May 17, 2004
For more details on bills, visit the legislative website at http://www.legislature.state.tn.us.
Ramsey: 'It's Time to Restore State-Shared Taxes Now'
Countdown Continues: 1 Paid Day Left for Senate
NASHVILLE-This week on Nashville's Capitol Hill, Senate Republican Caucus Chairman Ron Ramsey (R-Blountville) renewed his call to restore state-shared taxes to local governments. To balance last year's state budget, the governor's budget seized $36 million in state-shared taxes from local governments which either passed on the taxes by hikes in local property taxes, wheel taxes, or fees or else relied on reserve funds, hoping against hope to see them restored in this year's budget. Many local governments point the blame squarely at Nashville for their troubles.
"It's time to restore state-shared taxes which were confiscated by the governor in his budget last year," stated Senator Ramsey. "Quite a number of us fought hard against balancing the state's budget on the backs of counties and municipalities. Because of the current expected state surplus of nearly $100 million between now and June 30 and increased projections for the next fiscal year, we need to give those state-shared taxes back to local government. If the economy continues to improve, I'd like to see us restore funding permanently in the future."
For more, see Ramsey hopes to restore $36 million in state-shared revenue in Thursday's Kingsport Times-News at <http://www.timesnews.net/article.dna?_StoryID=3365211> .
In other action this week on Capitol Hill, a full court press prompted some action on the stalled Worker's Compensation Reform issue even as obstructionist opponents racketed up their rhetoric to stymie real Worker's Comp Reform.
The House got cooking and easily passed the administration's Workers' Comp Reform Bill which continued to simmer and seethe in Senate committees. The Senate Commerce Committee moved out a Worker's Comp Reform Bill late Wednesday in a 7-0-2 vote. Senate Finance moved the bill out Thursday afternoon.
The Senate also approved the second installment of the administration's TennCare Reform package, passing a measure to create and increase penalties for fraud and abuse in the TennCare program.
The Senate used Legislative Day 88 on Monday and Legislative Day 89 on Thursday, leaving only one paid day to complete Senate business in the 103rd General Assembly. The House of Representatives used three days this week and still has four paid days remaining. Both bodies head into what many hope turns out to be the final week of session.
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Marriage Protection Amendment Read Twice
House Joint Resolution 990 by Senator Jeff Miller (R-Cleveland), the Marriage Protection Amendment, was substituted for a parallel-track resolution, Senate Joint Resolution 887, Monday when it received its first reading on the Senate floor. HJR 990 received its second reading Thursday. It is expected to receive its third and final required reading on Wednesday (May 19) followed by an up-or-down vote on the matter.
The Marriage Protection Amendment would put the question to the people as to whether they want to amend Article XI of their state Constitution to define marriage as a contract between one man and one woman.
Senator Miller stated, "An existing state statute which I helped sponsor through the Senate in 1996 defines marriage as being between one man and one woman. However, we now are very concerned that an activist judiciary may attempt to overturn that statute. Out of an abundance of caution, this is a pre-emptive measure to get ahead of our state courts.
"Same-sex couples can begin legally marrying in Massachusetts May 17. Couples from Massachusetts will inevitably move here and demand recognition. We don't need to leave this important issue to the courts. There's no telling what new right activist judges might try to concoct out of our constitution."
If the Senate gives the Marriage Protection Amendment majority approval this year, the measure would then need to be approved by two-thirds of each house in 2005 and/or 2006. Should that occur, it would appear on the November 2006 ballot where it would require a majority of those voting in the governor's race.
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SJR 27 Moves to Senate Calendar
Senate Joint Resolution 27 by Senator David Fowler (R-Signal Mountain) passed out of Senate Judiciary Committee Tuesday in a 5-0-1 vote from the 9-member committee.
SJR 27 would urge Congress to pass a federal constitutional amendment to define marriage exclusively as a "union of a man and a woman."
On May 21, 2003, the Senate Finance, Ways and Means Committee had deferred action on the measure until 2004, the second year of the two-year-long 103rd General Assembly. On March 30, 2004, Senate Finance returned SJR 27 to Senate Judiciary Committee to align its language to the current federal language.
Article V of the U.S. Constitution, Mode of amendment, requires passage by three-fourths of the states, or 38 out of the 50 states, to change that constitution. To date, some 38 states have already adopted statutory provisions to protect the institution of marriage.
Senators Mark Norris (R-Collierville) and Jim Bryson (R-Franklin) co-sponsor the measure.
