Supreme Court finds Lee’s school voucher program doesn’t violate home rule protections

Gov. Bill Lee speaks in the Old Supreme Court Chamber of the state Capitol in Nashville on March 22, 2021. (Erik Schelzig, Tennessee Journal)

Three years after lawmakers narrowly passed Gov. Bill Lee’s signature school voucher program, the state Supreme Court has overturned lower courts’ findings it violated home rule protections against laws targeted at individual counties by applying only to Nashville and Shelby County.

The 3-2 decision released Thursday came after the high court decided to rehear arguments following the death last year of Justice Connie Clark. Court of Appeals Judge Skip Frierson sat in on the case and sided with Chief Justice Roger Page and Justice Jeff Bivins. Justices Sharon Lee and Holly Kirby dissented.

UPDATE: When the voucher bill passed it was tied to moving dollars calculated through the Basic Education Program to cover private school tuition. Lawmakers this year approved an overhaul of the school funding formula called Tennessee Investment in Student Achievement, which funds individual students rather than districts as a whole. The Lee administration included a provision in the law to change the funding mechanism for the voucher program from the old formula to the new one:

SECTION 53. Tennessee Code Annotated, Section 49-6-2603, is amended by deleting the language “basic education program” wherever it appears and substituting “Tennessee investment in student achievement formula (TISA)”.

Here’s the release from the Administrative Office of the Courts:

In an opinion released today, the Tennessee Supreme Court determined that, while two Tennessee county governments had standing to challenge the Education Savings Account Pilot Program (the “ESA Act”), the Act is not rendered unconstitutional by the Home Rule Amendment, article XI, section 9, of the Tennessee Constitution.

In 2019, the Tennessee General Assembly enacted ESA Act. The Act establishes a program allowing a limited number of eligible students to directly receive their share of state and local education funds, which would ordinarily be provided to the public school system they attend, to pay for a private school education and associated expenses.

The Metropolitan Government of Nashville and Davidson County, Shelby County Government, and Metropolitan Nashville Board of Public Education filed a declaratory judgment action that named as defendants Governor Bill Lee, the Tennessee Department of Education Commissioner, and the Tennessee Department of Education. The trial court also allowed additional parties to intervene and participate as defendants. The complaint alleged that the ESA Act violates several provisions of the Tennessee Constitution, including the Home Rule Amendment, the equal protection clauses, and the education clause.

Defendants filed separate motions challenging Plaintiffs’ standing to pursue the claims presented and the legal sufficiency of those claims. Plaintiffs, in turn, filed a motion for summary judgment with respect to their Home Rule Amendment claim. The trial court determined that the two county plaintiffs had standing to pursue the claims, but it dismissed the Metro School Board as a plaintiff for lack of standing. The trial court also granted the motion for summary judgment concluding that the ESA Act violates the Home Rule Amendment and enjoined the State from implementing the Act. The trial court reserved ruling on Defendants’ challenges to the equal protection and education clause claims.

The trial court granted Defendants permission to seek an interlocutory appeal, and the Court of Appeals granted Defendants’ applications for appeal. The intermediate appellate court affirmed the trial court, holding that Metro and Shelby County had standing to challenge the ESA Act under the Home Rule Amendment and that the Act was unconstitutional pursuant to the Home Rule Amendment.

The Tennessee Supreme Court granted Defendants’ applications for permission to appeal. Because it is an interlocutory appeal, the issues before the Court were limited to the constitutionality of the ESA Act under the Home Rule Amendment and Plaintiffs’ standing to bring that challenge. The Supreme Court agreed with both the trial court and the Court of Appeals that Plaintiffs Metro and Shelby County had standing to bring their Home Rule Amendment Claim. However, the Supreme Court, after reviewing the applicable constitutional language, held that the ESA Act is not rendered unconstitutional by the Home Rule Amendment because the Act is not “applicable to” the Plaintiff counties for purposes of the Amendment. The majority concluded that the ESA Act is not applicable to the Plaintiff counties because the Act regulates or governs the conduct of the local education agencies and not the counties. Thus, the Act does not violate the Home Rule Amendment. The Supreme Court therefore affirmed, in part, and reversed, in part, the judgment of the Court of Appeals and remanded the case to the trial court for the dismissal of the Home Rule Amendment claim and for consideration of Plaintiffs’ remaining claims.

