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Little Statehouse GOP Support for State-Run Insurance Exchange

Gov. Bill Haslam now has another month to decide and declare whether Tennessee intends to manage its own so-called medical insurance “exchange” as outlined in the controversial 2010 federal health care law.

After prodding from the Republican Governors’ Association, the Obama administration agreed late Thursday to give states more time to decide if they want to manage their own government-run health coverage marketplaces, or hand the duty over to the federal government.

“It is clear that putting in place the new programs you championed will be an enormous strain on state governments and budgets, as well as the federal government,” the governors wrote. “From the financial obligations and complex technicalities to ensuring the healthcare workforce and infrastructure will be in place to meet the new demand, the timeframe and many of the provisions in the (Patient Protection and Affordable Care Act) are simply unworkable.”

States now have until Dec. 14 to make their respective Affordable Care Act health-exchange decisions.

“We are hopeful in the coming weeks we will receive answers from Washington to the many questions we’ve asked in our effort to have a full picture of the future of exchanges in Tennessee,” Haslam said in a statement issued Friday morning.

Haslam has for a while been saying he favors the state running its own exchange. Haslam indicates he believes it would be better for insurance companies doing business here to answer to Tennessee regulators, and that a state-run exchange would better serve the unique features of the state’s health care system.

“Ultimately our citizens, through insurance companies, are going to pay for the cost of running that exchange,” Haslam said on Tuesday. “Who do we think can run it cheaper, us or the federal government? I’ll bet on us every time.”

But members of Haslam’s party in the Tennessee Legislature are anything but enthusiastic about the prospects of doing the federal government’s bidding with respect to the ACA.

In the wake of the president’s re-election, Tennessee faces a difficult policy decision  surrounding the subsidized insurance marketplaces mandated under Obamacare, the governor said this week. The three options include the state setting up and running the exchanges, letting the federal government do it or pulling together some kind of a hybrid model wherein state and federal bureaucracies share responsibility for creating or managing a system.

“Let me be clear, I oppose the Affordable Care Act,” Haslam said today. “Unfortunately, the Supreme Court upheld a majority of it this summer, including the provision that states are required to either participate in a federal exchange or establish their own.”

Both parties’ leaders in the Legislature agree, as far as it goes, that the state is indeed better suited to run the Tennessee exchange than the federal government.

“Government closest to the people governs best, and that should be a guiding principle as we implement the new health care law,” Senate Minority Leader Jim Kyle, D-Memphis, said this week. House Minority Leader Craig Fitzhugh, D-Ripley, told he believes a state-run health exchange system “would give us a little more control, and I think Tennessee would probably like to have that.”

However, GOP lawmakers, who overwhelmingly control both chambers of the Tennessee General Assembly, are expressing doubt that the federal government can be trusted to honor the integrity of whatever systems states develop on their own.

The key details about how the exchanges are theoretically supposed to operate have yet to trickle down through the federal regulatory pipeline, which has only added to the sense of uncertainty, and Republican legislative leaders believe the unpredictability is just getting started. A prevailing sentiment among GOP state representatives and senators is that Obamacare planners in Washington clearly anticipate keeping the states on short leashes, and that federal intervention into the state-run systems will be commonplace as the administration attempts to micromanage.

Republicans suspect that when all is politically said and done, the “state-run” exchange will be so laden with federal red tape, mandates and market manipulation that Tennessee would be better served steering clear and letting the feds drive from the outset.

Glen Casada, chairman of the House Health and Human Resources Committee, said that over the past few months he’s reversed his opinion on who should run the health insurance exchanges. Casada, R-College Grove, said he used to think states ought to handle them, but no longer.

“I just cannot see a reason to implement a state exchange when the (U.S.) Health and Human Services Department will not commit to us on what we can do exactly, and for how long,” Casada told TNReport Wednesday. “If the feds came out and were very clear on what we could and could not do, with guarantees that we could keep doing what we wanted to do, you would probably see some Republican House members interested (in a state-run exchange). But under the current criteria it looks like we have to operate under, I don’t think you are going to find too many in the House Republican caucus interested.”

Skepticism and frustration pervades the upper-chamber GOP caucus, too.

“The federal government has put the state of Tennessee between a rock and a hard place on the issue of health care exchanges,” said Senate Speaker Ron Ramsey, R-Blountville. “The Obama administration has refused to answer questions and provide information necessary to make decisions by its arbitrary deadline.”

Ramsey, the state’s lieutenant governor, added that the Haslam administration is going to need a stamp of approval from the Tennessee General Assembly if it decides that setting up a state-run system is the best way to go.

“No state exchange can be implemented without the consent of the Legislature,” said Ramsey. “This issue is not going away. The Republican majority will continue to do what we must to keep all options open to minimize the impact of this insidious federal law on the citizens of Tennessee.”

Sen. Mike Bell, chairman of his chamber’s Government Operations Committee, said he has no plans right now to support any sort of state-run exchange — and thinks he’s by no means alone in the caucus.

Bell, R-Riceville, said he is “still holding out hope” that Republicans in Congress can roadblock funding for Obama’s health care law “and thereby delay or possibly even kill it at the federal level.” Bell said resistance by the states could also force the feds to abandoned their plans.

“The very weight of the responsibility for setting up that bureaucracy to run 20 or 30 state exchanges will be so heavy the federal government won’t be able to do it,” he said. “I hold out hope — now, it’s a faint hope, but I hold out hope — that there’s something that still could stop this.”

House Democrats on Friday jabbed at Haslam to quit stalling and set a course for the state.

“The Governor has had ample time to decide whether or not he wants to establish a Tennessee plan for a Health Insurance Exchange,” Fitzhugh said in a caucus release. “Now is not the time for more delays, now is the time to create an open process that brings all interested parties to the table, Democrats, Republicans, consumer advocates, insurance companies, small businesses and others, to start deciding what this Tennessee Health Insurance Exchange will look like.”

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Haslam’s Special Supreme Court Picks Have Ties to Group that Lobbies Against Judicial Elections

Two lawyers named to a state panel to decide whether Tennessee’s system for selecting judges meets constitutional muster also lead a group that lobbies against judicial elections.

George H. Brown and William Muecke Barker are both listed as board members of Tennesseans for Fair and Impartial Courts, an organization that fights against “misguided individuals and groups … pushing to replace our merit based system with state-wide partisan elections.”

Brown and Barker, along with three other lawyers, were handpicked by Gov. Bill Haslam to decide a lawsuit brought by Tennessee’s most indefatigable critic of the state’s merit-based system of judicial selection, John Jay Hooker.

“(Haslam)’s thrown down the gauntlet,” said Hooker, a two-time candidate for governor who has been fighting this issue in court through various lawsuits since 1996. “He’s said these judges are my people. He’s kind of got me cut off at the pass.”

Hooker is suing the governor and other high-ranking state elected officials to try and force them to revert back to a system of direct judicial elections. Currently in Tennessee, the governor appoints judges to the state Supreme and other appellate courts, with voters choosing whether to renew their eight-year terms.

A third lawyer Haslam selected to the special Supreme Court, Robert L. Echols, works for the Nashville law firm Bass, Berry and Simms. The telephone number listed on the Tennesseans for Fair and Impartial Courts website rings at Bass, Berry and Simms. H. Lee Barfield, a member of the firm’s state government lobbying arm, is also a board member for TFIC and is past president of the organization.

The results of the case, Hooker v. Haslam, could have significant implications for state lawmakers. Constitutional sticklers have long argued that the state system of merit-selection by appointment followed by yes-no retention elections plainly violates the Tennessee Constitution. They say the mandate that judges be elected is being openly flouted.

However, Tennessee courts have upheld the view that retention elections meet the requirement that judges “shall be elected by the qualified voters,” as the Constitution mandates.

Haslam last month handpicked all five members of the Special Supreme Court to rule on the case, a task he said his staff carefully pondered given that the governor himself is a named defendant in the case. He’s standing by his appointees in the face of a push by Hooker to disqualify the trio for the appearance of bias.

“We could have just gone in there and appointed five people who thought exactly the same way. But I honestly feel like we worked to put together a very good panel,” Haslam told TNReport in Clarksville last week.

Gov. Haslam has made no secret of his own opposition to direct judicial elections in the past, saying he fears it would inject excessive and undue political influence into Tennessee’s judicial system. He asked lawmakers early this year to constitutionalize the current appointment-driven practice of selecting judges to clear up any confusion.

When that plan began to fall through, Haslam backed another constitutional amendment proposal to model the state’s system of selecting judges after the federal system, with the Legislature getting an opportunity to confirm judges the governor appoints. The plan now awaits approval from the General Assembly before it can be put to the voters in a referendum in 2014.

Sen. Mike Bell, R-Riceville, who argues the state is currently stepping outside constitutional bounds by appointing judges, said he is wary about the governor’s appointments to the special court.

“I think it would have been nice if the governor maybe would have gone out of his way to choose somebody who didn’t have the appearance of bias. Not that those men are biased, but it leaves the appearances there because of their connections,” he said.

Tausha Carmack Alexander, TFIC’s lobbyists at the statehouse, said the group would rather see anything in place besides “direct partisan elections.”

