Category Archives: Tennessee Constitution

Sunday column: Bible bill faithful to history

Back in January, Tennessee’s Office of the Repealer – an entity created by the Legislature’s Republican Supermajority in 2013 to recommend stupid laws on the books that should be repealed – pointed out a statute enacted in 1828 that provides the following commandment for operation of state prisons:

“Each inmate shall be provided with a Bible, which the inmate may be permitted to peruse in the inmate’s cell at such times as the inmate is not required to perform prison labor.”

The Department of Corrections has ignored the law for decades, of course, since it’s almost certainly unconstitutional. Officials told the repealer office that, as a matter of policy, inmates can request a Bible and one will be provided – the same treatment as for other “religious material,” perhaps including a copy of the Quran. But prison wardens don’t issue a Bible to every prisoner as the statute dictates.

The repealer recommended trashing only one other law this year – a 1951 statute that sets specifications for marketing “fancy fresh eggs.” Seems the law predates the federal government mandate setting up egg classifications many years ago through the Food and Drug Administration. It has been ignored by the state Department of Agriculture, just as the biblical commandment was ignored by state prison overseers. Continue reading

Doctors want to amend TN Constitution on jury trials

Fearful that Tennessee courts could eventually strike down a 2011 law capping jury awards in medical malpractice lawsuits, doctors plan to press legislators to protect the statute with an amendment to the state’s constitution, reports the Times-Free Press.

The Tennessee Medical Association wants lawmakers to put before voters new constitutional language clarifying that the General Assembly has authority to set caps on noneconomic damages such as pain and suffering in cases involving medical malpractice liability.

The group’s would require persuading lawmakers in the current GOP-dominated 109th General Assembly to approve the proposed amendment in 2016 and then getting their successors in the 110th General Assembly to pass it by a two-thirds majority.

If it wins approval from lawmakers, it would go before voters on the 2018 ballot to decide.

“The General Assembly needs to act now to prevent us from going backwards on the issue of a noneconomic damages cap,” Dr. John Hale, president of the Tennessee Medical Association said in a recent statement. “The cap fosters growth in Tennessee’s health care industry by cutting back on frivolous lawsuits and the costs that come with them.

“I’m confident Tennessee voters will support it if given the chance to have their voices heard,” Hale added.

… Tennessee’s constitution includes a declaration that the right to trial by jury shall be inviolate and some contend the damage caps are unconstitutional infringement on jury rights. The proposed constitutional amendment comes with a push already underway to scrap court involvement in malpractice completely.

The Alpharetta, Ga.-based nonprofit advocacy group, Patients for Fair Compensation, is calling on lawmakers to yank malpractice suits out of the courts entirely and put them under a first-of-its-kind Patients’ Compensation System.

Patients for Fair Compensation says its proposal is similar to the workers’ compensation system for helping injured workers. It would create an independent panel, appointed by Republican Gov. Bill Haslam as well as the Republican House and Senate speakers. The panel would retain physicians to serve on panels. They would affix specific costs on physician errors in treating patients.

Proponents say the result would slash billions of dollars now spent on lawsuits and “defensive medicine” practices by physicians seeking to protect themselves in court.

The group presented its plan Tuesday before a study panel of the Senate Commerce Committee where Chairman Jack Johnson, R-Franklin, is sponsor of the bill. It was introduced earlier this year… Johnson acknowledged he is already in discussions with state Attorney General Herbert Slatery over whether the bill meets constitutional muster.

Sunday column: On Supreme submission to the legislature

Back in 2011, right after Republicans had taken solid control of the General Assembly, a bill was enacted to overrule a state Supreme Court procedural standard and, in doing so, the Tennessee constitution’s “separation of powers” doctrine arguably was violated.

The only Republican to join several Democrats in voting no was the late Sen. Mike Faulk of Church Hill, who went on to serve as a judge after leaving the Legislature.

