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Senate Journal


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sdj-16th day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

REGULAR SESSION, 2009

SIXTEENTH DAY

____________

Charleston, W. Va., Thursday, February 26, 2009

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

Prayer was offered by Dr. D. W. Cummings, Pastor, Bethlehem Apostolic Temple, Wheeling, West Virginia.
Pending the reading of the Journal of Wednesday, February 25, 2009,
On motion of Senator Boley, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect July 1, 2009, and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 2069--A Bill to amend and reenact §18-5A-5 of the Code of West Virginia, 1931, as amended, relating to increasing the faculty senate allotment for classroom teachers and librarians from $50 to $100, to be spent on academic materials, supplies or equipment to enhance instruction.
Referred to the Committee on Education; and then to the Committee on Finance.
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. 2504--A Bill to amend and reenact §15-3A-7 of the Code of West Virginia, 1931, as amended; and to further amend said code by adding thereto a new article, designated §15-3B-1, §15-3B-2, §15-3B-3, §15-3B-4, §15-3B-5 and §15-3B-6 of said code, all relating to the establishment of an alert system for missing cognitively impaired persons.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
The Senate proceeded to the fourth order of business.
Senator Kessler, 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. 99, Sentencing discretion for certain youthful offenders.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 99 (originating in the Committee on the Judiciary)--A Bill
to amend and reenact §25-4-6 of the Code of West Virginia, 1931, as amended, relating to providing a judge has the discretion to impose the original sentence on a youthful offender who has completed the treatment program at a juvenile center but commits another crime before returning to the court for the sentencing hearing; and providing for the offender to receive credit for time served.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Green, from the Committee on Energy, Industry and Mining, submitted the following report, which was received:
Your Committee on Energy, Industry and Mining has had under consideration
Senate Bill No. 163, Authorizing Department of Environmental Protection promulgate legislative rule relating to dam safety.
And reports the same back with the recommendation that it do pass; but under the original triple committee reference first be referred to the Committee on Finance; and then to the Committee on the Judiciary.
Respectfully submitted,
Mike Green,
Chair.
The bill, under the original triple committee reference, was referred to the Committee on Finance; and then to the Committee on the Judiciary.
Senator Green, from the Committee on Energy, Industry and Mining, submitted the following report, which was received:
Your Committee on Energy, Industry and Mining has had under consideration
Senate Bill No. 228, Authorizing Department of Environmental Protection promulgate legislative rule relating to voluntary remediation and redevelopment.
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,
Mike Green,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on the Judiciary.
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 Foster, White, Minard, Kessler, Plymale and Chafin:
Senate Bill No. 385--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-10-22k; and to amend said code by adding thereto a new section, designated §18-7A-26v, all relating to providing one- time supplements to all annuitants when they reach the age of seventy.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 386--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §18-2L-1, §18-2L-2, §18-2L-3, §18-2L-4 and §18-2L-5, all relating generally to critical skills evaluations for students in grades three and eight; setting forth legislative findings; requiring the creation of critical skills instructional support programs for students in grades three and eight; specifying that a critical skills instructional support program may occur after regular school hours or outside of the instructional term of the annual school calendar; requiring the retention of students in grades three and eight who do not meet certain proficiency standards; requiring the Board of Education to develop a model for the establishment of critical skills instructional support programs; establishing the duties and powers of the State Superintendent of Schools; and authorizing the promulgation of legislative rules.
Referred to the Committee on Education; and then to the Committee on Finance.
By Senators Kessler, Foster and Minard:
Senate Bill No. 387--A Bill to amend and reenact §44A-1-8 of the Code of West Virginia, 1931, as amended, relating to eliminating the authority to appoint coguardians and coconservators for mental hygiene proceedings.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
By Senators Hall and White:
Senate Bill No. 388--A Bill to amend and reenact §11-15-3c of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §11-15-9m; and to amend said code by adding thereto a new section, designated §11-21-9b, all relating to providing a full tax deduction for the purchase of a new automobile in the tax year 2009; providing an exemption from the sales tax for the purchase of a new vehicle in the tax year 2009; and providing a sales tax holiday for fuel-efficient vehicles every year after 2009.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.
By Senators Kessler, Caruth, Palumbo, Jenkins, Guills, Deem and Chafin:
Senate Bill No. 389--A Bill to amend and reenact §55-7B-2 of the Code of West Virginia, 1931, as amended, relating to adding pharmacist and pharmacy to the definition of "health care provider".
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
By Senators Unger, Stollings, Green, Snyder, Barnes, Foster, White, Chafin and McCabe:
Senate Bill No. 390--A Bill to amend and reenact §17-2D-2, §17-2D-3 and §17-2D-5 of the Code of West Virginia, 1931, as amended, all relating to the continuation of the Design-Build Program.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.
By Senators Barnes, Sypolt, Boley and Prezioso:
Senate Bill No. 391--A Bill to amend and reenact §17A-3-14 of the Code of West Virginia, 1931, as amended, relating to authorizing the issuance of special license plates for registered nurses and licensed practical nurses; and assessing a special initial application fee and a special annual fee for the license plate.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.
By Senators Kessler, Palumbo, White and Chafin:
Senate Bill No. 392--A Bill to amend and reenact §48-27-802 of the Code of West Virginia, 1931, as amended, relating to registering protective orders with the West Virginia Supreme Court of Appeals.
Referred to the Committee on the Judiciary.
By Senators Kessler, White, Plymale, Deem and Chafin:
Senate Bill No. 393--A Bill to amend and reenact §62-12-5 of the Code of West Virginia, 1931, as amended, relating to authorizing the Administrative Director of the Supreme Court of Appeals to hire regional or specialized probation officers.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Barnes, Unger, Snyder, Fanning, Edgell, Sypolt, Boley, Guills, Caruth, Deem, McCabe, Jenkins and Williams:
Senate Bill No. 394--A Bill to amend and reenact §7-1-3jj of the Code of West Virginia, 1931, as amended, relating to the regulation of the locations of businesses offering exotic entertainment.
Referred to the Committee on Government Organization; and then to the Committee on the Judiciary.
By Senators Kessler and Palumbo:
Senate Bill No. 395--A Bill to amend and reenact §61-2-14d of the Code of West Virginia, 1931, as amended, relating to failing to provide or return a minor child for visitation; and providing penalties.
