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Law Requiring Proper Judicial Oversight for Cell Phone Search, Seizure in Effect July 1

Press release from the Tennessee Senate Republican Caucus; June 27, 2014:

NASHVILLE, Tenn. — Legislation sponsored by Senator Mae Beavers (R-Mt. Juliet) and Representative Mike Carter (R-Ooltewah) which prohibits law enforcement officers from searching or seizing a person’s cellular telephone data without first obtaining a warrant is set to take effect on July 1. The new law, Public Chapter 785, prohibits the search and seizure of a cellular phone during a routine traffic stop, and states that no cellular telephone data that is obtained in violation of the legislation is admissible as evidence in any court of law.

Supporters of Tennessee’s new law were further bolstered by this week’s U.S. Supreme Court decision regarding cellular phone privacy. In Riley v. California, Chief Justice John Roberts authored a unanimous decision stating that the Fourth Amendment requires police to obtain a search warrant prior to the search of a cellular phone – using arguments similar to those put forth by Senator Beavers this past legislative session.

“Searching or seizing a person’s cellphone or smartphone data without any judicial oversight is a major invasion of the privacy of our citizens,” said Senator Beavers. “I am thrilled that the U.S. Supreme Court further emphasized the importance of protecting against increased government encroachment into our everyday lives. As Justice Roberts stated, a search of someone’s phone can be more intrusive than a search of their home. Therefore, we must continue to be vigilant to ensure that our constitutional freedoms are protected, even in light of the technological advances in our society.”

In his concurring opinion, Justice Samuel Alito also acknowledged the roles of state legislatures in debating privacy laws, stating that “Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.”

House Dems Praise Supreme Court DOMA Decision

Press release from the Tennessee House Democratic Caucus; June 26, 2013:

NASHVILLE, Tenn. – House Democratic Caucus Chairman Mike Turner and State Rep. Sherry Jones (D-Nashville) are applauding today’s Supreme Court decision which declared DOMA as unconstitutional.

“Today was a victory for the dignity of men and women across the country who wish to enjoy equal protection under the law,” said Rep. Jones. “Most Tennesseans agree that couples in a loving and committed relationship deserve to be treated equally.”

In a poll released by Vanderbilt University, a plurality of Tennesseans showed support for marriage equality or civil unions. According to the poll, 49% favored full marriage rights or civil union protections.

“Polls consistently show that the American people are evolving on the issue of marriage equality,” said Chairman Turner. “This decision is a positive step forward for people who believe that a state should be allowed to recognize all relationships and be treated fairly by the federal government.”

The decision today in U.S. v. Windsor will allow all couples with state recognized marriage licenses the ability to access the more than 1,000 federal benefits these taxpaying citizens were previously denied. In the courts majority opinion, Justice Kennedy wrote that “DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”

Republicans Predict Electoral Wins in Wake of Health Care Ruling

Majority-party lawmakers in the Tennessee Legislature are still trying to get a sense of what Thursday’s U.S. Supreme Court federal health-care overhaul ruling means for the state going forward.

But while the particulars of the knotty legal reasoning and conflicting viewpoints are still being deconstructed, Republicans are pretty confident the decision isn’t at all what a majority of voters in Tennessee or the nation wanted to hear. And that, they maintain, bodes well for the GOP’s political fortunes this fall.

In a 5-4 decision, with conservative Chief Justice John Roberts, a Bush-appointee, joining the court’s liberals, the Supreme Court upheld the Patient Protection and Affordable Care Act’s most controversial and much-maligned provision — that the government can financially penalize Americans who choose not to purchase health insurance or enroll in a state-assisted health care plan.

In delivering the majority opinion in the case, National Federation of Independent Business v. Sebelius, Roberts argued that despite claims to the contrary by supporters of the Affordable Care Act when Congress was debating the legislation in 2009 and 2010 — including President Obama himself — the so-called “individual mandate” must be viewed as a “tax” in order for the law to be constitutional.

“The Federal Government does not have the power to order people to buy health insurance,” wrote Roberts. The section of the Affordable Care Act penalizing individuals for not purchasing health insurance “would therefore be unconstitutional if read as a command,” he continued. “The Federal Government does have the power to impose a tax on those without health insurance.”