Justice Sharon G. Lee and Justice Holly Kirby joined in a separate opinion, concurring in part and dissenting in part. They agreed with the Court that Metro and Shelby County had standing to challenge the ESA Act but concluded that the Act violates the Home Rule Amendment. In their view, the ESA Act substantially affects Metro and Shelby County’s ability to self-govern and decide school funding issues. Under the ESA Act, only Metro and Shelby County and no other counties in the state must pay for students who leave public schools and use their vouchers for private school tuition. Because the ESA Act is local in effect and application, and because the Act gives Metro and Shelby County no choice in the matter, it violates the Home Rule Amendment.

To read the majority opinion in Metropolitan Government of Nashville and Davidson County, et al. v. Tennessee Department of Education, et al., authored by Chief Justice Roger A. Page, and the separate opinion authored by Justice Sharon G. Lee, visit the opinions section of TNCourts.gov.

Longtime Tennessee GOP lawyer John Ryder dies

John Ryder, a Memphis attorney who was active in the state and national Republican parties for decades, has died.

Here is a statement from state GOP Chair Scott Golden:

We have sadly just learned of the passing of our friend and a true champion for all Tennessee Republicans, Mr. John Ryder of Memphis. There are very few in our state that haven’t had the impact of the life of Mr. Ryder. While working as an attorney at the firm of Harris Shelton, he volunteered and consulted in a variety of different capacities in both government and politics. Most recently, he just finished as President’s Trump appointee to the Tennessee Valley Authority. For 16 years he served our state on the board of the Republican National Committee, completing his final tenure as the RNC’s General Counsel. He’s been the Shelby County attorney and led multiple Republican redistricting efforts for the last 30 years. Mr. Ryder has been a confidant of almost every elected Republican in Tennessee for the last half century through his tireless and selfless giving, support, and expertise. With his in-depth knowledge of both legal, bylaw, and rules, Mr. Ryder has crafted the process by which the Republican Party selects our Presidential nominees during his many appearances at the RNC Conventions over the years. His unmatched legacy and resume will never be forgotten by those who knew him and I am fortunate to have called him a friend and mentor as have many Chairmen of the Tennessee Republican Party. Our deepest sympathies are with his wife, Lain, and his family during this time. Thank you for sharing John with the entire State of Tennessee and our Republican family and know that he will be truly missed by many.

And here is Lamar Alexander, a former governor and U.S. senator:

With deft legal skills and an easy manner, John Ryder helped build the Tennessee Republican Party over nearly a half century. He effectively served the Republican National Committee as its counsel and the people of this region as a TVA board member. I admired John and counted him as a friend. Honey and I send our sympathy and respect for his life to Lain and their family.

New TNJ edition alert: The Cameron Sexton interview

House Speaker Cameron Sexton (R-Crossville), left, and Rep. Pat Marsh (R-Shelbyville) await the begin of the State of the State address on Jan 31, 2022. (Erik Schelzig, Tennessee Journal)

The latest print edition of The Tennessee Journal is out. Here is what’s in it:

— TNJ Interview: House Speaker Cameron Sexton reflects on recovering from ‘trauma’ of scandals in House, building trust with Senate, and his expectations about future relations with Gov. Bill Lee.

— No cakewalk for Joe Carr in Rutherford County?

— Federal judge shoots down Starbuck’s effort to be restored to GOP ballot in 5th District.

— AG’s office confirms 5th District ballots could be changed until next month, raising questions about why redistricting fixes couldn’t have been made in time.

Also: Speculation about attorney general successor kicks into overdrive, Brian Kelsey gets another delay for his federal campaign finance case, and Memphis’ Democratic mayor backs “truth in sentencing” law.

As always, access the your copy of the TNJ here.

Or subscribe here.

Judge denies Starbuck’s effort to be put back on 5th District ballot

U.S. District Judge Waverly Crenshaw has denied music video producer Robby Starbuck’s motion to be placed back on the Republican primary ballot for the 5th Congressional District.

“Exactly why Mr. Starbuck’s name was removed from the ballot the Court may never know,” Crenshaw wrote in Thursday’s order. “His Complaint speaks of smoke-filled rooms with carpetbaggers engaged in political chicanery reminiscent of the Daley machine in Chicago during the 60’s and 70’s, and New York’s Tammany Hall in the late 1800’s and early 1900’s. Whatever the reason, the only question now is whether Mr. Starbuck is entitled to a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure. He is not.”

