senate President. I think that it jeopardizes, again, calling in
the question our actions from last week . . . . So we ought to
take this opportunity from the court's ruling yesterday and we
ought to kind of get back. I welcome the opportunity to work with
the Senator from Marshall, the Senator from Berkeley and any others
today.
Let's try to get what we are doing back on sound,
constitutional grounds because if we simply ignore this decision and we continue operating as we have for this past week, I think,
as I had said repeatedly, it is putting in jeopardy all the work of
this body in the terms of the bills and the appropriations and
other issues that come about. And why should we simply ignore what
the court has clearly said and given clues to how we should operate
and what we are doing? We cannot read this opinion without a firm
belief that the court is expressing, maybe indirectly, real concern
about creating these acting positions.
So I appreciate this opportunity. I think we have some real
work to be done. I hope we don't ignore this. I call upon our
President to re-engage. I think we truly can get back to the
operation after the people of West Virginia that we've been elected
to do.
Thank you.
Remarks were made by Senators Unger and McCabe.
Thereafter,
at the request of Senator Browning, unanimous
consent being granted, the remarks by Senators Unger and McCabe
were ordered extended in the Journal as follows:
SENATOR UNGER: Thank you, Mr. President. I just, I rise, and
we are probably going to have this debate for a while and I welcome
this because 12 years ago when I ran for this office, this is what
I envisioned that we would actually be debating on this floor--
these types of issues and for once we are. And I am very proud of
that that we are debating the Constitution.
I just want to make clear to the members of some of the things
that the Senator from Cabell said that could be misleading. Our rule never stripped nor does it strip the powers of the President.
This body has one President of the Senate and that's Earl Ray
Tomblin who is acting as Governor.
What this body did was clearly within the constitutional frame
of what we are allowed under Article VI, Section 24 of the
Constitution. And that is that each House shall appoint its own
officers and remove them at pleasure.
I've got to admit, and I want to say, that on our debate I was
mistaken on the history in 1869 when this happened. I said that
this body actually changed the rules in order to elect a position
called President pro Tem, presiding officer President pro Tem. I
was mistaken. Going back and relooking at those, they didn't
change the rules--they just did it. Never changing the rules, they
did it.
And where they got their authority was right there under
Article VI, Section 24. The President went to become Governor, or
act as Governor, and immediately the body (and it was in the middle
of the session--it was in February so it was already throughout the
session, it wasn't the beginning) moved to elect that President pro
Tem that would be presiding over that body. It didn't change the
rules. They did it constitutionally.
That's similar to what we did. Well, although we changed the
rules in order to give us even more authority to be able to elect
our presiding officer that we termed as "Acting President" in place
of the President when the President wasn't here. So what we did
is, in my opinion, very constitutional.
The Senator from Cabell mentions the opinion. Of course, the
opinion primarily focuses on the election aspect as far as filling
the vacancy of the Governor and there are some footnotes that could
be referred to us in some of the things we are looking at. And
like I say, Mr. President, we are looking at these things and we do
welcome the help from the Senator from Cabell. I appreciate the
offer that he has offered here today because up to this point there
hasn't been an extension of an offer, but we welcome that offer and
we do want your help with this.
But the part is, on page 16 of the opinion, on the footnote 7,
it talks about "Our State Constitution does not provide for the
office of acting governor. Rather, it simply provides that the
senate president shall temporarily act as governor during a vacancy
in that office until such time as a new governor is elected." It
says that "The senate president does cease being a constitutional
officer when he or she acts as governor. The senate president
remains the senate president." Our rule never changed that.
Our Senate President is the Senate President and he is acting
as Governor. And when he is absent, when he is not here acting as
Senate President, we have elected a person to preside over our body
as Acting Senate President.
Just historically we are in line with history of what happened
in 1869. Now I just want to mention again as we look at the rules
and saying that our rules are contrary to the Constitution and that
we don't have the right to do it. And that the Supreme Court
alludes to or makes mention of or maybe just kind of mysteriously maybe points to but doesn't clearly say it in their ruling.
But I want to take the members to Article VIII, Section 2.
