UNCORRECTED PROOF OF THE
JOURNAL OF THE SENATE.

Thursday, May 6, 1999.

Met at nineteen minutes past one o'clock P.M.

Distinguished Guests.

There being no objection, during consideration of the Orders of the Day, the President introduced the fourth grade class from St. Mary's of the Hills School in Milton. The students were accompanied by their principal, Sharon Sinnott, and teachers Cathy Hurley and Barbara Feeney. They were the guests of Senator Joyce.

Committees Discharged.

Ms. Melconian, for the committees on Rules of the two branches, acting concurrently, reported, asking to be discharged from further consideration
Of the Senate Order relative to authorizing the joint committee on Health Care to sit during the recess of the General Court for the purpose of making an investigation and study of Senate document numbered 516 (Senate, No. 1780); and
Of the Senate Order relative to authorizing the joint committee on Health Care to sit during the recess of the General Court for the purpose of making an investigation and study of Senate document numbered 443 (Senate, No. 1781);
And recommending that the same severally be referred to the Senate committee on Rules.
Under Senate Rule 36, the reports were severally considered forthwith and accepted.

PAPERS FROM THE HOUSE.

A Bill making appropriations for the fiscal year 1999 to provide for certain capital and supplemental appropriations (House, No. 4298,— on House, No. 4179, in part),— was read and, under Senate Rule 27, referred to the committee on Ways and Means.

A message from His Excellency the Governor (under the provisions of Section 8 of Article LXXXIX of the Amendments to the Constitution) recommending legislation relative to validating the acts and proceedings of the annual town meeting held in the town of Halifax on May 11, 1998 (House, No. 4299),— was referred, in concurrence, to the committee on Local Affairs.

Orders of the Day.

The Orders of the Day were considered, as follows:
The Senate Bill relative to the crimes of assault and battery and assault and battery by means of a dangerous weapon (Senate, No. 1751) (its title having been changed by the committee on Bills in the Third Reading),— was read a third time.

Remarks of Senator Creem.

