Tag Archives: unconstitutional

AG: Solar Industry Tax Break Violates State Constitution

NASHVILLE, Tenn. (AP) — Tennessee Attorney General Robert Cooper says a tax break for the solar industry violates the state constitution.
Cooper told The Tennessean (http://tnne.ws/REhVWm ) that the issue with the tax break is that it favors certain taxpayers. He cited a provision of the constitution that prohibits lawmakers from passing legislation that allows one group of taxpayers to opt out of paying property taxes.
The newspaper reports that Cooper’s announcement on Friday jeopardizes the credit’s future viability and is likely to reinvigorate efforts to roll back the measure and replace it.
Gov. Phil Bredesen pushed the credit and two others through the legislature as his administration came to an end, actions that raised questioned weeks later when Bredesen and two aides started a solar energy company. The other credits haven’t been challenged.

Note: The full AG opinion is HERE.

Street Preachers Wins Over City Ordinance in Court of Appeals

A street preacher has emerged victorious in his battle against a Maryville ordinance requiring he and fellow proselytizers apply for a permit to spread their message, reports the News Sentinel.
In an opinion released late Tuesday, the Tennessee Court of Appeals struck down as unconstitutional a Maryville ordinance that makes it “unlawful for any club, organization or similar group to hold any meeting, parade, demonstration or exhibition on public streets without some responsible representative first securing a permit.”
“We fully acknowledge Maryville’s legitimate interest in preserving order and safety on its streets,” the court opined in a decision delivered by Appellate Judge D. Michael Swiney. “Nothing in this opinion diminishes the right of municipalities to protect people on roadways. However, the particular measure at issue in this case fails to pass constitutional muster as it is vague, overly broad and affords too much discretion to the officials charged with issuing permits.”
The case began in November 2008 when street preacher Wallace Scott Langford, his adult stepson and his stepson’s friend “were screaming and shouting at passing motorists” their gospel message at one of Maryville’s busiest intersections — U.S. Highway 321 and Broadway, the opinion stated.
A video showed the trio “were holding signs and that, at times, the two adults other than (Langford) were passing back and forth through the crosswalk to and from the median,” the opinion noted. Langford was positioned at the Maryville Municipal Building at the same intersection.
Maryville Police Department officers asked the trio to leave, but they refused. Langford was then cited for failing to secure a permit to demonstrate. Langford was ultimately convicted, and attorney William Gribble appealed on his behalf.
Maryville attorneys argued it wasn’t the preaching that was an issue but the dangerousness of doing so at one of the city’s busiest intersections and contended the ordinance requiring a permit was constitutionally sound.
In its ruling, the appellate court agreed the ordinance and the enforcement of it was not targeted at street preaching. However, the court opined the ordinance cast too wide a net to pass constitutional muster.

AG Says State Liquor Licensing Laws Unconstitutional

Attorney General Bob Cooper says a state law that requires liquor store owners to be Tennessee residents – enacted by state legislators who said they wanted to block “interstate whiskey” – violates the commerce clause of the U.S. Constitution.
State Rep. Jon Lundberg, R-Bristol, who requested the Cooper opinion released Tuesday, says he will next year sponsor legislation to repeal the requirement and hopes it will be a first step toward a comprehensive rewrite of state liquor laws that currently “are not business-friendly and not citizen-friendly.”
The Cooper opinion (full text HERE) deals with statutes applying to both wholesale and retail liquor licenses.
To get a wholesaler license, a corporation’s officers and stockholders must be Tennessee residents for five years and “a majority of its assets” must be located in Tennessee. For a retail package store license, a company must have “all of its capitol stock” owned by persons who have resided in Tennessee for at least two years.
“These residency and corporate asset location requirements for applicants seeking a license as an alcoholic beverage wholesaler or package retailer violate the Commerce Clause of the United States Constitution,” says the opinion.