Model legislation group wants Lee to veto disclosure rules for dark money spending

House Speaker Cameron Sexton (R-Crossville) presides over a floor session on Jan. 12, 2021. (Erik Schelzig, Tennessee Journal)

ALEC Action, the advocacy arm of the American Legislative Exchange Council, wants Gov. Bill Lee to veto a bill requiring 501(c)4 groups like itself to disclose spending meant to influence the outcome elections within 60 days of the vote.

ALEC Action in a letter to the governor claims legislation championed by House Speaker Cameron Sexton (R-Crossville) and his Senate counterpart, Randy McNally (R-Oak Ridge), could cause nonprofits to identify their donors. Sponsors were adamant during the debate over the measure that it would only require expenditures to be made public — not donors.

“If enacted, this legislation would implement an extremely broad, unclear, and dangerous state registry dragnet targeting non-profit organizations, many of which are currently engaged in standard issue advocacy,” according to Lisa Nelson, ALEC Action’s CEO.

Other conservative groups like the National Rifle Association, Americans for Prosperity, and the Beacon Center have spoken out against the measure. But the final version still passed on a vote of 85-3 in the House and 31-1 in the Senate.

Here’s the full letter:

Dear Governor Lee,

ALEC Action writes with strong concerns regarding S.B. 1005/H.B. 1201. Given the extremely ambiguous language, low thresholds for expenditure reporting, and what would likely be unconstitutional requirements of compelled donor identity disclosure, we strongly encourage you to veto this legislation.

This bill requires organizations designated as tax-exempt by federal law, including 501(c)(4)s, (5)s and (6)s, to report their expenditures to the Tennessee Registry of Election Finance after certain communication and financial thresholds are met. This non-profit reporting requirement is triggered after a financial threshold in the aggregate amount of only $5,000 is met and when spent towards certain communications 60 days before an election, however, this legislation fails to provide a clear definition of qualifying communications. If enacted, this legislation would implement an extremely broad, unclear, and dangerous state registry dragnet targeting non-profit organizations, many of which are currently engaged in standard issue advocacy. Further, it is unclear how Tennessee agencies and courts will interpret this law, creating a variety of issues for them, the tens of thousands of organizations spread across the political spectrum in Tennessee, and the donors who support them.

The right of philanthropists to keep their giving private is a longstanding constitutional protection that should be respected by states. It is for this reason that ALEC filed an amicus brief in support of a case where the United States Supreme Court upheld these very principles and privacy protections. Further, the proposals in S.B. 1005/H.B. 1201 are inconsistent with ALEC Action principles, such as the Statement of Principles on Philanthropic Freedom as well as the Resolution in Support of Nonprofit Donor Privacy. Referring to a candidate’s position on policy matters should never result in the disclosure of donor information from non-political groups, and legislation should not seek to classify such organizations as entities required to do so. Policy that seeks to address campaign finance issues simply by expanding legal thresholds and reporting requirement windows does not truly address election integrity matters, but instead burdens numerous organizations with onerous reporting requirements, while violating the privacy rights organizations and their supporters are entitled to.

S.B. 1005/H.B. 1201 is a drastic overreach that would encroach on the privacy rights of non-profit organizations and their donors, all while creating a chilling effect on free speech. Because of the consequences of such a proposal, along with its inconsistencies with limited government principles, ALEC Action encourages you to veto S.B. 1005/H.B. 1201.

Sincerely,

Lisa B. Nelson
Chief Executive Officer
ALEC Action

Ogles camp announces $453K haul for 5th District bid in first 30 days

Maury County Mayor Andy Ogles says his campaign for the Republican nomination for the open 5th Congressional District seat has netted $453,000 in the first month since joining the race. Ogles didn’t officially enter the contest until the end of the Federal Election Commission’s most recent reporting deadline, so he won’t have to make official disclosures until July 15 — 20 days before the primary.

The Ogles campaign says none of his fundraising total came in the form of loans and that all contributions were from within Tennessee.

Here’s the full release:

COLUMBIA, TN – Maury County Mayor Andy Ogles raised $453,000 in the first thirty days of his bid for the 5th District Congressional seat. Ogles, who was a late entry into the race, officially became a candidate on April 6th. 

Mayor Ogles stated, “I am humbled and overwhelmed by the support I’ve received since entering the race. Not only has the fundraising response been incredible, the results in recent straw polls in both Wilson and Marshall Counties, as well as the candidate auction in Williamson County demonstrate the strength of my grassroots campaign.” 

