2004-SJ-04-28-040

No. 40

STATE OF MICHIGAN

Journal of the Senate

92nd Legislature

REGULAR SESSION OF 2004

Senate Chamber, Lansing, Wednesday, April 28, 2004.

10:00 a.m.

The Senate was called to order by the President, Lieutenant Governor John D. Cherry, Jr.

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

Allen--present Emerson--present Olshove--present

Barcia--present Garcia--present Patterson--present

Basham--present George--present Prusi--present

Bernero--present Gilbert--present Sanborn--present

Birkholz--present Goschka--present Schauer--present

Bishop--present Hammerstrom--present Scott--present

Brater--present Hardiman--present Sikkema--present

Brown--present Jacobs--present Stamas--present

Cassis--present Jelinek--present Switalski--present

Cherry--present Johnson--present Thomas--present

Clark-Coleman--present Kuipers--present Toy--present

Clarke--present Leland--present Van Woerkom--present

Cropsey--present McManus--present

Rabbi Jonathan Plaut of Temple Beth Israel of Jackson offered the following invocation:

Supreme Author of life, we pray for all who hold positions of leadership and responsibility in our state and national life. Let Your blessings rest upon them, and make them responsive to Your will so that Michigan and our nation may be to the world an example of justice and compassion. Help us always to work for the welfare of our beloved state. Teach us to realize there can be unity without uniformity and diversity of opinion without divisiveness.

We thank Thee for the precious gift of life. May the marvelous senses with which You have endowed us ever be directed toward good purposes and noble objectives. Help us train our eyes to behold virtues in others and to close our eyes to tale-bearing and gossip.

Teach us to realize our inadequacies and inspire us to utilize our talents for the improvements of humankind. In moments of doubt, strengthen us in our convictions. In hours of gloom, illumine our paths. In adversity and frustration, gird us with patience. Above all, imbue us with the wisdom to count all our blessings. Amen.

The President, Lieutenant Governor Cherry, led the members of the Senate in recital of the Pledge of Allegiance.

Motions and Communications

Senator Johnson entered the Senate Chamber.

Senator Hammerstrom moved that Senators Garcia and Brown be temporarily excused from today's session.

The motion prevailed.

Senators Brown, Brater, Barcia and Emerson entered the Senate Chamber.

The following communications were received:

Office of the Auditor General

April 22, 2004

Enclosed is a copy of the following audit report:

Performance audit of the Single Business Tax Program Within the Return Processing and Customer Contact Divisions, Department of Treasury.

April 27, 2004

Enclosed is a copy of the following audit report:

Performance audit of the Bureau of Health Services, Department of Community Health.

Sincerely,

Thomas H. McTavish, C.P.A.

Auditor General

The communications were referred to the Secretary for record.

The Secretary announced that the following House bills were received in the Senate and filed on Tuesday, April 27:

House Bill Nos. 5331 5335 5341 5342 5343 5345

By unanimous consent the Senate proceeded to the order of

Messages from the House

Senator Hammerstrom moved that consideration of the following bills be postponed for today:

Senate Bill No. 307

Senate Bill No. 783

Senate Bill No. 784

The motion prevailed.

Senate Bill No. 863, entitled

A bill to amend 1967 PA 281, entitled "Income tax act of 1967," (MCL 206.1 to 206.532) by adding section 51f.

The House of Representatives has substituted (H-2) the bill.

The House of Representatives has passed the bill as substituted (H-2), ordered that it be given immediate effect and pursuant to Joint Rule 20, inserted the full title.

Pursuant to rule 3.202, the bill was laid over one day.

Senate Bill No. 865, entitled

A bill to amend 1953 PA 189, entitled "An act to provide for the taxation of lessees and users of tax-exempt property," (MCL 211.181 to 211.182) by adding section 1a.

The House of Representatives has substituted (H-3) the bill.

The House of Representatives has passed the bill as substituted (H-3) and ordered that it be given immediate effect.

