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Senate Judiciary Cmte Approves Resolution to Allow Voters to Pick TN AG

Press release from the Tennessee Senate Republican Caucus; March 4, 2015:

(NASHVILLE, Tenn.), March 4, 2015  — The Senate Judiciary Committee approved a resolution on Wednesday that would allow Tennessee voters to decide if they want to popularly elect the state’s attorney general (AG).  Senate Joint Resolution 63, sponsored by Senator Mae Beavers (R-Mt. Juliet), would begin the process of amending the State Constitution, which if approved, would go to voters in the 2018 general election.

“Tennessee is the only state in the nation in which the people have neither a direct nor indirect voice in the selection of their attorney general, and we are the only state that gives that power to our Supreme Court,” said Senator Beavers.

Beavers’ resolution calls for the AG to serve a six-year term, but would limit it to two consecutive terms.  The resolution requires approval by the 109th General Assembly currently in session, and the 110th which will take office in 2017, before going to voters in a statewide referendum.

Beavers said that when Tennessee’s Constitution was written, calling for nomination of the AG by the state’s Supreme Court justices, the court was popularly elected.  Forty-three states already select their attorney generals through popular election.  In six other states, the AG is selected by either the popularly elected governor or the popularly elected state legislature.

“Along with the overwhelming majority of Tennesseans and 96 percent of the rest of this nation, I feel that the citizens of this state ought to have a ‘say so’ in the highest legal office in Tennessee,” she concluded.

The bill now goes to the Senate floor where it will be heard on three readings before taking a final vote.  It will then travel to the House of Representatives for approval there.

AAUGH! TNDP’s Woes Could Affect Abortion Amendment Vote

Could an unknown candidate for governor play a decisive role in whether constitutional amendments pass or fail in Tennessee this year?

The Democratic Party of Tennessee has lately been getting unwanted national media attention and mounting ridicule related to their Aug. 7 gubernatorial primary winner, a man named Charles V. “Charlie” Brown. The 72-year-old Morgan County retiree is a political unknown who espouses some rather unorthodox political views and priorities, at least for a modern Democrat.

Brown’s biggest political attribute appears to have something to do with his name. He may have won because his was the only name most Democratic primary voters in any way recognized on their gubernatorial ballot last Thursday. Or, it could have been because it was at the top of the ballot, due to where ‘B’ finds itself in the alphabet, and a majority of the party’s voting base quickly check-marked his box and then moved on to more pressing election questions.

At any rate, unless party officials try to remove Brown’s name from the ballot, he’ll officially be the Democrats’ guy in the gubernatorial race against incumbent Republican Gov. Bill Haslam.

And that’s got Davidson County Democratic officials reportedly concerned that exasperated progressives may choose to skip the gubernatorial election on the ballot — which, in turn, could hurt the party’s chances of defeating a proposed amendment to the state’s Constitution that many active Democrats fear and loathe.

Early polling suggests a majority of Tennessee voters are skeptical of the Amendment 1 abortion-rights question. If passed by voters, the Tennessee Constitution will be amended to declare, “Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion.” The state’s General Assembly, currently dominated by Republicans, would be granted sweeping powers to “enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”

But there are variables that may come into play that have more to do with turnout than just tallying up the “yes” and “no” votes.

A change-in-wording to the document must win a majority of the votes not on the ballot question itself, but of the total number of people who cast votes in the gubernatorial election. The Tennessean offers this explanation:

If 1.4 million people vote in the governor’s race, for example, the proposal to remove abortion protections from the constitution will need 700,001 votes to become law. But if 1.5 million people vote in the abortion referendum and 1.4 million vote for governor, the same 700,001 votes will get the job done for the amendment, despite being in the minority on that issue. On the other hand, if those 1.4 million vote for governor and just 1.3 million people vote in the abortion referendum, anti-abortion forces will need more than a simple majority to win.

Multiple attempts to reach Tennessee Democratic Party Chairman Roy Herron for comment on Brown’s candidacy have gone unanswered.

TN’s Charter School Act Constitutional: AG Cooper

State Attorney General Robert Cooper this week issued an opinion declaring that Tennessee’s charter school law is consistent with the state constitution.

The opinion was delivered in response to requests made by House Speaker Beth Harwell, R-Nashville, and state Rep. Mike Stewart, D-Nashville, asking that the state’s top lawyer weigh in on whether the Tennessee Public Charter Schools Act of 2002 imposes unconstitutional financial burdens on local school districts.

Cooper’s response, delivered Sept. 9, said the law does not unduly encumber local school boards.

“On its face, the Charter Schools Act does not directly or expressly require the expenditure of extra funds beyond what an LEA is already spending on education. Rather, it simply requires that all education funds follow the student for whom they were appropriated,” Cooper’s opinion, issued Sept. 9, stated.