Mayor Ogles attributes his success with the grassroots to his decades of activism where he has helped lead the charge against Obamacare expansion, government overreach and various tax increases. “Tennesseans want elected officials who will fight for them in the same way President Trump fought for us. During Covid I never wavered, I fought for freedom and liberty in the face of threats, and I will fight for Tennessee against a Federal government that has gone too far and grown too powerful,” said Ogles.

Recently Mayor Ogles made national headlines as he refused to close Maury County during Covid. Ogles actively campaigned against State and Federal mandates by holding the ‘Freedom Matters’ tour where he recruited other elected officials and TN citizens to standup against government overreach with the town hall meetings consistently drawing crowds between 500 and 800 individuals. 

Lee Beaman, a well-known businessman and conservative fundraiser, who serves as Mayor Ogles Campaign Chairman added, “I recently attended an event with several very conservative Members of Congress who were asking about the 5th Congressional Race and I told them Andy Ogles is Tennessee’s Ron DeSantis and, like the Florida Governor, Andy is a true fighter for the people and he is exactly who we need serving us in Congress.” 

Slatery tells colleagues he won’t seek another term as Tennessee Attorney General

State Attorney General Herbert Slatery, right, speaks with Rep. Jerry Sexton (R-Bean Station) on the House floor in Nashville on Feb. 3, 2020. (Erik Schelzig, Tennessee Journal)

Tennessee Attorney General Herbert Slatery has informed his staff he won’t seek a second eight-year term this fall, The Tennessee Journal has learned.

Slatery was the chief legal counsel to then-Gov. Bill Haslam when he was named attorney general in 2014. Tennessee is the only state where the state’s top lawyer is appointed by Supreme Court.

Slatery surprised observers last year by taking a vocal stand against a legislative effort to to insert state lawmakers into the selection process by giving them power to approve or reject the high court’s nominees. The constitutional amendment sponsored by Sen. Ken Yager (R-Kingston), the General Assembly cleared all but the final hurdle to making it onto the ballot this year. But the measure failed in the House Civil Justice Subcommittee in March.

Speaking at Nashville Rotary in October, Slatery said the change would contribute to the attorney general becoming a “political office.” Lawmakers already have the power to turn back executive decisions via the simple majority needed to override gubernatorial vetoes, Slatery said, and now “they want to control this, too.”

UPDATE: Slatery spokeswoman Samantha Fisher confirms Slatery informed colleagues of plans to retire.

UPDATE 2: Here’s the note Slatery wrote to staff:

Hello Everybody,  I want you to know that after much thought, discussion, prayer and seeking of advice, I sent a letter to the Supreme Court today advising them that I do not plan on applying to be re-appointed.  I wish I could tell all of you in person, but there will be a better time for that and communicating my gratitude to you for helping us continue to build a fine AG Office.  You are a very special group of people.  It has been an honor to be the Attorney General and Reporter, one I could never fully describe.  Words just would not do it justice.  Some of you have seen a number of AG transitions (and I may need your coaching 😊) but I can assure you that come September 1 someone of the highest caliber will step into this role.  Our Court knows how to do this.  Until then let’s keep a steady hand on the wheel.  With great respect, Herbert

Winstead hires advertising consultant Davis, Trump pollster Fabrizio for 5th District bid

Kurt Winstead (Photo credit: Winstead campaign)

Former National Guard Big. Gen. Kurt Winstead announced he has hired political ad maker Fred Davis and Trump pollster Tony Fabrizio for his Republican bid for the open 5th Congressional District seat.

Here’s the release from the Winstead campaign:

Nashville, Tenn. – General Kurt Winstead (Ret.), a conservative Republican candidate for Tennessee’s 5th Congressional District, announced today major additions to his campaign leadership team.

“We have so much momentum. Our conservative message to the Republican voters in the 5th District is resonating, and I am so excited about our senior campaign team that will help us win this election,” said Winstead.

The new additions include:

— Fred Davis, a veteran media consultant, who has advised on a number of successful state and federal campaigns including Governor Bill Lee, Governor Bill Haslam and Senator Lamar Alexander. Davis will produce the television and radio advertising.

— Tony Fabrizio and David Lee will act as pollsters for the campaign. Fabrizio and Lee are veteran consultants and pollsters. Combined, they have worked for decades on hundreds of Congressional and Senate campaigns across the country. Fabrizio also served as chief pollster for President Donald Trump in the 2016 and 2020 elections.

— The Stoneridge Group, a well-respected conservative political consulting firm based in Atlanta will lead the campaign’s direct mail and digital efforts.