Noting that the Affordable Care Act appears to restrict the IRS from pursuing criminal penalties against individuals who choose neither to purchase insurance nor pay the “tax,” Roberts adds: “Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax.”

High ranking Tennessee GOP lawmakers and political operatives quickly unloaded a rapid-fire succession of denunciations once the ruling was announced.

“It is intensely disappointing that this court failed to recognize what constitutionalists and conservatives know deep in their hearts: A federal government which can coerce its people to buy a product is a government unrestrained and out of control,” said Lt. Gov. Ron Ramsey of Blountville.

House GOP Caucus Chairwoman Debra Maggart: “This is disappointing on a number of fronts. All of us know that limited government is a uniquely-American principle. Today’s decision goes against that principle.”

Senate Republican Caucus Chairman Bill Ketron: “It is a sad day. The cost of Obamacare is unsustainable.” He added, “State leaders will review this decision carefully and look at what our options are as a result of this ruling.”

But House Speaker Beth Harwell said that for purposes of political maneuvering and messaging this campaign season, the Roberts decision removes any doubt or argument to the contrary that the Affordable Care Act constitutes a “massive tax increase.”

And the Nashville Republican said she’s confident that will translate to electoral gains for the GOP in November, both in Tennessee and across the country.

“I think you’re going to see people say they’ve had enough of the Obama administration and what we have seen in our Congress, and we don’t want any more of it,” she said.

Senate Majority Leader Mark Norris said he hopes to advance plans to establish a health care compact, which would allow Tennessee to band together with other states in setting up health plans for their residents. Lawmakers debated that measure earlier this year but decided at the last minute not to call the bill for a vote by the full House.

Haslam administration officials say they don’t yet know what to make of another part of the U.S. Supreme Court’s ruling, which seems to suggest states cannot be forced to expand their Medicaid program for the poor as outlined in the law.

“This particular portion of the ruling is significant, but it’s a little premature to know the exact ramifications,” said the governor, who like other Republicans said he’s holding out hope that presumptive GOP presidential nominee Mitt Romney will win election in November and find a way to repeal the law.

For their part, Tennessee Democrats, who’ve suffered tremendous losses at the polls in recent years, kept mostly mum. Neither of the Democratic Party leaders in the statehouse, Memphis Sen. Jim Kyle and Rep. Craig Fitzhugh of Ripley, offered statements or comments about the ruling on the social media outlets they often frequent to communicate their political observations.

TNReport’s requests for comment from state Sen. Eric Stewart, a Democrat challenging Republican U.S. Rep. Scott DesJarlais in Tennessee’s 4th Congressional District, went unanswered. Stewart has of late been criticized by Republicans for voting against a 2011 state legislative declaration of opposition to the Affordable Care Act individual mandate called the “Tennessee Health Freedom Act.”

Notable exceptions to the Democrats’ silence on the ruling were U.S. Rep. Jim Cooper, Steve Cohen and Tennessee Democratic Party Chairman Chip Forrester.

“Most American lawyers aren’t surprised by today’s Supreme Court decision, nor am I,” said Cooper, who supported the Affordable Care Act. “It turns out that Obamacare, Romneycare and Robertscare are the same thing – and constitutional.”

Forrester praised Obama for his leadership in getting the law passed and appealed to Republicans to admit defeat and begin laying whatever state legislative foundations are necessary to submit to the federal government’s policy directives.

“We should all come together and work in a bipartisan fashion, as did the Supreme Court, in order to ensure that all Tennesseans can take advantage of the provisions in the law that provide health and financial security,” he said in a press release.

“It is time for the Legislature to start focusing on results and not politics. Tennesseans want our elected officials to move past the partisan bickering over health reforms and get to work on creating jobs and growing our economy.”

Norris Sets Sights On Passing Health Care Compact in ’13

Statement from Senate Majority Leader Mark Norris, R-Collierville; June 28, 2012:

Statement from Senate Majority Leader Mark Norris regarding the U.S. Supreme Court Decision on the Patient Protection and Affordable Care Act

(NASHVILLE, TN), June 28, 2012 — This is one of the most important decisions by the Supreme Court in our lifetime,” said Leader Norris.

