Journal of the Senate

FIRST REGULAR SESSION

FIFTH DAY--WEDNESDAY, JANUARY 12, 2005

President Kinder in the Chair.

Reverend Carl Gauck offered the following prayer:

"Keep your heart with all diligence; for out of it are the issues of life." (Proverbs 4:27)

Heavenly Father, help us to keep our hearts firmly rooted in Your promises, so that girded by faith in Your Word we may face any difficulties that come our way. Help us to pray so that we are anchored in living life fully and effectively as You direct our path so we may be of help to others. In Your Holy Name we pray. Amen.

The Pledge of Allegiance to the Flag was recited.

A quorum being established, the Senate proceeded with its business.

The Journal of the previous day was read and approved.

The following Senators were present during the day's proceedings:

RESOLUTIONS

Senator Vogel offered Senate Resolution No. 36, regarding Margie E. Brady, Jefferson City, which was adopted.

Senator Vogel offered Senate Resolution No. 37, regarding Patricia Ann Dulle, Jefferson City, which was adopted.

Senator Dougherty offered Senate Resolution No. 38, regarding Alphonse Peterson, D.D.S., St. Louis, which was adopted.

Senator Ridgeway offered Senate Resolution No. 39, regarding Loren Jay Bewick, Kansas City, which was adopted.

Senator Klindt offered Senate Resolution No. 40, regarding the Fiftieth Wedding Anniversary of Mr. and Mrs. Gordon B. Garrett, Maryville, which was adopted.

Senator Klindt offered Senate Resolution No. 41, regarding the Fiftieth Wedding Anniversary of Mr. and Mrs. Ned Bashford, Bolivar, which was adopted.

Senator Wilson offered Senate Resolution No. 42, regarding Ann R. Brown, Kansas City, which was adopted.

Senator Wilson offered Senate Resolution No. 43, regarding the death of former Congresswoman Shirley Chisholm, Ormond Beach, Florida, which was adopted.

Senator Cauthorn offered Senate Resolution No. 44, regarding Brian William Wise, Kirksville, which was adopted.

Senator Callahan offered Senate Resolution No. 45, regarding the One Hundred First Birthday of Gene Duncan, Raytown, which was adopted.

Senator Callahan offered Senate Resolution No. 46, regarding the Fiftieth Wedding Anniversary of Mr. and Mrs. Earl Elliott, Independence, which was adopted.

Senator Callahan offered Senate Resolution No. 47, regarding the One Hundred First Birthday of Alice Jane Dickerson, Kansas City, which was adopted.

MESSAGES FROM THE HOUSE

The following messages were received from the House of Representatives through its Chief Clerk:

Mr. President: I am instructed by the House of Representatives to inform the Senate that the Speaker has appointed the following escort committee for the Lieutenant Governor and Senators attending the State of the Judiciary address: Representatives: Tilley, Cooper 158, Black, Wilson 130, Jackson, Cunningham 86, Aull, Curls, Johnson 90 and Corcoran.

Also,

Mr. President: I am instructed by the House of Representatives to inform the Senate that the Speaker has appointed the following escort committee to act with a like committee from the Senate pursuant to HCR 1. Representatives Parker, Yates, Goodman, Wright 137, Flook, Fares, Robinson, El-Amin, Spreng and Lowe.

INTRODUCTION OF BILLS

The following Bills were read the 1st time and ordered printed:

SB 165-By Bartle.

An Act to repeal sections 386.510, 386.520, 386.530, and 386.540, RSMo, and to enact in lieu thereof four new sections relating to judicial appeal of public service commission orders.

SB 166-By Green.

An Act to amend chapter 208, RSMo, by adding thereto one new section relating to disclosure of certain health care benefits.

SB 167-By Green.

An Act to repeal section 630.165, RSMo, and to enact in lieu thereof two new sections relating to long-term health care facilities, with penalty provisions.

