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sdj-13th day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTIETH LEGISLATURE

REGULAR SESSION, 2012

THIRTEENTH DAY

____________

Charleston, W. Va., Monday, January 23, 2012

     The Senate met at 1 p.m.
(Senator Kessler, Mr. President, in the Chair.)

     Prayer was offered by the Reverend Dennis Sparks, Retired Executive Director, West Virginia Council of Churches, Charleston, West Virginia, and Pastor, First Christian Church, Ravenswood, West Virginia.
     Pending the reading of the Journal of Friday, January 20, 2012,
     On motion of Senator Chafin, 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.
     At the request of Senator Unger, and by unanimous consent, the provisions of rule number fifty-four of the Rules of the Senate, relating to persons entitled to the privileges of the floor, were suspended in order to grant the Honorable Robin Jean Davis, Justice of the Supreme Court of Appeals of West Virginia, privileges of the floor for the day.
     The Clerk presented a communication from the Board of Respiratory Care, submitting its annual report for fiscal year 2011 as required by chapter thirty, article one, section twelve of the code of West Virginia.
     Which communication and report were received and filed with the Clerk.
     The Clerk presented a communication from the Office of the State Treasurer submitting its Debt Capacity Advisory Division's annual report, in accordance with chapter twelve, article six-b, section four of the code of West Virginia.
     Which report was received and filed with the Clerk.
     The Senate proceeded to the third order of business.
     A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
     Eng. Com. Sub. for House Bill No. 2533--A Bill to amend and reenact §3-5-23 of the Code of West Virginia, 1931, as amended, relating to nomination certificates for candidates for public office; clarifying who may be a candidate; requiring the identities of signatories to a nominating certificate for a person seeking ballot access to be made public; requiring the investigation of the validity of signatures; and the verification of signatures by the Secretary of State if the office covers more than one county.
     Referred to the Committee on the Judiciary.
     A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
     Eng. House Bill No. 4072--A Bill to amend and reenact §18-5-4 of the Code of West Virginia, 1931, as amended, relating to eliminating requirement for county boards of education to meet on the first Monday of July in years in which there is not a biennial primary election.
     Referred to the Committee on Education.
     The Senate proceeded to the fourth order of business.
     Senator Browning, from the Committee on Economic Development, submitted the following report, which was received:
     Your Committee on Economic Development has had under consideration
     Senate Bill No. 206, Designating certain property as qualified capital addition to manufacturing facilities.
     And reports back a committee substitute for same with the following title:
     Com. Sub. for Senate Bill No. 206 (originating in the Committee on Economic Development)--A Bill to amend and reenact §11-6F-2 and §11-6F-4 of the Code of West Virginia, 1931, as amended, all relating to designating certain property as a qualified capital addition to a manufacturing facility; and extending that property special valuation to the twenty-fifth year succeeding the year in which the qualified capital addition is first placed in service.
     With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Finance.
                              Respectfully submitted,
                               Richard Browning,
                               Chair.
     The bill (Com. Sub. for S. B. No. 206), under the original double committee reference, was then referred to the Committee on Finance.
     Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
     Your Committee on Transportation and Infrastructure has had under consideration
     Senate Bill No. 215, Specifying unobligated moneys in Industrial Access Road Fund revert to State Road Fund.
     And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
                              Respectfully submitted,
                               Robert D. Beach,
                               Chair.
     The bill, under the original double committee reference, was then referred to the Committee on Finance.
     Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
     Your Committee on Transportation and Infrastructure has had under consideration
     Senate Bill No. 219, Consolidating administration and enforcement of motor carrier industry.
     And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.
                              Respectfully submitted,
                               Robert D. Beach,
                               Chair.
     The bill, under the original double committee reference, was then referred to the Committee on the Judiciary.
     Senator Wells, from the Committee on Military, submitted the following report, which was received:
     Your Committee on Military has had under consideration
     Senate Concurrent Resolution No. 3, Requesting Joint Committee on Government and Finance continue studying issues facing veterans.