“Furthermore, even if the Charter Schools Act were to increase spending by local school districts, the State share of these shared expenditures would remain significant and thus (the Tennessee Constitution) would not be violated,” the opinion continued.

Cooper’s views sought to addresses questions raised in a memo from an attorney hired by Metro Nashville Public Schools suggesting the state’s system for approving and funding charter school may be constitutionally suspect on the grounds that it might “impose increased costs on local governments with no offsetting subsidy from the state.”

The Metro Nashville school board has been mulling ways to challenge or head off a legislative proposal to grant the state power to override local districts that deny charter schools permission to operate.  The so-called “charter authorizer” bill, which died on the final day of the 2013 session, is expected to see a return next year in some form.

Article II, Section 24 of the Tennessee Constitution, which is the portion of the state’s governing document cited by the school board’s attorney, says that no state law should be passed that mandates an increase in “expenditure requirements on cities or counties” unless the state shares in the overall cost.

“The charter school receives all of the state and local per-pupil expenses, while the [local school districts] still must cover existing fixed costs,” wrote John Borkowski, the Washington, D.C.-based attorney hired by MNPS to assess the Act.

Borkowski added, “There does not appear to be any state subsidy to share in these increased costs.”

Cooper rejected that analysis. He wrote that even if the 2002 Charter Schools Act did increase the amount of education spending for local districts, the state shares the financial weight.

“Through the BEP, the State provides the majority of funds expended on education by LEAs,”  wrote the attorney general. “Consequently, in the event there are increased financial burdens to local school districts in connection with the creation and the funding of charter schools under the Charter Schools Act, the State share of educational funding of the BEP pursuant to Tenn. Code… is clearly more than sufficient to meet the level required by Article II, Section 24, as interpreted by Tennessee courts.”

Tennessee’s Founding Documents on Display for First Time

Tennesseans will get an opportunity for a rare glimpse of the original handwritten copy of Tennessee’s constitution this week.

In fact, all can get a look at all three of the state’s constitutions: The original, penned in 1796, which set the groundwork for the state’s creation. The second, from 1834, that allowed those who weren’t property owners to vote for the first time — but took away the right to vote from free African Americans. And the constitution signed and voted on in 1870 in the aftermath of the Civil War.

That latest revision of the constitution abolished slavery and is the document that we live under today.

“Those are probably the most important documents that we keep,” Assistant Tennessee State Archivist Wayne Moore told TNReport.com. “They’re obviously the founding documents of Tennessee state government.”

On Monday the documents will be taken from a temperature-controlled locked vault, where they have not been available for the public to see, and digitized.

“It’s the first time these have been digitized to be available in a widely available form for the people in Tennessee,” Moore said. “One of the things that makes this kind of special is because those constitutions have always been stored away … and not available for anybody to see.”

After the documents are digitized — carefully, as some of the pages are so brittle they must be handled with cotton gloves and turned with a special spatula — they will be put on display as part of a week-long celebration that includes the opening of the Tennessee Judiciary Museum at 10 a.m. Wednesday in the Supreme Court Building.

In addition to the opening, the museum will host the original constitutions on display on the following dates:

  • Thursday, Dec. 6 from 8 a.m. to 4:30 p.m.
  • Friday, Dec. 7 from 8 a.m. to 4:30 p.m.
  • Saturday, Dec. 8 from 10 a.m. to 2 p.m.
  • Monday, Dec. 10 from 8 a.m. to 4:30 p.m.

 

“The museum provides a great opportunity for the people of Tennessee to actually see the original founding documents of our state, which established our three branches of government and our fundamental constitutional rights,” Tennessee Supreme Court Chief Justice Gary Wade said in a statement. “I believe that it will be a treasure for the people of Tennessee for generations to come.”

The display marks the 75th anniversary of the Supreme Court Building and the 150th anniversary of the Civil War.

Tennessee’s founding documents are going on display as a debate is brewing in the state of Texas over similar important historical documents.

Every school child in Texas knows the famous “victory or death” letter — the plea for reinforcements written by Lt. Col. William Barret Travis on Feb. 24, 1836, as he and his outnumbered men hunkered down at the Alamo and faced Santa Anna’s Mexican Army.

But few have ever seen the original — even Texas’ official state historian — because of fears of what might happen to the document.

Moore said that kind of risk is worth it to show Tennessee’s history.

“It’s kind of a balancing act for us between preservation, which is our first priority, and access, which we also think is important,” Moore said. “These documents don’t mean as much in my view if the public never has an opportunity to see the landmark documents that govern their government. In their state, their government.”

In addition to the original constitutions, visitors to the museum will see a diorama of a judge’s chambers as it would have been when the building opened in 1937, a display of artifacts and documents from the appeal of the Scopes “Monkey Trial” in 1925, and a display of court records from the 1820s involving a land dispute with Andrew Jackson.