SB 168-By Dolan, Shields, Vogel, Gross, Engler, Clemens, Kennedy, Mayer, Scott, Nodler, Cauthorn, Purgason, Champion, Klindt, Bartle, Callahan, Griesheimer, Koster, Taylor, Stouffer, Crowell, Ridgeway and Coleman.

An Act to amend chapter 431, RSMo, by adding thereto six new sections relating to resolution of conflicts resulting from alleged residential construction defects.

SB 169-By Gross.

An Act to repeal sections 144.805, 144.807, and 305.230, RSMo, and to enact in lieu thereof three new sections relating to aviation, with an expiration date for certain sections.

SB 170-By Gross.

An Act to repeal sections 260.905, 260.925, 260.945, and 260.960, RSMo, and to enact in lieu thereof five new sections relating to hazardous waste, with an emergency clause and an expiration date.

SB 171-By Purgason.

An Act to repeal section 229.160, RSMo, relating to protection of bridges.

SB 172-By Purgason.

An Act to repeal sections 249.1150, 249.1152, 249.1154, 249.1155, 640.635, 644.076, 701.031, 701.033, 701.037, and 701.038, RSMo, and to enact in lieu thereof five new sections relating to the regulation of water and sewer systems.

SB 173-By Scott.

An Act to repeal section 178.930, RSMo, and to enact in lieu thereof one new section relating to sheltered workshop payments.

Senator Shields moved that the Senate recess to repair to the House of Representatives to receive a message from the Chief Justice of the Supreme Court, the Honorable Ronnie L. White, which motion prevailed.

JOINT SESSION

The Joint Session was called to order by President Kinder.

On roll call the following Senators were present:

On roll call the following Representatives were present:

The Joint Committee appointed to wait upon the Chief Justice of the Supreme Court, Ronnie L. White, escorted the Chief Justice to the dais where he delivered the State of the Judiciary Address to the Joint Assembly:

2005 STATE OF THE JUDICIARY ADDRESS

CHIEF JUSTICE RONNIE WHITE

President Kinder, Speaker Jetton, distinguished members of the Senate and House of Representatives, honorable statewide elected officials, esteemed Court colleagues, and honored guests - I thank you for the opportunity to come before you today. First, I want to take a moment to welcome the newest member of our Court. In a day and age in which courts throughout the country sometimes are accused of sitting in ivory towers, isolated from the world surrounding them, we are blessed with a person who has spent her entire judicial career breaking down these perceived barriers. Judge Mary Russell has sought to open the doors of our judicial processes to all who want to see them, and anyone who has met her knows that her affable demeanor and common-sense voice will add to the collegiality of our Court. She is an experienced appellate judge, serving nine years on the Court of Appeals, Eastern District. During her first year on the bench, I had the pleasure of being one of her colleagues. Since her appointment to the Supreme Court, Judge Russell has become involved in several Jefferson City civic activities, including volunteering as a truancy court judge in a local middle school. She also meets with students, parents and teachers each week, holding a mock court, to help ensure that students attend school regularly. Please join me in welcoming the Honorable Mary Rhodes Russell. I encourage any of you who do not know her already to take the opportunity to meet her - I am sure that you are going to like Judge Russell.

We also look forward to getting to know all of you, because as we all know, Judge Russell is not the only new officeholder in Jefferson City this year. Accordingly, we wish to extend an invitation to all of the new legislators to join us at the Supreme Court this afternoon so we can open what we hope proves to be just the beginning of a fruitful dialogue between our two branches of government.

We stand at the forefront of a new legislative session, a session that brings with it a new Speaker, a new President Pro Tem, new minority leaders in both chambers, and, of course, a new Governor, along with other new statewide elected officials and legislators. It is clear that the collective will of the people of this great state has dictated to us that change must be embraced, along with all the promises, challenges and hope that change brings. When the voters of this state deliver messages such as these, their importance is rarely lost on members of the legislative or executive branches whose job it is to carry them out.

