Tag Archives: constitutional

AG Says Some Discrimination on Residence is OK

Responding to questions posed by state Sen. Stacey Campfield, Tennessee Attorney General Bob Cooper says city and county governments can dictate where their employees live while both state and local governments can give some preferential treatment to businesses located within their boundaries.
Campfield, R-Knoxville, says he sought the opinions “for clarity, mostly” in light of a prior Cooper opinion saying that a state law restricting liquor store licenses to Tennessee residents is unconstitutional. (Note: The full opinion is HERE.)
In the June opinion on liquor licenses, Cooper said the prohibition against out-of-state ownership violates the Commerce Clause of the U.S. Constitution. The new opinion says that local government residency requirements for employees have “only a negligible effect” on interstate commerce.
“Second, where the local government acts as an employer, its conduct is generally exempt from Commerce Clause restrictions under the ‘market participant’ exception. Under this exception, where a government acts in its more general capacity of market participant, it may favor its own citizens over others without violating the Commerce Clause,” the opinion says.
The opinion also cites a 1976 state Supreme Court decision upholding a Memphis’ ordinance requiring employees of the city to live within Memphis, which had been attacked on other constitutional grounds.

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Yager Pleased AG Says a Bill is Constitutional

News release from Senate Republican Caucus:
(NASHVILLE, TN), August 1, 2012 — A new state law making elected and appointed officials ineligible for pre-trial and judicial diversion for criminal offenses committed in their official capacity meets constitutional muster according to a recent Attorney General’s opinion. Tennessee Attorney General and Reporter Robert Cooper, Jr. opined the state “may treat elected or appointed public officials differently from the general public by making them ineligible for pretrial or judicial diversion, without running afoul of federal or Tennessee constitutional protections.”
The request was posed by House Judiciary Committee Chairman Eric Watson (R-Cleveland). The bill was sponsored by Senator Ken Yager (R-Harriman) and Representative Ryan Haynes (R-Knoxville).
“I am pleased that the Attorney General has opined that this new law passes constitutional muster,” said Senator Yager. “It is good to restate that both pre trial and judicial diversion are not a ‘fundamental rights’ for public officials. Those of us who have the privilege to hold public office should be held to a higher standard and violations of the law related to our official duties ought not to be swept under the rug by pre-trial or judicial diversion.”
“I was confident that our legislation was on solid constitutional ground,” added Representative Haynes. “With this new law we are sending the message that a public office is still a public trust and criminal conduct in public office will not be tolerated.”
The opinion stated that pretrial and judicial diversion are treated as “truly extraordinary relief” and are not fundamental rights. It also said “Tennessee and federal courts have not recognized public officials as a suspect class for equal protection purposes. The act took effect July 1, 2012.

Note: The full attorney general’s opinion is HERE.

House Meets in Sunday Session for Veterans

The House, as scheduled, met at 7 p.m. (Central Time) Sunday and heard a second reading on the floor of SJR222, then adjourned at 7:11 p.m. There was no vote and no action on any other legislation.
The resolution calls for amending the state Constitution to allow veterans organizations such as the Veterans of Foreign Wars and the American Legion to hold charitable gambling events for fundraising once a year, subject to the Legislature’s approval of each event. That’s the way things are now for many charities, but veterans organizations are chartered under a separate provision of federal non-profit laws and are excluded now.
The rules for amending the state constitution require that the amendatory resolution must be read aloud on the floor of both the House and Senate three times before a vote is taken.
That has already occured in the Senate, where the resolution received approval.
But the House didn’t get to the first reading until Friday. If the Legislature stuck to its usual schedule of beginning the week’s session on Monday, that would mean another meeting would be required Tuesday if the legislators were to get the required reading on three separate days.
House leaders decided instead to have an unusual Sunday meeting for the second reading. That clears the way for a third reading and final vote on Monday, when leaders hope the 107th General Assembly will adjourn permanently.
The resolution is sponsored in the House by Rep. Charles Curtiss, D-Sparta, and in the Senate by Sen. Rusty Crowe, R-Johnson City.
The House vote board showed 89 members present for the closing roll call on the Sunday session.

Note: In conversation with members and staff, no one — including yours truly — can recall the Legislature ever previously meeting on a Sunday. There have been several Saturday meetings late in sessions and one memorable meeting on the July 4th holiday during the tax fights of more than a decade ago.

Judge Selection Constitutional Amendment Clears First Legislative Round

NASHVILLE, Tenn. (AP) — A proposal to change the Tennessee Constitution to give the Legislature power to reject the governor’s appointments to the state Supreme Court cleared the House on Thursday.
The House voted 70-27 in favor of the resolution sponsored by Republican Rep. Jon Lundberg of Bristol. The Senate passed the measure on a 23-8 vote earlier this week.
Under the current Tennessee judicial selection method, a commission nominates appeals judges and Supreme Court justices, the governor appoints them and voters cast ballots either for or against keeping them on the bench. While the system has withstood legal challenges, critics say it conflicts with language in the state constitution that says Supreme Court justices “shall be elected by the qualified voters of the state.”
Gov. Bill Haslam and the Republican speakers of the House and Senate earlier this year declared their support for a constitutional amendment to underscore the current system, but lawmakers preferred getting rid of the nominating panel and giving the Legislature the added power to deny the governor’s appointments within 60 days.
Haslam’s original proposal has died in the House, but the Republican governor has said he doesn’t oppose the confirmation model.
The resolution would have to be again approved by both chambers by a two-thirds majority within the next two-year General Assembly before it could be put before the voters in 2014.

