Monthly Archives: May 2022

Nashville to Supreme Court: You blew it on voucher ruling

Gov. Bill Lee speaks at a press conference in Nashville on March 16, 2020. (Erik Schelzig, Tennessee Journal)

Nashville Mayor John Cooper’s administration is asking the state Supreme Court to review its 3-2 decision upholding Gov. Bill Lee’s signature school voucher law. The high court ruled the Education Savings Accounts didn’t violate the home rule provision in the state constitution that protects jurisdictions from being singled out without local buy-in because the law applies to school districts and not county governments. But the Cooper administration says the justices didn’t take into account that both school systems were merged into the new metropolitan government when voters approved the merger of Nashville and Davidson County in 1962.

“Because Nashville’s public schools are part of Metro, the ESA Act applies directly to Metro, and the state constitution’s Home Rule Amendment therefore also applies, even under the Court’s reasoning,” according to the Cooper administration.

It’s unclear whether the high court will entertain Nashville’s push for reconsideration. Appeals Judge Skip Frierson was sitting in on the case after the death of Justice Connie Clark and turned out to be the tiebreaker in the case.

Here’s the release from Mayor Cooper’s office:

NASHVILLE, TENN. – Today, Metro Nashville filed a petition asking the Tennessee State Supreme Court to review its recent 3-2 decision that found the state’s school voucher program, known as the Education Savings Account Act (ESA Act), to be constitutional, effectively clearing the way for it to move forward. Metro Nashville previously challenged the law’s constitutionality based on the “Home Rule Amendment,” which says that an act of the Legislature that is local in its form or effect, applicable to a county or municipality in its governmental or proprietary capacity, is void, unless approved by a two-thirds vote of the local legislative body or by local referendum.

Alongside key Nashville leaders for our public schools, Mayor John Cooper will host a press conference tomorrow to talk more about this filing and supporting Metro Nashville Public Schools (MNPS). Details are below.

“Great public schools require consistent prioritization, because our kids’ future is our most critical investment,” said Mayor John Cooper. “The state already provides Metro Nashville Public Schools far less funding per student than almost every other county in Tennessee, and now a state voucher program threatens to syphon off even more money away from improving public schools and into the hands of private schools. We hope the Court will consider MNPS’ status as the public school system for both Nashville and Davidson County, and not allow the state to direct taxpayer money away from our schools without our consent.”

The court’s majority opinion, issued on Wednesday May 18th , found that the ESA Act doesn’t violate the “Home Rule Amendment” because “the Act regulates or governs the conduct of the local education agencies and not the counties.” In other words, the court ruled that the ESA Act applies to school districts, not counties, and therefore local-government protections in our state constitution do not apply.

Metro Nashville is asking the Court to review the ruling because the reasoning provided by the majority opinion is wrong, particularly as it applies to Nashville. The newly filed petition argues that as a metropolitan government, Nashville and Davidson County included their combined school systems in the new metropolitan government when our citizens voted in 1962 to consolidate and adopt the Metro Charter.

Because Nashville’s public schools are part of Metro, the ESA Act applies directly to Metro, and the state constitution’s Home Rule Amendment therefore also applies, even under the Court’s reasoning.

“Metro Nashville, through the Metro Council or its voters, has the legal right to say whether taxpayer funds should be spent on private schools,” said Wallace Dietz, Director of Law for Metro Nashville.  “Our state constitution demands no less. We don’t believe the Court’s reasoning for allowing the state’s voucher program to proceed should apply to Nashville, since we are a metropolitan government with a combined city and county school system.”

Dietz continued: “Additionally, The Court concluded that the Home Rule Amendment does not apply to the ESA Act because the face of the Act addresses school districts only and does not impose obligations on counties. Instead, the Act triggers existing county funding obligations by forcing school districts to include students participating in the ESA program in their enrollment counts, even though the students are not attending public schools. This ruling conflicts with other Tennessee Supreme Court cases applying the Home Rule Amendment to bills that did not on their face require counties to do anything, but triggered obligations in existing law.”