Last week, a majority of the state Supreme Court — maybe with a bow to today’s political winds with last year’s hotly-contested re-election campaigns in mind? — said that going along with the legislative majority’s wishes was just fine with them.

But there was a ringing dissent from former Justice Gary Wade, writing before his resignation from the bench took effect in September, that quoted Alexander Hamilton writing in the Federalist Papers on the dangers from the “natural feebleness of the judiciary” that is “in continual jeopardy of being overpowered” by the executive branch.
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AG: Tax break for electric cooperatives unconstitutional

A little-noticed tax break for Tennessee electric cooperatives, enacted by the Legislature in 1988, violates the state constitution, according to an opinion issued last week by Attorney General Herbert Slatery.

The statute in question explicitly says rural electric cooperatives, which provide electricity to homes and businesses in much of the state through contracts with the TVA, are generally responsible for paying taxes, but provides an exemption from city and county property taxes on new facilities for the first four years of their operation.

Says the opinion, requested by Senate Republican Caucus Chairman Bill Ketron of Murfreesboro:

“The Tennessee Constitution declares that all property shall be subject to taxation, and it authorizes the General Assembly to exempt only those properties that fall into specific categories. These categories include property owned by state and local governments, property held and used for purely religious, charitable, scientific, literary, or educational purposes, and residential property owned by elderly and disabled taxpayers… The rural electric cooperatives covered by Tenn. Code Ann. § 65-25-122(a) do not fall within any of the authorized categories.”

David Callis, executive director of the Tennessee Electric Cooperative Association, told Nashville’s WPLN that the group had only recently become aware of the exemption and has been working with state officials to figure out how to begin taking advantage of the tax break for new facilities. While not planning to seek a refund for past years, he said, the co-ops feel obliged to take advantage of any tax break available currently to reduce costs that otherwise must be passed on to electricity consumers.

“This attorney general’s opinion comes completely out of the blue,” he said. “We’re still discussing our next steps.”

Note: This updates, expands and replaces prior post.

TN Constitution among those banning atheists from holding office (it also bans ministers)

ANNAPOLIS, Md. (AP) — Some freedom-from-religion advocates are pressing Maryland and six other states to remove provisions from their state constitutions that prohibit people who don’t believe in God from holding public office.

The other states are Arkansas, Mississippi, North Carolina, South Carolina, Tennessee and Texas, according to the Openly Secular coalition, based in Columbus, Ohio. The New York Times reported on the group’s campaign Dec. 6.

Such bans are unenforceable, according to a 1961 Supreme Court decision. The high court ruled unanimously in a Maryland case that states cannot have a “religious test” for public office.

The state provisions should therefore be removed, said Todd Stiefel, chairman of the Openly Secular coalition, based in Columbus, Ohio.

“If it was on the books that Jews couldn’t hold public office, or that African-Americans or women couldn’t vote, that would be a no-brainer. You’d have politicians falling all over themselves to try to get it repealed,” he told the Times.

Maryland state Sen. Jamie Raskin, D-Montgomery, told The Associated Press on Thursday that the ban is among a number of what he called “obsolete provisions that are littering the constitution.” He said those items could best be addressed by a constitutional convention. Marylanders get to vote every 20 years on whether to hold a constitutional convention. The next referendum is set for 2030.

Raskin, who is also a professor of constitutional law at American University, said the provisions are rarely invoked. “It’s unconstitutional, so it’s unenforceable,” he said.

State Sen. Christopher Shank, R-Washington, the Senate’s minority whip, said he believes in pluralism but isn’t convinced any action is needed.

“I think what they want is an affirmation that the people of the state of Maryland don’t care about the Christian faith, and that is a little offensive,” Shank told the Times.

Note: Tennessee’s Constitution also bans ministers from serving in the Legislature, though that provision has also been ruled in violation of the U.S. Constitution (The U.S. Supreme Court case, decided in 1978, is known as McDaniel vs. Paty.)