     And reports the same back with the recommendation that it be adopted; but under the original double committee reference first be referred to the Committee on Rules.
                              Respectfully submitted,
                               Erik P. Wells,
                               Chair.
     The resolution, under the original double committee reference, was then referred to the Committee on Rules.
     Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
     Your Committee on Transportation and Infrastructure has had under consideration
     Senate Concurrent Resolution No. 7, Requesting DOH name bridge in Clendenin, Kanawha County "Smith Brothers Memorial Bridge".
     And reports the same back with the recommendation that it be adopted.
                              Respectfully submitted,
                               Robert D. Beach,
                               Chair.
     Senator Wells, from the Committee on Military, submitted the following report, which was received:
     Your Committee on Military has had under consideration
     Senate Resolution No. 4, Honoring Command Sergeant Major Roger C. Beverage.
     And reports the same back with the recommendation that it be adopted.
                              Respectfully submitted,
                               Erik P. Wells,
                               Chair.
     At the request of Senator Wells, unanimous consent being granted, the resolution (S. R. No. 4) contained in the preceding report from the Committee on Military was taken up for immediate consideration.
     The question being on the adoption of the resolution, the same was put and prevailed.
     Thereafter, at the request of Senator Unger, and by unanimous consent, the remarks by Senator Tucker regarding the adoption of Senate Resolution No. 4 were ordered printed in the Appendix to the Journal.
     On motion of Senator Unger, the Senate recessed for one minute.
     Upon expiration of the recess, the Senate reconvened and proceeded to the sixth order of business.
     On motions for leave, severally made, the following bills and joint resolution were introduced, read by their titles, and referred to the appropriate committees:
     By Senators Palumbo, D. Facemire, Kessler (Mr. President), Unger and Jenkins:
     Senate Bill No. 376--A Bill to amend and reenact §3-3-2b of the Code of West Virginia, 1931, as amended, relating to the provision of absentee ballots to participants of the Address Confidentiality Program.
     Referred to the Committee on the Judiciary.
     By Senators Barnes and Miller:
     Senate Bill No. 377--A Bill to amend and reenact §18A-4-7a of the Code of West Virginia, 1931, as amended, relating to employment, promotion and transfer of professional personnel; and denying transfer within thirty days prior to the instructional term.
     Referred to the Committee on Education.
     By Senators Barnes, Plymale, Unger and Tucker:
     Senate Bill No. 378--A Bill to amend and reenact §18A-2-9 of the Code of West Virginia, 1931, as amended, relating to school personnel; and requiring the employment of assistant principals at schools with enrollments of three hundred fifty or more students.
     Referred to the Committee on Education; and then to the Committee on Finance.
     By Senators Stollings, Laird, Foster, Kessler (Mr. President), Plymale and Jenkins:
     Senate Bill No. 379--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §30-7E-1, §30-7E-2 and §30-7E-3, all relating to authorizing the West Virginia Board of Examiners for Registered Professional Nurses to designate programs in which persons regulated by the board may be monitored while they pursue treatment and recovery for alcohol abuse, chemical dependency or major mental illness; and voluntary enrollment without being subject to disciplinary action if the person complies with the goals and restrictions of the program.
     Referred to the Committee on Health and Human Resources; and then to the Committee on Government Organization.
     By Senator Yost:
     Senate Bill No. 380--A Bill to amend and reenact §11A-1-9 of the Code of West Virginia, 1931, as amended, relating to a co-owner of real property becoming sole owner when he or she pays all of the property taxes on the real property for a minimum of five years.
     Referred to the Committee on the Judiciary.
     By Senators Miller, Yost, Klempa, Wills, Laird, D. Facemire, Chafin, Foster, Kessler (Mr. President), Plymale and Jenkins:
     Senate Bill No. 381--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new chapter, designated §5I-1-1, §5I-1-2, §5I-1-3 and §5I-1-4, all relating to creating the West Virginia Buy American Act; requiring public agency construction contracts for public buildings or public works contain a provision that the iron, steel, manufactured goods, coal and timber used or supplied be manufactured or produced in the United States; permitting waivers; providing remedies for intentional violations; defining terms; making findings; and declaring policy.