Additional background: For much of Tennessee’s history, local governments were viewed simply as creatures of the Legislature, subject to its control at will. That one-sided balance of power shifted dramatically in 1953 when Tennessee held a limited Constitutional Convention that focused primarily on state encroachment on local prerogatives.  The main concern was the Legislature’s historic abuse of local legislation, the passing of laws that impacted only one or a small number of counties.  The Convention overwhelmingly approved the Home Rule Amendment to the Tennessee Constitution.  The Home Rule Amendment was approved by Tennessee voters in 1953 and has been a part of our state constitution ever since.

Harwell gets backing from anti-abortion Susan B. Anthony List

House Speaker Beth Harwell (R-Nashville) awaits Gov. Bill Haslam’s final State of the State address in Nashville on Jan. 29, 2018. (Erik Schelzig, Tennessee Journal)

Former state House Speaker Beth Harwell of Nashville has landed an endorsement from the anti-abortion Susan B. Anthony List. Harwell is running for the Republican nomination in the 5th Congressional District.

Here’s the release from the Harwell campaign:

NASHVILLE, TN – Today, pro-life organization Susan B. Anthony’s List (SBA) announced its endorsement of Congressional District 5 candidate and former Speaker of the Tennessee House, Beth Harwell.

Hon. Marilyn Musgrave, SBA List’s vice president of government affairs, said, “Beth Harwell is a faithful champion of the unborn who proves that pro-life is truly pro-woman. Beth’s dynamic efforts as House speaker led to a pro-life constitutional amendment, strongly approved by voters, paving the way for swift enactment of life-saving laws. She did not rest, but immediately put her support behind health and safety requirements to hold the profit-driven abortion industry accountable, as well as legislation to protect women’s right to see an ultrasound and hear their baby’s heartbeat. Finally, under her leadership Tennessee successfully defunded abortion businesses of taxpayer dollars. In Congress she will stand up to pro-abortion Democrats for Tennessee’s pro-life values, and we couldn’t be prouder to support her.”  

Per SBA’s press release, “SBA List is a network of 900,000 pro-life Americans nationwide, dedicated to ending abortion by electing national leaders and advocating for laws that save lives, with a special calling to promote pro-life women leaders.”

“Thank you Susan B. Anthony’s list for putting your faith in me to stand up for the lives of unborn Americans and expectant mothers in Congress. In this day and age, we should be celebrating the arrival of a new life and uplifting pregnant women with the resources they need to make sure their child is cared for. I look forward to fighting for the right to life on the floor of the U.S. House,” said Beth Harwell.

New TNJ edition: Ethics overhaul getting Lee signature, 5th District developments, slowdown on the Drive to 55

Registry member Tom Lawless and then-Rep. Robin Smith (R-Hixson) confer before Gov. Bill Lee’s State of the State address on Jan. 31, 2022. (Erik Schelzig, Tennessee Journal)

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

— Lee signing transparency push into law despite allies’ opposition

— From the campaign trail: Starbuck files suit again, Ortagus advising Winstead, Ogles gets backing and staffing from former outfit.

— State’s college enrollment figures going in ‘wrong direction, very fast.’

— Survey says : Vandy poll gauges attitudes toward abortion, politicians, the economy.

Also: Leadership shakeup at TWRA, Jim Strickland considering third term if voters loosen limits, GOP grapples with crossover voting allegations again, and what’s in a (middle) name?

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

Or subscribe here.

Putnam County commissioner arrested on child porn charges

Federal prosecutors have charged Putnam County Commissioner Jimmy Ray Neal of Baxter with possession and distribution of child pornography. Neal, who won the Republican nomination for another term earlier this month, allegedly went by the handle “Tennesseemaster” on an app used to share pictures of pre-pubescent children.

According to his Facebook page, Neal is a former Tennessee Highway Patrol lieutenant and deputy in the Putnam County Sherriff’s Department.