Pursuant to rule 3.202, the bill was laid over one day.

Senate Bill No. 867, entitled

A bill to amend 1994 PA 451, entitled "Natural resources and environmental protection act," by amending section 51105 (MCL 324.51105), as amended by 1996 PA 451.

The House of Representatives has substituted (H-1) the bill.

The House of Representatives has passed the bill as substituted (H-1), ordered that it be given immediate effect and pursuant to Joint Rule 20, inserted the full title.

Pursuant to rule 3.202, the bill was laid over one day.

Senate Bill No. 872, entitled

A bill to amend 1984 PA 385, entitled "Technology park development act," by amending section 12 (MCL 207.712), as amended by 1996 PA 445.

The House of Representatives has substituted (H-1) the bill.

The House of Representatives has passed the bill as substituted (H-1), ordered that it be given immediate effect and pursuant to Joint Rule 20, inserted the full title.

Pursuant to rule 3.202, the bill was laid over one day.

Senate Bill No. 875, entitled

A bill to amend 1990 PA 100, entitled "City utility users tax act," by amending section 5 of chapter 1 (MCL 141.1155), as amended by 1998 PA 241.

The House of Representatives has substituted (H-3) the bill.

The House of Representatives has passed the bill as substituted (H-3), ordered that it be given immediate effect and pursuant to Joint Rule 20, inserted the full title.

Pursuant to rule 3.202, the bill was laid over one day.

By unanimous consent the Senate proceeded to the order of

Third Reading of Bills

Senator Hammerstrom moved that the following bills be placed at the head of the Third Reading of Bills calendar:

Senate Bill No. 599

Senate Bill No. 145

House Bill No. 4172

The motion prevailed.

The following bill was read a third time:

Senate Bill No. 599, entitled

A bill to amend 1979 PA 94, entitled "The state school aid act of 1979," by amending section 6 (MCL 388.1606), as amended by 2003 PA 158.

The question being on the passage of the bill,

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

Roll Call No. 241 Yeas--37

Allen Clark-Coleman Jacobs Sanborn

Barcia Clarke Jelinek Schauer

Basham Cropsey Johnson Scott

Bernero Emerson Kuipers Sikkema

Birkholz George Leland Stamas

Bishop Gilbert McManus Switalski

Brater Goschka Olshove Thomas

Brown Hammerstrom Patterson Toy

Cassis Hardiman Prusi Van Woerkom

Cherry

Nays--0

Excused--1

Garcia

Not Voting--0

In The Chair: President

The Senate agreed to the title of the bill.

The following bill was read a third time:

Senate Bill No. 145, entitled

A bill to amend 1969 PA 296, entitled "An act to provide for the transfer of jurisdiction over highways; to provide for the final determination of disputes involving transfers of highway jurisdiction; and to supersede certain acts and parts of acts," by amending section 5 (MCL 247.855), as amended by 1980 PA 12, and by adding section 3a.

The question being on the passage of the bill,

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

Roll Call No. 242 Yeas--37

Cherry

Nays--0

Excused--1

Garcia

Not Voting--0

In The Chair: President

Senator Patterson offered to amend the title to read as follows:

A bill to amend 1969 PA 296, entitled "An act to provide for the transfer of jurisdiction over highways; to provide for the final determination of disputes involving transfers of highway jurisdiction; and to supersede certain acts and parts of acts," by amending sections 1 and 5 (MCL 247.851 and 247.855), section 5 as amended by 1980 PA 12, and by adding section 3a.

The amendment to the title was adopted.

The Senate agreed to the title as amended.

The following bill was read a third time:

House Bill No. 4172, entitled

A bill to amend 1978 PA 368, entitled "Public health code," by amending section 5129 (MCL 333.5129), as amended by 1995 PA 253.

The question being on the passage of the bill,

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

Roll Call No. 243 Yeas--37

Cherry

Nays--0

Excused--1

Garcia

Not Voting--0

In The Chair: President

The question being on concurring in the committee recommendation to give the bill immediate effect,

The recommendation was concurred in, 2/3 of the members serving voting therefor.