Referred to the Committee on the Judiciary.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 396--A Bill to amend and reenact §22-11-4, §22-11-22, §22-11-24 and §22-11-25 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §22-11A-1, §22-11A-2, §22-11A-3, §22-11A-4, §22-11A-5, §22-11A-6, §22-11A-7, §22-11A-8, §22-11A-9 and §22-11A- 10, all relating to regulating the sequestration and storage of carbon dioxide; providing for powers and duties; providing for civil penalties and injunctive relief; providing for criminal penalties; providing for civil liability; setting forth legislative findings; defining terms; specifying powers and duties; specifying carbon dioxide permitting requirements; establishing a working group to study and make recommendations regarding carbon dioxide sequestration; clarifying the ownership of pore space underlying the surface of the lands and waters of this state; and authorizing the promulgation of legislative rules.
Referred to the Committee on Energy, Industry and Mining; and then to the Committee on the Judiciary.
Senators White, Unger, McCabe, Jenkins, Kessler and Plymale offered the following resolution:
Senate Concurrent Resolution No. 15--
Requesting the Joint Committee on Government and Finance study the funding of public libraries in West Virginia.
Whereas, Public libraries are most important to our state, providing numerous services, including books, computers, reading programs, literacy programs and meeting places and, in small communities, the only place people can get high speed internet service. Libraries are one of the most important services in our communities, yet underfunded in most communities in West Virginia; and
Whereas, Compared to other states, West Virginia dramatically underfunds public libraries. To meet the average of other states, funding would have to increase approximately from $13 per capita to the national average of approximately $33.87 per capita in our local communities; and
Whereas, Funding for public libraries in West Virginia is very uneven with a range of funding from all sources as low as $5.56 per capita in Clay County to $36.94 per capita in Kanawha County, the latter exceeding the national average of per capita funding; and
Whereas, West Virginia must adopt a new formula that better represents the needs and fiscal capacities of the local communities that would better distribute state and local funding for public libraries; and
Whereas, Funding for public libraries that addresses sources from state government, all local government, county commissions, boards of education and municipalities is necessary in order to assure the continuation of public libraries. Experience has shown that in times of financial downturns more citizens visit their local libraries and decreases in funding do not result in decreases in the use of these libraries; and
Whereas, Greater funding is needed to allow most public libraries to at least approach the national average of per capita funding to support their systems and keep their doors open to the public; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the funding for public libraries in West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Which, under the rules, lies over one day.
Senator Stollings offered the following resolution:
Senate Concurrent Resolution No. 16-- Requesting the Division of Highways name bridge number 03-20-4.83 (3372) in Ramage, Boone County, the "Sebert S. Duty Memorial Bridge".
Whereas, Sebert S. Duty was born June 27, 1911, and raised in the sight of the bridge in Ramage, Boone County; and
Whereas, Sebert S. Duty attended primary school in Boone County, worked on Public Works Programs during the Great Depression and was a coal miner and farmer. Before entering the Army, he was married to the former Ethel Kuhn. They had no children; and
Whereas, Sebert S. Duty entered the service of his country by conscription in 1942 when he became a member of the United States Army as Pfc. Sebert S. Duty, 35642938, Company E, 302nd Infantry, 94th Division. Although a devout Christian who did not believe in killing, he did not claim the right of conscientious objector and, like so many other West Virginians and Americans, he believed that it was his duty to help defend his country. He was a good, brave and valiant soldier who made the supreme sacrifice for his country, fellow soldiers and Americans when he was killed in action during the European Theater of Operations on January 26, 1945. Sebert S. Duty is now survived by a brother, Fred E. Duty, who was also in the Army at the same time and only about 100 miles from where Sebert died, although he was unaware of this event until some time later; and
Whereas, Sebert S. Duty was awarded the Rifleman's Medal and Purple Heart posthumously; and
Whereas, The service of Pfc. Sebert S. Duty during World War II and his death on the battlefield exemplifies the courage and bravery of West Virginians in time of war and his service and sacrifice should not go unnoticed; it should serve as an example to each of us that "freedom is not free" and, that even when contrary to one's religious beliefs, duty to country and defense of country and freedom is sometimes necessary and required; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 03-20-4.83 (3372) in Ramage, Boone County, the "Sebert S. Duty Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be placed signs identifying the bridge as the "Sebert S. Duty Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation and Fred E. Duty.
Which, under the rules, lies over one day.
Senators Minard and Oliverio offered the following resolution:
Senate Resolution No. 17--Requesting the Congress of the United States reexamine a federal law which has seriously affected the sales of off-road motorcycles and other recreational vehicles designed for children.
Whereas, In an effort to protect the health and safety of children from the excessive amounts of lead found in toys made in China, the Congress of the United States enacted a law which banned the sale of products from foreign counties aimed at children if they contained more than 600 parts per million of lead; and
Whereas, Lead is found in steel and other metal alloys on the frame, motor and multiple parts of off-road motorcycles and recreational vehicles built for young riders; and
Whereas, While most motorcycles and recreational vehicles are made overseas, there are tens of thousands of jobs attached to the industry in the United States; and
Whereas, More than 13,000 power sports dealers sell products in the United States, employing an estimated 124,000 people; and
Whereas, Industry estimates the retail market value for all off-road motorcycles and other recreational vehicles in the United States to be approximately $14 billion a year, including sales, service, parts, accessories and payroll; and
Whereas, An industry trade publication estimates that the value of inventory at United States dealers that can no longer be sold probably exceeds $100 million and that the industry has millions of dollars worth of parts now in production that cannot be sold; and
Whereas, While every effort should be taken to protect the health and safety of our young children, we should also consider the effect such legislation will also have on an industry that is unrelated to toys; therefore, be it
Resolved by the Senate:
That the Senate hereby requests the Congress of the United States to reexamine a federal law which has seriously affected the sales of off-road motorcycles and other recreational vehicles designed for children; and, be it
Further Resolved, In this time of financial crisis, every effort should be made to preserve every facet of our business community in order to help preserve jobs and stabilize our economy; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to West Virginia's congressional delegation.