Pending the question on passing the bill to be engrossed, Ms. Creem addressed the Senate as follows:
On an October evening in 1994, Paul Foisy looked out the window of his Framingham home and saw a juvenile hurling rocks and eggs at passing motorists. He approached the child, told him to either stop what he was doing or he would call the police. The child left, but soon returned, this time with his mother and her boyfriend in tow. Paul met the group on his porch and told them to leave. But they didn't want to leave — they wanted to fight.
Not wanting to argue, Paul turned for the door — but he never made it inside his home. As Paul turned, the boyfriend punched him in the face. Paul's wife, horrified by what she saw, called the police.
Paul's attacker was arrested, charged, and ultimately convicted for this attack, but he could only be charged with simple assault and battery — a misdemeanor.
Mr. President, this case was no misdemeanor — the punch Paul Foisy suffered had devastating consequences: his orbital and cheek bones were shattered, his face required extensive reconstructive surgery, and the nerve damage he suffers will never be cured.
Clearly, the injuries Paul suffered were as severe as many sustained by the victims of weapon attacks. But the current law was his attacker's best friend, this criminal could only be charged with a misdemeanor — with a maximum of 2½ years in the house of correction.
Mr. President, this is a prime example why Massachusetts needs an aggravated assault statute. If the defendant had shattered Paul's orbital and cheek bone with brass knuckles — an assault and battery with a dangerous weapon — he would have faced up to 10 years in prison. If, instead of shattering the bones in his face, the defendant had bitten off a piece of Paul's ear — which is mayhem — he would have faced up to 20 years in prison.
All of these injuries amount to serious bodily injury, but under the existing law only two out of three can result in a felony conviction — only two out of three can result in substantial prison time.
This simply does not make sense — Paul Foisy's case was no misdemeanor.
Nor should it be a misdemeanor when a woman is attacked and battered after obtaining a restraining order against her attacker.
And, Mr. President, it should not be a misdemeanor when a pregnant woman is battered. But the sad truth, is that this happens much too frequently in Massachusetts.
Studies show that forty percent of assaults on women by their partners begin during pregnancy. Pregnant women are at twice the risk of battery. One nation-wide study showed that 8 to 17% of pregnant women, that is one in every six, are battered during their pregnancy. In fact, many pregnant women report a change in the pattern of beatings — whereas they had previously been beaten in the face or on the back, once a man learns a woman is pregnant, he begins to direct his blows to her stomach or genitals.
And make no mistake, the woman isn't the only one who suffers. Research has shown that battered women are twice as likely to miscarry. They are four times more likely to have a low-birth-weight child, and the babies of battered women are forty times more likely to die within the first year of life.
That's why Jane Doe Inc., an organization that represents battered women across this state, urged the Criminal Justice Committee to approve an aggravated assault bill as soon as possible.
That's why the Massachusetts Office of Victim Assistance made aggravated assault a top legislative priority for this year.
And that's why prosecutors across the Commonwealth have sought an aggravated assault statute for years.
With this legislation, Mr. President, we have an opportunity to make sure that severe assaults and batteries will be in their own category of crime. I have worked with District Attorney Martha Coakley to draft legislation that properly punishes assault and batteries according to the severity of the injuries inflicted and according to who was victimized.
With this legislation, simple assault and battery is left as a misdemeanor — but doubles the possible fine from $500 to $1000.
Batteries that cause serious bodily injury, or a battery upon a pregnant woman or upon a person protected by a restraining order, would finally be treated as felonies. This new crime would carry a maximum sentence of 5 years in prison — 2½ years more than the punishment for simple assault and battery, but five years less than the penalty for assault and battery by means of a dangerous weapon.
Assault and battery by means of a dangerous weapon that results in serious bodily injury would carry a maximum sentence of 15 years in prison — five years more than assault and battery by means of a dangerous weapon, but five years less than assault and battery that amounts to mayhem.
This bill recognizes two new categories of criminal conduct, but does so in a way that's consistent with the current structure of assault and battery penalties. The Assistant District Attorneys — the men and women who are before the grand jury and in the courtroom prosecuting assault and battery — specifically requested this "staircasing" of crimes.
This bill gives prosecutors and grand juries an array of charges more specifically tailored to the kind of cases and fact patterns they face every day.
I am honored to chair the Criminal Justice Committee and this position has made it possible for me to make this issue a priority. That's why I have chosen aggravated assault to be the first topic on which I speak in this chamber.
This bill will not only increase penalties, but it will allow prosecutors a variety of tools to treat egregious acts of violence with the seriousness they deserve.
A pregnant woman who is battered should never be told, "This was only a misdemeanor;".
And woman who thinks she is protected by a court order — but is attacked anyway — should not have to see her attacker get a slap on the wrist.
And the Paul Foisy's of this state should feel safe on the porches of their own homes. The attack he suffered — and the pain he will suffer for the rest of his life — was no misdemeanor.
Mr. President, it is our responsibility during this session to make sure that the time truly fits the crime. I urge my fellow Senators to support this bill and finally recognize that we will not tolerate aggravated assault on a pregnant woman, when it's in violation of a restraining order, or on any innocent victim.
On motion of Mr. Joyce, the above statements were ordered printed in the Journal of the Senate.
Pending the question on passing the bill to be engrossed, Ms. Creem moved that the bill be amended in section 1, by striking out the paragraph in lines 9 to 13, inclusive.
The amendment was adopted.
Messrs. Lees, Tarr, Knapik and Hedlund moved that the bill be further amended in section 1 by inserting after the word "causes", in line 15, the following words:— "or attempts to cause"; and, in section 2, by inserting after the word "causes", in line 13, the following words:— or attempts to cause.
The amendment was rejected.
Messrs. Lees, Tarr, Knapik and Hedlund moved that the bill be further amended in section 1 by striking out the word "five", in line 26, and inserting in place thereof the following:— ten; and by striking out the words "five thousand dollars", in line 28, and inserting in place thereof the following:— $10,000.
After debate, this amendment was rejected.
The question on passing the bill to be engrossed was determined by a call of the yeas and nays, at sixteen minutes before two o'clock P.M., on motion of Ms. Creem, as follows, to wit (yeas 35 — nays 0):

YEAS.