Pursuant to Joint Rule 20, the full title of the act shall be inserted to read as follows:

"An act to protect and promote the public health; to codify, revise, consolidate, classify, and add to the laws relating to public health; to provide for the prevention and control of diseases and disabilities; to provide for the classification, administration, regulation, financing, and maintenance of personal, environmental, and other health services and activities; to create or continue, and prescribe the powers and duties of, departments, boards, commissions, councils, committees, task forces, and other agencies; to prescribe the powers and duties of governmental entities and officials; to regulate occupations, facilities, and agencies affecting the public health; to regulate health maintenance organizations and certain third party administrators and insurers; to provide for the imposition of a regulatory fee; to provide for the levy of taxes against certain health facilities or agencies; to promote the efficient and economical delivery of health care services, to provide for the appropriate utilization of health care facilities and services, and to provide for the closure of hospitals or consolidation of hospitals or services; to provide for the collection and use of data and information; to provide for the transfer of property; to provide certain immunity from liability; to regulate and prohibit the sale and offering for sale of drug paraphernalia under certain circumstances; to provide for the implementation of federal law; to provide for penalties and remedies; to provide for sanctions for violations of this act and local ordinances; to provide for an appropriation and supplements; to repeal certain acts and parts of acts; to repeal certain parts of this act; and to repeal certain parts of this act on specific dates,".

The Senate agreed to the full title.

By unanimous consent the Senate proceeded to the order of

General Orders

Senator Hammerstrom moved that the Senate resolve itself into the Committee of the Whole for consideration of the General Orders calendar.

The motion prevailed, and the President, Lieutenant Governor Cherry, designated Senator Scott as Chairperson.

After some time spent therein, the Committee arose; and, the President, Lieutenant Governor Cherry, having resumed the Chair, the Committee reported back to the Senate, favorably and without amendment, the following bills:

House Bill No. 5428, entitled

A bill to amend 1927 PA 372, entitled "An act to regulate and license the selling, purchasing, possessing, and carrying of certain firearms and gas ejecting devices; to prohibit the buying, selling, or carrying of certain firearms and gas ejecting devices without a license or other authorization; to provide for the forfeiture of firearms under certain circumstances; to provide for penalties and remedies; to provide immunity from civil liability under certain circumstances; to prescribe the powers and duties of certain state and local agencies; to prohibit certain conduct against individuals who apply for or receive a license to carry a concealed pistol; to make appropriations; to prescribe certain conditions for the appropriations; and to repeal all acts and parts of acts inconsistent with this act," by amending section 9 (MCL 28.429), as amended by 1996 PA 169.

House Bill No. 5429, entitled

House Bill No. 5648, entitled

A bill to amend 1939 PA 288, entitled "Probate code of 1939," by amending sections 18 and 18m of chapter XIIA (MCL 712A.18 and 712A.18m), section 18 as amended and section 18m as added by 2003 PA 71.

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

The Committee of the Whole reported back to the Senate, favorably and with amendment, the following bill:

Senate Bill No. 1009, entitled

A bill to amend 1931 PA 328, entitled "The Michigan penal code," by amending section 218 (MCL 750.218), as amended by 1998 PA 312.

The following is the amendment recommended by the Committee of the Whole:

1. Amend page 5, following line 10, by inserting:

"Enacting section 1. This amendatory act takes effect September 1, 2004.".

The Senate agreed to the amendment recommended by the Committee of the Whole, and the bill as amended was placed on the order of Third Reading of Bills.

The Committee of the Whole reported back to the Senate, favorably and with amendments, the following bill:

House Bill No. 5026, entitled

A bill to amend 1931 PA 328, entitled "The Michigan penal code," by amending section 411a (MCL 750.411a), as amended by 2002 PA 672.