“We believe that forcing appellate judges to run in contested elections is very costly, and it will introduce more politics into the judiciary,” she said. “Everybody wants to ensure that we have courts that are fair and impartial. You can look at other states — West Virginia, Alabama — where it costs millions of dollars to run in some of the Supreme Court races. We just don’t think that is the way to go for selecting an appellate judiciary member.”

“There is plenty of data out there that indicates how costly (statewide judicial elections) can be, and how political it can be,” Alexander continued.

Hooker is now waiting for Brown, Barker and Echols to respond to his request they recuse themselves because their “impartiality might reasonably be questioned.” A written answer is due “promptly,” according to new court rules.

Barker, also a former Supreme Court Chief Justice who now practices law in Chattanooga, declined to comment on his ability to be impartial when ruling on this case.

“I just don’t think judges ought to be talking about a matter that sits before the court,” he told TNReport, adding that his opinion will be shown in his upcoming response to Hooker’s request.

Attempts to reach Brown, who specializes in mediation and arbitration in Memphis, and Echols Wednesday morning for comment were unsuccessful as of this posting. (TNReport will update this post if we hear back from them.)

The tricky part is how to define “reasonable,” said Judge Alan Glenn, chairman of the state Judicial Ethics Committee.

“There are certainly hundreds and probably thousands of cases where there could be the appearance of a conflict,” said Glenn, who is also an appellate court judge. “The catchall consideration has got to be where the judge’s impartiality can reasonably be questioned, and that’s where minds can differ.”

Three Supreme Court judges recused themselves from the case on July 27, just as Supreme Court Justice Cornelia Clark and Justice William Koch had on July 16. That same day, Haslam appointed the panel, and the Court of Appeals issued its ruling on Hooker’s case, finding that the Tennessee retention election practices are constitutional. Hooker has until late September to ask the Special Supreme Court to hear his appeal to the Appellate Court’s decision.

Andrea Zelinski and Mark Engler contributed to this report.

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Ramsey Cautious on Haslam’s Call for Pre-K Expansion Discussions

Lt. Gov. Ron Ramsey maintains that he still vigorously opposes taxpayer-funded early-childhood education programs beyond those already offered to “at-risk” kids.

But Ramsey indicated he may be open to getting on board with an effort to expand Pre-K so that more poor children can gain access, an idea Gov. Bill Haslam recently suggested his administration might consider if the state’s revenues continue to grow.

“I hope the governor is not leaning toward Pre-K, universal Pre-K, in the state of Tennessee, but is simply talking about expanding further than we have to make sure we are covering those at-risk kids,” the Blountville Republican told reporters in his Capitol Hill office.

With the uptick in the state’s economy,  Haslam told The Associated Press last month that he is weighing whether to expand the state’s $86 million Pre-K program, which served more than 18,000 children last year.

Pre-K will be available in every county next school year in Tennessee but is limited to at-risk students, defined as those who would qualify for free or reduced lunch.

A state-commissioned study released last year indicates the effects of Tennessee’s Pre-K program diminish by third grade. Vanderbilt University’s Peabody Research Institute is currently attempting to “study of the effectiveness” of Pre-K in Tennessee.

“I do believe that any study will show that Pre-K has some effect on at-risk students, but I will never be in favor of universal Pre-K in the state of Tennessee,” Ramsey said. “It is all about limited dollars, a finite pot of money, and how do you best use that money for the best return.”

Ramsey’s comments put him to some degree at odds with staunch opponents of the state’s Pre-K program within the Republican Party, including Sen. Mike Bell, who believes the most worthwhile debate ought to be whether the program ought to be funded at all.

House Rules Committee Chairman Bill Dunn said he believes officials should be thinking “outside the box” about how to improve and better define the goals of existing efforts.

Dunn said he’s inclined toward preferring discussions about keeping kindergartners in the classroom longer during the day, or investing in better reading programs in primary grades.

“I would hope it doesn’t become a discussion of if you’re for, or against, Pre-K,” said the Knoxville Republican. Rather he wants to see “a discussion of what we want to achieve.”

“We have limited resources, and we ought to think this through before we put more money into a system we use out of simplicity,” Dunn said.

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Effort to Legitimize ‘Tennessee Plan’ Hits Dead End

The future of how top judges in Tennessee are assigned to the bench is in limbo now that a plan asking voters to formally endorse the status quo died on Capitol Hill this year.

Despite vocal support from the state’s three most powerful elected Republicans, lawmakers abandoned a plan to run the current judicial selection process by voters. Instead, the Legislature at this time appears to favor giving itself a confirmation role on judicial appointments, as is done at the federal level.

Lawmakers are looking to end debate once and for all about whether the state is following the intent of the Tennessee Constitution, which calls for judicial elections.

The Legislature considered several plans this year, including one that would require popularly electing judges. The only proposal that gained traction was an amendment to establish a new system giving the Legislature the authority to reject judges the governor wants to appoint — an effort that would ultimately need voter approval. The effort to legitimize the state’s current practice — supported by both chambers’ GOP speakers and the governor — failed in the House.

“I voted for both of them to keep them alive so we can try to get something on the ballot on 2014,” said Sen. Mike Bell, R-Riceville, the Government Operations Committee chairman who said he’d prefer popularly electing judges.

“I want to do all I can to put pressure to see that we come up with a Constitutional amendment…(so that) the people have the final say on how we choose our judges,” he said.

Gov. Bill Haslam said he supports the new plan which lets the Legislature approve judicial candidates — although he prefers sticking with the current plan. But the governor unequivocally opposes voters directly electing judges.

Meanwhile, many prominent legislative Republicans, including Lt. Gov. Ron Ramsey and House Majority Leader Gerald McCormick, have said it is clear to them the state Constitution in fact does explicitly require direct and contested judicial elections. And yet they, like Haslam, oppose statewide judicial elections. They instead want to amend the state constitution to erase the seeming disconnect between what the Tennessee Constitution mandates and what the state currently does.

Lawmakers, judges and constitutional scholars have argued for years over whether the yes-no “retention” elections meet the spirit and letter of the Constitution.

The Constitution says, “Judges of the Supreme Court shall be elected by the qualified voters of the state,” and adds that “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 state’s powerful legal establishment likes things the way they are, and argues that as long as lawyers and judges are fine with the system, elected politicians ought to leave it alone.

“We never believed, we still don’t believe, that the Constitution has to be amended,” said Allan Ramsaur, executive director of the Tennessee Bar Association. “They ought to keep that and not be experimenting with other ways of doing it.”

The wheels could come off of the state’s judicial selection machine if lawmakers push too hard for change, said Ramsaur. So far, lawmakers have already shortened the lifespan of the Judicial Nominating Commission which now recommends judges for the bench. The panel is set to disband, by July 1, 2013.

Without the commission, Ramsaur argues, there’s no specific provision for exactly how to seat judges.

Bell says he’ll likely extend the panel one year at time to keep the cogs in the machine moving so long as lawmakers advance the constitutional rewrite. He said, however, that he’s leaving open the option of dissolving the commission should the measure stall.

Haslam, Ramsey and House Speaker Harwell early this year called for lawmakers to constitutionalize the state’s current practice of selecting judges, known as the “Tennessee Plan,” saying the system has a proven track record and the state ought to make sure its guiding document agrees with current practice.

The Tennessee Plan requires the governor appoint Supreme and Appellate court judges from a list of recommendations from the nominating commission. Those judges then face yes-no retention elections to renew their eight-year terms.

Their plan, SJR183, to constitutionally legitimize the current practice passed the Senate 21-9 but never made it to a vote on the House floor.

Instead, lawmakers favored refashioning a portion of the state constitution to resemble the federal practice of picking judges, namely where the President appoints and Senate confirms.

SJR710 lets the governor handpick top judges who then need to be OK’d by the General Assembly. Those judges would then be subject to yes-no retention elections to renew their terms.

The plan passed easily in both chambers, with a 70-27 vote in the House and 22-9 win in the Senate — about two-thirds of both chambers. Haslam says he’s behind the plan, but admits he’s worried giving lawmakers the opportunity to block the governor’s appointments, as is done in Washington to presidential appointments, which can lead to political games.

“In some ways you can say the federal system has worked well. On the other hand, it hadn’t sometimes when you’ve had one party hold up the President’s nomination for purely political reasons or vote against them for purely political reasons,” said Haslam. “In designing how the legislative confirmation process would work, I want to make certain that we have a process that is as free from politics as possible.”

Because the measure seeks to edit the Constitution, lawmakers will need to approve it again with two-thirds majority before the 2014 general election where voters will have the final say. If voters reject the change, Haslam says he wants to continue using the Tennessee Plan without skipping a beat.

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Judicial-Selection Measures Pass on First Run Through TN Senate

Two proposed constitutional rewrites changing how Tennessee selects Supreme Court and appellate judges have been approved in the state Senate.

Both measures have a long way to go before becoming law, but the competing proposals hint at divisions within the Republican Party, the Legislature and the public at large as to how the state should choose its most powerful judges.

The upper chamber on Monday voted 23-8 to revamp the current system by enacting a new system that gives the Legislature authority to approve or reject judges the governor appoints, much like the federal system where the president appoints and the Senate confirms.

Under the plan sponsored by Sen. Brian Kelsey, R-Germantown, judges winning approval from the General Assembly would later face voters in up-or-down, non-competitive yes-no retention elections.

