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House
kills tort reform UPDATE! Sixty House Democrats voted to table the motion to reconsider. Forty-five Republicans were joined by 14 Democrats in voting against the motion. Rep. Greg Ward of Ripley switched his vote from voting with the pro-tort reformers yesterday to voting with the House leadership today in their effort to block caps on non-economic damages and other tort reform provisions advocated by the business and medical communities. Ward is a small business owner and is a member of the NFIB, a small business advocacy group that is lobbied heavily on behalf of tort reform in Mississippi. His district borders that of Speaker Billy McCoy. One Republican, Jessica Upshaw of Diamondhead, and one Democrat, Charles Young of Meridian, were absent for the vote. Upshaw is vacationing in Hawaii. Young has battled illness throughout the session. Prior to the House convening at 10:00 a.m., Governor Haley Barbour was joined at a 9:30 a.m. press conference by Lt. Gov. Amy Tuck, Sens. Travis Little and Charlie Ross and Reps. Jim Simpson and Jeff Smith. Ross chairs the Senate Judiciary committee charged with handling civil justice issues. Simpson and Smith are leaders on the House tort reform legislation 60 members had signed onto in hopes of getting it to the House floor for a vote. Both Barbour and Tuck said conference negotiations on the competing tort reform bills would be futile. Negotiators would be working to iron out differences in the bills originally passed by both chambers. The Senate passed bill included provisions for caps on non-economic damages and protections for “innocent sellers.” The Blackmon sponsored House version didn’t address either. Technical rules of the House would allow the Speaker to rule a compromise conference report out of order if it addressed caps or innocent seller if even one member of the 121 member House objected. Barbour and Tuck both agreed that someone in the House would object, killing the conference report. According to them, a conference effort would be a waste of time and taxpayer money. Barbour compared it to “hiring the best surgeon in the world to work on a dead person.” In their pre-vote press conference, Barbour and Tuck laid down the gauntlet on tort reform in an effort to sway House members to their side – a vote for conference was a vote to kill tort reform; a vote to concur meant the passage of civil justice reform legislation.
Where
to from here? UPDATE! The
House is closely divided on both issues. The Senate has a firm majority
in favor of tort reform and voter ID. A swing of just two or three votes
would change the House from being miles away from the Senate on the issues
to being right there with them. In all probability, the Senate will decide
not to enter into what it sees as futile negotiations with the House,
but will decide to go home and return to fight another day. Is
the end near? A
critical vote in the House Tort reform advocates held the vote on a motion to reconsider, which should come tomorrow. The vote to reconsider will again be close. Two members (Cummings and West) the House leadership can count on to support their position were absent today but should return tomorrow. That gives the leadership 60 votes. Rep. Jessica Upshaw is in Hawaii and is highly unlikely to make it back. If Fillingane, Janus and Reeves are back, and Frierson gets his vote right, the House will be deadlocked on the motion to table the motion to reconsider, 60-60. A tie would mean the motion would fail, sending tort reform to conference. The roll call vote on the motion to invite conference is listed below. A yes vote was to send the bill to conference. A no vote would have led to a motion to concur. A majority voting to concur would have meant the bill would be sent to the Governor for his signature.
Last Wednesday’s vote was a stinging defeat for the House leadership, but the next day they battled back. Thursday, Blackmon again introduced a bill (House Bill 4) he called “consumer friendly” tort reform. By Blackmon’s account, HB 4 contained “98 percent” of what was in his bill that had bit the dust Wednesday. This time, the House leadership had twisted enough arms to put Blackmon’s bill over the top. HB 4 passed Thursday by a 64 to 54 vote. Seven legislators who voted against Blackmon’s bill Wednesday night flipped their votes in favor of the legislation Thursday. Reps. Eric Fleming of Jackson, Joey Hudson of Monticello, Derek Parker of Lucedale, Bobby Shows of Laurel, Robert Earl Vince of Sandy Hook and Joe Warren of Mt. Olive were all back in Speaker McCoy’s camp after straying the previous evening. Notably, Rep. Jeff Smith, who has been a leading advocate of the alternative House tort reform bill supported by the business and medical communities, was absent for the vote. When the legislature reconvened Monday, Blackmon’s bill was sent to the Senate for their consideration. The more conservative State Senate quickly stripped Blackmon’s bill of its original content, replacing it with compromise language proposed by Reps. Jeff Smith and Jim Simpson. The language was drawn verbatim from House Bill 3, Smith and Simpson’s legislation that is co-sponsored by 60 members of the 121 member House. The Senate’s move set up a potentially decisive vote in the House. A core of almost half of the House bucked their leadership for an opportunity to vote on “meaningful tort reform,” which they say the Senate amended HB 4 represents. The Senate’s action gave House conservatives a vehicle to ride into the tort reform debate. The House convened Tuesday at 10:00 a.m. for what would turn out to be a very long, yet unproductive, day. After a few minutes in session, the House recessed until 3:00 p.m., at which time many members had hoped to vote on HB 4 (Remember, Blackmon’s original