     Referred to the Committee on Government Organization; and then to the Committee on Finance.
     By Senator Unger:
     Senate Bill No. 382--A Bill to amend and reenact §15-12-2, §15-12-3 and §15-12-10 of the Code of West Virginia, 1931, as amended, all relating to the sex offender registration; requiring registration and updating of information in the offender's county of residence; and adding an internal code reference.
     Referred to the Committee on the Judiciary.
     By Senators Unger, Beach, Kessler (Mr. President) and Klempa:
     Senate Bill No. 383--A Bill to amend and reenact §15-2-5 of the Code of West Virginia, 1931, as amended, relating to increasing the supplemental pay of members of the West Virginia State Police in lieu of overtime pay.
     Referred to the Committee on Finance.
     By Senators Jenkins, Foster, Stollings, Beach, Kessler (Mr. President), Plymale and Klempa:
     Senate Bill No. 384--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-27-39, relating to nursing education faculty; defining terms; creating a tax credit to encourage nurse faculty to remain in West Virginia; and assigning powers and duties to the State Tax Department.
     Referred to the Committee on Education; and then to the Committee on Finance.
     By Senators Unger, Beach, Kessler (Mr. President), Klempa and Jenkins:
     Senate Bill No. 385--A Bill to amend and reenact §61-3C-3 of the Code of West Virginia, 1931, as amended; and to amend and reenact §61-8A-1 of said code, all relating to updating the definition of "computer" in the commission of certain crimes.
     Referred to the Committee on the Judiciary.
     By Senators Unger, Browning, Snyder, Kessler (Mr. President) and Palumbo:
     Senate Bill No. 386--A Bill to amend and reenact §11-24-13f of the Code of West Virginia, 1931, as amended, relating to taxation of water's-edge corporations; and providing for clarification of the entities to be included in a water's-edge group for corporation net income tax purposes.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     By Senators Unger and Beach:
     Senate Bill No. 387--A Bill to amend and reenact §15-5-20 of the Code of West Virginia, 1931, as amended, relating to floodplain management training; requiring all floodplain managers to complete yearly training; and providing that another manager may take over the responsibilities of a manager who has not completed the required training.
     Referred to the Committee on Government Organization.
     By Senators Wills, Klempa, Tucker, Miller, Snyder, Yost and Kessler (Mr. President):
     Senate Bill No. 388--A Bill to amend and reenact §55-2-21 of the Code of West Virginia, 1931, as amended, relating to limitations of actions and suits; and reducing the number of defendants named in the beginning of a lawsuit by tolling the statute of limitations against all tortfeasors upon filing direct claims against tortfeasors.
     Referred to the Committee on the Judiciary.
     By Senators Unger, Beach, Kessler (Mr. President), Plymale, Williams, Klempa and Jenkins:
     Senate Bill No. 389--A Bill to amend and reenact §15-2-3 and §15-2-5 of the Code of West Virginia, 1931, as amended, all relating to maintaining a minimum of eight hundred state troopers by July 1, 2016; and increasing the salary increase received at the end of two years of service with the West Virginia State Police to $580.
     Referred to the Committee on Government Organization; and then to the Committee on Finance.
     By Senators Wills, Beach, Kirkendoll, Klempa, McCabe, Minard, Palumbo, Tucker, K. Facemyer, Nohe, Foster, Miller and Plymale:
     
Senate Joint Resolution No. 7--Proposing an amendment to the Constitution of the State of West Virginia, amending section 4, article IV; section 1, article VII; section 2, article VII; section 3, article VII; section 4, article VII; and section 16, article VII thereof, all relating to the creation of the Office of Lieutenant Governor in the executive department; the joint election of Governor and Lieutenant Governor; the succession of the Governor by the Lieutenant Governor; the filling of a vacancy in the Office of Lieutenant Governor; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     Senators Wills, Kirkendoll, Klempa, McCabe, Minard, Palumbo, Tucker, Williams, K. Facemyer, Nohe, Foster and Plymale offered the following resolution:
     Senate Concurrent Resolution No. 9--Amending Rule 5a of Joint Rules of the Senate and House of Delegates, relating to processing of bills authorizing the promulgation of proposed legislative rules; and duplication and distribution of proposed legislative rules.
