The Senate was called to order by the President, Lieutenant Governor Connie B. Binsfeld.

 

The roll was called by the Secretary of the Senate, who announced that a quorum was present.

 

 

 

 

Pastor Russell Carlson of Forest Park Covenant Church in Norton Shores offered the following invocation:

O God, we thank You for the opportunity we have to serve one another. We thank these women and men who have been elected to serve their people here in Michigan. We thank You for the opportunities we have in many ways to bring help to one another.

We thank You for the many who have donated organs that others might have the gift of life. We thank You for the opportunities that I have had in the last 10 years to serve others because that gift of life was given to me.

We pray for wisdom for these women and men as they deliberate today and for Your guidance upon them. I ask this in Jesus' name. Amen.

 

 

 

 

Senator A. Smith entered the Senate Chamber.

 

Senator DeGrow moved that Senators Dunaskiss, Hoffman and Schuette be temporarily excused from today's session.

The motion prevailed.

 

Senators Hoffman, V. Smith and Dunaskiss entered the Senate Chamber.

 

 

Senator DeGrow moved that rule 3.902 be suspended to allow the guests of Senators Stille, Schwarz and Steil admittance to the Senate floor.

The motion prevailed, a majority of the members serving voting therefor.

 

 

Senator DeGrow moved that rule 3.901 be suspended to allow photographers to film on the Senate floor from the center aisle.

The motion prevailed, a majority of the members serving voting therefor.

 

Senator Berryman moved that Senator Young be temporarily excused from today's session.

The motion prevailed.

 

 

 

 

Senator DeGrow moved that the Senate recess subject to the call of the President.

The motion prevailed, the time being 10:05 a.m.

 

 

The Senate was called to order by the President, Lieutenant Governor Binsfeld.

 

During the recess, Senator Schwarz and Lieutenant Governor Binsfeld made statements regarding organ donation and the "Gift of Life" organization.

 

During the recess, Senator Steil made special presentations to the Grand Rapids Ottawa Hills High School Boys Basketball Team, the 1996-97 Class A State Champions, and their coach, Jim Eaddy.

 

 

The Secretary announced that the following House bills were received in the Senate and filed on Tuesday, April 22:

 

The Secretary announced the printing and placement in the members' files on Tuesday, April 22 of:

 

 

The following communication from the Governor was received on April 17, 1997, and read:

 

 

 

Whereas, Article V, Section 1, of the Constitution of the State of Michigan of 1963 vests the executive power in the Governor; and

Whereas, Article V, Section 2, of the Constitution of the State of Michigan of 1963 empowers the Governor to make changes in the organization of the Executive Branch or in the assignment of functions among its units which he considers necessary for efficient administration; and

Whereas, the Michigan Department of Military Affairs was created by Act No. 380 of the Public Acts of 1965, as amended, being Section 16.225 et seq. of the Michigan Compiled Laws; and

Whereas, the Department of Military Affairs, in addition to its traditional mission of administering the Michigan National Guard, is responsible for all state programs supporting veterans' services; and

Whereas, the Director of the Department of Military Affairs administers the Grand Rapids Home for Veterans, the D.J. Jacobetti Home for Veterans Trust Fund and grants to veterans service organizations from the State of Michigan; and

Whereas, it is important to recognize that the Department of Military Affairs has dual missions of being prepared for active service and supporting and maintaining veterans services.

Now, Therefore, I, John Engler, Governor of the State of Michigan, pursuant to the powers vested in me by the Constitution of the State of Michigan of 1963 and the laws of the State of Michigan, and in recognition of the Department's dual missions of readiness and veterans' services, do hereby order the following:

The Department of Military Affairs is hereby renamed the Department of Military and Veterans Affairs.

In fulfillment of the requirement of Article V, Section 2, of the Constitution of the State of Michigan of 1963, the provisions of this Executive Order shall become effective 60 days after filing.

The Executive Order was referred to the Committee on Government Operations.

 

 

The following messages from the Governor were received and read:

There is herewith presented for consideration and confirmation by the Senate, the following appointment to office:

Michigan Board of Medicine

Ms. Nancy Hillegonds, 47088 Brooks Lane, Plymouth, Michigan 48170, county of Wayne, as a member representing the general public, succeeding Mrs. Teresa L. Olson of Brighton, who has resigned, for a term expiring on December 31, 1997.