bill, HB 4, had been changed by the Senate to reflect HB 3 – the bill die hard tort reformers favor). With HB 4 now on the House calendar, Speaker McCoy had two options. He could let the bill sit on the calendar, doing nothing, or he could allow it to the floor for a vote. If a vote was allowed, tort reform proponents wanted the House to vote to concur, meaning the bill will be adopted and sent to the Governor. Tort reform opponents wanted to invite conference, which would probably spell doom for any immediate chances of enacting civil justice reform. Even though 60 members had signed onto the basis of the bill, yesterday McCoy chose to let the bill sit on the calendar without doing anything. Had he brought the bill to the floor, McCoy knew the vote would be close. Though McCoy told legislators he had the votes to win, capitol watchers agree that he wasn’t comfortable enough with his tally to risk the House concurring on HB 4. After a 45 minute debate on Medicaid yesterday, McCoy recessed the House subject to the call of the chair. This meant legislators were left to cool their heels in the capitol since the House could have reconvened at any moment. While rank-and-file legislators stewed about being left hanging, Blackmon’s Judiciary A committee met to try to pass another bill that would win House approval. They ended up with a bill tort reform proponents called laughable – one that raised caps to $8 million by 2017. The bill was killed in committee by a coalition of Republicans (who want $250,000 -- $500,000 caps) and Black Caucus members (who want no caps). After Jud A failed to come up with any new proposals, McCoy reportedly threw a tantrum, called the House back into session about 10:30 last night and then left for the Microtel (where he stays when in Jackson). Members were left to sit and speculate. Some were preparing a parliamentary move to adjourn without the Speaker present. McCoy finally showed back up around 12:45 a.m. and adjourned the House for the evening. Disgruntled House members – at least most of the 60 signed on to HB 3 – wanted a chance to vote on HB 3 or HB 4 (both of which are sitting idly on the House calendar). They got their chance Wednesday, coming up a few votes shy of carrying the day. Stay tuned for the vote to reconsider tomorrow. Pressure
builds Governor Barbour has said he won’t push a compromise on voter ID if the legislature enacts significant tort reform. The Magnolia Report is curious to know what happens if they don’t? In the House, voter ID is every bit as contentious as tort reform. Will Barbour push the issue if the House fails to agree on a compromise tort reform bill? If he does, McCoy will be out of the frying pan and into the fire. Room
for compromise? If the House and Senate stalemate, several things can happen. Both can vote to go home (sine die), ending the session. However, neither chamber can end the session without the other’s consent. House leadership is basically opposed to tort reform, so they’re not likely to make the Senate stay in session. The pro-tort reform Senate however could vote to stay in session, meaning the House couldn’t adjourn for more than three days without coming back to Jackson to convene. If the House doesn’t vote to reconsider and then vote to concur, the question becomes are they ready to throw in the towel on the special session or will keep fighting? Lost in the brouhaha over tort reform is the other item on the special session agenda, voter ID. Both sides are as entrenched over the issue as they were in the regular session. House leaders want voters born prior to 1940 to be exempted from voter ID requirements. Senate leaders are holding firm to their contention that there should be no exceptions. Negotiators are getting no where. Governor Barbour has indicated he won’t extend the session for voter ID if a compromise is reached on tort reform. What
are they fighting over anyway? The $1,000,000 cap has created some confusion because of the popular perception that $500,000 caps were enacted during the special session on tort reform two years ago. The $500,000 caps enacted then were only for medical liability. Businesses got punitive damage caps based on the net worth of the company. Aside from caps, “innocent seller” and “premises liability” provisions are the other most contentious issues in the special session. Innocent seller language would shield retailers from selling products that later turned out to be defective as long as they were not aware the product could be harmful and they did not design, alter or manufacture the product. As an example, tort reform advocates point to pharmacies who sell FDA approved drugs that later turn out to cause health problems. Under current Mississippi law, pharmacies are lumped in with drug manufacturers in lawsuits if liability issues arise from the sell of a drug. Premises liability provisions protects property owners from liability for actions taken by a third party if the acts are considered “reckless, wanton, intentionally wrongful, illegal or criminal acts.” In English, what tort reform proponents are saying is a small business owner shouldn’t be considered at fault if someone is mugged in their parking lot. The tort reform debate at the capitol revolves around three bills. Senator Charlie Ross’ bill is on the conservative end of the spectrum; Blackmon’s is on the other. House Bill 3 is the compromise version. The Senate passed the compromise bill yesterday. Below is a comparison of the compromise bill and the Blackmon bill that the House leadership is advocating.
Legislators
lost $1,500 today by being in session in May for more than 15 days. Any
month the legislature is in session for more than a majority of the month,
they don’t get their $1,500 out-of-session expense checks.
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