We in the Judiciary must listen to this message of change as well. We must continue to look at what we might do to improve our efficiency and effectiveness so that public trust and confidence in our judicial system remains high. Public trust is not merely an amorphous concept to which we pay lip service; indeed, it is the very foundation of our judicial system and ultimately our democracy. It is an ongoing covenant between the governing and the governed, often renewed in the most unexpected times and places - places such as the Ukraine, where recent electoral and constitutional crises pushed the Judiciary into the middle of critical decisions on which the very rule of law hung in the balance. Even though it was certain that a sizable portion of the populace would disagree vehemently with its decision, no matter what it was, that nation took a major step forward into the community of nations by agreeing with and enforcing the Judiciary's obligation to make such a decision.

On a smaller scale, here in Missouri, it is this balance that the Judiciary must strike on a daily basis as we serve our role as the third, coequal branch of government. We must not presume to think that the greatly overused phrase "judicial independence" allows us to view ourselves as above any other branch of government or as unaccountable to the people we serve. Rather than independence, let us talk instead of interdependence. As Abraham Lincoln noted so eloquently 144 years ago: "A house divided against itself cannot stand."

The same can be said of our three branches of government. We can - and must - be faithful not only to the constitution but also to each other and to the roles we have been given by the architects of this great system. We in the Judiciary cannot extend ourselves into areas where our constitution or laws do not permit us to tread. Instead, we must remain neutral - free from political or ideological philosophies - free from high-dollar political campaigns - and retain faithfulness to the rule of law above all else.

Our role is fundamentally different from that of either the legislative or the executive branch in two ways. First, we do not have the power to change any law that we see fit to change or to proclaim law where no such law exists. Rather, we must only deal with the specific facts and issues that are brought before us, and even then we must only interpret the law, not make the law. Second, our role is not to represent the will of the people directly as you do. Instead, we exist to resolve disputes according to the rule of law and its principles. In the end, the Judiciary's role in our system of government is to make sure that the laws you pass and the constitutions of this great state and nation - laws and principles that we all are sworn to uphold and protect - stand as a bulwark of security and a model for rest of the world. No one in our state - or in our Judiciary - shall be above the law!

It may be that, in protecting these precepts, we run afoul of what is perceived as the will of the people on a given case or legal issue. However, we are constrained by our past rulings, the laws passed by this general assembly, our state and federal constitutions, and decisions of the United States Supreme Court. Taken together, this body of law preserves the will of the majority and the rights of the minority all at once, a tension that may result in decisions that, in some cases, are deemed by many to be unpopular. But popularity is not a criterion to be applied to judicial opinions. As a result of this tension - and I know this will surprise you - sometimes people might even be upset with us! Of course, we are in a business where typically half the people disagree with our decisions because they lost, and even a portion of those who won are upset because they do not think they won enough - and the people who are happy never seem to call their legislators! Regardless of this reality, we must welcome criticism and take it as evidence that the system of checks and balances and the rule of law that our forefathers envisioned are still working.

As United States Supreme Court Chief Justice William Rehnquist noted earlier this month in his annual report on the State of the Federal Judiciary, "criticism of judges and judicial decisions is as old as our republic, an outgrowth to some extent of the tensions built into our three-branch system of government." He further noted, "to a significant degree those tensions are healthy in maintaining a balance of power in our government."

While it may seem strange to some, a certain degree of tension between the branches can produce a more effective government for the people as a whole while ensuring that no branch of government can impinge on individual rights inappropriately. As each branch watches the others, all are driven to excel and meet the challenges raised in this ongoing experiment that is our system of government.

However, we must not let these tensions hinder or destroy our ability to cooperate with one another - remember, for example, the success that the cooperative Commission on Children's Justice has had in making strides toward real reform in our state's child abuse and neglect system. We also must not let these natural tensions prevent us from maintaining the consistency in the rule of law to which the people of this state are entitled.