NAYS. — 0

ABSENT OR NOT VOTING.

PAPERS FROM THE HOUSE.

Engrossed Bill — Land Taking for Conservation, Etc.

There being no objection, during the Orders of the Day, an engrossed Bill authorizing the town of Winthrop to use certain park and recreation land for school purposes (see Senate, No. 965, amended) (which originated in the Senate), having been certified by the Senate Clerk to be rightly and truly prepared for final passage,— was put upon its final passage; and, this being a bill providing for the taking of land or other easements used for conservation purposes, etc., as defined by Article XCVII of the Amendments to the Constitution, the question on passing it to be enacted was determined by a call of the yeas and nays, at eight minutes before two o'clock P.M. as follows, to wit (yeas 35 — nays 0):

YEAS.

NAYS. — 0

ABSENT OR NOT VOTING.

The yeas and nays having been completed at two minutes before two o'clock P.M., the bill was passed to be enacted, two-thirds of the members present having agreed to pass the same, and it was signed by the President and laid before the Governor for his approbation.

Orders of the Day.

The President in the Chair, the Orders of the Day were further considered, as follows:
The House Bill making appropriations for the fiscal year 1999 to provide for supplementing certain existing appropriations and for certain other activities and projects (House, No. 4261),— was read a third time.
After remarks, pending the question on passing the bill to be engrossed, Mr. Travaglini moved that the bill be amended by inserting after section 30 the following section:—
"SECTION 30A. Notwithstanding the provisions of any general or special law to the contrary, the commissioner of the capital asset management and maintenance may employ designers who prepare studies or programs or other design services for the renovation and reconstruction of the Steriti rink in the city of Boston to prepare plans and specifications and provide any other design services deemed necessary by the commissioner for such project. The commissioner shall obtain an independent comprehensive value engineering review of the completed study and program to identify proposed functions of the facility, valuate the construction cost estimates, calculate estimated life-cycle cost and develop recommended design changes that will produce a more cost-effective facility by modifying or eliminating features that add cost but do not add to the quality, useful life, utility or appearance of the facility. The commissioner shall obtain an independent comprehensive value engineering review of the completed, schematic design documents to identify proposed functions of the facility, evaluate the construction cost estimates, calculate estimated life-cycle costs, and develop recommended design changes that will produce a more cost-effective facility by modifying or eliminating features that add cost but do not add to the quality, useful life, utility or appearance of the facility prior to the acceptance by the commissioner. The commissioner shall document the reasons for accepting, modifying or rejecting all value engineering recommendations."
The amendment was rejected.
Ms. Murray moved that the bill be amended by inserting after section 30 the following section:—
"SECTION 30A. Notwithstanding the provisions of any general or special law to the contrary, the Massachusetts Maritime Academy may borrow $3,000,000 through the Massachusetts Health and Education Facilities Authority to match the $3,000,000 currently allocated by the division of capital asset management for the planning, design and construction of an engineering lab addition to the Storer Building."
The amendment was rejected.

Mr. Bernstein moved that the bill be amended by inserting after section 30 the following section:—
"SECTION 30A. Notwithstanding the provisions of any special or general law to the contrary, the division of medical assistance may expend from the medical assistance intergovernmental transfer account within the Uncompensated Care Trust Fund $10,000,000 for payments to the University of Massachusetts Medical School, pursuant to an agreement between the department of correction, the University of Massachusetts Medical School and the division of medical assistance. Said medical school shall provide or arrange for the provision of psychiatric and other health services to persons incarcerated in correctional facilities operated by the department of correction; provided further, that the division of medical assistance shall obtain not less than $10,000,000 in new federal revenue in fiscal year 1999 or fiscal year 2000 for inmate health services provided by department of public health facilities. The comptroller shall credit $10,000,000 of the new federal revenue to said medical assistance intergovernmental transfer account for the purpose of financing the expenditures authorized by this section. Programs funded pursuant to this section shall not create recurring liabilities to the commonwealth in future fiscal years."
The amendment was rejected.
Mr. Lynch moved that the bill be amended by inserting after section 12 the following section:—
"SECTION 12A. Item 7004-0003 of said section 2 of said chapter 194 is hereby amended by striking out the figure $76,000' and inserting in place thereof the following figure:— $125,000'."
The amendment was rejected.