The following are the amendments recommended by the Committee of the Whole:

1. Amend page 2, line 27, after "report" by inserting "or threat".

2. Amend page 3, line 1, after "teams" by inserting a comma and "pursuant to section 1f of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.1f, unless otherwise expressly provided for in this section".

3. Amend page 4, line 12, after "includes" by inserting a comma and "but is not limited to,".

4. Amend page 4, following line 13, by inserting:

"Enacting section 1. This amendatory act takes effect July 1, 2004.".

The Senate agreed to the amendments recommended by the Committee of the Whole, and the bill as amended was placed on the order of Third Reading of Bills.

The Committee of the Whole reported back to the Senate, favorably and with amendment, the following bill:

House Bill No. 5182, entitled

A bill to amend 1961 PA 236, entitled "Revised judicature act of 1961," by amending sections 5714, 5735, and 5744 (MCL 600.5714, 600.5735, and 600.5744), section 5714 as amended by 1990 PA 310 and section 5735 as amended by 2001 PA 162.

The following is the amendment recommended by the Committee of the Whole:

1. Amend page 8, following line 8, by inserting:

"Enacting section 2. This amendatory act takes effect September 1, 2004.".

The Senate agreed to the amendment recommended by the Committee of the Whole, and the bill as amended was placed on the order of Third Reading of Bills.

The Committee of the Whole reported back to the Senate, favorably and with amendment, the following bill:

House Bill No. 5197, entitled

A bill to amend 1846 RS 66, entitled "Of estates in dower, by the curtesy, and general provisions concerning real estate," by amending section 34 (MCL 554.134), as amended by 1990 PA 311.

The following is the amendment recommended by the Committee of the Whole:

1. Amend page 3, following line 2, by inserting:

"Enacting section 1. This amendatory act takes effect September 1, 2004.".

The Senate agreed to the amendment recommended by the Committee of the Whole, and the bill as amended was placed on the order of Third Reading of Bills.

The Committee of the Whole reported back to the Senate, favorably and with amendments, the following bill:

House Bill No. 5427, entitled

The following are the amendments recommended by the Committee of the Whole:

1. Amend page 1, line 1, after "Sec. 12." by inserting "(1)".

2. Amend page 2, following line 18, by inserting:

"(2) The amendatory act that added subdivision (h) shall be known and may be cited as the "Janet Kukuk act".".

The Senate agreed to the amendments recommended by the Committee of the Whole, and the bill as amended was placed on the order of Third Reading of Bills.

The Committee of the Whole reported back to the Senate, favorably and with a substitute therefor, the following bill:

House Bill No. 5545, entitled

A bill to amend 1993 PA 331, entitled "State education tax act," by amending section 5b (MCL 211.905b), as added by 2002 PA 244.

Substitute (S-1).

The Senate agreed to the substitute recommended by the Committee of the Whole, and the bill as substituted was placed on the order of Third Reading of Bills.

During the Committee of the Whole, Senator Garcia entered the Senate Chamber.

Resolutions

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

Senate Resolution No. 175

Senate Resolution No. 139

The motion prevailed.

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

Senate Resolution No. 244

Senate Resolution No. 245

The resolution consent calendar was adopted.

Senators Kuipers, Cassis, Goschka and Garcia offered the following resolution:

Senate Resolution No. 244.

A resolution honoring the Michigan Association of School Boards for their 11th year of improving student achievement in Michigan public schools through their Education Excellence Awards Program.

