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‘No State Income Tax’ Amendment Cruises Through Senate Finance Committee

Press release from the Tennessee Senate Republican Caucus; February 5, 2013:

(NASHVILLE, Tenn.), February 5, 2013 – The “No State Income Tax” constitutional amendment passed the Senate Finance Committee today by a vote of 9-1. The resolution, Senate Joint Resolution 1, is sponsored by Senator Brian Kelsey (R-Germantown) and would clarify a prohibition in the Tennessee Constitution against an income tax and a payroll tax. The resolution was approved in the Senate last year by a vote of 26-4 and in the House by a vote of 73-17-3.

“I am very pleased with today’s vote in the Senate Finance Committee,” stated Senator Kelsey. “Forever barring a state income tax in Tennessee sends a clear message to prospective businesses that we are serious about creating and retaining high quality jobs.”

Following today’s committee vote, the resolution must still be approved by a two-thirds vote in both chambers. Tennesseans will have the final say on the matter in November 2014 when the amendment is put on the statewide ballot.

The resolution specifies that the state legislature as well as Tennessee cities and counties shall be prohibited from passing either an income tax or a payroll tax, which is a tax on employers that is measured by the wages they pay their workers. A payroll tax has been proposed in recent years by elected officials in Shelby County as a way around an income tax. The Hall income tax on interest income and dividends remains intact.

Plan to Elect Judges Fails

As the battle brews over how to pick the state’s most powerful judges, plans to make them earn their seat on the bench through popular elections narrowly failed in a House committee Wednesday.

The House Judiciary Committee voted 7-7 on a plan to elect Supreme and appellate court judges, one vote shy of the majority vote necessary to advance the plan in the Legislature.

“I’m disappointed, to say the least,” said bill sponsor Rep. Glen Casada, who contends the current practice flies in the face of the Tennessee Constitution. The constitution says judges of the Supreme, Circuit and Chancery Courts, and other inferior courts “shall be elected by the qualified voters of the State.”

“The constitution governs how we do business and do public policy in the state,” said Casada, R-Franklin. “To be out of compliance is wrong. If you can’t comply with the most basic, how can you trust us to comply with other parts of the law as well?”

The narrow vote shows there is still distinct division in the GOP-run Legislature over the best way to go about choosing who should sit on the bench in the state’s highest courts.

The measure, HB173, would have required high-ranking judges to face popular elections beginning in August 2014 instead of the yes/no retention elections they now face every eight years.

The Senate considered amendments to the state Constitution earlier Wednesday, but isn’t expected to vote on the plans until next week.

SJR183 would allow the General Assembly to solidify the current practice of the governor appointing judges who later face retention elections, called the Tennessee Plan.

SJR710, on the other hand, would require the governor’s judicial appointments to win approval from the General Assembly. Those judges would also face retention elections to renew their terms.

Much of the debate sparks from varying interpretations of the Constitution and whether a “retention election” heeds the call in the state’s guiding document for an “election.”

“Let’s get away from this myth that what we have is not an elected system,” said Allan Ramsaur, executive director of the Tennessee Bar Association. “We do elect judges, we just don’t have contests which lead to partisanship and big money influence.”

TFT Sees Tipping Point in Battle Over Income Tax Amendment

Tennesseans for Fair Taxation, the folks known for advocating an income tax despite long odds, face a bigger fight as lawmakers move toward a constitutional ban on a tax on personal income.

About 40 TFT members from across the state gathered at the Second Presbyterian Church in Nashville on Saturday for their annual meeting to discuss their agenda and ways to better communicate their message of “tax justice.”

While the group is known primarily for the income tax stance, that proposal tends to overshadow other elements of their efforts, which involve lowering taxes elsewhere and looking for allies in the business community where they see unfairness on taxes in the private sector.

Erica Thomas of Memphis, who was in a carpool that left for Nashville at 4:30 a.m. Saturday, said the income tax ban is the most immediate challenge TFT faces.

“Stopping it in its tracks I think is going to be the biggest thing we have to focus our energies on,” Thomas said. “What you’re doing is cutting off your nose in spite of your face, cutting off any other possible revenue sources that we could have that invest in the state.

“It has already been shown that a sales tax is not going to get us out of this problem. Tennessee is surrounded by so many other states that have lowered taxes on basic necessities, so people are going across state lines. I just don’t understand the disconnect there by legislators.”