“What we have is a resolution that preserves the best part of our current system, builds upon what our founding fathers drafted and adds new pieces that improve upon what our founding fathers drafted,” said sponsor Sen. Brian Kelsey, R-Germantown.

The federal system is flawed, said retiring Sen. Andy Berke, D-Chattanooga, who voted against Kelsey’s measure.

Berke, vice chairman of the Senate Democratic Caucus, said lawmakers by habit and nature tend to politicize whatever they touch. To purposely put them squarely in the middle of the state’s judicial-selection process would be to invite “mischief,” he said.

“We are officially detracting from the governor’s power in the appointment of judges and adding power to the Legislature,” he said on the Senate floor Monday night. “The one thing that we will do if the General Assembly is given this power is play politics.”

Last week, the Senate voted 21-9 on SJR183 to grant express authority for the Legislature to determine how the state empanels judges, which now involves the governor picking them from a list provided to him by a selection commission. Those judges later facing retention elections to renew their eight-year terms. The governor and the two Republican speakers prefer this system, known as the “Tennessee Plan.”

Lt. Gov. Ron Ramsey, a Republican, has said he believes that over time the current system is most likely to generate justices who are conservative in outlook.

Earlier this month, a proposal to require judges face popular elections died in committee.

Passage in the Senate is one of many in a long list of milestones needed to formally ratify a proposed amendment to the state’s guiding document. Both measures still need approval by House lawmakers this spring before the Legislature call it quits for the year and begins campaign season.

A supermajority of lawmakers — two-thirds — will have to OK the proposal again before the 2014 election in order to put the change to the voters, who get the final say.

The call for rewriting the Tennessee Constitution comes after years of debate over whether the state is currently following the spirit and intent of the document’s drafters, who wanted judges to face elections.

The Constitution states, “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.”

Mark Engler contributed to this report.

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Plan to Constitutionally Formalize TN’s Judicial Selection Practice Met with Early Skepticism

Tennessee’s most powerful elected leaders want to amend the state Constitution to validate the current and, to some at least, controversial method of appointing high-level state judges.

But some majority-party legislators aren’t so sure that’s a good idea — or that it’ll fly with voters.

Flanked by House Speaker Beth Harwell and Lt. Gov. Ron Ramsey, Gov. Bill Haslam announced Wednesday he’ll press lawmakers to pass a resolution asking voters to approve language to the state Constitution enshrining Tennessee’s present selection practice for judges on the Tennessee Supreme Court, Court of Appeals and Court of Criminal Appeals.

“I believe the current process has worked well during my time in office, and I’ve been pleased with both the quality of candidates and the process for choosing them,” said Tennessee’s Republican governor. “The judiciary is the third and equal branch of government, and we are here to make this recommendation because we believe it is important for our Constitution to clearly reflect the reality of how we select judges in Tennessee.”

If the measure is approved this year — and again in the next legislative session by a two-thirds majority vote in both the House and the Senate — voters would see the constitutional-amendment question on the 2014 general election ballot.

Currently, judges are appointed by the governor, whose choices for the bench are limited to a slate of candidates provided by a selection commission. Those judges, who serve eight-year terms, are subject to yes/no “retention” elections as their first term expires.

But even though that system has been formally ruled constitutional, and is strongly supported among the state’s legal establishment, many lawmakers have trouble getting over the nagging feeling that it really doesn’t gel with the clear wording of the Tennessee Constitution, which states, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” The state government’s foundational document also declares, “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.”

“Our current method of choosing judges is a very good system, but it is not constitutional,” Ramsey said Wednesday.

Speaker Harwell said she, too, supports the so-called “Tennessee Plan,” but has “serious concerns about the constitutionality of the plan at present.”

“I also respect the previous decisions of the courts, which have determined otherwise,” added Harwell, a Nashville Republican. “As the governor stated today, clarity is certainly needed.”

Rep. Glen Casada, a Republican from Franklin and a leading proponent in the Legislature of voters choosing who sits on the Supreme Court and appellate courts, was among lawmakers to express reservations Wednesday about what Haslam and the two speakers are proposing.

Casada said it seems to him elementary and unambiguous that the Constitution requires competitive judicial elections, and not merely an up-or-down vote on a judge well after he or she has been deciding cases.

Casada said he’ll be pushing a direct-election bill for judges this session. He said he’s not opposed to the idea of Tennessee voters getting their say on the current plan in the 2014 election, as proposed by Haslam, Harwell and Ramsey, but believes the electorate ought first to get an opportunity to see what a statewide judicial election would look like.

“We need to go ahead and put it into the code that the judges are elected by the people in a contested election, like the Constitution currently says they should be,” said Casada, who chairs the House Health and Human Resources Committee. If Tennesseans don’t like what they see after that, then they could adopt the plan proposed by Harwell, Ramsey and Haslam, he said.

Vance Dennis, a Republican who serves as secretary of the House Judiciary Committee, said he’s skeptical at this time that the proposal to amend the Constitution will win the two-thirds legislative majorities necessary to ever even get on the ballot.

Dennis, an attorney from Savannah, isn’t a supporter of direct judicial elections. But he said it is clear the system used now is constitutionally suspect in the minds of many.

“Legally, the current plan has been found to be constitutional by the Supreme Court. Lots of folks disagree with that; lots of folks believe that the way that was done was not entirely appropriate,” said Dennis. “It is the law of the land, so what we are doing is legal. But it really doesn’t meet my definition of what an election is.”

Government Operations Committee Chairman Mike Bell, R-Riceville, another supporter of giving voters a greater direct voice in choosing judges, said he harbors “serious doubts” a majority of Tennesseans can be convinced the existing system is the best option available.

Nevertheless, Bell, who has also sponsored a direction-election bill, said he’s willing to stand down and let the governor and speakers pursue their chosen course.

Lt. Gov. Ramsey acknowledged during Wednesday’s press conference that there’s an apparent preference within the GOP “of electing everything, so to speak.” He said, however, that he, Harwell and the governor will embark upon a “sales process” to bring doubtful voters and politicians around.

“To have someone spend multimillion dollars to get elected statewide probably won’t get to where we want to be, anyway,” said Ramsey.

Ramsey said he wants to see “conservative judges who interpret the law and not make the law” assigned to the Supreme Court and appellate courts. So long as Tennessee has “a governor who  appoints people who think that way,” the current system is best for achieving that aim, he said.

Asked to speculate on what would happen if voters ultimately reject the proposed constitutional amendment, Gov. Haslam said he “would still be of the opinion that doing it the way we do now is the best system.”

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GOP Leaders Look to Limit Judicial Selection Debate

Lt. Gov. Ron Ramsey last week reiterated his opposition to the people of Tennessee electing state Supreme Court judges, even while acknowledging the Tennessee Constitution probably requires it.

The Blountville Republican, who since 2007 has served as speaker of the Senate, said he’ll push ahead this legislative session with an effort to amend the Constitution to scrub any reference to voters choosing Supreme Court or appellate judges. Ramsey wants to replace the vexing language with phrasing that enshrines and legitimizes the so-called “Tennessee Plan,” which is the current method for appointing the state’s most powerful judges.

According to the Tennessee Constitution, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” The state government’s foundational document also declares, “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.”

Speaking to reporters in his Capitol Hill office Thursday, Ramsey said, “I’m not in favor of statewide election of judges. I’ve been very plain with that.”

“Yet at the same time,” continued the lieutenant governor, “I think when the words are plainly in our Constitution that judges shall be elected by qualified voters of the state, that we need to amend the Constitution and take that out.”

Ramsey, House Speaker Beth Harwell and Gov. Bill Haslam signaled they would announce a unified stance on the issue within the next week. All three have said they are opposed to the popular judicial election.

Ramsey said he would discourage GOP senators from pushing alternatives to the “Tennessee Plan.”

“We don’t want to get our judges in the business of running for statewide elections, which are extremely costly and could jeopardize the integrity of our judicial branch,” Harwell told TNReport Friday.

Ramsey has said much the same, that if judges were elected the flow of money could translate into undesirable influence and “judicial activism.”

Under the “Tennessee Plan,” the governor picks from a list of candidates who are then subject to yes-no retention elections.

Proponents of election, including Judiciary Chairwoman Mae Beavers, say the Constitution calls for judges to be elected, that retention elections do not follow the drafters’ intent, and that voters deserve a direct say.

Other opponents of the current system — who would face a political challenge against a Haslam-Ramsey-Harwell triumvirate — say the state should consider adopting the federal practice: The president appoints, the Senate confirms.

“I would still prefer a thorough vetting by the Legislature,” said Sen. Mike Bell, chairman of the Government Operations Committee. “I believe that the current system gives the citizens of this state little opportunity to know who the judge is and who they’re voting for.”

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Sen. Mae Beavers Sets Sights on Court of the Judiciary

The chairwoman of a key Senate committee plans to go after the Court of the Judiciary again next year, this time with a renewed focus on making the results of complaints against judges public and tightening the rules for judicial recusals.

The challenge is whether the Legislature has enough political will to put in motion Sen. Mae Beavers’ attempts to revamp the court, which investigates allegations of ethical misconduct by judges. Lawmakers put the issue on hold on the last day of this year’s legislative session.

“It’s just a matter of convincing everybody else in the Legislature that we need some changes. I wish everybody could have heard what we heard today and yesterday,” Beavers, R-Mt. Juliet, said after listening to nine hours of testimony about the Court of the Judiciary in two days. Beavers chairs the Senate Judiciary Committee.

