WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SIXTH LEGISLATURE
REGULAR SESSION, 2003
TENTH DAY
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Charleston, W. Va., Friday, January 17, 2003
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by Father Ed Tracey, Assistant Rector,
Episcopal Church of the Good Shepherd, Charleston, West Virginia.
Pending the reading of the Journal of Thursday, January 16,
2003,
On motion of Senator Hunter, 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 Clerk presented the following communication from the Joint
Committee on Government Operations:
WEST VIRGINIA LEGISLATURE
JOINT COMMITTEE ON GOVERNMENT OPERATIONS
CHARLESTON
January 16, 2003
West Virginia Legislature
State Capitol
Charleston, West Virginia
Ladies and Gentlemen:
As required by §4-10-12 of the West Virginia Code, we
respectfully submit the 2003 Annual Report of the Joint Committee
on Government Operations.
Very truly yours,
Edwin J. Bowman,
Senate,
Cochair,
J. D. Beane,
House of Delegates,
Cochair.
Which communication and report were 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, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2052--A Bill to amend
article one, chapter eighteen-c of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding thereto a
new section, designated section five; to amend and reenact section
three, article seven of said chapter; and to further amend said article by adding thereto a new section, designated section three-
a, all relating to higher education; student financial aid; defined
terms; expanding definition of "eligible institution"; award
eligibility in certain circumstances; and establishing funding
priority for student financial aid in certain circumstances.
Referred to the Committee on Education.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2120--A Bill to amend
chapter twenty-three of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, by adding thereto a new
article, designated article one-a; to amend and reenact sections
four, five and nine, article two of said chapter; to amend and
reenact section one, article three of said chapter; to further
amend said article by adding thereto a new section, designated
section two-a; and to amend and reenact sections one-c, one-d and
six, article four of said chapter, all relating to providing
security for the workers' compensation fund generally; providing
for the workers' compensation deficit reduction act; requiring
commissioner to obtain written professional opinion of qualified
actuary that certifies rates of premium taxes or other assessments
applicable to employers; prohibiting rates other than those
certified; authorizing workers' compensation division to require employers to make reports and payments of premium taxes or other
assessments at intervals other than quarterly; providing for the
elimination of second injury awards and the second injury reserve
fund for certain claims; providing for security or bond provided by
employers; requiring payment of employer's deficit amortization
assessment by certain employers; authorizing certain employers to
insure its catastrophic risk through private insurance carrier;
removing obsolete language; providing for a security risk pool;
requiring the employers authorized to self-insure their obligations
to administer their own claims; providing for certain audits;
promulgation of rules by the commissioner; providing periodic
transfers to the workers' compensation fund from the West Virginia
tobacco settlement trust fund; removing requirement that division
refund overpayments made by self-insured employers; authorizing the
compensation programs performance council to approve future
benefits from which overpayments may be recovered; reducing basis
for computation of temporary total disability benefits for certain
claims; increasing threshold measurement of medical impairment for
eligibility for award of permanent total disability; applications
for awards; and effective date of enactment of amendments.
Referred to the Committee on the Judiciary; 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. 2121--A Bill to amend
chapter seventeen-c of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by adding thereto a new article,
designated article twenty-four, relating to the regulation of all-
terrain vehicles; requiring safety training courses; requiring
persons under the age of eighteen to have a driver's license or
safety training course; prohibition of operation on lined, paved
roads; exceptions to prohibition; requiring operators under the age
of eighteen to wear a helmet; and exemption for operation on
private lands.