And I just wanted to read something to you of how the Supreme Court
operates. Okay. It says here that if the Chief Justice is
temporarily disqualified or unable to serve, one of the Justices of
the court designated in accordance with the rules of the court
shall serve temporarily in his stead. Constitutionally. Let me
read that again: If the Chief Justice presides over the Supreme
Court is temporarily disqualified or unable to serve, one of the
Justices of the court designated in accordance with the rules of
the court shall serve temporarily in his stead.
Mr. President, I submit to you that all we did is exactly what
the Supreme Court does that if the Chief Justice cannot preside
over that body, that they, according to the rules, designate
someone to do it. So I can't see how a Supreme Court that does
exactly or similar to what we're doing could look at us and frown
and say: Senate, we do this by our rules, but you can't do it by
yours.
So, Mr. President, really as we ratchet up this rhetoric and
we talk about the constitutionality, I want to go back to the very
principle of separation. You talk to the people in the little
white houses with the picket fences (that's what Senator Oshel
Craigo always used to say) I think there's a real fear out there
that too much power can rest in one person's hands. Regardless of
what history says, Americans have always been reluctant to give too
much power in one person's hands. Because back to James Madison, Thomas Jefferson, and the founding of this very nation of going
against tyranny and the monarch. That's why you have separation.
What we have done here, Mr. President, as a body, a democratic
body representing the people of West Virginia, is that we upheld
that very sacred principle that makes us Americans and we tried our
best to uphold it in our rule, in our practice so that we do not
have one person at any one time with too much power. And I think
that we were able to accomplish that. Of course, nothing is
perfect and we could always welcome input. But, as we proceed, Mr.
President, I see nothing that we have done as unconstitutional. If
anything, we are upholding the very principles of the Constitution
of this great state and this great nation, the United States of
America.
Thank you.
SENATOR KESSLER (ACTING PRESIDENT): Senior Senator from the
Seventeenth.
SENATOR MCCABE: Mr. Acting President. I would like to just
point out that the actions of this body are within a certain
context, within a certain set of circumstances. When you read the
opinion of the Supreme Court yesterday, one might draw different
conclusions that this Senate should have done things differently in
hindsight. If we look at the actions of this Senate under the
context of what was going on at the time, I believe, without
question, we acted reasonably and with care and forethought.
Some of this goes back to the comments made previously by the
good Senator from Putnam. What I want to point out here today is that: Look at what we were trying to decide at the time. We had
a Senate President, who became acting Governor. As acting
Governor, he chose to vacate the office of the Senate President and
move into the Office of Governor. We have a very interesting, and
I think relevant, example with the State of New Jersey in 2005 when
they had a similar situation. In that situation the Senate
President basically maintained his location and office in the
Senate President [sic] and did certain actions as Governor as were
necessary--and only on a temporary basis and never really giving up
his seat in the Senate and, certainly, his office in the Senate
Presidency.
We had a situation where the Senate President, as acting
Governor, chose to vacate the Office of Senate President
physically, move in physically to the Office of Governor and
started acting with the full force and effect as Governor. This is
not meant to be any type of a criticism or opinion of the
appropriateness of that. I am just stating what I saw as a
relevant actions at the time.
We also understood that the acting Governor intended to retain
that position for over two years and interpreted the Constitution
in such a way as that the special election could, in fact, be held
in November of 2012. We, as a Senate, were looking at a Senate
President, who is acting Governor, who was letting it be known to
everyone that he expected to serve for over two years.
At the same time, we were reorganizing for the Eightieth
Legislature. We needed to look at Senate chairs, vice chairs and all of the leadership issues that go with that. My own feeling, as
a senator, was that those types of decisions as to who would be the
chairs, who would be the vice chairs, when you have a sitting
Senate President as acting Governor going into the reorganization
of a new Senate, that it was not appropriate that those types of
decisions to put in place the full leadership of that Senate for
two years was questionable from the separation of powers
perspective. My own feeling was that it was inappropriate to have
a sitting Governor say, in fact, that he was to appoint all of the
leadership for the full Senate term ahead of us still as being
downstairs as a sitting Governor.
Under this situation, when you look at the context of the
situation and to the specifics of the Constitution, there were
reasons for what we did or did not do. I present to you, suggest
to this Senate body, that we acted reasonably. That we chose to
look at the rules, set new rules for the operation of the Senate
which we clearly have the ability to do. Our own Constitution says
that we absolutely have that ability to do--to put those rules in
place. So we, by rule, were trying to correct a situation that was
developing as we understood it at the time that, in my opinion, put
in jeopardy not only the Senate's actions but the actions of the
acting Governor.