Messrs. Knapik and Lees moved that the bill be amended by inserting after section 30 the following section:—
"SECTION 30A. Notwithstanding the provisions of item 1410-0620 of section 2 of chapter 43 of the acts of 1997 or any other general or special law to the contrary, the comptroller shall make available funds unexpended as of June 30, 2000 from said item, or allocations of said item, to the division of capital management and maintenance for the installation of central air conditioning at the Soldiers' Home in Massachusetts and the Soldiers' Home in Holyoke. The division of capital maintenance and management shall pursue the highest level of federal reimbursement for the expenditure of said funds. Any federal reimbursements received from said expenditures shall be deposited into the Soldiers' Homes Capital Maintenance Trust Fund."
The amendment was rejected.
Messrs. Knapik and Lees further moved that the bill be amended by inserting after section 5 the following section:—
"SECTION 5A. Chapter 10 of the General Laws is hereby amended by adding the following section:—
Section 63. There shall be established and set up on the books of the commonwealth a separate fund to be known as the Soldiers' Homes' Capital Maintenance Trust Fund. The fund shall consist of federal reimbursements recovered or collected from the installation of central air conditioning at the Massachusetts soldiers' home and the Holyoke soldiers' home, amounts received from any appropriation, grant, gift, bequest or other contribution explicitly made to the fund and any income derived from the investment of amounts credited to the fund. The amounts so credited shall be received and invested by the treasurer of the commonwealth and held in trust by the secretary of health and human services. Amounts expended from the fund shall not be subject to further appropriation and shall not exceed the amount earned in interest and other income derived from the investment of the principal amount credited to the fund. Expenditures from the fund shall be made at the direction of the secretary solely for the purpose of capital maintenance at the soldiers' homes. No expenditures from the fund shall be made for any direct or indirect costs associated with personnel. The secretary shall file, not later than September 1 of each fiscal year, an annual financial plan of the projected revenues and expenditures of the fund for the current fiscal year and for the next fiscal year with the house and senate committees on ways and means. All revenues credited to and expenditures made from the fund shall be reported, by subsidiary, on the Massachusetts management accounting and reporting system."
The amendment was rejected.
Messrs. Tarr, Lees, Jajuga, Ms. Tucker, Messrs. Clancy, Berry, Moore, Brewer, Glodis, Bernstein and Antonioni moved that the bill be amended by inserting after section 9 the following section:—
"SECTION 9A. Chapter 48 of the acts of 1997 is hereby amended by inserting after section 26 the following section:—
Section 26A. Notwithstanding the provisions of any general or special law to the contrary, an abolished county's employees who retire on or before the transfer date shall become members of the state retirement system which shall provide retirement benefits annually to such retired employees and their survivors. The employees of an abolished county who become state employees pursuant to the provisions of this act or any subsequent act abolishing a county shall become members of the state retirement system. The state retirement system shall be responsible for all pension liability attributable to the service of such employees. The accumulated deductions and employer contributions, including interest, credited to the account of a member of the state retirement system in accordance with the provisions of this act shall be transferred from such abolished county's retirement system and credited to such member's account in the state retirement system in a manner to be prescribed by the secretary of administration and finance. Cities, towns, districts and other governmental units belonging to an abolished county's retirement system shall remain members of such retirement system.
Notwithstanding the provisions of any general or special law to the contrary, in determining appropriations for an abolished county's retirement system in accordance with the provisions of paragraph (c) of subdivision (7) of section 22 of chapter 32 of the General Laws, the actuary shall make such adjustments as may be necessitated by the provisions of this act."
The amendment was rejected.
Mr. Tarr moved that the bill be amended by inserting after section 9 the following section:
"SECTION 9A. Item 0330-2209 of section 2 of chapter 189 of the acts of 1998 is hereby amended by striking out the words the relocation of the Ipswich district court facility to the building in Ipswich known as the Ipswich Whipple Middle school and the improvement thereof' and inserting in place thereof the following words: the improvement of the Ipswich district court facility located in a building known as the Ipswich town hall'."
The amendment was rejected.
Mr. Lees moved that the bill be amended by inserting after section 9 the following section:—
"SECTION 9A. Item 6033-9717 of section 2B of chapter 11 of the acts of 1997 is hereby amended by striking out the words that $100,000 shall be expended for the assistance on improvements to roads known as Glendale and Mill in the town of Hampden' and inserting in place thereof the following words:— that $100,000 shall be expended for assistance on improvements to South Monson Road in the town of Hampden."
The amendment was rejected.
Mr. Magnani moved that the bill be amended by inserting after section 12 the following two sections:—
"SECTION 12A. Item 6010-0001 of section 2 of chapter 194 of the acts of 1998 is hereby amended by adding the following words:— ; and provided further, that $380,000 shall be expended for the Route 126 Corridor project in the town of Framingham.
SECTION 12B. Said item 6010-0001 of said section 2 of said chapter 194 is hereby further amended by striking out the figure $50,367,836' and inserting in place thereof the following figure:— $50,747,836."
The amendment was rejected.
Mr. Magnani further moved that the bill be amended by inserting after section 9 the following two sections:—
"SECTION 9A. Item 0330-0410 of section 2 of chapter 194 of the acts of 1998 is hereby amended by adding the following words:— ; and provided further, that $35,000 shall be expended for the Framingham Court Mediation Services.
SECTION 9B. Said item 0330-0410 of said section 2 of said chapter 194 is hereby further amended by striking out the figure $50,000' and inserting in place thereof the following figure:— $85,000."
The amendment was rejected.
Mr. Rauschenbach moved that the bill be amended by inserting after section 16 the following 12 sections:—
"SECTION 16A. The second sentence of section 3 of chapter 293 of the acts of 1998 is hereby amended by striking out the words the town open space committee' and inserting in place thereof the following words:— either a land trust or an appropriate state agency.
SECTION 16B. The third sentence of section 5 of said chapter 293 is hereby amended by striking the words sections 55 and 55A' and inserting in place thereof the following words:— section 54.
SECTION 16C. Section 7 of said chapter 293 is hereby amended by inserting after the second sentence the following two sentences:— Except as otherwise provided in this act, bonds or notes issued pursuant to this section shall be subject to the applicable provisions of chapter 44 of the General Laws. The maturities of each issue of bonds or notes issued under this act shall be arranged so that for each issue the amounts payable in the several years for principal and interest combined shall be as nearly equal as practicable in the opinion of the officers authorized to issue such bonds or notes or, in the alternative, in accordance with a schedule providing for a more rapid amortization of principal.
SECTION 16D. The first sentence of section 8 of said chapter 293 is hereby amended by striking out the words executive office of environmental affairs' and inserting in place thereof the following words:— department of revenue.
SECTION 16E. The third sentence of said section 8 of said chapter 293 is hereby amended by striking out the word July' and inserting in place thereof the following word:— November.
SECTION 16F. Said third sentence of said section 8 of said chapter 293 is hereby further amended by inserting after the word commissioner' the following words:— of revenue.
SECTION 16G. The fourth sentence of said section 8 of said chapter 293 is hereby amended by striking out the word comptroller' and inserting in place thereof the following word:— commissioner.
SECTION 16H. The first sentence of the first paragraph of section 10 of said chapter 293 is hereby amended by striking out the words secretary of environmental affairs' and inserting in place thereof the following words:— commissioner of revenue.
SECTION 16I. Said first paragraph of said section 10 of said chapter 293 is hereby further amended by striking out the third and fourth sentences.
SECTION 16J. Said section 10 of said chapter 293 is hereby further amended by striking out the second paragraph and inserting in place thereof the following paragraph:—
Matching grants from the fund shall be limited to only those properties approved for acquisition by a municipality after September 1, 1998. Matching grants shall only be used for acquisitions consisting of interests in real property consisting of the uses contained in section 3.
SECTION 16K. The third paragraph of said section 10 of said chapter 293 is hereby amended by striking out the last sentence.
SECTION 16L. Section 11 of said chapter 293 is hereby amended by striking out the words on or before March 1, 1999'."
The amendment was rejected.
Ms. Creem moved that the bill be amended by adding the following section:
"SECTION . The Massachusetts Bay Transportation Authority, the department of highways, the Massachusetts Turnpike Authority and the Metropolitan District Commission, acting jointly, are hereby authorized and directed to undertake a study relative to the Woodland and Riverside stations, so-called, and the area surrounding said stations. Said study shall include, but not be limited to, proposed development of said area and its impact on the quality of life of residents in the area, transportation and traffic, and the feasibility of an intermodal transportation terminal. Said agencies shall in the conduct of said study hold at least one public hearing in a place accessible to the residents of said area.
The results of said study shall be filed with the joint committee on transportation within six months after the effective date of this act. No development shall take place in said area before the completion and filing of said study."
The amendment was rejected.
Mr. Tarr moved that the bill be amended by inserting after item 4580-1000, in section 2, the following item:

"4580-1200 For the purposes of a study by the department of public health of the cumulative impacts of the emissions of incinerators on human health and the environment in the Merrimack valley region of the commonwealth; provided, that such study may employ the use of consultants and experts; provided further, that said study shall include not less than one public hearing in said region; and, provided further, that said study shall be conducted in consultation with the executive office of environmental affairs and shall be completed not later than December 31, 1999. The department shall report the results of said study by filing the same with the clerks of the house and senate and such report shall be a public record......................................................... 100,000".
The amendment was rejected.
Mr. Clancy moved that the bill be amended in section 2, by inserting after item 2440-5000 the following item:—
"2440-5001 For the maintenance of Red Rock park on Lynn
Shore drive in the city of Lynn......................................................................40,000".
The amendment was rejected.
Mr. Clancy further moved that the bill be amended in section 2, by inserting after item 2100-3010 the following item:—
"2120-7990 For engineering studies for the repair and improve-
ments to seawalls in the town of Marblehead...............................................250,000".
The amendment was rejected.
Mr. Clancy further moved that the bill be amended in section 2, by inserting after item 2440-5000 the following item:—
"2440-5002 For the design of the reconstruction of the Nahant
Causeway in the town of Nahant.................................................................850,000.00".
The amendment was rejected.
Mr. Brewer moved that the bill be amended in section 2, by striking out, in item 2100-3010, the figure "$200,000" and inserting in place thereof the following figure: "$767,003".
The amendment was rejected.
The question on passing the bill to be engrossed, in concurrence, was determined by a call of the yeas and nays, at nine minutes past two o'clock P.M., on motion of Mr. Montigny, as follows, to wit (yeas 35 — nays 0):