Referred to the Committee on Transportation; and then to the
Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2122--A Bill to amend and
reenact section two, article eleven-a, chapter eleven of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new article, designated article thirteen-t; to
amend chapter twenty-nine of said code by adding thereto a new
article, designated article twelve-c; to amend and reenact section
fourteen, article three, chapter thirty of said code; to amend and
reenact section twelve-a, article fourteen of said chapter; to amend and reenact section four, article ten, chapter thirty-eight
of said code; to amend and reenact sections one, two, three, six,
seven, eight, nine, ten and eleven, article seven-b, chapter fifty-
five of said code; and to further amend said article by adding
thereto five new sections, designated sections twelve through
sixteen, inclusive, all relating to medical professional liability
generally; providing a personal income tax credit for physicians
care providers based upon payment of medical malpractice liability;
setting forth legislative findings and purpose; defining terms;
creating tax credit and providing eligibility; establishing amount
of credit; providing for forfeiture of excess credit; providing for
the application of the credit; specifying effect of credit on
computation of estimated taxes; providing for the computation and
application of credit; authorizing tax commissioner to promulgate
legislative rules; establishing burden of proof relating to
claiming the credit; establishing effective date for credit;
providing for termination of tax credit; establishing a special
fund to compensate certain patients for uncollectible injury
awards; creating board to propose funding mechanism; establishing
term, authority and directives of the board; conditionally
authorizing the board of risk and insurance management to
promulgate legislative and emergency rules; directing the two
thousand four Legislature to implement funding proposal;
establishing patient injury compensation fund; providing for distribution and eligibility for moneys of the fund; requiring the
board of medicine and the board of osteopathy to take certain
disciplinary actions against physicians and surgeons in certain
circumstances; increasing exemption available to certain physician
and surgeon debtors in bankruptcy proceedings; providing additional
legislative findings and purposes relating to medical professional
liability; providing definitions; adding an element of proof in
certain malpractice claims; altering notice requirements for
malpractice claims; modifying the qualifications for experts who
testify in medical professional liability actions; limiting
liability for certain noneconomic loss; providing a reversion
provision; providing for severability; eliminating joint, but not
several, liability among multiple defendants in medical
professional liability actions; requiring consideration of certain
third parties in malpractice cases; reduction in damage awards for
certain collateral source payments to plaintiffs; providing
mechanism for determining collateral source payments and damages
distribution; requiring periodic payment of damages for certain
medical malpractice awards; providing for calculation methodology
for determining award payments; providing for limitations against
health care providers for certain third-party claims; limiting
civil liability for trauma care; directing the office of emergency
medical services to designate hospitals as trauma centers; placing
limitations on eligibility for trauma care caps; authorizing the commissioner of the bureau for public health to designate certain
hospitals as trauma centers; authorizing the secretary of the
department of health and human resources to promulgate legislative
and emergency rules; providing method for calculating certain
contingent fee payments; and establishing effective date.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. House Bill No. 2224--A Bill to amend article one-b,
chapter eighteen-b of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by adding thereto a new section,
designated section ten, relating to higher education
reorganization; legislative funding; establishing a special revenue
account in the state treasury; purpose of fund; use of funds
retained by reorganization; use of funds deposited into special
revenue account; legislative findings and intent; personal services
and employee benefits reduction; institution conversion; detailed
written notice to governor, Senate president and House speaker;
disposition of real property and assets; student transfers;
reconciling program requirement conflicts; and student financial
aid eligibility and continuation.
Referred to the Committee on Education; and then to the Committee on Finance.
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. 4, Relating to enforcement of judgments in
magistrate court.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 4 (originating in the Committee
on the Judiciary)--A Bill to amend and reenact section one, article
six, chapter fifty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to civil judgments in
magistrate court; and requiring notice of judgment by mail.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Ross, from the Committee on Transportation, submitted
the following report, which was received:
Your Committee on Transportation has had under consideration
Senate Bill No. 82, Extending time for study of orphan roads
and bridges.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Mike Ross,
Chair.
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. 93, Relating to violence against public
employees.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 93 (originating in the Committee
on the Judicidary)--A Bill
to amend article two, chapter sixty-one
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, by adding thereto a new section, designated section
fifteen-b, relating to violence against public employees.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Hunter, from the Committee on Military, submitted the
following report, which was received:
Your Committee on Military has had under consideration
Senate Bill No. 143, Providing high school diplomas to certain veterans.
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 Education.
Respectfully submitted,
Jon Blair Hunter,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on Education.
The Senate 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 Senator Oliverio:
Senate Bill No. 167--A Bill to repeal section five, article
five-a, chapter twenty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend article
two, chapter twenty-one-a of said code by adding thereto two new
sections, designated sections seven and seven-a, all relating to
establishment of prevailing wage rates by department of labor;
statement of legislative findings; and transferring all powers,
duties and functions related to establishing of prevailing wage
rates to the bureau of employment programs.
Referred to the Committee on Labor; and then to the Committee on Government Organization.