She and a small band of mostly Republican lawmakers convened an ad hoc committee examining the Court this week to discuss criticism that the Court lacks transparency and dismisses a large share of complaints. The committee plans to assemble a legislative proposal for next session.

The details are still in the works, but the committee expressed four areas it would like to revamp:

• Strengthening laws that require judges to acknowledge potential conflicts of interest, an issue that is new to Beavers’ agenda.

• Requiring disciplinary action against judges to be made public, which is a shift from Beavers’ position earlier this year.

• Re-organizing the Court’s makeup by requiring that more citizens not in the legal profession are on the panel and stripping the Supreme Court of its power to appoint members, which was the crux of Beavers’ proposal last year.

• Renaming the panel to clarify that the body is not an actual court, a topic Beavers hadn’t addressed before.

While court officials say they favor the name change and are OK with letting someone else select members of the Court, they take issue with attempts to dwarf judges’ presence on the panel by adding a lot more laypeople.

“We’re not asking for anything other than any other profession is,” said Court of Appeals Judge Jeffrey Bivins, chairman of the Judicial Conference Committee, which is monitoring the Court of the Judiciary legislation. Most professional boards in Tennessee hold a majority of members from that line of work, he said, and there’s a reason for that.

“If it’s a person who’s not learned in the area of that procedure, they may well make decisions that could lead to due process violations or some type of violations to where the disciplinary action ultimately wouldn’t be upheld,” he said.

Critics of the Court say far too many complaints against judges are privately dismissed, and that reform is needed.

“The Court of the Judiciary is in the whitewash business,” John Jay Hooker, a longtime critic of the state’s systems for selecting and disciplining judges, told the committee. “They ought to get a pair of overalls and a brush. If I had a fence, I would let them whitewash it because they are expert whitewashers.”

Hooker said one of his own complaints was dismissed because judges were protecting another judge.

The committee heard emotional testimony from Danielle Malmquist of Memphis, who says the judge in her divorce case should have recused himself. The judge’s staff reportedly had police investigate her because of fears she had threatened to kill the judge. Malmquist says she never threatened the judge, and police dropped the case, WSMV Channel 4 reported.

“Judges judging judges is not working in our current system of judicial accountability as those judges have a vested interest,” Malmquist told the committee. “It’s unfathomable to believe that a judge, someone who was charged with great powers by the state, would violate the laws without accountability.”

In the last two decades, the Court has received almost 5,200 complaints. According to the court’s limited records, 170 cases ended in some sort of discipline or resulted in the judge stepping down from the bench. But the Court has kept such poor records that even its administrative office cannot say with certainty what happened to 2,000 of those complaints.

“There’s a biblical principle — it’s avoiding the appearance of evil — and I think that judges should do that when at all possible,” said Sen. Mike Bell, R-Riceville, who sat on the committee and advocates overhauling the Court. “And that appearance of impropriety or that appearance of bias needs to be avoided when at all possible.”

Jerri Bryant, the moving vice president of the Tennessee Judicial Conference and chancellor of the 10th Judicial District, says it’s important to consider that Tennessee courts handle 1 million cases annually. Less than 1 percent of those cases results in a complaint with enough merit to warrant an investigation, she said.

Although officials from both the legislative and judicial branches opened up the two-day hearing saying they weren’t looking to pick a fight with the other, the committee had a combative tone.

“It should not be,” said Court Presiding Judge Chris Craft. “There are three equal branches of government, and we should work with each other. … If we don’t get along, it does nothing but hurt the people in Tennessee, so we need to work together.”

Press Releases

TFA Offers End of Session Recap, Nothing Meaningful Passed for Gun Owners

Press Release from the Tennessee Firearms Association; June 6, 2011:

Tennessee Firearms Association, Inc. Legislative Action Committee

2011 TFALAC Legislative Summary

Summarized below are the bills which were enacted in 2011 from those that we tracked. None of them address any meaningful changes in the law that are significant to those who promote the 2nd Amendment, to hunters, to firearms owners, and/or to those concerned about self-defense. However, the events of 2011 do provide information that can be relevant to the decisions that 2nd Amendment supporters will need to make during the 2012 primary season and general elections.

Following the report on bills, there is a discussion about the 2011 session and what TFA will be looking for in 2012.

2011 Legislation

SB307 / HB947 Environment & Nature: No permit to hunt wild boars and wild hogs.

Sponsors: Sen. Steve Southerland Rep. John Mark Windle

Description: Removes wild hog from definition of “big game.” Removes permit requirements for hunting wild boars and wild hogs.

Public Chapter: PC283

SB519 / HB283 Labor Law: Employer allowing gun on property not TOSHA violation.

Sponsors: Sen. Mike Bell Rep. Vance Dennis

Description: Specifies that a corporation, business entity or governmental entity permitting a person with a handgun carry permit to carry a handgun on such entity’s property does not constitute a TOSHA occupational safety and health hazard.

Public Chapter: PC33

SB558 / HB395 Public Employees: Carrying of firearm by retired law enforcement officers.

Sponsors: Sen. Randy McNally Rep. Eric Watson

Description: Requires a retired law officer certified to carry firearms that has been shipped or transported in interstate or foreign commerce in the same manner and to the same extent as an active officer by satisfying specified conditions to meet standards established by the Tennessee POST commission every four years. Specifies that authorization under this method to carry a firearm in not valid outside the state of Tennessee.

Public Chapter: PC363

SB836 / HB799 Environment & Nature: Use of spotlight to hunt deer.

Sponsors: Sen. Mike Bell Rep. Vance Dennis

Description: Changes what constitutes the unlawful use of a spotlight from using a spotlight “in an apparent attempt or intent to locate deer by the use of such light” to making it unlawful to use a spotlight “with the intent of hunting deer”.

Public Chapter: PC191

SB850 / HB1089 Government Organization: Updates terminology regarding individuals with disabilities.

Sponsors: Sen. Douglas Henry Jr. Rep. Glen Casada

Description: Updates terminology related to individuals with disabilities throughout TN Code. Clarifies that nothing in the bill is meant to alter eligibility for services for individuals who are covered by these provisions prior to passage. Deletes the requirement that no marriage license shall be granted if either applicant is “insane” or “an imbecile”. (16 pp.)

Public Chapter: PC47

SB954 / HB1117 Criminal Law: Additional crimes that prohibit restoration of voting right.

Sponsors: Sen. Ken Yager Rep. Curry Todd

Description: Adds certain criminal convictions, containing the same elements and designated as a felony in any other state or federal court, to the current list of crimes that prohibit persons from being eligible to vote.

Public Chapter: PC184

SB1205 / HB1278 Economic Development: TN Adventure Tourism and Rural Development Act of 2011.

Sponsors: Sen. Ken Yager Rep. Judd Matheny

Description: Enacts the “Tennessee Adventure Tourism and Rural Development Act of 2011.” Directs the department of tourist development, the department of environment and conservation and the department of economic and community development to study and develop a plan for the promotion and development of adventure tourism and other recreational and economic development activities in rural areas of the state. Authorizes, after the department of tourist development has identified suitable areas of state for the promotion of adventure tourism, the local government, by a two-thirds vote of the governing body as a tourism district. Grants special permissions to such tourist districts. Broadly captioned.

Public Chapter: PC383

SB1558 / HB1176 Criminal Law: Exchanging confiscated firearms – law enforcement agencies.

Sponsors: Sen. Bill Ketron Rep. Barrett Rich

Description: Authorizes the commissioner of safety, the director of the TBI, the executive director of the TN Alcoholic Beverage Commission, the executive head of any municipal or county law enforcement agency, or the director of a judicial district drug task force to exchange confiscated firearms with other law enforcement agencies for body armor and ammunition as well as for other firearms.

Public Chapter: PC159

2011 Observations

Many of those now holding elected offices, both Republicans and Democrats, proclaim that they are “good on the 2nd Amendment” or “strong on the 2nd Amendment.” Truly, there are numerous individuals who have been and are serving as members of the General Assembly who individually have well established and credible voting records of supporting the rights protected by the Second Amendment and the State Constitution.

Since 1994, when Tennessee legislators first enacted a widely available civilian handgun permit law in Tennessee, we have seen the General Assembly slowly improve the process for issuing civilian carry permits and remove a few of the infringements on our 2nd Amendment and State constitutional rights. We have seen the passage of expanded range protection. We have seen the passage of laws to increase the amount of public hunting lands. We have seen also the defeat of numerous bills that would have further infringed these rights.

Over the years, these improvements came with sponsors and votes from both parties. These issues have generally obtained good support from conservatives in both parties and have often been opposed by liberals in both parties. A recent example of this would be the passage in 2009 and then again in 2010 of the two bills which addressed the statutory prohibition on civilian handgun permit holders carrying in places that served alcohol or beer. The two bills which were enacted were carried by former Senator Doug Jackson (D) and by Representative Curry Todd (R). In each year, Governor Bredesen (D) vetoed the bills and veto overrides were successful. These were not the only bills in those two years which appropriately addressed this issue because several versions of each bill in each year were introdcued by several other legislators and each bill had numerous co-sponsors. Of note, Beth Harwell (R), the current Speaker of the House, voted against the bills and the overrides in both 2009 and 2010 which underscores that not all legislators are good on the 2nd Amendment nor the constitutions.