     Resolved by the Legislature of West Virginia:
     That Rule 5a of the Joint Rules of the Senate and House of Delegates be amended to read as follows:
     Introduction and Processing of Bills Authorizing the Promulgation of Proposed Legislative Rules; Filing, Duplication and Distribution of Proposed Legislative Rules.
     5a. (1) On the first day of each regular session of the Legislature, the cochairs of the legislative rule-making review committee shall submit to the clerk of the respective houses of the legislature a copy of all proposed legislative rules which have been submitted to and considered by the committee pursuant to §29A- 2-11 of the code and which have not been previously submitted to the Legislature for study, together with the recommendations of the committee with respect to such rules, a statement of the reasons for any recommendation that a rule be amended or withdrawn, a statement that a bill authorizing each legislative rule has been drafted, and copies as required by each house, of bills for introduction. To facilitate the submission of the committee's report and bills of authorization on the first day of each regular session, the committee shall complete its consideration of rules by November 30 of each year. The committee may withhold from its report any proposed legislative rule which was submitted to the committee fewer that two hundred twenty-five days before the end of the regular session. The clerk of each house shall submit the report to his or her house pursuant to §29A-3-12.
_____(2)
A "bill authorizing the promulgation of proposed legislative rules" or a "bill of authorization" is a measure intended to be enacted as general law, which incorporates by reference a proposed legislative rule, with or without amendments or substitutions set forth in the bill, and which authorizes the promulgation and implementation of the proposed legislative rule. The processing of bills authorizing the promulgation of proposed legislative rules shall be governed by the standing rules of the Senate and the House of Delegates, which are supplemented by the provisions of this joint rule. In the case of any conflict between this rule and a standing rule of the Senate or the House of Delegates, the provisions of this rule shall control.
     (1) (3) The requirement of either house that bills shall be presented in duplicate applies to bills authorizing the promulgation of proposed legislative rules, but does not apply to the proposed legislative rule which the bill incorporates by reference. Of the duplicate copies, only the designated original copy shall have appended thereto the full text of the proposed legislative rule as finally approved by the agency seeking permission for its promulgation. Other copies of the full text of the proposed legislative rule shall be made available to members of the Legislature as hereinafter provided.
     (2) Copies of the full text of each proposed legislative rule shall be reproduced by printing or duplication by the Clerk prior to, or as soon as is reasonably practicable after, the introduction of the bill which would authorize by law the promulgation of the proposed legislative rule. Prior to such printing or duplication, a notation shall be affixed to the proposed legislative rule which identifies the bill number of the introduced bill which would authorize its promulgation and which also identifies the committee or committees of the house to which the bill is to be referred by the presiding officer following its introduction. Otherwise, the copies printed or duplicated shall conform to the copy of the proposed legislative rule appended to the original bill, so as to facilitate the consideration and amendment of the rule throughout the legislative process.
_____(4) Upon introduction on bills authorizing the promulgation of proposed legislative rules, the clerk shall make available by electronic means the full text of each legislative rule to be authorized to each member on the floor of each house, to allow each member to view the text of each legislative rule.
_____
(3) (5) The clerk shall furnish to any member, upon his or her request, without cost, one copy of the full text of a proposed legislative rule as reproduced by the clerk in accordance with the provisions of subsection (2) (3) of this joint rule. For any request for an additional copy or copies of the proposed legislative rule, the member requesting the copy or copies shall pay to the clerk, in advance, a charge which the clerk has reasonably determined to be adequate to cover the actual cost of the printing or duplication: Provided, That the provisions herein for the clerk to furnish a member with an additional copy or copies, with a cost charged, may not interfere with or delay the prompt and otherwise timely consideration of bills of authorization by the house or its committees or subcommittees.