Whereas, The Michigan Association of School Boards (MASB) Education Excellence Awards program was created in 1994 to identify and honor innovative classroom programs that improve student achievement in Michigan public schools; and

Whereas, Now in its 11th year, the Education Excellence Awards project continues to enhance public education in Michigan through its recognition of the most successful efforts of teachers, curriculum directors, and administrators to help all children succeed; and

Whereas, Annually, school districts are invited to submit their best education programs to be evaluated by an independent panel of state-level educators and education policy leaders; and

Whereas, From the hundreds of programs submitted by rural, suburban, and urban schools statewide, the judges select the top three in each of the ten categories; and

Whereas, The categories range from the arts and school technology to language arts, science, math, social studies, and service learning; and

Whereas, In addition to receiving trophies and attention-getting street signs, MASB showcases these 30 exemplary programs to the media and to the education community in several ways; and

Whereas, Winners are invited to present clinics concerning their programs at MASB conferences so others can learn how today's education challenges are handled; and

Whereas, Education Excellence Award winners represent grassroots innovation and the finest examples of school improvement at the classroom level; and

Whereas, They prove there is excellence in every school and that teachers, volunteers, principals, and school boards are dedicated to improving teaching and learning from the ground up; and

Whereas, MASB's efforts to recognize and promote excellence in our schools are generously supported by SET SEG School Insurance Specialists, the exclusive sponsor of the 2004 Education Excellence Awards; now, therefore, be it

Resolved by the Senate, That we thank the Michigan Association of School Boards for their grassroots innovation and their continued commitment to public education in the state of Michigan; and be it further

Resolved, That a copy of this resolution be transmitted to the Michigan Association of School Boards as a token of our esteem.

Senators Barcia, Basham, Birkholz, Bishop, Cherry, Clarke, Jacobs, Jelinek, Olshove, Prusi, Sanborn, Switalski, Toy and Schauer were named co-sponsors of the resolution.

Senators Gilbert, Toy, Schauer and Garcia offered the following resolution:

Senate Resolution No. 245.

A resolution designating May 16-23, 2004, as Michigan Public Works Week.

Whereas, Public works infrastructure, facilities, and services are of vital importance to the health, safety, and well-being of the people of Michigan; and

Whereas, Such facilities and services could not be provided without the dedicated efforts of public works professionals, engineers, and administrators, representing state and local units of government, who are responsible for and must design, build, operate, and maintain the transportation, water supply, sewage and refuse disposal systems, public buildings, and other structures and facilities essential to serve our citizens; and

Whereas, It is in the public interest for the citizens and civic leaders of this country to gain knowledge of and to maintain a progressive interest in the public works needs and programs of their respective communities; and

Whereas, We urge participation with representatives of governmental agencies and the American Public Works Association to pay tribute to our public works professionals, engineers, and administrators and to recognize the substantial contributions they have made to our nation's and our state's health and welfare; now, therefore, be it

Resolved by the Senate, That we hereby designate the week of May 16-23, 2004, as Michigan Public Works Week; and be it further

Resolved, That a copy of this resolution be transmitted to the American Public Works Association as a token of our esteem.

Senators Barcia, Basham, Birkholz, Bishop, Brown, Cherry, Clarke, Goschka, Jacobs, Olshove, Prusi, Sanborn and Switalski were named co-sponsors of the resolution.

Senators Goschka and Barcia offered the following concurrent resolution:

Senate Concurrent Resolution No. 43.

A concurrent resolution to memorialize the Congress of the United States to enact legislation to prohibit the closure of the Aleda E. Lutz Department of Veterans Affairs Medical Center in Saginaw.

Whereas, The network of Veterans Affairs Medical Centers throughout the country represents an effort to fulfill our nation's commitment to those who have defended our country in times of peril. In Michigan, 130,000 veterans rely on the services and benefits of the health care available through the Department of Veterans Affairs. Of this number, 60,000 veterans in the mid-Michigan region rely upon the Aleda E. Lutz Department of Veterans Affairs Medical Center in Saginaw; and

Whereas, The Capital Asset Realignment for Enhanced Services initiative has included among its recommendations the closing of the Aleda E. Lutz Department of Veterans Affairs Medical Center in Saginaw. Under the plan, the Lutz Medical Center would be one of eight to eliminate inpatient services; and