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Take 2: Return of the $50 Fine Referendum
Senate Joint Resolution 800 was heard on first and second readings this week to propose an amendment to Article VI, Section 14, of the Constitution of the State of Tennessee, to raise the amount of the maximum fine that may be assessed without a jury from the constitutional cap of $50 up to $500.
A similar proposal was defeated by the people in a referendum on November 5, 2002, when the proposed constitutional change failed to receive a majority of those voting in the governor's election.
The proposal this time is not as far-reaching and gives the right to the General Assembly to set fines of no more than $500 without a jury trial.
Article VI, Section 14 of the Constitution now reads: "Sec. 14. Fines exceeding fifty dollars to be assessed by jury. No fine shall be laid on any citizen of this State that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty dollars."
The new proposal is to delete that language and reword Section 14 to read: "To protect the rights of citizens from excessive fines imposed without the right to a jury trial; to promote public health and safety; and to ensure that state and local laws can be enforced, the General Assembly shall establish the maximum fine that may be assessed without a jury, provided, however, that such maximum fine shall not exceed five hundred dollars. Such limit shall not apply when the right to a jury trial has been voluntarily waived."
The previous wording put to the people and rejected by the people on November 5, 2004, had no cap and proposed to reword Section 14 to read: "The General Assembly shall prescribe the maximum fine that, absent waiver, may be assessed without a jury."
The issue originally arose over appellate court actions in 2000 and 2001. The Supreme Court took up the matter in March 2001 and interpreted the existing constitutional language to limit non-jury fines to $50.
The September 4, 2001, Supreme Court consolidated case decision can be found at <http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/013/davisbarrett.pdf> in City of Chattanooga v. Kevin Davis and Frank Barrett v. Metropolitan Government of Nashville and Davidson County.
That opinion provides the Historical Background of Article VI, Section 14 as follows:
"Article VI, section 14 is unique in the whole of American constitutional law, and no other provision like it may be found either in the Federal Constitution or in any other modern state constitution. Although this provision dates to our first Constitution signed in Knoxville in February 1796, we know little else about its origin. Similar clauses did not appear in any colonial charter, in any early state constitution, including the 1776 North Carolina Constitution, or in the Constitution of the State of Franklin.
Instead, as the Journal of the 1796 Constitutional Convention reveals, the Fifty-Dollar Fines Clause made its first appearance in the jurisprudence of this state on Saturday, January 30, 1796, when it was appended to a proposed draft constitution as section 9 of the article governing the judiciary. As originally proposed, this provision read: "No fine shall be laid on any citizen of this state, that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact." Tenn. Const. art. V, § 9 (1796 draft). Though the Journal of the 1796 Convention was not kept as a verbatim record of the proceedings, no discussion or debate concerning the draft of this clause is evident. Indeed, the final provision issuing from the Convention was precisely the same as that initially proposed, except that it was amended at some point to add a final clause, "if they [the jury] think the fine ought to be more than fifty dollars." Tenn. Const. art. V, § 11 (1796)."
However, the origin of the idea may actually have logically stemmed from "Article the ninth" of the 12 articles proposed as amendments to the Constitution of the United States in 1789, some seven years before Tennessee became a state. Those 12 proposed articles received wide circulation and extensive discussion in the several states, including North Carolina of which Tennessee was then part, with the result being that articles 3-12 were quickly ratified by the required number of states and renumbered as the first 10 amendments where they became known as The Bill of Rights. Amendment VII of the U.S. Constitution still states: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law."
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Sprinklers Required in Residential Homes for the Aged and Assisted Living Facilities
HB 2554/SB 2725 by Senator Bill Clabough (R-Maryville) unanimously passed the Senate Thursday to require sprinkler systems in residential homes for the aged and assisted-care living facilities on a set timetable. Homes for the aged with less than 12 residents in a single-story facility would be exempt. That exemption would not apply to any new construction. It returned to the House to consider Senate amendments put on the House bill.
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Serial Sex Offender Bill on Way to Floor
Senator Tim Burchett (R-Knoxville) moved SB 2473/HB 3186, the Serial Sex Offender Bill, through the Senate Finance Committee Tuesday (May 11). Since $332,500 in funding for the measure is now included in the governor's proposed amendment to the appropriations bill, the committee recommended passage and it moved on to the Senate Calendar Committee which will schedule the bill for a floor vote.