“State’s rights, individual liberties and our ability to defend against governmental infringement of those rights have all been impacted in various ways.”

“As the State Senator responsible for passing a balanced budget each year, my first order of business is to determine the impact on our health care system and public resources. The Court’s remarkably expansive read on the federal government’s authority to tax is alarming. But the Court also recognized States’ rights to resist a further reach into our pockets. Perhaps next year our efforts to enact the Health Care Compact will finally succeed.”

“Unless and until Congress repeals the Act, our ability to interpret this complex ruling in such a way as to protect the taxpayer while preserving essential care is of utmost importance.”

Immediately following release of today’s ruling, Senator Norris undertook to confer with Administration officials concerning a future course of action.

Maggart: SCOTUS Heath Care Ruling ‘Beginning of a New Battle Against Washington’

Statement from House Republican Caucus Leader Debra Maggart, R-Hendersonville; June 28, 2012: 

NASHVILLE, Tenn.—Following this morning’s decision by the U.S. Supreme Court to uphold the individual mandate of the Affordable Care Act, Representative Debra Maggart (R—Hendersonville), who serves as the Chairwoman of the House Republican Caucus, released the following statement:

“This is disappointing on a number of fronts. All of us know that limited government is a uniquely-American principle. Today’s decision goes against that principle.

“However, now is not the time to sulk. This signals the beginning of a new battle against Washington. States other than Tennessee are facing huge deficits and ObamaCare will only drown them in red ink. We must find a better solution to our rising health care costs and that begins with improving our economy.

“Make no mistake about it, we are going to continue pushing back. I am going to fight for the health care rights of Tennesseans and I won’t be satisfied until there is some measure of personal liberty back in health care decisions.”

Governor Opposes Directing Tennessee Cops to Check People’s Immigration Status

Gov. Bill Haslam says he isn’t swayed by the U.S. Supreme Court’s ruling that it’s OK for local law enforcement to ask people to prove their citizenship during routine police stops.

Haslam has stood in the way of legislative attempts to bring an Arizona-style immigration law to Tennessee and instead ushered in other laws to discourage undocumented workers from settling in the Volunteer State.

“My concern with an Arizona-type law has always been the position it puts local law enforcement in, of having to make those kind of judgements,” Haslam told reporters Tuesday in Nashville.

Instead, he prefers policing immigrants by trying to stop them from finding work or by denying them most public benefits.

In a mixed ruling this week, the nation’s highest court struck down three of four aspects of the controversial 2010 Arizona immigration law. But the court unanimously upheld a key provision, which allows state and local law enforcement to check the immigration status of anyone they stop or arrest if there is reasonable suspicion he or she is an illegal immigrant.

While the court confirmed the legality of local governments taking on immigration enforcement, it warned that the Arizona law could find itself in other legal hot water for other constitutional challenges. Critics say that could include a violation of civil liberties, such as using racial profiling.

Rep. Joe Carr, R-Lascassas, led the charge to put a similar provision into Tennessee law in 2011 and said he’d like to consider taking another stab at it in 2013.

Carr was stonewalled by the Haslam administration when he tried, though, and instead focused on other bills focused on making Tennessee unfriendly to undocumented immigrants.

One proposal requires businesses and governments to check their employees’ citizenship status either by running their workers’ identity through the federal E-Verify system or by maintaining workers’ hiring records, such as a copy of their drivers’ license. Another measure, known as the SAVE Act, requires people who apply for most public aid to prove their citizenship. Both measures are now law.

Haslam Hoping SCOTUS Blots Out Obamacare

Tennessee Gov. Bill Haslam is rooting for the nation’s high court to strike down controversial federal health care reforms this week. But the state is ready to begin doing the U.S. government’s bidding if all or portions of the law remain intact, he said.

Officials in the Volunteer State have already begun the preliminary steps of implementing the Patient Protection and Affordable Care Act, although Haslam and other GOP leaders are hoping the U.S. Supreme Court will find it unconstitutional. Haslam’s other hope is that presumptive GOP Presidential Candidate Mitt Romney wins election and endeavors to roll back the law’s provisions.

“If they don’t strike it down, we’re on that path. Obviously, I’m hoping that they do because I think it saves the state money long term and that will make things easier,” Haslam told reporters after announcing standardized test scores at West End Middle School.