Continue reading

AG Says Horse Slaughter Bill ‘Constitutionally Suspect’

NASHVILLE, Tenn. (AP) — A Tennessee attorney general’s opinion says a legislative proposal to require large deposits before people could mount a legal challenge to a horse slaughterhouse is constitutionally suspect.
The bill sponsored by Rep. Andy Holt would require a bond equal to 20 percent of the worth of a horse slaughterhouse or processing plant from anyone filing a lawsuit against the facility.
The Dresden Republican’s bill seeks to encourage the practice of slaughtering horses in Tennessee.
Attorney General Bob Cooper writes in the opinion requested by Democratic Rep. Johnny Shaw of Bolivar that measure would conflict with state constitutional provisions forbidding “unreasonable and arbitrary barriers” to using the courts to settle disputes.
The bill is scheduled for a full House vote on Monday.

Note: The full AG opinion is HERE.

Legal Scholars Question Amazon Deals With TN, S.C.

Excerpt from a story in Forbes magazine:
Here’s a delicious irony for those following the Internet sales tax wars. Amazon.com founder Jeff Bezos built the world’s largest Web retailer in part by exploiting a 1992 U.S. Supreme Court ruling (Quill v. North Dakota) holding the Constitution’s commerce clause prevents state officials from requiring retailers who have no physical presence in their states to collect their sales taxes.
Now, two leading law professors have concluded that the concessions Amazon recently extracted from South Carolina and Tennessee before opening large “fulfillment” warehouses in those states, are themselves likely a violation of–you guessed it–the Constitution’s commerce clause.
Amazon had threatened to cancel the warehouses unless the two states agreed that despite the new facilities’ physical presence, it wouldn’t have to collect sales tax from their residents. So in June, after much political drama, South Carolina Gov. Nikki Haley, a Republican, allowed a bill to become law without her signature that was written explicitly for Amazon and that gives a sales tax collection waiver until 2016 to any company investing at least $125 million in distribution centers and creating 2,000 full time jobs.
Similarly, in October, Tennessee Gov. Bill Haslam, also a Republican, announced a deal to allow Amazon to delay sales tax collection until 2014 in return for bringing 3,500 warehouse jobs to the state. (Legislation must still be passed to implement that pact.)
….The new analysis, by University of Georgia Law Professor Walter Hellerstein and University of Arizona Law Professor John A. Swain, is being published in Monday’s edition of Tax Analysts’ State Tax Notes (subscription only). While technical, it is of more than academic interest–and not just because the authors are top experts in the field. The South Carolina and Tennessee concessions granted Amazon remain controversial and a legal challenge is always possible. Just last month, Simon Property Group, the nation’s largest owner or retail real estate, filed suit against the State of Indiana seeking to force it to require Amazon to collect Indiana sales taxes. (Amazon operates four distributions centers in that state, too.)

AG: Requiring Photo ID for Voting ‘Likely’ Unconstitutional

The state attorney general says that legislation requiring a photo identification to vote would “likely” be held unconstitutional as now written and approved by the state Senate.
In an opinion requested by three Democratic legislators, Attorney General Bob Cooper pointed to a U.S. Supreme Court decision upholding an Indiana voter photo law. The opinion says that the Indiana law could stand because Indiana also gives a free identification card to voters who have no driver’s license.
Tennessee charges $10 for an identification-only card and the Republican-backed bill mandating a photo-ID for voting doesn’t change that.
The bill has passed the Senate on a party-line vote and cleared House committees as well. Democrats say about 500,000 Tennesseans of voting age have no government-issued photo ID care and the bill would discourage or prevent many of them – mostly poor and elderly people – from voting.
A quote from the opinion:
“A court would likely find that HB0007/SB0016’s requirement that an otherwise eligible voter present a photo identification card in order to vote in person, without the state also providing the ability to obtain a free photo identification card, unduly burdens the right to vote and constitutes a poll tax in violation of the Twenty-Fourth Amendment with respect to federal elections and the Equal Protection Clause with respect to state and local elections.”
A separate bill by Sen. Lowe Finnery, D-Jackson, calls for the state to issue identification-only cards for free. That bill has passed in one Senate committee, but has several steps to go and has not moved in the House.

Continue reading