Senate Judiciary Committee Chairman Jeff Kessler, Friend of Child Molesters and Drunk Drivers, Digs Deeper Grave for Ruling Party

Just as their Washington counterparts never miss an opportunity to miss an opportunity, West Virginia's Democratic legislators found a way to rescue defeat of SB 205, the sex offender bill, from the jaws of victory. Not wanting to be blamed for a filibuster, Senate Judiciary Committee Chairman Jeff Kessler, D-Marshall, decided to not consume the final 4 minutes of the night with his bloviating but instead let his colleagues cast yet another politically suicidal vote that could have been avoided if only Kessler had elected to talk for 4 more minutes.

A lot can be said of the Ruling Party by the two issues that most animated Senator Kessler: defeating a bill to crack down on child molesters and rapists that had been amended by the House to weaken a version adopted last week by the Senate on a 28-5 vote and reopening a dangerous loophole that allows convicted drunk drivers to avoid a driver's license revocation by pleading no contest and hoping to prevail at a DMV administrative hearing after the same facts have already been adjudicated by a court of law using a tougher burden of proof than required in the administrative proceeding.

While many now know of the Senate's surprise action on Saturday night to kill SB 205 with 4 minutes remaining in the session, the story behind the story is absolutely galling.

Today, I spoke to Delegate Patrick Lane, R-Kanawha, one of the leaders in shepherding SB 205 through the House of Delegates. Senator Kessler double-crossed Lane and everyone else who had worked for weeks to shape this very important piece of legislation. I am absolutely convinced that Kessler would have found an excuse to oppose whatever the final version of SB 205 had been, as he had invented a new excuse for opposing the bill on almost every hour of every day of the session.

On Wednesday, March 1, the Senate adopted the GOP substitute and passed SB 205. On Tuesday, March 7, Delegate Lane held a meeting with staff counsel from the Judiciary and Finance committees of both the Senate and the House of Delegates in Senator Kessler's office. The Senate bill was stripped of most of the new criminal penalties and the only sex offenses receiving higher penalties were sexual assault or sexual abuse of a child 12 or younger. Over the next 2 days, several drafts of the rewritten bill were exchanged among the participants for refinement into a final product. NOTE: The full text of this version is still not available online.

On Friday, March 9, the House Judiciary Committee adopted the compromise bill and sent the bill to the House floor. At 11:58 A.M. on Saturday, March 11, the House of Delegates passed the bill. That afternoon, Governor Manchin met with Senate President Earl Ray Tomblin, D-Logan, and Senate Majority Leader Truman Chafin, D-Mingo, to discuss the bill.

Saturday evening, Delegate Lane spent a significant amount of time in the Senate tracking SB 205. At about 10 P.M., Senator Kessler informed Lane of his objection to a provision of the bill that could have subjected a minor to the mandatory 25 years to life prison sentence for a "consensual" sex act with a 12 year-old and that any such act should be treated under the lesser offense of third-degree sexual assault; Lane suggested amending the bill to obviate this issue, as he did on Tuesday when Kessler suggested this ground for objection and then retracted it after Lane then proposed the amendment. Then, at about 11 P.M., Kessler informed Lane that he had other grounds for objections and that he now thought the bill to be so fatally flawed that he would push to kill the bill for the session.

At about 11:45, the Senate finally reported the House amendment to SB 205, whereupon Senate Majority Leader Truman Chafin, D-Mingo, moved that the Senate refuse to concur with the House amendments and insist on its position--a position far tougher than the House bill--knowing that acceptance of this motion would ensure death for SB 205. Senator Kessler spoke for several minutes, asserting his objections to a bill to which he had earlier agreed and which objections were aired and previously satisfied. Senate Minority Leader Vic Sprouse, R-Kanawha, then spoke in defense of the bill and reminded senators that the bill the Senate previously passed was far tougher and that agreeing to Senator Chafin's motion would kill the bill. At 11:56 P.M., the Senate voted 23-11 to agree to Chafin's motion; the bill was dead.

It is my position that key legislative leaders engaged in dirty dealing and an extraordinary level of bad faith by their own standards. The Senate voted 28-5 on March 1 to adopt a very strong substitute measure for SB 205. Delegate Lane and other proponents of the bill met in the office of Senator Kessler with representative staff of every committee with jurisdiction over the bill and exchanged several drafts over a period of several days to refine the bill into a final version that both houses could agree upon. At 11:56 P.M. on Saturday, March 11, the Senate had no substantive reason to oppose a weaker bill than the one they passed 10 days earlier unless the Senate had actually favored a stronger bill--which was not the case.

Governor Manchin has been speaking from both sides of his mouth on SB 205. Like John Kerry, Manchin was apparently for this bill before he was against it. Manchin agreed to the compromise formed by the discussions led by Delegate Lane and lobbied the House for the bill. Then, after the meeting with senators Tomblin & Chafin and a later encounter with Senator Kessler, the Governor lobbied senators against the bill. While his lack of experience as a coal miner or coal operator did not prevent him from demanding & receiving whirlwind approval of his mine safety bill in January following the Sago & Aracoma mine disasters, Manchin said he--not being an attorney or criminal justice specialist--would have to defer to Kessler, a former prosecutor. If Manchin really wanted this bill to pass, the Senate Democrats would have voted for it and it would have passed--just as they follow his orders every time he publicly demands toe performance of a certain action.

If Senator Kessler and the rest of the leadership of the Ruling Party really wanted to work in good faith to correct SB 205 to obviate any objectionable provisions and then enact it into law, they had at least 3 options even in the final hours of the session:

1. In the Senate, amend the House amendment to the bill, pass the bill again, and have the House concur. As almost 12 hours elapsed between the passage of the bill in the House & the Senate's action to kill the bill, more than enough time existed for any level of revision necessary.
2. Pass the bill, let the Governor veto it & return it to the Legislature, and then amend the bill and pass it again. Under Article VI, Section 51 and Article VII, Section 14 of the state constitution, when the Legislature is in an extended session to consider the budget--as they are this week, actions upon bills vetoed by the Governor may be considered. They could have then passed a corrected bill, which could have then been signed into law.
3. Pass the bill, allow it to become law, and then immediately convene a special session of the Legislature to pass the necessary corrections. As no special motion had been made to fix a different effective date for the bill, it would have taken effect 90 days from passage, ensuring more than enough time to pass a corrective measure without scuttling the whole bill.

There was one glimmer of good news Saturday night: HB 4308, the DUI no contest bill, failed to pass. Just as Senator Kessler was quite animated & passionate about defeating a bill to guarantee mandatory prison sentences for rapists & molesters of young children, he was equally determined to give drunk drivers who plead no contest to the criminal charges an extra opportunity to avoid a revocation of their driver's licenses. The Senate passed the bill with an amendment on a 21-13 vote on Saturday and most people assumed it was a done deal. However, the House of Delegates then proposed an additional amendment to the bill; the Senate never acted upon the further amendment by the House and the bill subsequently died due to the inaction. A bill does not pass until both houses agree on precisely the same language with no exceptions; this did not happen to HB 4308.