 

 

There are herewith presented for consideration and confirmation by the Senate, the following reappointments to office:

Michigan Corn Marketing Committee

Mr. Steven John Gazdag, 6369 East MN Avenue, Kalamazoo, Michigan 49001, county of Kalamazoo, as a member representing growers from District 2, succeeding himself, for a term expiring on March 5, 1999.

Ms. Norma Jean Lewis, 5575 W. Chicago, Jonesville, Michigan 49250, county of Hillsdale, as a member representing growers from District 3, succeeding herself, for a term expiring on March 5, 1999.

Mr. Gary Vern Krug, 2585 Bad Axe Road, Bad Axe, Michigan 48413, county of Huron, as a member representing growers from District 8, succeeding himself, for a term expiring on March 5, 1999.

 

 

There are herewith presented for consideration and confirmation by the Senate, the following appointments and reappointments to office:

Board of Professional Engineers

Mr. Martin L. Straub, 13131 Island Lake Road, Chelsea, Michigan 48118, county of Washtenaw, as a member representing professionals, succeeding himself, for a term expiring on March 31, 2001.

Mr. Ronald V. Quackenbush, 213 Sage Lake Road, Rose City, Michigan 48654, county of Ogemaw, as a member representing the general public, succeeding himself, for a term expiring on March 31, 2001.

Mr. James W. Bauer, 468 E. Hamilton Lane, Battle Creek, Michigan 49015, county of Calhoun, as a member representing the Board of Architects, succeeding Mr. Daniel A. Redstone of West Bloomfield, whose term has expired, for a term expiring on March 31, 2001.

Mr. David E. Mester, 117 Park Hills Drive, SE, Grand Rapids, Michigan 49506, county of Kent, as a member representing professionals, succeeding Dr. Molly Wells Williams of Kalamazoo, whose term has expired, for a term expiring on March 31, 2001.

 

 

There are herewith presented for consideration and confirmation by the Senate, the following reappointments to office:

Commission on Disability Concerns

Mrs. Barbara J. Ambrogio, 22761 Worthington, St. Clair Shores, Michigan 48081, county of Macomb, as a member representing the general public, succeeding herself, for a term expiring on March 5, 2000.

Dr. David A. Stewart, 215 North Every, Mason, Michigan 48854, county of Ingham, as a member representing the general public, succeeding himself, for a term expiring on March 5, 2000.

Ms. Luz Maria Cebreco, 3035 Newport, Detroit, Michigan 48215, county of Wayne, as a member representing the general public, succeeding herself, for a term expiring on March 5, 2000.

Mr. Joseph M. Connelly, 32148 Camborne Lane, Livonia, Michigan 48154, county of Wayne, as a member representing the general public, succeeding himself, for a term expiring on March 5, 2000.

The appointments were referred to the Committee on Government Operations.

 

 

 

 

Senators Young and Schuette entered the Senate Chamber.

 

 

The following bill was read a third time:

Senate Bill No. 306, entitled

A bill to amend 1964 PA 170, entitled "An act to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, officers, employees, and volunteers thereof, and members of certain boards, councils, and task forces when engaged in the exercise or discharge of a governmental function, for injuries to property and persons; to define and limit this liability; to define and limit the liability of the state when engaged in a proprietary function; to authorize the purchase of liability insurance to protect against loss arising out of this liability; to provide for defending certain claims made against public officers and paying damages sought or awarded against them; to provide for the legal defense of public officers and employees; to provide for reimbursement of public officers and employees for certain legal expenses; and to repeal certain acts and parts of acts," by amending the title and sections 1, 2, 4, and 6 (MCL 691.1401, 691.1402, 691.1404, and 691.1406), the title and section 1 as amended by 1986 PA 175 and section 2 as amended by 1996 PA 150, and by adding sections 2a and 2b.