"I appreciate the governor finding funding for this bill which gets to the crux of the problem with serial sex offenders. This bill opens up a perpetrator's past which may show a proclivity for choosing young people as victims. I strongly believe jurors should consider prior convictions when weighing evidence presented in a trial against a person accused of committing a similar sex offense," stated Senator Burchett.
The Serial Sex Offender Bill would allow evidence of a defendant's prior conviction of a sex offense when the victim was less than 13 if the defendant is currently being tried for a sex crime in which the victim is less than 13, subject to Rule 403 of Tennessee Rules of Evidence.
Attorney General Opinion 04-089, dated May 10, 2004, states the opinion of the Attorney General that "House Bill 3186 is defensible under both the United States and Tennessee Constitutions." Further, the AG opinion concludes: "House Bill 3186 is thus defensible against a due process challenge for the same reasons discussed by the California Supreme Court in Falsetta."
"I am delighted with this particular AG Opinion. It's just good common sense," stated Senator Burchett.
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Purple Heart Trail Approved
Senator Rusty Crowe (R-Johnson City) presented House Bill 3249/Senate Bill 3274, the Purple Heart Trail Bill, before the full Senate which unanimously approved the measure Monday (May 10).
Senator Crowe stated, "It is altogether fitting and proper that we name a Purple Heart Trail in honor of those who are injured or killed in combat during a war or conflict in defense of our country. Purple Heart recipients have demonstrated to us that they care more about preserving freedom than they do about their own personal safety. With this Purple Heart Trail, we demonstrate to them that we appreciate their devotion and dedication to our country."
A Senate amendment changing one of the segments of the route was attached to HB 3249 and it returned to the House which concurred in the Senate amendment.
Senators Mark Norris (R-Collierville) and Bill Ketron (R-Murfreesboro) were co-prime sponsors of the measure in the Senate.
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Sen. Ketron Handles DL Bill through Senate
The Senate gave its unanimous approval to Senate Bill 3430/HB 3486, the toughest driver's license law in the nation Monday. The House approved it 96-2-1 on Wednesday. The story, particularly The Associated Press account, created quite a buzz and received national and international play, including runs in the Los Angeles Times and UK's The Guardian.
Senator Bill Ketron (R-Murfreesboro) shepherded the administration's proposed driver's license law through the Senate committee system over the last two weeks and then presented the bill Monday evening before the full Senate. Democratic Senator Jerry Cooper (D-Smartt Station), a co-prime sponsor of the bill, had turned the bipartisan bill over to Senator Ketron because of his extensive involvement and work on the issue over the last two years.
The bill would bring Tennessee in line with 40 other states by establishing stringent requirements that would only allow driver's licenses to be issued to citizens of the United States and those who are lawful permanent residents of the United States.
Senate Bill 3430/House Bill 3486 would also allow those who can document that they are here lawfully to be issued a driver's certificate which would be valid for up to five years but no longer than the applicant's authorized stay in the United States.
Individuals who do not qualify under those two categories may apply for a one-year driver's certificate. Applicants would need to provide proof of identification and Tennessee residency.
The new statute would require the driver's certificate to contain a phrase substantially similar to "FOR DRIVING PURPOSES ONLY - NOT VALID FOR IDENTIFICATION" on its face.
The bill contains a provision retroactive to January 2001 during the year licensing standards were relaxed. To renew their licenses, individuals who received driver's licenses under the relaxed law will have to provide proof to the Department of Safety of U.S. citizenship or lawful permanent resident status.
Since the 2001 change, cumulatively, some 58,000 individuals are now estimated to hold Tennessee driver's licenses without having provided a Social Security Number.
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2nd TennCare Reform Bill Passes Senate
A long-sought Republican goal may have finally been reached with the passage Thursday of the second of two genuine TennCare Reform bills passed this session.
This second TennCare Reform bill came before the full Senate Thursday and HB 3512/SB 3394, the administration's TennCare Reform Fraud and Abuse Bill, unanimously passed. Senator Jeff Miller (R-Cleveland), a longtime advocate for substantive changes in the TennCare Program is a prime sponsor of this bill as well as the general TennCare Reform Bill, HB 3513/3392, which passed previously. SB 3394 creates additional fraud and abuse crimes and penalties for TennCare.