     (4) (6) Whenever the standing rules of either house require the printing or reprinting of a bill, the rules apply to bills authorizing the promulgation of a proposed legislative rule with the same force and effect as they apply to other bills. However, no printing or reprinting of the proposed legislative rule which is incorporated by reference in the bill of authorization shall be required, other than the printing required by subsection (2) of this joint rule.
     (5) (7) Whenever the standing rules of either house require a bill to be read, or fully and distinctly read, the rules apply to bills authorizing the promulgation of a proposed legislative rule with the same force and effect as they apply to other bills. However, no reading of the proposed legislative rule which is incorporated by reference in the bill of authorization shall be required.
     Which, under the rules, lies over one day.
     The Senate proceeded to the seventh order of business.
     Senate Concurrent Resolution No. 8, Requesting DOH name bridge at Wellsburg "Bernie Kazienko Memorial Bridge".
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation and Infrastructure.
     Senate Resolution No. 7, Opposing US Supreme Court's constitutional interpretation in Citizens United decision.
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on the Judiciary.
     The Senate proceeded to the eighth order of business.
     Eng. Senate Bill No. 30, Providing additional means to notify DMV of purchase of junked vehicle.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 30) passed.
     The following amendment to the title of the bill, from the Committee on Transportation and Infrastructure, was reported by the Clerk and adopted:
     Eng. Senate Bill No. 30--A Bill to amend and reenact §17A-4-10 of the Code of West Virginia, 1931, as amended, relating to vehicles scraped, compressed, dismantled or destroyed; providing an additional means to notify the division; prescribing form; extending time period for a person to surrender title; and providing for the use of additional brands used by other jurisdictions that are consistent with the National Motor Vehicle Title Information System.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Com. Sub. for Senate Bill No. 96, Redefining basis for disqualification of prospective jurors.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 96) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Com. Sub. for Senate Bill No. 118, Terminating residential lease upon tenant death.
     On third reading, coming up in regular order, was reported by the Clerk.
     At the request of Senator Jenkins, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
     The Senate proceeded to the ninth order of business.
     Com. Sub. for Senate Bill No. 100, Relating to fees collected by circuit court clerks.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     Senate Bill No. 129, Relating to descriptions of easements and rights-of-way.
     On second reading, coming up in regular order, was read a second time.
     On motion of Senator Sypolt, the following amendment to the bill was reported by the Clerk and adopted:
     On page two, section five-a, lines twelve through twenty-two, by striking out all of subsection (b) and inserting in lieu thereof a new subsection, designated subsection (b), to read as follows:
     (b) Oil and gas, gas storage and mineral leases shall not be are not required to describe the easement or right-of-way as provided in subsection (a) of this section, but shall are required to describe the land on which the easement or right-of-way will be situate situated by source of title or reference to a tax map and parcel, recorded deed, recorded lease, plat or survey sufficient to reasonably identify and locate the property on which the easement or right-of-way is situate: Provided, however, That the easement or right-of-way is not invalid because of the failure of the easement or right-of-way to meet the requirements of this subsection. situated.
     The bill (S. B. No. 129), as amended, was then ordered to engrossment and third reading.
     Senate Bill No. 183, Increasing penalties for assault and battery on athletic official.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     The Senate proceeded to the tenth order of business.
     Com. Sub. for Com. Sub. for Senate Bill No. 7, Relating to administration of Naloxone in suspected drug overdoses.
     On first reading, coming up in regular order, was read a first time and ordered to second reading.
     The Senate proceeded to the thirteenth order of business.
     At the request of Senator Tucker, the name of Senator Tucker was removed as a sponsor of Senate Bill No. 363 (Creating Uniform Real Property Electronic Recording Act).
     On motion of Senator Unger, a leave of absence for the day was granted Senator Plymale.
     Pending announcement of meetings of standing committees of the Senate, including majority and minority party caucuses,
     On motion of Senator Unger, the Senate adjourned until tomorrow, Tuesday, January 24, 2012, at 11 a.m.
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