The question being on the passage of the bill,

Senator Peters offered the following amendment:

SEC. 3A. A GOVERNMENTAL AGENCY IS LIABLE FOR DAMAGES TO A MOTOR VEHICLE CAUSED BY A POTHOLE IN A HIGHWAY IF THE GOVERNMENTAL AGENCY KNEW, OR IN THE EXERCISE OF REASONABLE DILIGENCE SHOULD HAVE KNOWN, OF THE EXISTENCE OF THE POTHOLE AND HAD A REASONABLE TIME TO REPAIR THE POTHOLE BEFORE THE DAMAGE TO THE MOTOR VEHICLE TOOK PLACE. KNOWLEDGE OF THE POTHOLE AND TIME TO REPAIR THE POTHOLE IS CONCLUSIVELY PRESUMED IF THE POTHOLE EXISTED SO AS TO BE READILY APPARENT TO AN ORDINARILY OBSERVANT PERSON FOR A PERIOD OF 14 DAYS BEFORE THE DAMAGE TOOK PLACE. THIS SECTION IS REPEALED 3 YEARS AFTER THE EFFECTIVE DATE OF THE AMENDATORY ACT THAT ADDED THIS SECTION.".

The question being on the adoption of the amendment,

Senator V. Smith requested the yeas and nays.

The yeas and nays were ordered, 1/5 of the members present voting therefor.

The amendment was not adopted, a majority of the members serving not voting therefor, as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Senator Dingell offered the following amendment:

The question being on the adoption of the amendment,

Senator Dingell requested the yeas and nays.

The yeas and nays were not ordered, 1/5 of the members present not voting therefor.

Senator V. Smith requested the yeas and nays.

The yeas and nays were ordered, 1/5 of the members present voting therefor.

The amendment was not adopted, a majority of the members serving not voting therefor, as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Senator Dingell offered the following amendment:

The question being on the adoption of the amendment,

Senator Dingell requested the yeas and nays.

The yeas and nays were ordered, 1/5 of the members present voting therefor.

The amendment was not adopted, a majority of the members serving not voting therefor, as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The question being on the passage of the bill,

The bill was passed, a majority of the members serving voting therefor, as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Senate agreed to the title of the bill.

 

 

 

 

Senators V. Smith, Peters, A. Smith, Cherry and Dingell, under their constitutional right of protest (Art. IV, Sec. 18), protested against the passage of Senate Bill No. 306 and moved that the statements they made during the discussion of the bill be printed as their reasons for voting "no."

The motion prevailed.

This bill is not the right way to go, it is the wrong way to go. I would ask the body to turn down Senate Bill No. 306.

Senator V. Smith's second statement is as follows:

I listened intently to the both of my distinguished colleagues on the other side of the aisle, but I would like to remind them what this bill, indeed, does is change the standard. It changes the scope, it puts up an absolute bar if you fail to file within that 120 day period, and it places a standard of gross negligence, which is almost never reached. If there are 31 states that have an absolute ban, then what you should have done is put the absolute ban out, rather than placing a standard which is unobtainable by the average person in terms of being able to show that the state willfully and intentionally intended to create a negligent situation that led to serious injury. I think that is a factual situation and a legal standard that is not going to be obtainable. Therefore, indeed, what you are trying to do is exclude any liability on behalf of the state.

Now, maybe there are 31 other states that ban all liability. I don't think that is the way to go. I think it is not proper if we are going to have the responsibility to build and maintain highways, to say that our actions cannot have been negligent and could have caused some injury.

Now, supposedly this bill was put forth to deal with a court decision, as we see many particular pieces of legislation, but I don't think it was any definitive ruling in that court decision which dramatically expanded the scope of what would be liable by the state. So, we have taken severe actions, even though the dollar amounts that the state has had to expend continues to drop and has fallen below $9 million this year. Citizens should be able to recover for negligent acts when injury results. Vote "no" on Senate Bill No. 306.

 

Senator Peters' statement, in which Senator A. Smith concurred, is as follows:

I just wanted to follow up my colleague, Senator Virgil Smith, in opposing this bill and urge my colleagues to oppose the bill as well. We have heard some of the rhetoric from the other side of the aisle that this bill deals with frivolous lawsuits. In reality it does not deal with frivolous lawsuits. We have already dealt with frivolous lawsuits on numerous occasions on other bills that have passed. This bill really deals with legitimate injuries suffered by people traveling our roadways.