Other progun legislation during the 2009 and 2010  legislative sessions that had broad bi-partisan support included the 10th Amendment based Firearms Freedom Act that was carried by Sen. Beavers (R) and former Rep. Fincher (D) and also the repeal of bans on permit holders carrying firearms in Federal and State parks that Sen. Beavers (R) and Rep. Niceley (R) carried.

Following the end of the 106th General Assembly (2009-2010 sessions) and the 2010 elections, the TFA was told by Senate leadership that they felt that they needed to work on other issues in 2011 and that they would not devote a lot of time to 2nd Amendment legislation in 2011. There was one exception, TFA was told that the employee parking lot protection legisation would be passed in 2011. TFA took the position that, in light of that request, it would not seek constitutional carry or other big changes in 2011 but that it would be involved with any bills in the topic areas that we watch if any such bills were to be introduced.

2011 represents the first time since the Civil War that the Governor’s office, the Senate and the House of Representatives have simultaneously been either held by or under the majority control of the Republican party in Tennessee. In 2011, Republicans held 20 of 33 seats in the Senate and 64 of 99 seats in the House of Representatives. Even though TFA had been told in 2010 that it should not expect a lot of 2nd Amendment legislation in 2011, specific legislation was promised, technical adjustments were expected and aid in killing anticipated bad legislation (including almost constant “class” legislation) was needed. TFA understood that the leadership in both houses in 2011 intended to focus on other issues which they felt were much more important than constitutional rights under the 2nd, 7th and 10th Amendments. Certainly, a review of the 391 Public Chapters that they did pass including those issues listed above demonstrates the comparative importance of what did get passed.

Of course, there are other bills which although not enacted into law this year, did receive time and resources which could not be allocated to working on 2nd Amendment, 7th Amendment and 10th Amendment issues such as HB0212 which went all the way to the House Floor on a vote of 72 to 12 and deals with a very pressing issue – unrestrained pets in motor vehicles:

SECTION 1. Tennessee Code Annotated, Title 55, Chapter 8, Part 2, is amended by adding a new section thereto, as follows:Section 55-8-202. No person shall operate a motor vehicle with an unrestrained animal in the front driver seat. For the purposes of this section, a restrained animal means an animal secured in a harness or vehicle seat, confined in a box, or hard or soft sided travel crate, or being held by a person in the front passenger seat or in a rear seat. A violation of this section is punishable as provided by § 55-8-136.

2011 presents a paradox for voters. Although the Senate has been under Republican control for several years, 2011 represented the first time that Republicans truly controlled the House leadership and committee appointments. House Republicans elected Beth Harwell as Speaker on a 1 vote margin. This determination cast a light on the path we would expect in 2011.

So, what happened on the employee protections / parking lot bill in 2011?

  • Rep. Joshua Evans (R) introduced HB2021 which became the chosen bill on the expected employee protections/parking lots issue. There was a Democrat bill on the same issue but it was made clear unofficially that the Republicans would not let the Democrat bill go through because they would claim credit for passing it. So, apparently, the Republicans wanted credit for what would happen on the employee protections/parking lot issue.
  • HB2021 received heavy lobbying pressure from “big business” such as Federal Express. It has been suggested that as many as 15 business lobbyists were working against this bill – but, frankly, since the same issue was introduced in the prior 2 years, that was not unexpected.
  • HB2021 was amended, without TFA’s nor NRA’s support, in the House Judiciary. Rep. Evans apparently agreed to remove everything that TFA understood would pass this year. It was later determined that Rep. Evans had made a deal with at least one and perhaps two other Republicans who served on the Judiciary committee who agreed to cosponsor the bill and get it to the House floor but only if the employee protections were not added back into the bill. An agreement involving Rep. Evans (which he announced at a TFA meeting in Nashville) existed among a few Republicans that if any amendment were offered on the House floor that would restore the employee protections that Rep. Evans, as the sponsor, would pull the bill from the House floor and send it back to the House Judiciary committee for the purpose of killing the bill.
  • The co-sponsors on HB2021 were Dennis, McDonald, Bass, Rich, Weaver, Hill, Holt, Lundberg, Matheny, Watson, Faison, Shipley, Butt, Womick, and Todd. Of those, Republicans Watson, Dennis, Lundberg, Faison, Matheny, Rich also served on the House Judiciary committee and it is believed that one or more of these co-sponsors was/were the ones who would not support the employee protections effort. Based on subsequent discussions, I would probably eliminate Faison and Matheny from consideration.
  • When Rep. Eddie Bass (D) proposed an amendment on the House floor, which amendment TFA supported, Rep. Evans made a motion to “table” the proposed Bass amendment. A tabling motion is a procedural motion that can kill an amendment before it is debated. The motion to table the amendment failed with only 35 votes. As TFA previously reported, 33 Republicans voted with Rep. Evans’ lead to table the Bass Amendment. At this point, it is not clear how many of these 33 Republicans knew that Rep. Evans was trying to kill the entire bill. When the tabling motion failed, Rep. Evans sent the bill back to the House Judiciary committee. The vote on the tabling motion went as follows:





Present and not voting…………………..5

Representatives voting aye were: Brooks H, Brooks K, Butt, Carr, Casada, Coley, Dennis, Dunn, Eldridge, Ford, Harrison, Haynes, Hurley, Keisling, Kernell, Lundberg, Marsh, Matlock, McCormick, McManus, Miller D, Montgomery, Odom, Powers, Ramsey, Roach, Sargent, Sexton, Shipley, Sparks, Weaver, Williams R, Wirgau, Womick, Madam Speaker Harwell — 35.

Representatives voting no were: Alexander, Armstrong, Bass, Brown, Camper, Cobb, Cooper, Curtiss, Dean, DeBerry J, Favors, Fitzhugh, Floyd, Forgety, Gotto, Halford, Hardaway, Harmon, Hensley, Holt, Johnson C, Johnson P, Jones, Lollar, Matheny, McDaniel, McDonald, Miller L, Moore, Naifeh, Niceley, Parkinson, Pitts, Pody, Rich, Richardson, Sanderson, Shaw, Shepard, Sontany, Stewart, Swann, Tidwell, Tindell, Todd, Towns, Turner J, Turner M, Watson, Williams K, Windle — 51.

Representatives present and not voting were: Campbell, Faison, Gilmore, Hill, Ragan — 5.

When the Evans bill was calendared in Judiciary on May 3, TFA had people present from as far as Memphis who had requested to testify on the bill. Rep. Evans did not come to the committee hearing nor did he respond to calls and text messages that morning from TFA and NRA trying to determine what was going on with the bill or where he was.

With Rep. Evans not present, his bill and another pro-2nd Amendment bill by Rep. Andy Holt were both sent quietly back to the Judiciary’s subcommittee which was already closed. Although there is no recorded vote on which committee members voted to send these two bills to the closed subcommittee but it has been suggested by one Judiciary member to TFA that the initiative came from Rep. Coley and that it was “gaveled” without a recorded vote and without either sponsor being present.

TFA requested that a House procedural rule which has the ability to “recall” a bill from a committee be used to get a House vote on the bill this year, but no House member indicated a willing to make that motion.

Following these events, TFA has met with some House members and some in House leadership (not Harwell) about this bill and what Rep. Evans was believed to have done. It is clear that many in the House Republican party say that they did not know about the scheme of a few members and that they actually supported the objective of Rep. Bass’ amendment to protect commuting employees. We have asked those we talked with in the House to explain the votes and why an apparent plan existed to strip the employee protections from the bill, to substitute only an employer immunity clause and to implement a self-destruct plan if any amendment was offered to restore employee protections. We wanted to know whether this plan was explained in the caucus prior to the floor action and it has been suggested that the caucus was blind to the plans or series of events. To date, however, the House has not publicly identified who was involved with this beyond the sponsor. We have been told concerning the tabling motion by Rep. Evans that there was confusion among the caucus about what to do and that many apparently simply voted as the sponsor (Rep. Evans) wanted without really knowing what the amendment by Eddie Bass would do or why the sponsor was asking that it be tabled. It matters not because although the votes certainly were there to pass the bill as it was desired by TFA, the bill’s sponsor, a few co-sponsors would not allow it and ultimately the House did not do so.

This year, the Republicans, who by a substantial majority proclaim support and strength on the 2nd Amendment, 10th Amendment, etc., and almost always identify those issues on campaign materials, had the caucus numbers to do whatever they wanted in the House and Senate. Certainly there are specific Republicans and Democrats in the House and Senate who stayed true to the 2nd Amendment as the bill introductions and sponsorships show. Perhaps, however, a significant number of specific House Republicans under Beth Harwell’s leadership and her committee appointments view 2nd Amendment and related Constitutional rights as just another issue and not as a core issue. Perhaps its an issue to be polled for popularity rather than what is constitutionally appropriate. Certainly, that is the message that Speaker Harwell has sent. In a recent comment to the Tennessean on these issues, she is reported as saying that the caucus is 100% committed to gun rights (of course that cannot be accurate if you include her prior votes since she herself pretty consistently votes against them and there are a few “left of center” Republicans who will go right along with her on gun issues). But Harwell’s statements to the news media clearly evidence that, at least for her, the issues pertaining to gun rights are just another topic to be taken up in rotation and perhaps when not likely to influence an election.