YEAS.

NAYS. — 0

ABSENT OR NOT VOTING.

The yeas and nays having been completed at seventeen minutes past two o'clock P.M., the bill was passed to be engrossed, in concurrence, with the amendments previously adopted by the Senate.
Sent to the House for concurrence in the amendments.

Resolutions.

The following resolutions (having been filed with the Clerk) were severally considered forthwith and adopted, as follows:—
Resolutions (filed by Mr. Lynch) "honoring Boston Emergency Medical Services";
Resolutions (filed by Mr. Pacheco) "honoring David Hubble of Bridgewater upon his elevation to the rank of Eagle Scout"; and
Resolutions (filed by Mrs. Sprague) "congratulating Francis X. Grover on the occasion of his retirement from the Stoughton Police Department."

Bill Recalled from the Governor.

On motion of Mr. Brewer, it was voted that a messenger be appointed to wait upon His Excellency the Governor, requesting the return to the Senate of the engrossed Bill providing for the election of a town clerk in the town of Belchertown (see House, No. 4172).
Mr. Brewer was appointed the messenger. Subsequently, the bill was returned to the Senate.

Order Adopted.

On motion of Ms. Melconian,—
Ordered, That when the Senate adjourns today, it adjourn to meet again on Monday next at eleven o'clock A.M., and that the Clerk be directed to dispense with the printing of a calendar.

On motion of Mr. Lees, at twenty minutes past two o'clock P.M., the Senate adjourned to meet on the following Monday at eleven o'clock A.M.