Sen. Brian Kelsey, R-Germantown, is sponsoring a resolution (SJR221) that would explicitly prohibit the General Assembly from enacting or permitting an income tax. It passed the Senate on May 18, 26-4, and has been placed on the House calendar for Jan. 10, 2012.

The resolution is co-sponsored in the Senate by, among 19 Republicans, two Democrats: Andy Berke of Chattanooga and Eric Stewart of Belvidere.

Berke, the Senate Democratic Caucus vice chairman, told TNReport last spring that “Tennessee has a strong tradition of being against the income tax — it’s one of the reasons why we are a business-friendly state.” He added, “Most Tennesseans understand that (not having an income tax) is important to our way of life and our quality of life.”

Regarding the issue of whether the income tax is already unconstitutional, it’s time to “get that settled,” said Berke, “so we won’t really have to have that debate anymore.”

For the constitutional amendment to be approved, it would next have to pass the House by a majority vote in 2012, then pass the next Legislature by two-thirds votes in each chamber, then go before the people in a referendum in 2014. Supporters of the referendum say it is the best way to close the door on an income tax in the state for good.

In addition to advocating for an income tax, Tennesseans for Fair Taxation emphasizes its goal of cutting the sales tax on food and reducing the sales tax in general, which the group sees as regressive, even “immoral.”

Samantha Wallace of Knoxville, an organizer for TFT in East Tennessee, says the group’s mission is about justice. The organization wants to see an adequate revenue stream to support government services it says are vital.

“The main purpose is to generate enough revenue to support our state, and we want to do that in as just a way as possible,” Wallace said. “What I mean by ‘justice’ is right now the way we generate revenue in the state is immoral.

“We tax things like clothing and food. These are predominantly focused on the sales tax. It doesn’t raise enough revenue for the state. It’s immoral because we’re forcing people who can’t afford it to pay additional taxes on their food. We have a regressive tax. We need to fix that.”

Elizabeth Wright, executive director of TFT, says the primary goal is to “modernize” the state’s tax structure. She said the sales tax hits low- and middle-income families hardest because it is regressive in nature.

“We want to make sure that our economy thrives, that Tennessee thrives,” Wright said.

To that end, in a roundtable discussion in one of the breakout groups for the day-long meeting, members of the group discussed ways to partner with the business community.

Nell Levin said it is important for the group to bring the business community on board as allies in TFT’s efforts.

“I really believe we’re never going to win unless we get them on board and there’s a lot of things about the business taxation that is really unfair,” Levin said. “We have one of the highest franchise taxes in the Southeast. This is something we could go to business people and talk to them about.”

It was clear that TFT members like some of the tax legislation the General Assembly passed this year, like an adjustment that increases the exemption on the Hall income tax, which derives revenue from interest and dividends on investments. The Legislature raised the exemption on the Hall tax on those 65 and older to $26,000 for single taxpayers and $37,000 for joint filers. Those are increases from $16,200 for single filers and $27,000 for joint filers.

“They actually made the Hall income tax more progressive,” Tony Garr said. “There does appear to be a willingness on the part of some Republican legislators to reduce the tax on food. Those are two things I think we need to keep in mind.”

Thomas was asked if she had 30 seconds with Gov. Bill Haslam what she would say to him. She responded it would be more about what she would ask him.

“If not an income tax, tell me how with the sales tax going up are we going to generate revenues we need across the state?” she replied. “I need you point blank to tell me: What is your plan for us getting there? So maybe we can collaborate on that, but I haven’t heard what your plan is.”

Haslam has repeatedly said there is no chance of an income tax being implemented in Tennessee.

Anne Barnett of Knoxville said she first got involved with TFT as a student at the University of Tennessee. Her concerns were raised by rising tuition, budget cuts and the school letting professors go.

“The tax structure in Tennessee is regressive,” Barnett said. “We’re always going to be fighting for more funding for public services.”

She was asked, being from Knoxville, if she had ever met Haslam, the former Knoxville mayor. She hesitated before answering.

“Not personally, but my husband used to deliver pizza to him,” she said. “And he would never leave a tip.”

Kelsey Likes Proposal to Cap Sales Tax — Just Not on His Income-Tax Ban

Sen. Brian Kelsey is sponsoring a measure to give voters the chance to end, once and for all, the long-running debate over whether an income tax is constitutional in the state of Tennessee.