I know that, as this session moves forward, you will spend countless hours looking deeply at how to improve the economy of this state, at how best to improve the lives of its citizens. All of us in government, all of our working people, all of our corporate citizens and the public at large want our state to grow and be prosperous. We want to experience good wages and benefits and healthy profits to expand commerce and spur the economy. As this general assembly addresses the issues of jobs and economic growth, I ask you to consider carefully the Judiciary's role in Missouri's economic engine. We play, in fact, a vital role and one that is not as easily recognized as, for example, the economic growth prerequisites of good transportation, good schools, a trained work force and fair taxes.

You will find that very high on industry's list of necessary components in reviewing the attractiveness of any state for relocation or for new plants is a solid, predictable, professional and efficient judicial system in which they can get a fair and consistent application of the law and treatment of their people. Corporations do not expect to receive a favorable decision every time they go to court, but they do expect to have the courts open every day of the week, every week of the year, available as a forum in which business interests can be litigated fairly and expeditiously. And these corporations also expect that the courts will not be swayed by public opinion or concerned about inflaming some interest group but rather will stick to their judicial business of applying the law fairly.

Our business centers on providing efficient services. We are not seeking to make a profit; rather, we seek to provide high quality judicial services at the lowest possible cost. Justice is served, disputes are settled fairly and promptly, and the economy marches on. We understand our role and we will, with your support, accomplish this mission. One other point: our courts, at an annual cost of $140 million in state general revenue, generated roughly $395 million in positive economic impact to our state. This was through fees, fines and costs paid to government entities, and money paid through our courts when private individuals and businesses seek our assistance in enforcing decisions. Money paid to government entities is distributed annually to local schools, counties, the state, and various funds such as the crime victims' compensation fund, the head injury fund, the prosecuting attorneys' training fund, and so on. In other words, we do our share.

As Alexander Hamilton so wisely observed 200 years ago, the judiciary has neither the power of the sword or of the purse, but merely judgment. Therefore, as you debate the various economic proposals and other matters that are certain to cross your desks, I ask that, as the body to whom the power of the purse has been given, you consider the role you play in preserving - and, indeed, in improving - our Judiciary and its resources. I hope to work with you in finding new ways to maintain a well-qualified judiciary and judicial staff, and I hope that, in the end, together we may live out our state motto - "Salus Populi Suprema Lex Esto" - Let the welfare of the people be the supreme law. Thank you.

On motion of Senator Shields, the Joint Session was dissolved and the Senators returned to the Chamber where they were called to order by President Kinder.

INTRODUCTION OF BILLS

The following Bill was read the 1st time and ordered printed:

SB 174-By Vogel.

An Act to authorize the conveyance of property owned by the state in Cole County to the Regional West Fire District, with an emergency clause.

MESSAGES FROM THE GOVERNOR

The following message was received from the Governor, reading of which was waived:

OFFICE OF THE GOVERNOR

State of Missouri

Jefferson City

January 11, 2005

TO THE SENATE OF THE 93rd GENERAL ASSEMBLY

OF THE STATE OF MISSOURI:

The following addendum should be made to the appointment of Fred H. Farrell for Director of the Department of Agriculture, submitted to you on January 10, 2005. Line 1 should be amended to read:

Frederick H. Ferrell, 968 West Highway C, Charleston, Mississippi County,

Respectfully submitted,

MATT BLUNT

Governor

President Pro Tem Gibbons referred the above addendum to the Committee on Gubernatorial Appointments.

REFERRALS

President Pro Tem Gibbons referred SCR 2 to the Committee on Rules, Joint Rules, Resolutions and Ethics.

Senator Nodler assumed the Chair.

SECOND READING OF SENATE BILLS

The following Bills were read the 2nd time and referred to the Committees indicated:

SB 1--Small Business, Insurance and Industrial Relations.

SB 4--Financial and Governmental Organi-zations and Elections.

SB 6--Commerce, Energy and the Environ-ment.

SB 11--Governmental Accountability and Fiscal Oversight.