States are required to set up “insurance exchanges,” which are envisioned as online government-controlled “marketplaces” for people to buy health insurance.

Haslam says the state is in a holding pattern where it won’t have to make any further decisions about how to move forward on the exchanges until January when the Legislature reassembles.

“I think we’ve played this right in the sense of being ready either way it goes,” he said.

TN Bar Association Proposes New Judicial Conduct Rules

Press Release from the Tennessee Bar Association, Feb. 24, 2011:

New disqualification and recusal standards, procedure urged

NASHVILLE, Feb. 25, 2011 — New stricter standards and procedures for determining disqualification and recusal of judges, changes in restrictions on campaign activities by judges, and a new prohibition on judges presiding over cases in which they participate in judicial settlement conferences are among the changes to the Code of Judicial Conduct being recommended in a petition filed with the Tennessee Supreme Court today by the Tennessee Bar Association.

The proposed rule changes come as a result of an 18-month long study of the Code of Judicial Conduct undertaken by a task force of judges and lawyers. In its petition, the TBA says one of the reasons for the new recusal and disqualification standards and procedures is the “explosion of contested, big money campaigns for judicial office.” The petition cites a U.S. Supreme Court decision, which found that huge contributions in a West Virginia Supreme Court case had raised questions regarding whether the participation of a judge violated the due process clause. Commenting on the proposed changes, TBA President Sam Elliott said:

“A key role of the Tennessee Bar Association is to continually consider and propose updates and improvements to the various rules that govern the practice of law in the state. The changes to the Code of Judicial Conduct proposed by the task force are the result of the outstanding work of lawyers and judges at the highest level of our profession, and will prove to be a clear guideline to our judges as they fulfill their essential function in our society. The TBA is grateful to those lawyers and judges on the task force who so generously gave their time and talents to this effort.”

The task force was chaired by prominent Chattanooga lawyer Max Bahner with Knoxville lawyer Sarah Sheppeard serving as the Reporter. The group is made up of 13 members with a majority of the panel being judges. The group used the 2007 American Bar Association Model Code of Judicial Conduct as a guide, which Task Force chair Bahner called the “most influential guide for such rules, subject to a states’ distinctive practices.” Twenty-two states have approved revisions as a result of the changes and twenty more have established committees or have published proposed revisions.

The 80- page proposal includes provisions that:

1. Provide greater guidance on judicial disqualification and recusal. Included are factors such as the levels of campaign support for the judge or the judge’s opponent, the timing of the support and independent expenditures.

2. Require compliance with new procedures for motions to determine incompetence, disqualification and recusal.

3. Consistent with recent constitutional decisions, significantly lessen the restrictions on campaign activities while making it clear that campaign committees and judges must fully comply with campaign finance disclosure statutes, and that such activities may lead to disqualification.

4. Include within the provisions related to judges’ families a person with whom another person maintains a household and an intimate relationship other than a person to whom he or she is legally married.

5. Clarify application of certain code provisions to senior judges, part-time judges, continuing part-time judges and temporary judges.

6. Clarify when judges may provide a reference or recommendation.

7. Clarify a judge’s responsibility to report violations of lawyer or judicial ethics.

8. Permit judges, spouses and guests to attend events associated with educational, civic, religious, fraternal and charitable organizations.

9. Limit participation in activities of organizations, which engage in political advocacy in limited subject areas or consistently for one side in lawsuits.

10. Emphasize that judges must perform their duties promptly, as well as competently, diligently and cooperatively.

If the court follows its usual practice in considering such recommendations, the proposal will be published for a period of time for public comment, followed by closer examination of any issues on which there is substantial disagreement.

ABOUT THE TENNESSEE BAR ASSOCIATION

The Tennessee Bar Association (TBA) is the largest professional association in Tennessee with more than 11,000 members. Founded in 1881, the TBA provides opportunities for continuing legal education, professional development and public service. The Young Lawyers Division is comprised of association members age 36 and younger or within the first five years of practice regardless of age. The division is dedicated to helping new lawyers succeed in the profession through mentoring programs, continuing legal education and peer networking, as well as find fulfillment in the practice of law through pro bono legal work and public service projects.