I am going to quote a couple of individuals who talk about frivolous lawsuits and the wonderful job we have done in this state eliminating frivolous lawsuits and why this bill really does not really deal with that. The first one comes from Gongwer, December 16, 1996, and I quote, "Significant tort reforms were enacted, making it more difficult to collect on lawsuits. We put the ambulance chasers on their heals," said Jeff McAlvey Governor John Engler's legislative liaison. People with legitimate injuries are able to be compensated, but he says, "We put an end to frivolous lawsuits." This bill is not about frivolous lawsuits. Bills have already been dealt with. This actually goes to people who have suffered from legitimate injuries. Then I go on to quote Michigan Lawyers Weekly, in a story that appeared March 3, 1997, and I quote from this journal, "Highway cases resulting in total pay-out of $9.5 million last year. This was the lowest amount in 10 years," said Bill Bowerman a Chief Analyst at the Senate Fiscal Agency. Following up this quote, showing that we are seeing suits go down, I quote the Chief Assistant Attorney General who goes on in his article and says, "The suits we are settling are not frivolous. The state is a large organization and sometimes it is wrong," said Stanley Steinburn, Chief Assistant Attorney General. "When the state is wrong, and hurts somebody, we have to pay."

This bill is not dealing with frivolous lawsuits. These are legitimate claims that people are suffering. I think passage of this bill certainly sends the wrong message when the people of the state of Michigan are saying that we, as a state government, are walking away from our responsibility of maintaining our state highway infrastructure. We are not putting in the resources necessary to maintain a world-class highway system, and in fact, it's crumbling around us. But at the same time the state is walking away from it's responsibility to maintain a highway system. By passage of this bill we'd also be walking away from our responsibility to compensate those individuals who are legitimately hurt traveling state highways. This is the wrong time to be passing this bill. What this legislature needs to be doing is stepping up to the plate, increase funding for roads, put our roads back into world-class situation, and not walk away from our responsibility of helping those who are harmed on our roads. I would urge a "no" vote on this bill.

 

Senator Cherry's statement is as follows:

I rise to urge a "no" vote on Senate Bill No. 306. As I heard and followed the discussion and debate on this bill, it appears that it's being put forward, that it's important to pass this legislation because it will provide cost savings that then can be used to fund road construction. We ought to do all that we can to find extra money before we contemplate raising any taxes to fund road construction. And, I agree that we ought to make every effort to locate dollars that might be able to be used to maintain Michigan roads. Unfortunately, I think, as Senator Dingell so aptly detailed, there simply isn't any cost savings in this bill. So, that reason doesn't seem to be one that really has any bearing.

The other issue that gives me a great deal of concern is when you look at the state of Michigan roads and the problems that people are having in terms of damage to their cars and I've had a number of constituents who have incurred costly repair bills because of pot holes they've hit. By passing this bill under these circumstances, we are sending the absolutely wrong incorrect message. When roads are at their worst, the people can suffer severe damage. We are simply going to take away from them their major avenue for financial recourse.

I think that's wrong and on that basis it is my intention to vote "no."

Senator Dingell's first statement, in which Senator Cherry concurred, are as follows:

What the amendment does is that it requires persons relying on engineering standards to use their eyes and their head, not just use blind faith. Now, as a Catholic I'm allowed to use blind faith when looking at this standards-setting book, it's called the Bible. Quite appropriately, it was printed in Grand Rapids.

However, engineering standards are not supposed to be used that way. Part of the reason why is because engineering standards are frequently set by persons who were thinly disguised salesmen who have a pecuniary interests in making sure that their product meet the standard. Frequently, the standard setting organizations merely adopt what's being sold out there without a great deal of inquiry more than that. Being a metallurgical engineer and having been an actual design professional you ran into lots of cases of this in the mill, welding rods, for example. It was strange. In engineering school I noticed that as far as the engineering standards for welding rods were concerned the standards were drawn around the products of the people who made welding rods, not vice versa. This is a pervasive practice in the engineering community. I don't believe that people who design highways should be allowed to put on blinders and simply ignore situations where the engineering standards available are simply not up to the task of protecting the public when their not. When it's clearly evident to engineering design professionals, then they ought to be required to do what any engineering professional should do--deviate from the standard--to do it otherwise would be negligent. When the state's engineering professionals don't deviate, then we're doing wrong. We should be compensating those persons we do wrong to. We should compensate them for the harm we do to them. That's the importance of this recommendation. I recommend it to my colleagues.