SB 12--Transportation.

SB 16--Judiciary and Civil and Criminal Jurisprudence.

SB 19--Education.

SB 21--Aging, Families, Mental and Public Health.

SB 24--Economic Development, Tourism and Local Government.

SB 25--Education.

SB 33--Pensions, Veterans' Affairs and General Laws.

SB 36--Education.

SB 37--Judiciary and Civil and Criminal Jurisprudence.

SB 45--Pensions, Veterans' Affairs and General Laws.

SB 46--Agriculture, Conservation, Parks and Natural Resources.

SB 49--Aging, Families, Mental and Public Health.

SB 50--Financial and Governmental Organi-zations and Elections.

SB 54--Financial and Governmental Organi-zations and Elections.

SB 56--Commerce, Energy and the Environ-ment.

SB 62--Agriculture, Conservation, Parks and Natural Resources.

SB 69--Economic Development, Tourism and Local Government.

SB 71--Financial and Governmental Organi-zations and Elections.

SB 77--Transportation.

SB 78--Judiciary and Civil and Criminal Jurisprudence.

SB 97--Education.

SB 98--Education.

SB 101--Transportation.

SB 104--Judiciary and Civil and Criminal Jurisprudence.

SB 112--Education.

SB 114--Education.

SB 129--Financial and Governmental Organi-zations and Elections.

SB 130--Small Business, Insurance and Industrial Relations.

RESOLUTIONS

Senator Gibbons offered Senate Resolution No. 48, regarding Dr. Charles Fuszner, Kirkwood, which was adopted.

Senator Gibbons offered Senate Resolution No. 49, regarding Earl and Myrtle Walker, Town and Country, which was adopted.

Senator Gibbons offered Senate Resolution No. 50, regarding Andrew Huber, Kirkwood, which was adopted.

Senator Gibbons offered Senate Resolution No. 51, regarding Richard Kirk Hutchison, Kirkwood, which was adopted.

Senators Gibbons and Kennedy offered Senate Resolution No. 52, regarding Ronald A. Blackmon, Affton, which was adopted.

Senators Gibbons and Kennedy offered Senate Resolution No. 53, regarding Carrie Carrigan, St. Louis, which was adopted.

COMMUNICATIONS

President Pro Tem Gibbons submitted the following revised hearing schedule:

January 12, 2005

Ms. Terry Spieler

Secretary of the Senate

Missouri State Capitol, Room 325

Jefferson City, MO 65101

Dear Ms. Spieler:

Please be advised that I have made the following changes to the committee assignments:

• Senator Timothy Green will leave the Committee on Governmental Accountability and Fiscal Oversight and will be replaced by Senator Yvonne Wilson.

• Senator Yvonne Wilson will leave the Committee on Appropriations and will be replaced by Senator Timothy Green.

Yours truly,

/s/ Michael R. Gibbons

MICHAEL R. GIBBONS

INTRODUCTIONS OF GUESTS

Senator Engler introduced to the Senate, Presiding Commissioner Terry Nichols, and his daughter Laurie, Iron County.

Senator Crowell introduced to the Senate, Thomas E. Wiginton, Jr., Jackson; and Ilena Aslin, Cape Girardeau.

Senator Kennedy introduced to the Senate, Tony Mariani, St. Louis; and Jeff Bonnert, Cape Girardeau.

Senator Wilson introduced to the Senate, a group representing AARP from the Kansas City area.

Senator Graham introduced to the Senate, the Physician of the Day, Dr. Randy Mueller, M.D., and Nancy Windsor, Columbia.

Senator Shields introduced to the Senate, Bob Hughes and a group of students from Missouri Western State College.

On motion of Senator Shields, the Senate adjourned under the rules.

SENATE CALENDAR

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SIXTH DAY-THURSDAY, JANUARY 13, 2005

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FORMAL CALENDAR

SECOND READING OF SENATE BILLS

Resolutions