The Supreme Court building is at Charlotte Avenue and 7th Street, next to the Tennessee state Capitol.

Trent Seibert can be reached at trent@tnreport.com, on Twitter at @trentseibert or at 615-669-9501.

3 Of Haslam’s Special Supreme Court Judges Step Down

More than half the members of Gov. Bill Haslam’s hand-picked special Supreme Court have recused themselves from hearing a case to determine the constitutionality of how Tennessee selects appellate and high-court judges.

Special Supreme Court Judges William Muecke Barker, George H. Brown and Robert L. Echols announced Friday they had disqualified themselves from the case because of a perceived conflict of interest. The three have ties to a group that lobbies against judicial elections, which is the issue at the heart of the case.

“Although the undersigned Special Judges have not formed an opinion about the constitutionality of the contested language of the Tennessee constitution governing the election of appellate judges, they find that it is of utmost importance to protect the integrity of this court and to avoid allegations challenging the independence, partiality or fairness in its decision making process, and opinions,” reads the Special Supreme Court order.

The three judges have ties to the group Tennesseans for Fair and Impartial Courts, an organization that has lobbied against moves to elect appellate judges.

Former gubernatorial candidate John Jay Hooker argues that judges should be popularly elected by voters, like lawmakers and lower-level judges are. He is suing Haslam and other state government officials for appointing a judge to the Criminal Court of Appeals.

“Why on earth they monkeyed around all this time is beyond me,” said Hooker.

“The problem here is that the fix was in. Hell would freeze over before those three judges would hold the retention election statute unconstitutional,” he continued.

Judges are now assigned to the bench through the Tennessee Plan, a method which requires high-ranking judges be appointed by the governor, then elected by the people to renew their eight-year terms through uncontested “yes-no” retention elections.

Many believe the Tennessee Constitution requires that judges at all levels be elected, even though the Legislature and the Supreme Court have chosen not to follow that interpretation.

The Constitution declares, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also states, “The judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”

The recusals leave Special Justice Andrée S. Blumstein and Special Justice W. Morris Kizer to man the court.

Through a spokesman, Haslam’s office issued the following statement:

The governor appointed five attorneys with strong reputations and qualifications. He is disappointed that three of the appointees felt it necessary to recuse themselves based on a perceived conflict of interest, but he understands their decision and appreciates their initial willingness to serve. Their actions are out of an abundance of caution and only substantiate their good faith and character because it is probably unnecessary. No appeal has been filed with the Supreme Court.

Judicial selection in Tennessee has been discussed and analyzed for decades. Having a personal position does not disqualify a judge from serving or applying the law. Judges do that every day.

Diverse Views Among Lawmakers on Judicial Selection

After Tennessee’s top three elected officials put the issue front-and-center last week, opinions about the state’s judicial selection process are still shaking out on Capitol Hill.

And while the issue has divided state legislators, it has not necessarily done so along partisan lines. Opposition to a constitutional amendment has cropped up, in one form or another, from Democrats and Republicans alike, casting some doubt on the likelihood that such a resolution could get the two-thirds vote it would need to make it on the ballot in 2014.

In a joint press conference last Wednesday, Gov. Bill Haslam, Lt. Gov. Ron Ramsey and House Speaker Beth Harwell announced they will be pushing for a resolution that would give voters the chance to weigh in on a constitutional amendment that would enshrine the state’s current process.

A selection commission provides the governor with a list of candidates from which to appoint judges. Once appointed, those judges, who serve eight-year terms, face a yes-or-no “retention” election after their first term.

Ramsey has flatly said he believes the current method works well but that it is not constitutional. While Haslam and Harwell have stopped short of labelling the current process “unconstitutional,” their proposal aims to clear up any public uncertainty.

The issue has forced some Republican supporters of direct judicial elections between a rock and a political hard place. Several Republicans told TNReport last week that they won’t oppose the governor’s efforts to put an amendment to the people. But they also expressed doubts that the current method is the right one or that a majority of Tennesseans will vote to validate it constitutionally.

Last session, Rep. Bill Dunn co-sponsored a bill – HB0958 – that would have required popular elections for judges. That bill’s lead sponsor, Government Operations Committee Chairman Mike Bell, R-Riceville, has said he has doubts that a majority of Tennesseans would vote yes on the governor’s amendment, but that he won’t stand in Haslam’s way.

Dunn, R-Knoxville, said he thinks the Constitution clearly calls for direct elections and that it’s “wrong for us to ignore the Constitution.” If voters were to agree with him, he said, then supporters of the amendment should be open to changing the process.

“The big question is, if the voters reject what they ask to do, then they’re really saying, ‘No, we want to keep the Constitution the way it is,’” he said. “I think to a certain degree we need to go into this whole process saying that if it is rejected then we will start following the Constitution. I think we should start following it right now, but those who have been dragging their feet need to put that on the table.”