 

Senator Dingell's second statement, in which Senator Cherry concurred, is as follows:

The way the language is in the bill currently, there is no specification on what kind of organizations that are going to be writing the standards that are going to be blindly adhered to. I could easily see organizations such as fastener manufacturers, guard rail manufacturers and concrete manufacturers setting standards on guard rail installation. You have to understand how standard setting organizations work. They set their standards frequently around the products they want to sell. Frankly, I am not interested in furthering the business of guard rail manufacturers, fastener manufacturers or concrete manufacturers. I am interested in furthering public safety. If you want to encourage blind adherence, then hopefully, you would be having organizations that are concerned with highway safety, set those standards, not those pecuniary interest. This amendment limits the kind of standards that may be blindly adhered to those set by highway safety organizations. I really don't like the idea of blind adherence to any standards. I don't think it is good engineering to do so. If we are going to, let's eliminate those with a pecuniary interest.

 

Senator Dingell's third statement, in which Senator Cherry concurred, is as follows:

This amendment is a narrowing amendment, this amendment is not a broadening amendment. It narrows the type of standard setting organization that may be considered to only one type; that which is concerned with highway safety. Those that are instead concerned with such things as making guard rails, fasteners, concrete or other construction materials or that have other agendas, may not be considered. I don't see how anybody could see this amendment as broadening anything. I recommend the amendment to my colleagues.

 

Senator Dingell's fourth statement, in which Senator Cherry concurred, is as follows:

I rise in opposition to the bill as amended. During both Judiciary Committee's consideration of the bill and the full Senate's consideration of the bill, I've asked a lot of questions and done a lot of thinking. One of the key definitions in the bill is that the MDOT will be liable only for the improved portion of the highway, which is designed for vehicular travel, which is defined as the physical structure of the traveled portion of the road bed actually designed for public vehicular travel. Essentially, I've asked the following three questions about that: Does the definition envision that the state will be liable for improperly designed elevations, slopes and grades? The answer has been "yes." Does the definition envision that the state would be liable for the unnatural accumulations of water or snow on the highway? The answer is "yes." Finally, does the definition envision that the state would be liable for failing to design an intersection in such a manner as to allow adequate sight distance for safe travel? The answer is "yes."

If the answers to these questions are "yes," then the fiscal impact of Senate Bill No. 306 would be to save approximately a half million dollars per year based on the descriptions of conditions leading to liability contained in the status of lawsuits against the state of Michigan, fiscal year 95-96 update. That was issued by the Senate Fiscal Agency. The numbers you're hearing from the supporters of the bill are on the order of $10 million. Hell, that's all we pay out!

In past years the numbers have been higher. But you know what? The last three years the numbers have been about $10 million. You know what? MDOT has been simply settling, virtually all of those cases.

In addition, I'm alarmed about the bill because what it does is it encourages--no, it demands--that MDOT will exercise blind adherence to any generally accepted engineering standard regardless of what organization promulgated that standard, even if MDOT's experience demonstrates the inadequacy of that engineering standard. Standards are frequently set based on assumptions that are not clearly evident in the standard or on pecuniary interest by the organization that's setting the standard. There's a word in the engineering professions for blind adherence to any engineer standard, and that's malpractice. Therefore, I encourage my colleagues to vote "no" on the bill.

 

 

The following bill was read a third time:

Senate Bill No. 340, entitled

A bill to amend 1995 PA 29, entitled "Uniform unclaimed property act," by amending sections 11, 18, 19, 20, 23, 25, and 31 (MCL 567.231, 567.238, 567.239, 567.240, 567.243, 567.245, and 567.251); and to repeal acts and parts of acts.

The question being on the passage of the bill,

Senator Peters offered the following amendment:

(2) Before making any deposit to the credit of the general MICHIGAN TRANSPORTATION fund ESTABLISHED UNDER SECTION 10 OF 1951 PA 51, MCL 247.660, the administrator may deduct any of the following:

(a) Costs in connection with the sale of abandoned property.

