Ellington

The first week of the special session called by Gov. Haley Barbour to focus on civil justice reform ("tort reform") and voter ID was, at best, cantankerous. At the end of the week, very little had been accomplished, and many legislators expressed a great deal of frustration.

After spending eight days in special session, costing taxpayers an approximate net total of $41,162 as of the end of May (see below), the Mississippi House of Representatives went home Friday, May 28, planning to return after the Memorial Day holiday to start over on tort-reform legislation. On Thursday, the Senate and governor ceremoniously rejected the House's plan, saying it was "flawed" and "halfway tort reform."

House Speaker Billy McCoy, D-Rienzi, spoke forcefully on the floor of the House late Thursday afternoon, saying that civil justice reform is "one of the most delicate subjects that exists in American democracy, but, in the end, this House spoke." The Senate should have let the democratic system proceed, he said: "I conferred with the governor and assured him that this House would pass any measure brought by and referred by conferees. ... That was the best we could do. They did not believe that; I regret that very much. ... They made a mistake; they have wasted the people's money."

So far in the special session, the House has offered several versions of tort reform that contain provisions desired by business, but not the most extreme reform as it affects consumers: non-economic damage caps. Earlier in the week, the House had sent HB 4 to the Senate: a bill that did not include caps on non-economic damages or an "innocent seller" provision that disallows a plaintiff to sue the retailer of a defective product. The Senate rejected HB 4 and, in committee, used a "strike all" amendment to replace it with language from another bill, HB 3, which had been written by pro-"tort reform" House members.

On Thursday, the House voted 60-59 to restore the language in HB 4 to its original and sent it to a conference committee where Senate and House negotiators could attempt to craft a bill that would work in both Houses.

The decision was a tactical one, designed to show that the House membership is willing to go forward with a "tort reform" bill that does not include non-economic damage caps while leaving open the question or whether or not a bill with non-economic damage caps would pass the House. In one sense, however, sending the bill to conference committee weakens the Senate's (and governor's) argument that "most House members want damage caps."

If negotiations had gone forward, the House would have had a strong hand, because any sections added to the bill could still be overturned by a "point of order" on the House floor. In the more typical process—when both houses have passed bills and agreed to send one another's bills to conference—a bill returned from a conference committee can only be voted up or down by the House.

The Senate refused to consider the House's preferred tort-reform bill because it did not contain non-economic damage caps for general liability, calling the omission of their reform priority a "flaw" because House rules would permit the House to reject any bill that came out of conference with damage caps added in. "If one person in the House has the opportunity to object to an eventual agreement on the current bill and kill it, there is no need to be here. However, if all of the tort reform provisions are addressed in conference, there is still a chance to salvage tort reform in this Special Session," Barbour said in a statement Thursday.

The governor and the Senate have taken a no-compromise stance, saying they will only consider new tort reform legislation that limits the non-economic damages liability of both medical practitioners and general liability to low amounts. "Mississippians deserve all aspects of tort reform to be considered," Barbour said. "There is no point in having discussions if everything is not on the table."

McCoy responded to criticism by tort-reformers and the mass media that the House has moved too slowly on adopting Barbour's caps proposal, which many see as McCoy's unwillingness to put a bill with caps on the House floor.

"This should move slow," he told the chamber, sounding a bit like a preacher in his pulpit. "We're talking about the civil justice and civil rights of people of the United States." He added, "It is not the fault of the Mississippi House of Representatives that we are stymied."

"It takes two sides to do work," he told reporters after the session.

House Republicans, in an earlier vote in the Judiciary A committee, voted with many Democrats to reject HB 6, by chairman Ed Blackmon (D-Canton), that included high non-economic business-liability damage caps that started at $4 million and escalated to $8 million in 2017. Interestingly, those caps could have been amended downward on the House floor or, if passed, could have been negotiated later in a conference committee. Afterward, Blackmon suggested that he wouldn't craft another bill.

To reporters, McCoy had even harsher words for the governor. "Somebody is going to realize that this is about more than tort reform," he said. "This is a political body." McCoy said he had been in the chamber for 25 years and that it's "unprecedented" that the other side reject a bill offered for conference—thus denying the House of Representatives the chance to present their vision.

"That's none of their business," he said, adding, "The House is not theirs to decide what we'll accept or not accept. … The Senate does not speak for the House. They made the mistake of trying to speak for us. ... It's a terrible thing to do to call a special session, get down to conference and then refuse to confer. ... It's a terrible exercise in mistrust."

The special session is technically costing $34,000 a day (the first day was higher due to travel expenses), but because legislators lost their May stipend of $1,500 in out-of-session expenses by being in session through Thursday, May 27, 2004, taxpayers saved $261,000. Under state law, legislators are due that stipend if they're not in session at least half the month. Although a boon to taxpayers, the loss came as a blow to less well-to-do lawmakers, many of whom rely on that income to get by.