But the conservative Germantown Republican said Monday he opposes a House amendment added to his resolution last week that would additionally cap the state sales tax in the process of outlawing the income tax.

The amendment, proposed by House Speaker Emeritus Jimmy Naifeh, D-Covington, and approved by the House Finance Subcommittee on a 7-6 vote, is actually a “poison pill,” said Kelsey, R-Germantown.

Its real purpose, he alleges, is to ensure that the anti-income tax language never ends up on a Tennessee general election ballot.

“The process for amending the constitution in Tennessee is very difficult. It requires a simple majority vote in the House and Senate the first go-round — but it also requires a two-thirds vote the second go-round” before it can go to the people, Kelsey told TNReport. “(Naifeh’s) amendment was put on to make sure there wouldn’t be a two-thirds vote.”

Kelsey suspects Naifeh’s motivation for adding the amendment is to “leave the door open for an income tax” down the road. The former House speaker famously tried mightily — but ultimately failed — to push a tax on work-earnings through the Legislature in the late 1990s and early 2000s.

Kelsey added, however, that he is not at all opposed to capping the sales tax at its current combined state-and-local rate of 9.75 percent. He said he’d fully back that effort as a separate constitutional amendment.

The anti-income tax resolution, SJR 18, has already been approved by the Senate, 28-5. It is scheduled for a hearing this afternoon in the House Finance Ways & Means Committee.

Tea Party Wants People’s Choice for Top State Litigator

Now that Republicans are firmly in charge of both legislative chambers, members of the Senate majority are hopeful they can take the first official step toward making Tennessee’s most elite lawyer an elected government post.

And that’s good news to state tea party groups.

More than a dozen leaders from various organizations and elements of the populist conservative protest movement across Tennessee met up on Capitol Hill Wednesday to begin lobbying for a short list of priorities, among which is amending the Tennessee Constitution to provide for direct election of the state attorney general.

Tennessee is the only place in the country where the attorney general is appointed by the state’s supreme court.

A handful of Republican lawmakers pushed the issue last year after state Attorney General Robert Cooper declined to cooperate with requests to join a federal law suit challenging the U.S. government’s constitutional authority to require that all citizens obtain health care. The measure passed 19-14 in the Senate last year but stalled in the House of Representatives.

Senate Judiciary Chairwoman Mae Beavers, who carried the bill last session, plans to file an identical version this year.

Beavers has yet to find a member of the House to carry her bill: Last year’s sponsor, Riceville Republican Mike Bell, has graduated to the Senate. But once that matter is addressed, Beavers anticipates GOP dominance will ensure the bill enjoys rather smooth sailing to the governor’s desk.

Because the measure requires changing the state constitution, the same bill, if passed this session, would need to be approved again — but on a two-thirds majority vote — by lawmakers in the 108th General Assembly in 2013 or 2014. The amendment could then be put before Tennessee voters in the 2014 gubernatorial election.

The five-member Supreme Court appointed Attorney General Cooper in 2006. He is serving an eight-year term.

“I think it’s been a popular issue in this last election with the attorney general saying he would not represent the voters of Tennessee in terms of the Health Freedom Act,” said Beavers, R-Mt. Juliet. “He’s kind of twice removed from the voters.”

Craig Fitzhugh, leader of the badly outnumbered House Democratic Caucus, doesn’t see the current arrangement for selecting the state AG as in any way broken. And therefore it isn’t in need of fixing, he said.

“Hopefully we’re not just talking about this because of one particular decision or non decision by our current attorney general,” said Rep. Fitzhugh, D-Ripley. “You don’t want to throw everything away because of one particular decision that an individual makes whether he or she is an attorney general or a legislator or a judge or a governor for that matter.”

The attorney general’s office isn’t too keen on the idea either. Cooper’s spokeswoman, Sharon Curtis-Flair, suggested that an unintended consequence of injecting electoral political considerations directly into the office might be that legislators and the governor’s staff would be reluctant to make requests or share potentially sensitive information with an AG who has a competing political agenda, thus devaluing his or her advice and possibly leading to costly litigation for the state.

Cooper’s office has also floated the argument that the election of an attorney general will merely result in the state getting the best campaign cash collector, and not necessarily the best lawyer for the job.