“My entire adult life has been in service to my Country and my State and my Community. God, Country and Family are my priorities,” Neal said in the post. “I humbly ask for your support to serve as a new and fresh approach to our complex issues involving our school age children.”

An initial court hearing is scheduled for Tuesday.

Here’s the release from the U.S. Attorney’s Office:

NASHVILLE A Putnam County Commissioner was charged yesterday with possession, receipt, and distribution of child pornography, announced U.S. Attorney Mark H. Wildasin for the Middle District of Tennessee.

Jimmy Ray Neal, 57, of Baxter, Tennessee, was arrested at his home, after FBI and Homeland Security Investigations agents executed a search warrant.  Neal was transported to Nashville and appeared before a U.S. Magistrate Judge late yesterday. 

A criminal complaint obtained yesterday alleges that Neal was identified as an administrator of a group in the Kik app in which images of child pornography were viewed and shared with other users.  Specifically, the images depicted naked pre-pubescent females with the focus on the genital area.

This long-running investigation by the FBI began in July 2021, and after the arrest of an Oklahoma man on child pornography charges, other users in the Kik app group were identified, including “tennesseemaster,” later identified as Jimmy Ray Neal. 

A preliminary and detention hearing is set for Tuesday, May 31, 2022, at 2 p.m.

If convicted, Neal faces a mandatory minimum of five years, and up to 20 years in prison. 

This case is being investigated by the FBI and Homeland Security Investigations.  Assistant U.S. Attorney Monica Morrison is prosecuting the case.

The charges are merely accusations.  The defendant is presumed innocent until proven guilty in a court of law.

AFL-CIO makes endorsements in state, federal races

The state chapter of the AFL-CIO has announced the names of the candidates the labor group is backing this year’s primary elections. Most are either incumbents or unopposed for the Democratic nomination in their respective races.

Here’s the release from the AFL-CIO:

NASHVILLE, MAY 23, 2022- Following a joint meeting of its Executive Board and Committee on Political Education (COPE) held last week, the Tennessee AFL-CIO Labor Council is announcing its list of endorsed candidates ahead of the August 4th State and Federal Primary Election.

“After a robust discussion, our membership believes that the following list of candidates will best represent our interests in the Tennessee General Assembly and the halls of Congress,” said TN AFL-CIO President Billy Dycus. “Over the past two years, we’ve seen what happens when corporate special interest groups, big business, and greedy politicians continue to have unchecked power and total control of the political process. Working families are tired of being represented by legislators who couldn’t care less about their needs or well-being. It’s time to start chipping away at the supermajority and elect candidates who will stand up and speak out for all of their constituents, not just the wealthy few.”

The Council will hold another meeting in mid-August to discuss additional endorsements for the November 8th General Election, including its positions on the four proposed constitutional amendments.

U.S. House of Representatives, District 2: Mark Harmon

U.S. House of Representatives, District 5: Heidi Campbell

U.S. House of Representatives, District 7: Odessa Kelly

U.S. House of Representatives, District 9: Steve Cohen

State Senate, District 3: Kate Craig

State Senate, District 21: Jeff Yarbro

State Senate, District 29: Raumesh Akbari

State House of Representatives, District 15: Sam McKenzie

State House of Representatives, District 28: Yusuf Hakeem

State House of Representatives, District 41: John Mark Windle

State House of Representatives, District 48: Matt Ferry

State House of Representatives, District 50: Bo Mitchell

State House of Representatives, District 51: Bill Beck

State House of Representatives, District 53: Jason Powell

State House of Representatives, District 54: Vincent Dixie

State House of Representatives, District 55: John Ray Clemmons

State House of Representatives, District 56: Bob Freeman

State House of Representatives, District 58: Harold Love, Jr.

State House of Representatives, District 59: Caleb Hemmer

State House of Representatives, District 60: Darren Jernigan

State House of Representatives, District 67: Ronnie Glynn

State House of Representatives, District 80: Johnny Shaw

State House of Representatives, District 84: Joe Towns, Jr.