I hold the acting Governor in extremely high regard. I expect
very high marks for his work as Governor. I expect nothing less.
At the same time, I expect the same from the Senate and hope to do
my part. For that to occur, in my opinion, we need a separation of powers--particularly as we understood it at the time.
Now we know, with the ruling of yesterday, that the acting
Governor will not be sitting there for over two years, but that we
will have an election and a new Governor will be elected and seated
within twelve months. That is a completely different context from
what we were looking at and operating under a month ago. I suggest
that this discussion has lots of merit to it.
The Constitution is not interpreted in a vacuum. It is
interpreted in a context of what's going on at the relevant time of
that discussion. And these issues, these contexts, change over
time, change over the hundred fifty years that we've been living
under this Constitution. And I suggest that our actions were
reasonable, appropriate and very thoughtful under the context of
the situation at the time we were dealing with it.
Thank you, Mr. Acting President.
Remarks were made by Senators Hall and Jenkins.
Thereafter,
at the request of Senator K. Facemyer, and by
unanimous consent, the remarks by Senators Hall and Jenkins were
ordered extended in the Journal as follows:
SENATOR HALL: Just briefly to my good friend, the Majority
Leader, remembering the debate Wednesday. There was a point made
that the separation of powers would be breached if the President of
the Senate took his seat. I went back and checked the text of that
and there was also reference to, of course, the Constitution that
says that should he breach that separation of powers, he would be
disqualified from office. I believe he did walk in here and proclaim that he took his seat. And that the argument that you
made, I guess I would ask, I mean . . . . Think about the fact
that he actually, at that point, then breached the separation of
powers and as he . . . in that position that you argued that he
should be now disqualified. The way I view what happened
yesterday, and I, reading Note 7, I realize it is simply a note in
speaking to lawyers, and so forth, that it seemed to be a signal
that there was no problem with--and one of two legal ways the court
could look at this arrangement we are in: That he actually could
"breach the separation of powers" because this specific permitted
that and that he, as I believe, he should act more as the President
of the Senate and do duties of the Governor. And he can even be
downstairs and do these kinds of things. I note that you just said
they didn't change the rules to elect a pro Tem. And it seems to
me since he's already breached the separation of powers by the
definition of what you've said and the court seems to indicate that
he can do that--that where we ought to go back is that you go back
to that pro Tem circumstance. And, you know, in terms of how we
run this place we do what they did back then and you have a pro Tem
and you do the operation and he's down there and he can sign the
bills and do the kinds of things that our Joint Rules, which have
yet to be proposed, which had a long tradition in our body. I know
that we have debated the crossover date. I remember it was out of
this body that the crossover date was moved from Wednesday [sic],
Friday to Wednesday to make sense . . . . That's part of the
rules--the rules on conference committees and a number of things that we've learned to operate under. I'm told that we may not
operate with Joint Rules and we've done it for years. The protocol
has been totally changed here. We're to Day 8 and we don't have
Joint Rules yet. Now, I'm not to the point of saying that puts
stress on what you can do constitutionally. You can still flow
legislation back and forth, but all those things we are used to
doing obviously the circumstances created a problem or we would
have Joint Rules. So, I just make the point there is [sic] some
dangling questions that I thought the court decision yesterday
provided an avenue to clear up this problem and to get back to
normalcy basically.
I understand there is another legal theory that I have
somewhat espoused but not said a great deal about and that is: The
only Senate President--this is a legal theory I understand from
another way you could go with this, or the courts could go is that
when you have the circumstance of the vacancy of the Governor that
the "acting" President, the Senate President at that time is the
only person that actually the person that can take that position.
I ask the question: What if the majority [sic] had won this body
and one of us would have been the President of the Senate? Would
we have become Governor at that point? And my answer, quite
frankly, is: No. I have argued from the beginning--and I
understand there is a legal theory that agrees with that--that says
the person who is down there would have become Governor and stayed
Governor vested with that office, that responsibility because the
point of time that he was given that. And should that person not be able to perform their duties, we just couldn't come up here and
control who the next Governor is going to be, by one of the 33 or
34 of us who would elect one of our body. It goes to the Speaker
of the House. Or else he would never get there.