Harwell, whose candidacy for speaker was opposed by many gun rights groups, is viewed with particular skepticism. She said critics should remember the banner years enjoyed by gun rights groups in 2009 and 2010, when Republicans pushed through more permissive gun laws.

“They know that our Republican caucus is 100 percent committed to gun rights,” she said.– Notably, Harwell does not defend her own voting record but references passage of bills that she voted against.

In comments that Speaker Harwell made to the Nashville City Paper, she goes further and makes clear that she, as Speaker, had no intent of spending any time at all on firearms issues in 2011.

Even Senate Speaker Ron Ramsey, an unabashed gun advocate, has admitted to reporters that he discouraged new gun bills to avoid media coverage that might make it appear that the legislature was distracted. The new House speaker, Nashville’s Beth Harwell, dismissed outright any need for new gun laws.

“We addressed a good number of gun bills last session,” Harwell told reporters shortly after Republicans nominated her late last year to preside over the House. “I feel that clearly we received a mandate from the public that we need to be focused on jobs and education and the economy this session.” (emphasis added)

Looking Forward to 2012

If things are going to change in 2012 – an election year – Tennessee’s constitutionally concerned citizens, Tennessee’s firearms owners, Tennessee’s hunters and Tennesseans in general need to step up and demand accountability of elected officials to 2nd Amendment and other constitutional issues. These issues should not be diminished because “big business” opposes the advancement of 2nd Amendment and other constitutional rights. Using these issues as a litmus test, it is possible to see where legislators stand and to take those votes and actions into consideration when those individual legislators ask for support in their re-election efforts. Legislators need to understand that the State and federal constitutional provisions are not just “platform” issues to be considered in rotation with other issues. Constitutional issues should require diligence and action to make sure that constitutionally protected rights are placed in proper regard.

TFA is not a Republican, Democrat, Tea Party or libertarian entity. TFA is issue oriented. We view the issue as a core constitutional issue that is completely independent of party affiliations although we realize that the degree of support between the parties varies substantially. TFA tries to keep party affiliation separate from pushing forward on the issue with elected officials who support the issue.

What are TFA’s issues for 2012 and beyond?

  • Constitutional carry a/k/a “Vermont carry.” TFA would actually prefer a system, somewhat similar to Arizona’s version of this bill, where citizens can obtain an optional state issued which would evidence that the individual has the right to carry in Tennessee. This optional permit would be at minimal cost but adequate to maintain reciprocity with other states. All existing permits would need to be grandfathered automatically.
  • Employee protections / parking lots. Legislation to protect employees who commute to work from being criminally prosecuted and/or terminated from employment if they are legally transporting a firearm for self-defense while commuting, to go hunting before or after work, to go to the range before or after work, etc.
  • Expanded exemptions for school grounds so that the current exemption is no longer limited to passenger pickup/dropoff but would allow anyone legally transporting a firearm to leave it secured in their vehicle while parked on school property.
  • Remove restrictions for those who can legally transport a firearm to possess it on college campuses (any educational facility beyond 12th grade including community college, trade schools, etc.).
  • Remove restriction regarding legal possession of firearms in any park during periods when the park may be in use by a school (e.g., current law is unclear on whether a state park automatically “closes” to firearms possession if any school is making any use of the park such as cross country runs, golf, tennis, nature hikes, etc.)
  • Remove all local options to regulate firearms possession by those who are legally carrying a firearm with respect to local public parks, greenways, etc.
  • Prohibit the public republication of the permit holder database and/or close it entirely. Allow non-individual specific requests for demographic and termination data.
  • Require actual verbal signage on properties that post – not simply the circle-slash over a picture of a gun. Exclude government, business and commercial parking lots.
  • Fix the purchase statute to REQUIRE TBI to respond to a purchase challenge in writing within 15 days to both the dealer and the proposed purchaser. Require TBI to pay all costs of a subsequent TICS check (including attorney’s fees) if it fails to deliver a response in writing by the 20th day from the date of the challenge.
  • Require local law enforcement to complete ATF Form 4 in all areas where local law enforcement is requested to respond and to do so on all form 4 requests including requests for suppressors. Provide that citizens may file mandamus actions against law enforcement for failing to respond or respond timely and that the costs of such actions are chargeable to the chief law enforcement officer in an individual and official capacity.
  • Require that gun ranges which are built or supported with tax dollars be made open to the public when not in active use by law enforcement.
  • Undo part of the castle doctrine that denies the legal presumption if the individual who resorted to self-defense was engaged in “illegal activity” or “unlawful activity” at the time in question. This language is too broad and could deny reliance on the presumption if there is a zoning violation and/or if the tags or insurance on the car had expired.
  • Repeal the law which prohibits those with non-violent felonies from owning or possessing a firearm once they have obtained a restoration of their rights.
  • Repeal any law which creates “classes” of citizens relative to firearms ownership, possession and/or self-defense standards (e.g., those laws which address “off duty” or “retired” individuals)
  • Make clear that pardons restore all civil rights.

The foregoing list is not exhaustive.

Press Releases

Senate GOP Legislative Update, May 9-13

Press Release from the Republican Caucus of the Tennessee Senate, May 12, 2011:

State Senate passes Civil Justice Reform and other Major Bills as General Assembly works toward adjournment

(NASHVILLE, TN), May 12, 2011 – The Tennessee General Assembly worked in marathon floor and committee sessions this week towards the conclusion of the 2011 legislative session. Among major legislation approved by the State Senate is a civil justice law to help create jobs in Tennessee, several measures cracking down on child sex offenders and those who engage in human trafficking, and state’s rights legislation, to name a few.

The Tennessee Civil Justice Act of 2011, sponsored by Senate Majority Leader Mark Norris (R-Collierville) and Senator Brian Kelsey (R-Germantown), was approved in the State Senate by a vote of 21 to 12. The legislation is included in Governor Bill Haslam’s legislative package. It is designed to provide certainty and predictability for businesses, while ensuring that injured plaintiffs receive all of the economic, quantifiable damages they suffer.

Norris said Tennessee’s current civil justice law puts the state at a competitive disadvantage when it comes to attracting new businesses and jobs, especially since it is one of the few in the Southeast which has yet to reign in lawsuit abuse through tort reform.

“This is very important legislation,” said Senator Norris. “It is much more than tort reform, as we must be competitive with other states. The state of Tennessee has always been on the cutting edge of tort reform. We must remain competitive, not just in then South or in a regional economy, but in the global context. This bill is designed to put us on a level playing field so we have predictability and certainty for businesses which look to locate or expand their operations in Tennessee.”

“The uncertainties of life command that we balance the need to quantify the risk with our compassion,” he added. “This will strengthen our judicial system and our state as a whole.”

“Our current civil justice system threatens Tennessee’s business climate and hampers our ability to create jobs,” said Lt. Governor Ramsey (R-Blountville). “Unlimited exposure to costly litigation drives up business costs and drives away new jobs. Every citizen should have access to the courts but it is critical that damage awards do not spin out of control and hurt our ability to grow jobs in Tennessee.”

“The legislation will provide certainty and predictability for businesses that want to locate in Tennessee,” said Senator Kelsey. “When we attract businesses, we attract jobs. Without this law, Tennessee is the only state in the Southeast that has no limits on possible punitive damage awards. With this law, Tennessee can become the number one state in the Southeast for high quality jobs.”

Key provisions of Senate Bill 1522 include:

• The bill limits the maximum appeal bond amount from $75 million to $25 million or 125 percent of the judgment amount.

• It defines two components of compensatory damages: economic and non-

economic damages.

• The measure places a cap on non-economic damages, which are subjective damages like pain and suffering, at $750,000 per injured plaintiff for both healthcare liability action and other personal injury actions. However, if the harm suffered is intentional, the caps would not apply.

• As amended, the bill raises the cap to $1.0 million if the plaintiff becomes a paraplegic or quadriplegic because of spinal cord injury, sustains third degree burns over 40 percent or more of his or her body or face, has an amputation of a hand or foot, or wrongfully dies leaving one or more minor children.

• There is no cap, under the measure, on economic damages and any damages that can be objectively quantified may be recovered.

• Caps punitive damages, which must be proved by clear and convincing evidence, at two times compensatory damage or $500,000, whichever is greater unless the defendant intended to injure the plaintiff, was under then influence of drugs or alcohol, or intentionally falsified records to avoid liability.

• Prevents punitive damages in products liability actions, unless the seller had substantial control over the design or manufacturing of the product or had actual knowledge of the defect in the product at the time it was sold.

 Norris pointed to the success of the 2008 medical tort reform law which he sponsored and that has been successful in reducing lawsuits since its implementation. The law has resulted in a reduction in non-meritorious claims by 50 percent.

The bill now goes back to the House of Representatives for approval of an amendment before it is sent to the governor for his signature. It will take effect October 1, 2011, and apply to all liability actions for injuries after that date.

Legislation cracks down on the growing problem of human trafficking in Tennessee

Legislation sponsored by Senator Doug Overbey (R-Maryville) designed to attack the growing problem of child prostitution and human trafficking in Tennessee was approved Wednesday in the Senate Judiciary Committee. Senate Bill 64 would enhance penalties against those who patronize or promote the illegal act, as well as gives law enforcement powers to impound a vehicle used in the commission of the offense.