Whereas, Closing the Aleda E. Lutz Department of Veterans Affairs Medical Center in Saginaw would be a serious blow to Michigan's veterans. Already, veterans in need of medical service in Saginaw travel great distances, from as far away as the Mackinac Bridge. A veteran from Mackinaw City, for example, would now have an extra four hours added to the already long trek to get to and from the facility in Ann Arbor. In poor weather, the distance would present a genuine impediment for many veterans and their families; and

Whereas, The veterans seeking care through Veterans Affairs facilities have every right to expect that these promised services are available with as little inconvenience as possible. As a new generation of brave veterans faces the possibility of needing care through a Veterans Affairs medial facility, we should not be making it even more difficult for a veteran to receive the level of care promised; now, therefore, be it

Resolved by the Senate (the House of Representatives concurring), That we memorialize the Congress of the United States to enact legislation to prohibit the closure of the Aleda E. Lutz Department of Veterans Affairs Medical Center in Saginaw; and be it further

Resolved, That copies of this resolution be transmitted to the United States Department of Veteran Affairs, the Aleda E. Lutz Medical Center in Saginaw, the President of the United States Senate, the Speaker of the United States House of Representatives, and the members of the Michigan congressional delegation.

Pending the order that, under rule 3.204, the concurrent resolution be referred to the Committee on Government Operations,

Senator Hammerstrom moved that the rule be suspended.

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

The question being on the adoption of the concurrent resolution,

Senator Hammerstrom moved that the concurrent resolution be referred to the Committee on Senior Citizens and Veterans Affairs.

The motion prevailed.

Senators Birkholz, Clarke, Jelinek, Prusi, Switalski and Toy were named co-sponsors of the concurrent resolution.

Introduction and Referral of Bills

Senators Basham and Toy introduced

Senate Bill No. 1172, entitled

A bill to amend 1939 PA 288, entitled "Probate code of 1939," by amending section 18 of chapter XIIA (MCL 712A.18), as amended by 2003 PA 71.

The bill was read a first and second time by title and referred to the Committee on Judiciary.

Senators Bishop, Goschka and Birkholz introduced

Senate Bill No. 1173, entitled

A bill to amend 1954 PA 116, entitled "Michigan election law," by amending section 358 (MCL 168.358), as amended by 1999 PA 16.

The bill was read a first and second time by title and referred to the Committee on Government Operations.

Senators Leland, Bernero, Thomas, Clark-Coleman, Clarke, Schauer, Olshove, Cherry, Brater, Hammerstrom, Jelinek, McManus, Gilbert, Kuipers, Bishop, Cropsey, Barcia, Switalski, Emerson, Goschka, Johnson and Birkholz introduced

Senate Bill No. 1174, entitled

A bill to amend 1978 PA 368, entitled "Public health code," by amending sections 16263, 16315, 16335, 17801, and 17820 (MCL 333.16263, 333.16315, 333.16335, 333.17801, and 333.17820), section 16263 as amended by 2004 PA 3, section 16315 as amended by 2001 PA 232, section 16335 as added by 1993 PA 80, and sections 17801 and 17820 as amended by 1987 PA 213, and by adding sections 17823, 17824, and 17825.

The bill was read a first and second time by title and referred to the Committee on Health Policy.

Senators George, Goschka, Garcia, Birkholz, Bernero and Toy introduced

Senate Bill No. 1175, entitled

A bill to amend 1927 PA 175, entitled "The code of criminal procedure," by amending section 16s of chapter XVII (MCL 777.16s), as amended by 2003 PA 183.

The bill was read a first and second time by title and referred to the Committee on Judiciary.

Senators George, Goschka, Garcia, Birkholz, Bernero and Toy introduced

Senate Bill No. 1176, entitled

A bill to amend 1931 PA 328, entitled "The Michigan penal code," (MCL 750.1 to 750.568) by adding section 395.

The bill was read a first and second time by title and referred to the Committee on Judiciary.

House Bill No. 5331, entitled

A bill to amend 1975 PA 228, entitled "Single business tax act," (MCL 208.1 to 208.145) by adding section 31a.