By Senators Bowman, Edgell, McKenzie, Prezioso, Kessler and
Rowe:
Senate Bill No. 168--
A Bill to amend article four, chapter
eighteen-a of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, by adding thereto a new section, designated
section two-b, relating to creating the equitable compensation act;
and establishing a state minimum salary supplement for professional
personnel holding a nationally recognized professional
certification.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Rowe, White, Plymale, Jenkins, Ross and McCabe:
Senate Bill No. 169--A Bill to amend chapter twenty-nine of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new article, designated article
twenty-nine, relating to creating a midland trail heritage highway
authority.
Referred to the Committee on Government Organization; and then
to the Committee on Finance
.
By Senators Kessler, Prezioso, Ross, Minard, Sharpe, Unger,
Plymale, Weeks, Oliverio, Boley, Facemyer, Love, Bailey, Minear,
Harrison, McKenzie, Sprouse, Bowman, Edgell, Deem, Guills, Dempsey,
Helmick, Hunter, Fanning and Smith:
Senate Bill No. 170--
A Bill to amend chapter sixteen of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new article, designated article two-i,
relating to creating the "Women's Right to Know Act"; defining
certain terms; requiring informed consent for an abortion to be
performed; exception for a medical emergency; requiring the
department of health and human resources to publish information and
develop a website on alternatives to abortion; requiring physicians
to report abortion statistics; providing criminal penalties for
violations of the act; providing civil remedies; privacy in court
proceedings; and providing a separate severability clause.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance
.
By Senators Oliverio, Hunter and Rowe:
Senate Bill No. 171--
A Bill to amend and reenact sections
forty-three, forty-six and forty-nine, article fifteen, chapter
seventeen-c of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, all relating to seat belts; requiring all
new and used automobiles be equipped with safety seat belts for all
seating locations; requiring passive restraints and properly
adjusted seat belts for children; requiring certain children ride
in the rear seat; prohibiting children from riding in certain cargo
areas; increasing certain penalties requiring the use of safety
belts while operating a motor vehicle; making offense of failure to wear a safety belt a primary offense; and specifying standards for
safety belt use.
Referred to the Committee on Transportation; and then to the
Committee on the Judiciary
.
By Senator Sprouse:
Senate Bill No. 172--
A Bill to amend and reenact section
three, article fifteen, chapter eleven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to the consumers sales tax; and rolling back the sales tax
on food by one-half percent per year until the sales tax on food is
eliminated.
Referred to the Committee on Finance
.
By Senator Sprouse:
Senate Bill No. 173--
A Bill to amend and reenact section nine,
article fifteen, chapter eleven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to sales tax
exemption for the United States flag.
Referred to the Committee on Finance
.
By Senators Love, Hunter, Prezioso, Dempsey, Ross and Rowe:
Senate Bill No. 174--
A Bill to amend and reenact section two,
article five, chapter five of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to granting
incremental salary increases to division of corrections employees
based on years of service.
Referred to the Committee on Finance.
By Senators Snyder, Rowe and Unger:
Senate Bill No. 175--
A Bill to amend chapter sixteen of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new article, designated article three-
d, relating to reducing the threat of bioterrorism; establishing
certification for research facilities or other entities that
possess certain biological agents and toxins; providing for the
secretary of health and human resources to limit possession and
transfer of certain biological agents and toxins to certified
entities; and establishing criminal and civil penalties for
violations.
Referred to the Committee on Health and Human Resources; and
then to the Committee on Finance
.
By Senator Oliverio:
Senate Joint Resolution No. 4--Proposing an amendment to the
Constitution of the State of West Virginia, amending section eight,
article IX thereof; and further amending said article by adding
thereto a new section, designated section eight-a, all relating to
the formation and reformation of counties; authorizing the
Legislature to reconfigure county lines; 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.
Senators Tomblin (Mr. President), Snyder, Unger, Boley,
Chafin, Helmick, Rowe, Fanning, Ross, Smith, Minear, Sharpe,
Facemyer, Guills, Plymale, Edgell, Kessler, White, Bowman, Minard,
Jenkins, Love, Deem, Hunter, McKenzie and McCabe offered the
following resolution:
Senate Resolution No. 6--
Memorializing the life of the
Honorable Louise Leonard Nelson, former member of the West Virginia
Senate from the sixteenth senatorial district and dedicated
stateswoman.