The campaign previously announced its initial team, including:

— Chris Devaney is Winstead’s senior advisor. Devaney a former Tennessee Republican Party Chairman who served in senior roles on multiple winning campaigns in the Volunteer State, including managing Governor Bill Lee’s successful campaign in 2018.

— Kim Kaegi serves as the campaign’s finance consultant. Kaegi has over thirty years of statewide fundraising experience across Tennessee. Kaegi has worked for dozens of campaigns including Governor Bill Lee, Governor Bill Haslam, Senator Bill Hagerty, and Congressional campaigns of Diane Black, Tim Burchett, Stephen Fincher, David Kustoff, and Phil Roe.

— Jimmy Granbery, a Nashville businessman, is the finance chairman for the campaign.

“This campaign team is one of the best in the country and has the experience to win,” said General Winstead.

Recently, the Winstead campaign announced $1 million cash on hand after a successful fundraising effort following his formal announcement in March.

New TNJ edition alert: Casada crashes out in WillCo, Carr breaks losing streak, and skulduggery gone wrong

House Speaker Glen Casada (R-Franklin) checks his phone as he awaits the joint convention to hear Gov. Bill Lee’s first State of the State address in Nashville on March 4, 2019. (Erik Schelzig, Tennessee Journal)

The latest print edition of The Tennessee Journal is out. Here is what’s in it:

— Embattled Casada crashes out of Williamson County clerk’s race.

— Election roundup: Carr breaks losing streak, Wamps win, Griffey claims judgeship.

— From the campaign trail: GOP wants judge to toss out Starbuck lawsuit over 5th District ouster, maps show former Shelby GOP chair doesn’t live in Shelby, and skulduggery gone wrong.

— Obituaries: The man who could have denied Gore’s first political office and the “Marryin’ Squire.”

Also: Alito cancels Nashville appearance after draft Roe v. Wade reversal leaked, Lee announces a Cabinet shakeup, and acoustic problems at a GOP fundraiser in the state’s largest county.

As always, access the your copy of the TNJ here.

Or subscribe here.

Lee declines signature on ‘truth in sentencing’ bill

Gov. Bill Lee speaks to reporters in Gainsboro on July 8. 2021. (Image credit: State of Tennessee)

Gov. Bill Lee has declined to sign a “truth in sentencing” bill championed by legislative Republicans to require people convicted of violent crimes to serve all of their sentences behind bars, The Tennessee Journal has learned.

Under the final version of the bill sponsored by House Speaker Cameron Sexton (R-Crossville) and his Senate counterpart, Randy McNally (R-Oak Ridge), 100% of sentences would have to be served for nine categories of crimes, including murder, vehicular homicide, and carjacking. Seventeen other violent offenses — such as aggravated assault, reckless homicide, or possession of a firearm during the commission of a felony — would allow prisoners to qualify for release after serving 85% of their sentences.

“Data does not support the basic premise of the legislation,” Lee wrote to the speakers. “Similar legislation has been enacted before and resulted in significant operational and financial strain, with no reduction in crime. Widespread evidence suggests that this policy will result in more victims, higher recidivism, increased crime, and prison overcrowding, all with an increased cost to taxpayers. For these reasons, I have chosen not to sign the bill.”

The bill passed the House on a vote of 86-9 and 20-7 in the Senate. It will become law without Lee’s signature.

Here’s a statement from Sexton in response:

You can protect criminals or you can protect victims.  I stand with victims, as do members of law enforcement, our district attorneys, and criminal judges across Tennessee. In 2020, the U.S. Sentencing Commission published a study stating stronger sentencing has a statistically significant deterrent effect by reducing crime and lowering recidivism. That’s why Tennessee’s law enforcement community stood behind us and supported this legislation.

Sometimes we need to use common-sense approaches; more violent criminals in jail for longer periods means less crime and fewer victims. Softer sentences mean more crime and more victims.

Our job is to keep our communities safe, protect our families, and support law enforcement.  If we need to build more prisons, we can. Either we value life or we don’t; this legislation was about the most violent crimes committed in our state.  It’s hard to stand with victims and law enforcement by going easy on criminals.

McNally dials it back a bit:

Truth in Sentencing is vital legislation that not only offers justice and transparency to victims but also acts as a critical deterrent against violent offenders. The costs associated with the legislation are well worth the peace of mind offered to victims and the overall boost to public safety. While I disagree with Governor Lee’s critique of the bill, I appreciate his willingness to work with Speaker Sexton and I to get the bill in a posture to avoid a veto. I am grateful this bill is now the law of the land in Tennessee.”