Those objections aren’t terribly convincing to tea partiers. They perceive that the existing system indeed is flawed — that the attorney general in Tennessee is accountable to nobody in particular, and there’s nothing in place to realistically guard against him operating simply on his own ideological biases with little regard for the wishes of a democratic majority of the people.

“Across the country, Americans have felt that we’ve created a monster and set it loose without being responsive to us. We’re trying to reign it back in, and this is just one little facet of where we feel in Tennessee that an office has run away from the will of the people,” said attorney and Fayette County Tea Party member Hal Rounds.

Another alternative, say tea party leaders, would be for the Legislature to reassign the attorney general’s litigation duties to the solicitor general, who would be elected and would have the authority to enter into law suits, like fighting federal health care reforms, while the attorney general focuses on other activities such as issuing objective legal opinions to lawmakers and the governor.

“We seek either an amendment to the State Constitution that will make the Attorney General installed by a popular vote; or, in the alternative, by reassigning the duty of litigating on behalf of the State to the newly separated office of Solicitor General, which office will be an elected position,” read the Tennessee Tea Party‘s 2011 priority list.

Lt. Gov. Ron Ramsey, who ran for governor in 2010 with the backing of many Tennessee tea partiers, is an important ally favoring direct elections for attorney general. Ramsey said he’s also intrigued by the group’s solicitor general revamp idea, but stopped short of endorsing it, saying he needed more time to study the issue.

Electing the attorney general is one of the top issues on the tea party agendas all across Tennessee — along with pushing the state to take aggressive steps to wean itself off federal subsidies, resist unfunded or what many consider unconstitutional federal mandates, better enforce and abide by constitutional law in general, and more thoroughly educate public school students about American history, government and the ideals of the nation’s founders.

Votes In Favor of Hunting and Fishing Amendment Ahead 4-to-1

Hunting and fishing will be added to Tennesseans’ constitutional rights if a measure on the ballot today passes. The measure was headed toward passage, with voters in favor by a 4-to-1 margin based on returns posted two hours after the polls closed. More background here.

Hunting and Fishing Amendment Ahead, 5 to 1

Voting totals so far show the constitutional amendment affirming Tennesseans’ right to hunt and fish with a strong lead, with five voters in favor for every one against.

If the measure is approved, the following text will be added to the state Constitution:

“The citizens of this state shall have the personal right to hunt and fish, subject to reasonable regulations and restrictions prescribed by law. The recognition of this right does not abrogate any private or public property rights, nor does it limit the state’s power to regulate commercial activity. Traditional manners and means may be used to take non-threatened species.”

State officials have said that the amendment would not hinder the state’s authority to regulate hunting and fishing, though critics have said the language is unnecessary and excessive. More than a dozen other states have guarantees of hunters’ rights written into their constitutions, and others are considering measures.

Voters to Decide if ‘Personal Right’ to Hunt & Fish is Reasonable

The term “reasonable” doesn’t appear in the U.S. or Tennessee Constitutions, except for proscriptions against the government carrying out “unreasonable searches and seizures.”

But the Tennessee Wildlife Federation — with the endorsement of all but three members of the state Legislature — wants to add that word, and 59 or so others, in the form of a constitutional amendment that would place hunting and fishing on the list of legally protected rights enjoyed by Tennesseans.

The amendment, which if passed would be added to the section of the Tennessee Constitution that grants state government the authority “to enact laws for the protection and preservation of game and fish,” reads as follows:

“The citizens of this state shall have the personal right to hunt and fish, subject to reasonable regulations and restrictions prescribed by law. The recognition of this right does not abrogate any private or public property rights, nor does it limit the state’s power to regulate commercial activity. Traditional manners and means may be used to take non-threatened species.”

The process of getting the measure before voters has been years in the making. Conceived in 2004, the language has twice been approved by the General Assembly — most recently, this past legislative session — and must now attract “yes” votes from a majority of voters participating in the upcoming gubernatorial election.

Critics of the amendment suggest that a change to the Constitution is unnecessary and excessive.

Argues the state’s largest metropolitan newspaper, “a simple resolution would have sufficed to send the message that hunting and fishing is here to stay.” Furthermore, the use of the word “reasonable” is “vague and open to interpretation.” It could, for example, embolden litigious malcontents to challenge licensing and fee requirements placed upon sportsmen by the Tennessee Department of Fish and Wildlife and thus jeopardize “a crucial revenue source,” the Tennessean editorial board worries.