Dunn also pushed back against the idea that elections would politicize the judiciary in a way the current system does not, asserting that it would be far easier to corrupt two or three people on a committee than to influence a judge accountable to more than 6 million people in a statewide election. Because of those concerns, and his feeling that the governor’s proposal is the most likely to separate itself from the crowd, he said he’ll be focusing his time and energy on the language of the possible amendment as opposed to alternative legislation.

Other Republicans, though, are fully on board with Haslam, Harwell and Ramsey.

“I am very glad to see the gov and the speakers take the position that they have to amend the constitution, really to conform the current process to the Constitution,” said Sen. Ken Yager, R-Harriman. “I’m going to support that, and I think that’s a good solution to the problem.”

On the other side of the aisle, opinions are no more aligned. Memphis Sen. Ophelia Ford has filed a bill that would require state Supreme Court justices to be popularly elected by voters in various supreme court districts across the state. The bill, SB3714, would require the same of appellate court judges. The accompanying districts for both would be created by the General Assembly.

Ford told TNReport that breaking the state up into supreme court districts for popular elections would allow voters to elect judges they’re better acquainted with and keep candidates from being forced to campaign across the state. She also said she would be pushing for a constitutional amendment, which would mirror the bill.

Leading Democrats said they’re fine with the current process – which has been held up in court – but aren’t so fond of their counterparts’ amendment streak.

“It’s a change of position from some in the majority party to all of a sudden get on this constitutional amendment track,” House Democratic Leader Craig Fitzhugh told TNReport. “So I don’t really understand why all of a sudden we decide to change the Constitution when it’s been something that worked OK. So, I’m sort of scratching my head on that. But we certainly are for the Tennessee Plan as it is now to continue.”

House Democratic Caucus Chairman Mike Turner said costly statewide elections would be the “worst thing we could do” and that the current process is the best one. As a result, he said Democrats could support the proposed amendment, but that he believes the larger trend is a problem.

“It appears to me that it could be something we could support,” he said. “I just have a problem with having all these constitutional amendments on the ballot. I think it’s confusing to the people.”

TNGOP Chides Democrats Voting Against Income Tax Ban

Press release from Tennessee Republican Party; Jan. 19, 2012:

Once Again, Tennessee Democrats Stand Up For A State Income Tax

NASHVILLE, TN – Today, the Tennessee House of Representatives voted in favor of a resolution to amend the Tennessee Constitution by adding language to ban a state income tax. SJR 221, sponsored by Representative Glen Casada, passed the Republican-controlled House by a vote of 73-17-3.

The amendment will now have to be approved by a two-thirds majority in both the House and Senate in the next session. The amendment will then be placed on the ballot, coinciding with a gubernatorial election, to allow Tennessee voters to approve.

“I applaud our Republican leadership for moving us one step closer to solidifying the unconstitutionality of a state income tax. However, several Tennessee Democrats once again showed their liberal mindset by reinforcing their belief that government should not be restricted from dipping into your paycheck,” said Tennessee Republican Party Chairman Chris Devaney.

“While Tennesseans work hard to get through this economic recession, Tennessee Democrats are content with duplicating President Obama’s philosophy of raising taxes to meet reckless government spending, instead of reducing government to meet current revenue,” said Devaney.

Democrats Who Voted Against Banning a State Income Tax: Karen Camper, Barbara Cooper, Charles Curtiss, Lois Deberry, G.A. Hardaway, Bill Harmon, Mike Kernell, Larry Miller, Gary Moore, Jimmy Naifeh, Joe Pitts, Jeanne Richardson, Johnny Shaw, Mike Stewart, Harry Tindell, Joe Towns, and Johnnie Turner.

Two Writs of Election Issued for Vacant Legislature Seats

Press Release from the State of Tennessee, Nov. 23, 2010:

Writs of Election Issued for State Senate District 18 and House District 98

NASHVILLE – Governor Bredesen today announced that he has issued two Writs of Election to fill the vacancies in the Office of State Senator for District 18 and the Office of State Representative for District 98. The vacancies were created by the resignation of Senator Diane Black of Sumner County and the death of Representative Ulysses Jones, Jr. of Shelby County.

The Writs direct the Sumner and Robertson County Election Commissions to hold Democratic and Republican primary elections to fill the vacancy in the Office of State Senator, District 18 on Thursday, January 20, 2011, and also direct the Shelby County Election Commission to hold Democratic and Republican primary elections to fill the vacancy in the Office of State Representative, District 98 on the same day. The general election for both vacancies will be held on Tuesday, March 8, 2011.

The Writs of Election are issued in accordance with Article II, Section 15, of the Constitution of the State of Tennessee and Tennessee Code Annotated, Section 2-14-202.