Both provisions are in Article IX, Sections 1 and 2. Here’s the text of both:

Section 1. Whereas ministers of the Gospel are by their profession, dedicated to God and the care of souls, and ought not to be diverted from the great duties of their functions; therefore, no minister of the Gospel, or priest of any denomination whatever, shall be eligible to a seat in either House of the Legislature.

Section 2. No person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of this state.

It has been observed that the two sections would seem to be in conflict with Article I, Section 4, which reads:

That no political or religious test, other than an oath to support the Constitution of the United States and of this state, shall ever be required as a qualification to any office or public trust under this state.

ConOs now have three PR people instead of one

NASHVILLE, Tenn. (AP) — Tennessee’s secretary of state, comptroller and treasurer are abandoning an effort to use one communications officer to speak on all three constitutional officers’ behalf.

Treasurer David Lillard announced Friday he has hired Shelli King, a former marketing consultant at WTVF-TV in Nashville, to be his chief spokeswoman. Comptroller Justin Wilson previously hired former WZTV-TV reporter John Dunn to be his spokesman.

They assume their duties from Blake Fontenay, a former reporter for The Commercial Appeal newspaper of Memphis, who will continue to be a spokesman for Secretary of State Tre Hargett through the end of the year.

The three Republican constitutional officers were first named to their positions by a joint convention of the state Legislature in 2009.

TN charities collecting millions through gaming fundraisers

Tennessee-based nonprofit groups — churches, schools, hospitals, civic service clubs and others — collectively grossed $23.5 million over the past three years from charitable fundraisers featuring raffles, cakewalks and similar games of chance, reports the Chattanooga TFP.

On Nov. 4, voters will decide whether to add veterans’ service organizations such as the American Legion, Veterans of Foreign Wars and Disabled American Veterans to the list of groups eligible to hold annual gambling fundraisers.

The state House and Senate approved 145 such fundraisers this year. Groups may not raise money using pulltabs, punchboards, bingo, instant bingo, casino games like keno, slot machines and roulette wheels and games of a type operated by the Tennessee Education Lottery Corp.

In the 2014 fiscal year ending June 30, dozens of groups collectively grossed $8.3 million, according to Blake Fontenay, a spokesman for Secretary of State Tre Hargett. That includes money from concessions and other items sold. No collective figures on net proceeds going to charity were available.

Groups are required to submit paperwork to the state showing how much money was raised from the games and spent on prizes and costs of conducting the games such as renting a site.

At least 25 percent of gross receipts must go toward charitable purposes. A group that fails to meet that standard two years running is permanently banned from applying again.

Christian conservative likens TN GOP war over Common Core to Democrats dealing with income tax, abortion

The Legislature’s supermajority Republicans’ dealings with Common Core is somewhat akin to the Democratic Legislature’s majority of a dozen years ago dealing with a proposed state income tax and the abortion issue, opines Christian conservative David Fowler of Tennessee Family Action Council.

The income tax and abortion were the electoral issues that really began to change the complexion of the General Assembly. Republicans rode to the majority on the back of fiscal and social conservatives. One cannot deny the role that gun rights have played in the Republican party in recent years, but the two legs of the ladder on which the state’s Republican Party rose to its current dizzying heights are fiscal and social conservatism.
Like the two issues that divided the Democrats from the Republicans, if Republicans are not careful, Common Core and traditional social issues may divide the Republican Party itself. In this last election cycle, it seemed that the divide in the party between fiscal and social conservatives became more pronounced. Though one might not readily see how Common Core fits that divide, it does.

Those who push Common Core seem concerned that our students are not learning what is needed to have a strong economy in a global marketplace. They tend to be fiscal conservatives.

On the other side are those who seem concerned that Common Core elevates political correctness over our founding principles and gives too great a nod to big government, particularly the federal government, and to globalism.

However, many in this latter camp are also those we might call “traditional” social conservatives, those concerned about abortion, parental rights in education, the homosexual agenda, and threats to religious liberty. The two “sides” are not identical, but that’s what makes things so explosive politically—when you add them together, you begin to find a lot of upset people.