Those concerns, however, don’t appear to be shared by state government wildlife managers.

Nat Johnson, TWRA assistant executive director of staff operations, said the term “reasonable” sounds reasonable enough to officials and attorneys with the department, although he noted that the agency cannot by law take a formal stance of support or opposition on the measure.

Officials do, however, offer that they in no way see the language of the amendment as hindering “the responsibilities of the agency to set manner and means” for taking fish and wildlife, said Johnson, who also serves as TWRA’s legislative liaison to the Tennessee General Assembly.

“Legal staff has looked at this, and they have not seen it become an issue in any other states,” he said. “They haven’t seen that it provided any avenues for people to challenge a state’s ability to regulate and set reasonable rules and regulations.”

More than a dozen other states have guarantees of hunters’ rights written into their constitutions, and others are considering measures.

Tennessee Wildlife Federation CEO Michael Butler told TNReport his group consulted closely with state wildlife officials, constitutional attorneys and the chief legislative sponsors of the amendment, Sen. Doug Jackson, D-Dickson, and Rep. Joe McCord, R-Maryville, to ensure that the amendment language enumerates the desired right without undermining state government fish and wildlife management authority.

“Most people already think they have a right to hunt and fish. So for most people, this amendment is just confirming what they already thought,” Butler said. “They can’t really imagine not being able to do it.”

However, the whole point of the amendment, he said, is to add a layer of legal defense against political activists and pressure groups that believe hunting and fishing not only aren’t “rights,” but probably shouldn’t even be tolerated by government.

Constitutionally speaking, “all it would take now to get rid of a hunting or fishing season is a vote by the Legislature,” Butler said.

Johnson confirmed that the department advised the wildlife federation on the amendment “almost since its inception.”

“We worked to achieve a comfort level that we thought everybody could live with,” he said.

Vanderbilt constitutional law professor James Blumstein noted that although the term “reasonable” isn’t one you’ll find in constitutional language, it “permeates our law.”

While a subjective interpretation might at times be “fairly debatable,” Blumstein said, judges generally approach it from the standpoint of asking if government has “a rational basis for doing something, and that it meets a reasonableness test.”

“There will be some deference to the regulation, but the regulations have to be reasonable,” he said. In situations where hunting rights conflict with public safety, private property or species management goals, Blumstein said he believes the amendment leaves the government “ample authority to regulate.”

“But what the government cannot do is to simply say we’re against hunting, on the grounds of policy, or that we think that is immoral or that it’s inappropriate in some way, and just have a flat-out ban,” Blumstein said. “Most rights in the Constitution are not absolute rights, and this is recognizing that the right to hunt may exist, but it is not absolute.”

Constitutional Amendment Protecting Right to Hunt & Fish Passes Senate

Press release from Tennessee Senate Democratic Caucus, Jan. 28, 2010:

Sen. Jackson’s legislation on track to go to voters this fall

NASHVILLE — State constitutional protection of Tennesseans’ right to hunt and fish passed unanimously in the Senate Thursday and is on track to go to voters this fall, thanks to the efforts of Sen. Doug Jackson, D-Dickson.

“This is an important day not just for the thousands of sportsmen in Tennessee, but for anyone who supports the protection and conservation of our natural resources,” Sen. Jackson said.

Sportsmen spend more than $1.3 billion annually on hunting- and fishing-related expenses in Tennessee, according to 2006 U.S. Census Bureau data. Many of those dollars support the Tennessee Wildlife Resources Agency, which protects endangered species and natural areas throughout the state.

Those funds directly preserve jobs and opportunities for families and small businesses, Sen. Jackson said.

The constitutional amendment sponsored by Sen. Jackson passed 31-0 after its third and final reading Thursday. Pending House approval, the amendment will go to the ballot this November, where it will require a simple majority of the voters who cast a vote in the governor’s race.

The amendment provides for the personal right to hunt and fish within state laws and property rights. It allows for hunting and fishing of non-threatened species through traditional means, “consistent with the state’s duty to honor this heritage and its duty to conserve and protect game and fish.”

“All of Tennessee benefits when a parent takes a child hunting and fishing, as opposed to taking a child to a shopping mall,” Sen. Jackson said. “The tradition of hunting and fishing is worth defending.”

The text of the amendment can be found at http://www.capitol.tn.gov/Bills/106/Bill/SJR0030.pdf.