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Senate Approves Elder Tennesseans Protection Act
HB 2343/SB 2364 by Senator Curtis Person (R-Memphis) unanimously passed the Senate Monday to enact the Elder Tennesseans Protection Act of 2004. The bill provides additional measures to protect nursing home residents by punishing those who neglect, abuse, or exploit them. A key feature of the bill is that it allows magistrates to hold a suspected offender for 12 hours in the same way that they can hold suspected domestic violence offenders. Additionally, the bill would place a perpetrator's name on a registry.
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'Crack Tax' Passes Senate
SB 2419 by Senator Randy McNally (R-Oak Ridge) unanimously passed the Senate Monday to impose an excise tax on dealers of illegal controlled substances, such as crack, cocaine, and marijuana. The bill provides a way to force drug dealers to pay for part of the cost of enforcement rather than burdening the taxpayers.
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Senate Floor Actions
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HB 2338/SB 2246 passed the Senate by unanimous consent Monday to require the Administrative Office of the Courts to create and maintain a registry of persons credentialed as a court interpreter of spoken foreign languages and to post the registry on its Web site.
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HB 3535/SB 3460, a Homeland Security measure, passed the Senate by unanimous consent Monday to authorize the Tennessee Wildlife Resources Agency to enter into agreements with the U.S. Coast Guard to enforce federal regulations in connection with Homeland Security-related activities on state waters. The state Office of Homeland Security must approve all agreements.
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HB 1047/SB 1566 by Senator Miller unanimously passed the Senate Monday to ease the burden on landowners for posting notice for property on which the owner does not want hunting without permission.
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HB 3338/SB 2866 unanimously passed the Senate Monday to promote financial accountability in higher education administration to prevent a recurrence of what happened under former UT president John Shumaker. Senator Crowe is a co-prime sponsor of the bill.
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HB 2225/SB 2090 unanimously passed the Senate Monday to prohibit employment by higher education for twelve months of non-employee members of presidential search committees to prevent a recurrence of what happened with former UT president John Shumaker. Additional safeguards include promotions within the same institution or system. Senator Crowe is a co-prime sponsor of the bill.
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HB 3242/SB 3073 by Senator Crowe unanimously passed the Senate Monday to rewrite the campus police law to define the categories for campus police officers, campus public safety officers, and campus security officers.
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SB 2307 by Senator Crowe, a Homeland Security measure, unanimously passed the Senate Thursday to authorize an employer to require background checks on all licensed EMTs and EMT-Ps and other certified EMS employees, who are currently employed or are applying for employment. The cost for criminal background checks for those currently employed would be borne by the employer and the cost for the applicants would be borne by the applicants; however, if an applicant fails to pay, the employer would be held responsible for the payment. In addition to providing past work history and personal references, an applicant must agree to release information and investigative records to the employer to verify if the applicant has been convicted of a felony in the state. The applicant must also supply a fingerprint sample and submit to a criminal history check by the TBI and the FBI or other law enforcement agency.
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HB 2889/SB 2602 by Senator Person passed the Senate Thursday in a 30-2 vote to prohibit claims being brought under the False Claims Act if the action is based upon employment decisions made by an elected official, governing body or political subdivision or municipality or if the state or political subdivision that is the subject of the false claim has undertaken an action to recover wrongfully paid funds. The state False Claims Act was enacted to allow the government or a private citizen acting as a qui tam plaintiff on behalf of the government to file suit against contractors who file false claims. This bill seeks to stop frivolous lawsuits from being filed against sheriffs and mayors, officials not specifically exempted in existing law. Officials are subject to prosecution under other statutes pertaining to holding public office. However, if any official is doing something without the knowledge of the local government, then that official can be prosecuted under the False Claims Act.
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HB 1249/SB 1671 unanimously passed the Senate Thursday to require the disclosure of consulting contracts by officials in the executive and legislative branches. Senator Micheal Williams (R-Maynardville) is a co-sponsor of the bill.
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Bill Watch List
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Appropriations Bills:
SB 3415/HB 3551, an appropriations bill, is available to carry the administration appropriations bill and other appropriation amendments.
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Workers' Compensation Bills:
HB 3531/SB 3424, is the carrier bill for the administration's workers' compensation amendment. The House bill passed Wednesday 82-14-2. SB 3424 passed out of Senate Commerce Wednesday in a 7-0-2 vote and went to Senate Finance which approved it Thursday.
SB 3169, the Norris Workers' Comp Reform Bill, with the permission of Senator Norris, could act as a back-up bill for agreed-upon workers' compensation reform legislation.
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