The bottom line is that Tennessee Republicans must find a way to address the issues social conservatives care about. Personally, I don’t think we have to choose between high academic standards and keeping liberal political philosophies and political correctness out of our schools. I also don’t think we have to choose between being socially conservative and being fiscally conservative. In fact, the former makes the latter possible.

But I do think this: Smiles of feigned concern and pats on the head of social conservatives by Republican fiscal conservatives may not work to keep everybody in the hoped-for big tent of the Republican party happy. In this last election cycle the rumblings were audible. If the trend continues, expect the rhetoric to escalate and for there to be more political bloodshed in the 2016 primaries.

TN tradition of primary elections on Thursday dates to 1796 for reasons unexplained today

Tennessee is the only state in the nation to hold party primaries on a Thursday. Politico advises that no one knows why, the framers of the 1796 state constitution being unavailable for comment.

All other states — except Hawaii, which votes this Saturday — hold their primaries on a Tuesday. Tennessee even holds its presidential primaries on Super Tuesday. Yet, when it comes time to elect or nominate state or federal candidates, the Volunteer State waits until Thursday.

The rule is tucked away in the state’s first constitution, which was drafted in 1796 and meant to govern elections “forever after.” Since then, it’s survived the drafting and amending of two new constitutions, Tennessee’s secession from the Union and efforts by the federal government to standardize when and where Americans vote.

So well established is late-week voting in Tennessee that many people there say they’ve never thought twice about it.

…Charles Sherrill, the Tennessee state librarian and archivist, has looked as far back as the journals of the first state constitutional convention for an answer.

“I can’t find any rationale for why Thursday was in there,” he said.

Even neighboring North Carolina, from which the Tennessee delegates had lifted much of the document, did not specify a day of the week for elections at the time, Sherrill pointed out.

The federal government did not start formally regulating elections until 1845, when it chose Tuesday as the date for all federal general elections. According to assistant Senate historian Katherine A. Scott, lawmakers at the time thought that arrangement made the most sense for a largely agrarian society. Monday voting would have required travel on Sundays, when Christians were supposed to be observing the Sabbath. And Wednesday was a common market day.

That logic made sense to most states, and when party primaries came into popularity in the early 20th century, all but Tennessee and Hawaii adopted Tuesday as the standard election day for both the general and primaries.

Sunday column: TN Constitution may warrant more attention than TN candidates in November, 2014

A year out, it seems likely that Tennessee’s constitution may be a much bigger issue than Tennessee candidates in our state when voters go to the polls for the general election on Nov. 4, 2014.

Four proposed amendments to the state constitution will be on the ballot at that time, two presenting hot-button topics – namely abortion and a state income tax — that often inspire knee-jerk reactions. The other two involve judicial selection and veterans gambling, topics perhaps more prone to inspire head-scratching.

In contrast, almost all seriously-contested candidate elections will have been resolved in the August primaries when the general election rolls around in November.
Barring events probably bizarre and certainly unforeseen, the outcome in all nine congressional district elections, the U.S. Senate election and all but a small handful of state legislative contests will be decided before election day. The overall results will assure continued Republican rule, yawn, the important distinctions of which GOP faction gains ground – best bet on the establishment at this point, but don’t give points – having been resolved in August.

By conventional wisdom a year out, the results of the abortion and tax amendments should also be a foregone conclusion.

Indeed, at the time both of these amendments were initiated in the Legislature – more than a decade ago, with defeats along the way before ultimate success in getting legislative approval to put them on the ballot – Democrats were still a force to be reckoned with in Tennessee politics. The amendments were seen as a way of enhancing turnout of Republican-oriented voters and thus setting things up for a big GOP sweep year.

As it turns out, of course, the Republicans have already swept. So the strategic goal of GOP gains is no longer a factor, eliminating the motivation for millions of dollars in get-out-the-vote spending by Republicans flush with funding, not to mention the destitute Democrats who will have little money to spend.
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