Approval of the bill came only days after a joint operation between the FBI and the Hamblen County Sheriff’s Department resulted in the arrest of nine individuals for human trafficking. According to law enforcement, the women were lured from Mexico to East Tennessee with the promise of employment, but were forced into prostitution. In November, federal authorities broke up a human trafficking ring that provided underage prostitutes involving 29 Somali men and women with ties to gangs. According to the indictment, one of the intentions of those involved was to identify, recruit and obtain girls under age 14 for prostitution. The ring operated in Nashville, Minneapolis and Columbus, Ohio.

“These predators and criminal gangs target children because of their vulnerability, as well as the market demand for these young victims,” added Overbey. “That is why it is so important to strengthen penalties against those who exploit them. It is intolerable that in 2011, this crime is growing rather than decreasing. We must continue to take the steps needed to address it.”

Currently, patronizing prostitution is a Class B misdemeanor in Tennessee, unless the crimes are committed within 100 feet of a church or 1.5 miles of a school, which is punishable as a Class A misdemeanor. The legislation would make patronizing prostitution from a person who is younger than 18 years of age or has an intellectual disability a Class E felony. Penalties for promoting prostitution would be increased from a Class E to a Class D felony when a minor is involved, under the bill. Additionally, the proposal specifies that if it is determined that a person charged with prostitution is under age 18, they would be immune from prosecution for prostitution and would be released to a parent or guardian after receiving information regarding resources available to put them on the right track.

In following, the Senate Judiciary Committee approved two other bills, Senate Bill 604 and Senate Bill 605, to provide a comprehensive statewide approach to deal with the problem of human trafficking in Tennessee. The first bill sets up an Anti-humanbTrafficking Fund within the Department of Finance and Administration to provide grants to not-for-profit or tax exempt groups that provide services to the victims. The bill also expands the list of items subject to judicial forfeiture for those convicted of this crime, with funds to be partially used for this purpose. The other bill requires the posting of a Human Trafficking Resource Center Hotline in places where victims are more likely to be found so they can access help earlier.

Tennessee Bureau of Investigation (TBI) Assistant Special Agent in Charge Margie Quinn told Judiciary Committee members that it is a widespread problem with 78 of the 95 counties in Tennessee reporting the presence of human sex trafficking during the last 24 months. The TBI has just completed a study of the matter. She said there is more human sex trafficking in the urban areas in Shelby County, Davidson County, Coffee County, Knox County, all which reported in excess of 100 cases of human sex trafficking in the last 24 months.

“Sixty-two of those same counties reported the presence of minor human sex trafficking,” Quinn said. “It is a significant problem when you compare it to the number of counties in 2009 that advised they had the presence of gangs in their counties. There are more counties affected by human sex trafficking than there are by the presence of gangs in our state.”

Bills passed in Committee and on the Floor of the Senate strengthen Tennessee’s sex offender laws

Several bills were approved this week with aim to strengthen Tennessee’s sex offender laws, including legislation passed by the Senate Judiciary Committee to clarify a Court may increase the sentence for rape of a child above the mandatory 25 years when appropriate. Currently, there has been confusion concerning additional punishment above the 25-year mandatory sentence for the crime. Senate Bill 755, sponsored by Senator Dolores Gresham (R-Somerville), clears up any ambiguity. It spells out that rape of a child is a Class A felony and that punishment is subject to a minimum sentence of 25 years; however, the Court may increase the time when appropriate and in cases where the defendant’s prior history warrants an enhanced sentence of up to 60 years for the most egregious circumstances.

Likewise, the full Senate has approved Senate Bill 1938, sponsored by Senator Randy McNally (R-Oak Ridge), which adds aggravated rape of a child and statutory rape by an authority figure to the list of offenses requiring HIV testing of the alleged perpetrator. Under present law, when a person is initially arrested for allegedly committing the offense of rape, aggravated rape, statutory rape, or rape of a child, that person must undergo HIV testing immediately. This bill specifies that testing must be performed no later than 48 hours after the presentment of the information or indictment and that it must be performed with or without the request of the victim.

The full Senate also approved Senate Bill 1051, sponsored by Senator Mike Bell (R- Riceville), which requires registered sexual offenders to notify their registering law enforcement agency before they leave the country and upon re-entering. This is the last part of the Adam Walsh Act Tennessee must pass to be in compliance with the federal law protecting children from child sexual predators. The Tennessee Bureau of Investigation interacts with Interpol to notify the other country regarding the travel of an offender.

Finally, the full Senate has approved Senate Bill 1051, sponsored by Senator Stacey Campfield (R-Knoxville), to ensure that convicted of sex offenders cannot contact their victim while they are in prison. The bill closes a loophole in the law which bans contact of a victim by the perpetrator upon release from prison, but does not clarify that communication cannot occur while the offender is jailed in prison.

Ballot bill would strengthen integrity of elections in Tennessee

The Legislature has approved and sent to Governor Bill Haslam legislation sponsored by Senate Majority Leader Mark Norris (R-Collierville) to strengthen the integrity of elections in Tennessee. The bill requires the Coordinator of Elections to compare the statewide voter registration database with the Department of Safety’s motor vehicle database to ensure non-United States citizens are not registered to vote in this state.

“This is the result of several years of efforts for us to abide by the constitutional requirement that only citizens of this country vote in this state,” said Senator Norris. “Other states have used this system with success.”

Under Senate Bill 352, if evidence exists that a registered voter is not a citizen, the Coordinator shall notify the county election commission who will send a notice to the voter inquiring about his or her eligibility to vote. The voter will then have 30 days to provide documentation regarding their citizenship. If the voter does not provide evidence of citizenship, that person would be purged from the voter registration database. The voter may appeal to the State Election Commission if they want to challenge the decision.

The U.S. Constitution already requires citizenship to vote. In addition, federal law makes it a crime knowingly to make a false statement or claim regarding citizenship upon registering to vote.

The bill, which also passed the House of Representatives, now goes to Governor Bill Haslam for his signature.

Minor parties — In other action, the State Senate approved legislation to make it easier for minor political parties to receive statewide recognition in order to place a slate of candidates on the ballot and hold a primary election. The bill, sponsored by Senate Majority Leader Mark Norris (R-Collierville), allows for voters to sign the petition to place a minor party on the ballot, regardless of whether they proclaim to be a member of that party. It reverses over 25 years of Democrat-led resistance to allowing more statewide parties on the Tennessee ballot.

“This bill eases the current qualification requirements for minor parties to be recognized,” said Senator Norris. “It eases requirements for those signing the petition and simplifies the timeline required. This eases the burden and extends the franchise to more Tennesseans.”

Prior to passage of SB 935, Tennessee law required a minor party to gain the signatures equivalent to 2.5 percent of the total number of those voting in the most recent race for governor. The law required those signing the petition to declare their party membership. The legislation changes that so any voter may sign the petition, regardless of association with the minor party.

The bill also gives a minor party wishing to gain recognition an additional 30 days to return their petition to the State Coordinator of Elections for their slate of candidates to be placed on the ballot. Currently, a minor party’s petition must be submitted 30 days before the two major parties filing deadline. The bill allows minor parties to simultaneously submit their petition to be recognized as a party on the filing deadline set for major parties, which is the first Thursday in April.

Finally, the bill gives the State Election Coordinator’s office 30 days to verify that the 2.5 percent is a valid number for recognition. If verified, the minor party would be allowed to have a primary in August. If there are not enough valid signatures, those individuals associated with the minor party revert back to independent status, and are listed on the ballot as an independent.

“This legislation gives minor party candidates more opportunities than any time in recent state history to be placed on the ballot and properly recognized,” added Norris. “I am pleased this legislation has been approved by the House and Senate.

The bill now goes to the governor for his signature.

Bill stiffens punishment against looters who take advantage of storm victims

The Senate Judiciary Committee has advanced a timely measure in response to reports of looting taking place following the recent storms that tore through Tennessee. Senate Bill 1095, sponsored by Senator Steve Southerland (R-Morristown), provides a new offense whereby courts may require a criminal to perform public service at a disaster site as a result of looting. The bill authorizes judges to sentence a convicted looter who takes advantage of a natural disaster, like the recent storms, to public service work in addition to any fine or other punishment assessed by the court.

“We are talking about people who are victimized twice – once by the storms and then by criminals who take advantage of an already horrible situation,” said Senator Southerland. “This is a despicable crime when looters pick through the remainder of any items not already ravaged by the storm to steal. We must take additional steps to protect families who are already hurting and should not be subjected to this kind of criminal behavior. Hopefully, it will also help the criminal see the suffering associated with their crime. At the same time, this legislation will help our communities in cleaning up in the aftermath of the storms.”

The bill applies to looting which occurs during or within 30 days of the disaster and within the area affected, if the owner is unable to properly guard his or her property due to the destruction. The legislation also says that the person who violates the law under these circumstances shall be required to perform debris removal, clean-up, restoration or other necessary physical labor at the location of the disaster for a period of not less than 30 days or more than the maximum sentence authorized for the class of theft committed.