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Proposal to Have Governor Appoint AG Fails in Senate

NASHVILLE, Tenn. (AP) — A proposal to amend the Tennessee Constitution to change the way the state attorney general is selected has died this session.
The measure sponsored by Republican Sen. Mae Beavers of Mt. Juliet failed to get a majority when it received a vote of 16-15.
Under the proposal, the governor would appoint an attorney general and the Legislature would confirm that person.
Currently, attorneys general are selected by state Supreme Court justices.
Opponents of the proposal say there haven’t been any problems with that process and that it shouldn’t change.
Said Republican Sen. Doug Overbey of Maryville: “If it ain’t broke, don’t fix it.”

2nd Judge Selection Amendment Passes Senate

NASHVILLE, Tenn. (AP) — A proposal to amend the Tennessee Constitution to change the way judges are selected has passed the Senate.
The measure sponsored by Republican Sen. Brian Kelsey of Germantown was approved 23-8. It would impose a federal-style system of having the governor make nominations to the Tennessee Supreme Court and give lawmakers the power to confirm or reject.
A separate proposal to amend the state constitution to change the way appeals judges are selected passed the Senate 21-9 last week. The resolution would let legislators decide between three options for selecting judges: contested elections, a federal-style plan or a plan similar to the current one.
Under the current Tennessee judicial selection method, a commission nominates judges, the governor appoints them and voters cast ballots either for or against keeping them on the bench.

Senate Passes Constitutional Amendment on Judge Selection (another pending)

NASHVILLE, Tenn. (AP) — A proposal that seeks to amend the state constitution to change the way appeals judges are selected passed the Senate on Monday night.
The resolution sponsored by Republican Senate Majority Leader Mark Norris of Collierville was approved 21-9. It would give voters three options for selecting judges: contested elections, a federal-style plan, or a plan similar to the current one.
Under the current Tennessee judicial selection method, a commission nominates judges, the governor appoints them and voters cast ballots either for or against keeping them on the bench.
Norris said some type of plan is necessary because the current plan is scheduled to “sunset,” or end, and “this is the last opportunity Tennesseans have to get this on the ballot in 2014.”
However, opponents say the legislation is unnecessary.
“I think this is doing something that we can already do,” said Democratic Sen. Andy Berke of Chattanooga. “The current constitution authorizes us to have the Tennessee plan.”
Added Democratic Senate Minority Leader Jim Kyle of Memphis: “What we have is folks going around the edges saying I don’t like this or I don’t like that.”
Another proposal advancing in the Legislature would impose a federal-style system of having the governor make nominations to the Tennessee Supreme Court, and then giving lawmakers the power to confirm or reject them.
That measure was slightly amended on the Senate floor Monday and could be up for a vote later this week.

The ‘Stalemate Place’ in Judicial Selection Legislation

Legislators have reached what Senate Majority Leader Mark Norris calls “the stalemate place” on how Tennessee’s top judges should be selected and are now racing to delay a decision until next year.
After a convoluted series of events, the Senate now has before it two different proposals for amending the state constitution. Lt. Gov. Ron Ramsey says he now hopes lawmakers will approve both before adjourning the 2012 session, probably in two weeks.
If that happens, lawmakers can pick up the stalemate next year and try to resolve it then. If not, the inaction will apparently mean no change in the status quo until at least 2018.
The two competing proposals are:

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Tie Vote Sinks Bill Requiring Popular Election of Judges

As the battle brews over how to pick the state’s most powerful judges, plans to make them earn their seat on the bench through popular elections narrowly failed in a House committee Wednesday, according to TNReport.
The House Judiciary Committee voted 7-7 on a plan to elect Supreme and appellate court judges, one vote shy of the majority vote necessary to advance the plan in the Legislature. (Note: And with two members absent.)
“I’m disappointed, to say the least,” said bill sponsor Rep. Glen Casada, who contends the current practice flies in the face of the Tennessee Constitution. The constitution says judges of the Supreme, Circuit and Chancery Courts, and other inferior courts “shall be elected by the qualified voters of the State.”
“The constitution governs how we do business and do public policy in the state,” said Casada, R-Franklin. “To be out of compliance is wrong. If you can’t comply with the most basic, how can you trust us to comply with other parts of the law as well?”
The narrow vote shows there is still distinct division in the GOP-run Legislature over the best way to go about choosing who should sit on the bench in the state’s highest courts.
The measure, HB173, would have required high-ranking judges to face popular elections beginning in August 2014 instead of the yes/no retention elections they now face every eight years.
The Senate considered amendments to the state Constitution earlier Wednesday, but isn’t expected to vote on the plans until next week.
SJR183 would allow the General Assembly to solidify the current practice of the governor appointing judges who later face retention elections, called the Tennessee Plan.
SJR710, on the other hand, would require the governor’s judicial appointments to win approval from the General Assembly. Those judges would also face retention elections to renew their terms.

Haslam-Harwell-Ramsey Judge Selection Plan Stalls

By Erik Schelzig, Associated Press
NASHVILLE, Tenn. — When the top three Republicans in the Statehouse coalesced behind a plan to cement Tennessee’s current selection process for Supreme Court justices into the state constitution, there seemed to be a smooth path ahead for getting the measure before voters in 2014.
Two months later, their proposal has made little progress as some Republican lawmakers have embraced a rival proposal, while others want to allow contested elections to take place.
A proposal is advancing in the Legislature to impose a federal-style system of having the governor make nominations to the high court’s bench, and then giving lawmakers the power to confirm or reject them. Meanwhile, the sponsor of another bill calling for the popular election of appeals judges in August 2014 says he is still advocating for the measure that could come up for a key House committee vote in the next two weeks.

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