Which, under the rules, lies over one day.

Petitions

Senators Edgell and Kessler presented a petition from Steven Archer and numerous West Virginia residents, supporting Senate Bill No. 374 (Creating Oil and Gas Surface Owner's Bill of Rights).
Referred to the Committee on Energy, Industry and Mining.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 13, Requesting Division of Highways name bridge in Berkeley County "Bruce Van Wyk Memorial Bridge".
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation and Infrastructure.
The Senate proceeded to the tenth order of business.
The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
Com. Sub. for Com. Sub. for Senate Bill No. 239, Allowing majority vote for certain metro government approval.
Com. Sub. for Senate Bill No. 259, Clarifying certain terminology within Courthouse Facilities Improvement Authority.
Com. Sub. for Senate Bill No. 341, Transferring juvenile justice database administration to Supreme Court.
Senate Bill No. 346, Correcting code reference related to bear tagging.
And,
Senate Bill No. 347, Correcting code reference related to extended supervision for certain sex offenders.
The Senate proceeded to the eleventh order of business and the introduction of guests.
The Senate then proceeded to the twelfth order of business.
Remarks were made by Senators Caruth and McCabe.
Thereafter, at the request of Senator Barnes, and by unanimous consent, the remarks by Senators Caruth and McCabe were ordered printed in the Appendix to the Journal.
At the request of Senator Helmick, unanimous consent being granted, the Senate returned to the eleventh order of business and the introduction of guests.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Friday, February 27, 2009, at 11 a.m.
____________

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