And that's not where we are. That would, by the way, solve
the breach, the separation of powers issue so that my opinion is
the separation of powers thing--even by what happened on the floor
on Wednesday--was already breached and the court is telling us that
he is the Senate President and can act that way and you can
construct, you know, the operation however you want with a pro Tem
and it seems to me we can do our Joint Rules and get back to work.
So, you know, that would be my position on it; but, you know, I
guess we are going to have to find out exactly what happens in the
future. So, thank you, Mr. President.
SENATOR KESSLER (ACTING PRESIDENT): Any others desiring to
speak before I recognize the Senator from Cabell to speak again?
Any others desiring to speak? Remarks by members. Senator from
Cabell.
________
SENATOR JENKINS: I just had one question, and this really
gets to this second issue that I mentioned about, had we divested,
under the rules, the President of all power and authority and
duties as President? There is a big difference between having a
President, a
pro Tem, and the
pro Tem stepping in and out to
perform the duties of the Office of President in the President's
absence. That is a linear kind of alignment of power. You've got one President, a
pro Tem and that
pro Tem can jump in and out based
on the status of the President's availability. The point I wanted
to make with the Senator from Berkeley--and I invite him to stand
up after I make this point and actually respond to my question--is,
under the rules that we adopted, the rule has the triggering
mechanism if the President comes in the position to act as
Governor. And our President can't jump in and out of the position
of "acting" as Governor. He became that on, I guess, November 15,
2010, and will continue to be that today, tomorrow, next week,
until a new Governor is elected. He can't jump in and out of
serving downstairs. Under our rules, the trigger about the
creation of an Acting President is when the President serves as, in
that capacity, under the Constitution. And that Acting President
position that is triggered stays in force under our rules today,
tomorrow, next week, all the way until our President finishes his
constitutional duties downstairs. And what the rules then say,
under the powers of the Acting President, the Acting President
shall, shall act and serve at all times when the duly elected
President is serving as Acting Governor and shall perform all, I'm
underlining, all the duties of the Office of Senate President
without limitation.
That is a complete divestiture of our President of his power
and authority as President as a function of our rules. So, yes, we
elected a person and gave them a title, but these rules force our
President into a capacity based on the constitutional succession
into having no power and authority here. So, my question to the Senator from Berkeley is: Please identify for me what the powers
and authority of the Senator from Logan has as President.
Can he appoint committees? No.
Can he assign floor chairs? No.
Can he do anything in a capacity under the rules as President
while he is in his constitutionally mandated position to act as
Governor?
That is the problem that we, in effect, have under our rules
created for presidents. You may not call them both presidents and
we may have fun with: No, we elected a President. A President is
a President is a President. We had fun with Gertrude Stein last
week. But, no, the court will look at very carefully, just cause
you name them President, we're going to look below the surface.
Are they really serving and operating in their constitutional
capacity as a recognized constitutional officer, and that is what
this decision said: The Senate President is a constitutional
officer. But I think it is important that we recognize--and I
invite the Senator from Berkeley to please let us know and
enumerate for us all the powers and duties and authority the
Senator from Logan has that he can carry out in his capacity as
President cause what he mentioned last week was, you know, there's
a lot of entities that create ceremonial positions. I think that's
exactly all we've done by this rule is essentially made him a
ceremonial position of giving him the title.
So, I invite the Senator from Berkeley to enumerate out for me
the powers and duties, under these rules, the Senator from Logan has and can carry out anytime on any day that the President should
so choose to do so.
Thank you.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Beach, unanimous consent being
granted, it was ordered that the Journal show had Senator Beach
been present in the chamber on yesterday, Tuesday, January 18,
2011, he would have voted "yea" on the passage of Engrossed House
Bill No. 2001.
Senator Unger called attention to today being the birthday of
the senior senator from Kanawha and on behalf of the Senate
extended felicitations and good wishes to Senator McCabe with
Senator Klempa leading the members in singing "Happy Birthday".
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Unger, the Senate adjourned until
tomorrow, Thursday, January 20, 2011, at 11 a.m.
________
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