(b) Costs of mailing and publication in connection with any abandoned property.

(c) Reasonable service charges.

(d) Costs incurred in examining records of holders of property and in collecting the property from those holders.

(3) The administrator shall transfer to the senior care respite fund created in the older Michiganians act, Act No. 180 of the Public Acts of 1981, being sections 400.581 to 400.594 of the Michigan Compiled Laws 1981 PA 180, MCL 400.581 TO 400.594, funds that escheat to this state pursuant to section 403a of the nonprofit health care corporation reform act, Act No. 350 of the Public Acts of 1980, being section 550.1403a of the Michigan Compiled Laws 1980 PA 350, MCL 550.1403A.".

The question being on the adoption of the amendment,

Senator V. Smith requested the yeas and nays.

The yeas and nays were ordered, 1/5 of the members present voting therefor.

The amendment was not adopted, a majority of the members serving not voting therefor, as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Senate Bill No. 305, entitled

A bill to amend 1931 PA 328, entitled "The Michigan penal code," (MCL 750.1 to 750.568) by adding section 160a.

 

 

Senate Bill No. 322, entitled

A bill to designate the first Monday following February 4 as Mrs. Rosa L. Parks day in the state of Michigan.

The bills were placed on the order of Third Reading of Bills.

 

By unanimous consent the Senate proceeded to the order of

 

 

Senator DeGrow moved that consideration of the following resolutions be postponed for today:

Senate Resolution No. 20

Senate Concurrent Resolution No. 11

Senate Concurrent Resolution No. 18

Senate Concurrent Resolution No. 19

Senate Concurrent Resolution No. 20

Senate Concurrent Resolution No. 21

Senate Concurrent Resolution No. 22

The motion prevailed.

 

 

The question was placed on the adoption of the following resolution consent calendar:

Senate Resolution No. 48

The resolution consent calendar was adopted.

 

 

Senators Cherry and Byrum offered the following resolution:

Senate Resolution No. 48.

A resolution to commemorate Continental Cablevision's "Tune in to Kids and Family Month" April 1997.

Whereas, Continental Cablevision honors parents as an influential source in learning societal and cultural values, which play a determinant role in the development of youth; and

Whereas, Cable television networks offer more than 80 percent of all television hours devoted to children and more than 65 percent of all programs available to children; and

Whereas, Continental Cablevision's "Tune in to Kids and Family Month" coincides with the National Cable Telecommunications Association's "Tune in to Kids and Family Week" April 7-13, during which parents and children have the opportunity to view some of cable's finest educational programming all during prime viewing hours; and

Whereas, Many of these programs are currently used by Michigan teachers to enhance classroom discussion through Cable in the classroom, a free service of Continental Cablevision which provides more than 540 hours of commercial-free educational programming to schools each month; and

Whereas, Continental Cablevision believes children and parents can become better television viewers by sharing viewing tips--practical suggestions on how to watch television and make TV fun and educational for your family; and

Whereas, These tips include taping children's favorite shows during the day while they play in the sun and watching them together after dinner, and scanning weekly listings for movies and making a trip to the library to research books on the subject; and

Whereas, During "Tune in to Kids and Family Month" Continental Cablevision has joined with the Michigan PTA to distribute videotapes of "Taking Charge of Your TV" featuring Rosie O'Donnell, to all PTAs and PTOs in Michigan that lie within Continental's viewing areas; and

Whereas, Continental Cablevision and the Michigan PTA urge all PTAs and PTOs to share this tape at their next meeting, thereby enabling families to learn how to "take charge" of TV in their homes; now, therefore, be it

Resolved by the Senate, That we do hereby proclaim the Month of April 1997, as Continental Cablevision's "Tune in to Kids and Family Month" in Michigan, and urge all families and communities to join together to recognize the importance of educational programming on cable television and the invaluable role of parents in shaping our society; and be it further

Resolved, That a copy of this resolution be transmitted to Continental Cablevision as evidence of our respect and best wishes.

Senators Stallings, Young, McManus and Bouchard were named co-sponsors of the resolution.