Whereas, Louise Leonard Nelson was born October 7, 1919, in
Washington, D. C., the daughter of the late Roy Leslie and Florence
Alberta (Bellows) McVey; and
Whereas, Following graduation from high school, Louise Leonard
Nelson worked for the United States government in various areas.
During World War II, she worked for 18 months in Alaska with the U.
S. Army Corps of Engineers as they built the Alcan Highway. Later,
she worked in Calcutta, India, for the Office of Strategic Services
until the end of the war; and
Whereas, In 1948 Louise Leonard Nelson received a degree in
foreign affairs from George Washington University and began working
at the United States Department of State; and
Whereas, In 1948 Louise Leonard Nelson married Marine Captain
Robert P. Leonard, whom she had met in India. In 1952, they
relocated to Harpers Ferry where they owned and operated a restaurant; and
Whereas, Louise Leonard Nelson was active in numerous
community-related organizations, clubs and associations and
Jefferson County politics. She served as chairperson of the
Jefferson County Republican Executive Committee, second vice
president of the West Virginia Federation of Republican Women and
was also a member of the board of the National Federation of
Republican Women; and
Whereas, In 1968 Louise Leonard Nelson was appointed by
Governor Arch A. Moore, Jr., to the Task Force on Regional and
Local Planning. In 1969 she was appointed by President Richard M.
Nixon to a four-year term on the Advisory Board of the Federal
Reformatory for Women in Alderson; and
Whereas, In 1970 the Honorable Louise Leonard Nelson was
elected to the West Virginia Senate from the sixteenth senatorial
district and served until 1974. She was the second woman in West
Virginia history elected to the state Senate; and
Whereas, During her tenure in the Senate, the Honorable Louise
Leonard Nelson served the citizens of Jefferson County and the
citizens of West Virginia with dedication and commitment. One of
her proudest efforts while a senator was when she traveled to
Paris, France, in an attempt to meet with North Vietnamese
officials to gain the release of American military personnel held
as prisoners of war. Although they refused to meet with her, she was able to deliver written arguments for the release of those
Americans; and
Whereas, In 1975, following the death of her beloved husband,
she continued her education and earned a master's degree in
political science from George Washington University; and
Whereas, Louise Leonard Nelson, who traveled extensively, met
Dr. Clarence Nelson of San Francisco, California, and they were
married in 1985. As a resident of San Francisco, she was active in
many organizations, including the St. Francis Yacht Club, the San
Francisco Garden Club and the Daughters of the American Revolution.
She also continued as an active member of many Republican
organizations; and
Whereas, Although Dr. Clarence Nelson passed away in October,
2001, Louise Leonard Nelson continued to live in San Francisco,
surrounded by extended family members and many dear friends.
Sadly, on Monday, October 14, 2002, Louise Leonard Nelson passed
away, bringing to an end a lifetime of dedicated public service;
therefore, be it
Resolved by the Senate:
That the Senate hereby memorializes the life of the Honorable
Louise Leonard Nelson and recognizes the many contributions she
made to the citizens of the sixteenth senatorial district and the
State of West Virginia by her service as a member of the West
Virginia Senate; and, be it
Further Resolved, That the Senate hereby extends its sincere
sadness at the passing of the Honorable Louise Leonard Nelson, a
dedicated public servant and stateswoman.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
Petitions
Senators White and Love presented a petition from Jerry Weaver
and numerous West Virginia residents, requesting water line
extension for Upshur County residents of Alexander and Selbyville.
Referred to the Committee on Finance.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fourth order of business.
Senator Ross, from the Committee on Transportation, submitted
the following report, which was received:
Your Committee on Transportation has had under consideration
Senate Concurrent Resolution No. 5, Requesting Division of
Highways name bridge near Jackson's Mill "Homer Bennett Bridge".
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Mike Ross,
Chair.
The Senate proceeded to the ninth order of business.
Senate Bill No. 52, Eliminating certain bond on out-of-state
defendants in automobile accident cases.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
The Senate then proceeded to the tenth order of business.
Senate Bill No. 163, Continuing driver's licensing advisory
board.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
Senate Bill No. 164, Continuing office of coalfield community
development.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
Senate Bill No. 165, Continuing commission for national and
community service.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
Senate Bill No. 166, Continuing oil and gas inspectors'
examining board.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senator Minear.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until
Monday, January 20, 2003, at 11 a.m.
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