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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.
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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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