Additional counties declared federal disaster areas — Tennessee Gov. Bill Haslam announced this week that President Obama granted a request to declare 15 Tennessee counties as federal disaster areas due to a series of severe storms, straight-line winds, flash flooding and the record flooding of the Mississippi River, beginning on April 19, 2011. Benton, Carroll, Crockett, Dyer, Gibson, Henderson, Henry, Houston, Lake, Lauderdale, Madison, Montgomery, Obion, Shelby and Stewart were added to receive assistance for record river flooding

Senate Finance Committee approves McNally Resolution asking Congress to end unfunded mandates to states

The Senate Finance Committee approved legislation, sponsored by Senator Randy McNally (R-Oak Ridge), asking Congress to submit to the states for ratification an amendment to stop the practice of passing unfunded mandates and programs to the states.

“States are struggling right now,” McNally added. “We cannot continue to fund federal programs or mandates without making substantial cuts to critical programs like education. Hopefully, this resolution will send Washington a message that states need stability in budgeting, rather than more federal mandates.”

The proposed amendment, Senate Joint Resolution 118, would ban unfunded mandates, except in a situation of financial emergency as declared by a two-thirds vote of theirnmembership. It would also prohibit the federal government from authorizing state participation in federal programs or services unless funding is guaranteed by the federal government for the full duration of the programs or services. If federal funds are not appropriated for the program or service, the law enacted or regulation promulgated would become null and void.

In Brief….

DUI / Blood Alcohol Testing — Legislation has advanced in the Senate Judiciary Committee which requires the testing of a driver’s blood alcohol content (BAC) level in cases where the driver has previously been convicted of a DUI or when there is a child present in the vehicle. Tennessee’s DUI law already requires BAC testing when there is serious bodily injury to a victim or death. Senate Bill 1270, sponsored by Senator Mae Beavers (R-Mt. Juliet), simply puts these two additional conditions into the law when testing must be performed, whether or not the driver consents. The test results may be offered into evidence, subject to the rules of evidence.

Fallen officers — The State Senate stood in a moment of silence on Thursday for the late State Trooper Andy Wall of Dickson, Tennessee who died last weekend in the line of duty. The Senate observed the passing of Trooper Wall and stood in a moment of prayer for his family at the request of State Senator Jim Summerville (R-Dickson).

Last week, the State Senate stood in prayer for the passing of Wartburg Police Captain, Ralph Braden, who was also killed recently in the line of duty. That recognition was done at the request of Senator Ken Yager (R-Harriman). This week marks Police Week, a nationwide observance in which May 15th has been designated as Peace Officers Memorial Day to honor fallen officers.

Adventure Tourism / Rural Job Creation — The Senate Finance Committee has approved legislation to enact the Tennessee Adventure Tourism and Rural Development Act. The objective is to establish a plan for Tennessee to promote outdoor recreational opportunities in rural, high-employment areas of the state to create jobs. Senate Bill 1205, sponsored by Senator Ken Yager (R-Harriman), would direct the Department of Economic and Community Development and the Department of Conservation and Environment to perform a study and create a plan to promote adventure tourism and other recreational and economic development activities in rural areas.

No state income tax resolution — A “No State Income Tax” amendment resolution was approved by the Senate Finance Committee and was read on the first of three required readings before the full Senate. The proposal would clarify that an income tax and a payroll tax are prohibited by the Tennessee Constitution if voters agree to amend the Constitution in a vote in 2014. Senate Joint Resolution 221, sponsored by Senator Brian Kelsey (R-Collierville) specifies that the legislature as well as Tennessee counties and cities shall be prohibited from passing either an income tax or payroll tax, which is a tax on employers measured by the wages they pay their workers. In order for a constitutional amendment to pass, it must first be approved by a simple majority in both the House and the Senate this year. Then, it must be approved by a two-thirds vote in each chamber during the next General Assembly in 2013-2014 before it goes to voters for final consideration.

Cyberbullying — Two separate bills sponsored by Senator Bill Ketron (R-Murfreesboro), strengthening Tennessee’s law against bullying and cyberbullying through the use of electronic devices, received approval in the State Senate this week. The action comes after several highly publicized cases of cyberbullying nationwide. The first measure, Senate Bill 488, clarifies that Tennessee’s elementary and secondary school laws dealing with harassment, intimidation, bullying and cyberbullying applies to after-school activities that create a hostile educational environment. The second bill, Senate Bill 487, calls for those convicted of using electronic devices to bully to serve up to 30 hours of community service work for transmitting or displaying an offensive image where there is a reasonable expectation the victim will see it. It would apply in cases where there is a malicious intent by a juvenile to frighten, intimidate or cause emotional distress to the victim.

Foreign Refugees / Resettlement – The full Senate voted this week to require any entity or agency that administers the state’s refugee program to submit quarterly reports to state and local governments and appropriate legislative committees regarding certain resettlement information. Senate Bill 1670, sponsored by Senator Jim Tracy (R- Shelbyville), is designed to give city, county and state authorities information to help them plan for a variety of needs, including any demands on the education system or emergency services. Refugees are located as part of a federal government program to resettle those who have left their home country due to political or religious persecution. Last year about 1,800 refugees from 14 different countries were moved into Tennessee, with the same amount predicted this year. It does allow cities of counties to send a letter of request to the placement agency and the U.S. State Department regarding a particular resettlement within their boundaries.

Illegal Immigration / Government Benefits – The Senate State and Local Government Committee has approved Senate Bill 1325, sponsored by Senator Jack Johnson (R- Franklin), that authorizes state departments or agencies to verify the lawful status of an alien in Tennessee. Under the “Eligibility Verification for Entitlements Act,” the agency could then prohibit an unlawful alien who is an adult from receiving any “non- emergency” taxpayer-provided benefits in Tennessee.

Meth vehicles – The Senate voted 33 to 0 this week to require notice must be given on the title of a vehicle in cases where it has been impounded due to the manufacture of methamphetamines. The notification must be made within 30 days of the impoundment. Senate Bill 266, sponsored by Senator Jim Tracy (R-Shelbyville), applies when meth has been manufactured on or within the vehicle. Under the legislation, the Department of Revenue would be required to issue a new title denoting that it has been used in the manufacture of meth, in the same way that notification is given for flooded vehicles, so citizens have adequate notice.

Voting machines – The full Senate gave final approval to Senate Bill 1203 to allow cash- strapped Tennessee counties determine whether or not to replace their voting machines under the Tennessee Voter Confidence Act. The vote came after both Democrat and Republican county mayors from across the state expressed strong support for flexibility regarding the law due to the costs to taxpayers and the fact that the machines will have to be replaced again in the next ten years to comply with new standards from Washington. Statewide, administrators estimate it would cost Tennessee taxpayers a combined $11.7 million for storage, printing and transporting the paper ballots. The bill, sponsored by Senator Ken Yager (R-Harriman), allows counties who so choose to replace their equipment to tap into HAVA (Help America Vote Act) funds to assist them with the purchase, and relieves Tennessee taxpayers in cash-strapped counties from a mandate to purchase new voting machines immediately if they are not financially ready. More than $25 million in taxpayer dollars have been spent on purchasing DRE voting machines since 2005 which include an audit trail and have been deemed reliable by federal authorities and state courts.

Emergency Response – The Governor announced this week that the Department of Military, Tennessee Emergency Management Agency, Department of Agriculture, Department of Environment & Conservation, Department of Health (EMS), Department of Human Services, Department of Transportation, Department of Safety, Tennessee Wildlife Resources Agency, Civil Air Patrol, American Red Cross and Tennessee Volunteer Organizations Active in Disasters are responding to the current flooding emergency and providing protective services to help local efforts. Heavy snow-pack melting and above average rainfall in the Midwest raised the Mississippi River to record lood levels along Tennessee’s western border at the end of April. The rising Mississippi River added to flooding already occurring in many middle and west Tennessee counties due to severe storms and tornadoes in mid-April. Additional information about state and federal assistance for affected counties will be released as details become available. For more updates regarding the state’s response, visit the TEMA website at

Revenue Collections — Tennessee revenue collections continued a very modest positive growth trend in April. Overall April revenues were $1.264 billion, which is $600,000 more than the state budgeted. Sales tax collections recorded the 13th consecutive month of positive growth dating back to April of 2010. The general fund was under collected by $6.9 million, and the four other funds were over collected by $7.5 million. Sales tax collections were $22.8 million more than the budgeted estimate for April. The April growth rate was positive 3.52%. For nine months revenues are over collected by $140.6 million. The year-to-date growth rate for nine months was positive 4.34%.

New Leader for Tennessee’s Achievement School District — The Tennessee Department of Education announced Chris Barbic, founder and chief executive officer of YES Prep Public Schools in Houston, Texas, as Superintendent of Tennessee’s Achievement School District (ASD). Barbic will lead the state’s groundbreaking efforts to turn around the State’s lowest performing schools in order to ensure that all Tennessee students have the chance to receive a high quality public education that will prepare them to be college and career-ready. The newly created Achievement School District was set up under the “First to the Top” legislation passed during the General Assembly’s Special Session on Education in January 2010.

Local Ordinances / Equal Access to Intrastate Commerce Act — The full Senate approved legislation, sponsored by Senator Mae Beavers (R-Mt. Juliet), to provide that no local government can impose on any business or person, other than its own employees, any personnel practice, definition or provision relating to discrimination that deviates from the requirements of state law. Senate Bill 632 also makes null and void any nonconforming requirements imposed prior to its effective date.