State House of Representatives, District 85: Jesse Chism

State House of Representatives, District 86: Barbara Cooper

State House of Representatives, District 87: Karen Camper

State House of Representatives, District 88: Larry Miller

State House of Representatives, District 90: Gloria Johnson

State House of Representatives, District 91: Torrey Harris

State House of Representatives, District 93: G.A. Hardaway

State House of Representatives, District 96: Dwayne Thompson

State House of Representatives. District 98: Antonio Parkinson

Report: Rep. Gloria Johnson had mini-stroke

Rep. Gloria Johnson (D-Knoxville) sits at her desk moved into a hallway in the Cordell Hull Building in Nashville on Jan 28, 2021. (Erik Schelzig, Tennessee Journal)

State Rep. Gloria Johnson (D-Knoxville) suffered what doctors described as a possible mini stroke over the weekend, according to KnoxTNToday columnist Betty Bean.

Johnson, who is in the process of moving to run for a new House seat after Republicans drew her into the same district as fellow Knoxville Democrat Sam McKenzie, collapsed at a TJ Maxx on Saturday night. Fellow shoppers Michael and Mandy Knott called 911 and informed Johnson’s mother she was being taken to the hospital, Bean reported.

As of the report, Johnson hadn’t yet seen a cardiologist. But she was tentatively diagnosed with a transient ischemic attack (TIA), or mini-stroke. The contributing causes could include campaigning for the newly created District 90 seat during a heat wave and the stress brought on by fundraising and moving to a new neighborhood.

Johnson, who is soon to be 60, is a retired special education teacher and a longtime thorn in the side of Republican leadership in the House.

Read Bean’s full account here.

Lee: Unclear when voucher program can get off the ground following high court ruling

Gov. Bill Lee delivers his State of the State Address on Jan. 31, 2022. (Erik Schelzig)

Republican Gov. Bill Lee is hailing the Supreme Court’s decision upholding school vouchers but says “a lot of steps” are still required before the program allowing parents in Nashville and Shelby County to spend taxpayer dollars on private school tuition can go live.

“Once we determine the speed with which the court will make its final decisions, then we can move forward with the particulars to make sure this works and fits, and how it is that we roll it out,” The Associated Press quoted the governor as saying on Friday.

The Supreme Court ruled in a 3-2 decision that the voucher program doesn’t violate the state constitution’s home rule protections, which prevent the General Assembly from passing bills targeted at specific counties without local buy-in. The voucher law affects school districts — which aren’t covered by the home rule provision — and not the counties that fund them, the high court ruled.

Despite the voucher program being frozen since 2019, the Lee administration has included a recurring $29 million item in the budget to cover its costs in the event legal challenges were turned back. But the money has been dedicated toward other priorities, including for the spending plan for the budget year beginning on July 1.

It remains to be seen how much appetite lawmakers have to revisit the voucher question. Of the 51 House members who voted for the final version of the bill in 2019 (just one more than the constitutional minimum), only 37 are up for re-election this fall. Here’s the list of voucher backers who will no longer be around next year:

Mike Carter (R-Ooltewah). Died of pancreatic cancer in May 2021.

Glen Casada (R-Franklin). Not running again this year. Lost bid for Williamson County clerk earlier this month.

Michael Curcio (R-Dickson). Not running again this year.

John DeBerry (D-Memphis). Lost re-election bid as an independent in 2020 after state Democrats decided he couldn’t run in their primary. Now in the Lee administration.

Bill Dunn (R-Knoxville). Didn’t run again in 2020. Now in the Lee administration.

Mark Hall (R-Cleveland). Running for state Senate this year.

Matthew Hill (R-Jonesbough). Lost Republican primary in 2020.

Timothy Hill (R-Blountville). Didn’t run again in 2020. Lost bid for Congress.

Andy Holt (R-Dresden). Didn’t run again in 2020. Now in the Lee administration.

Bill Sanderson (R-Kenton). Stepped down in August 2019.

Jerry Sexton (R-Bean Station). Not running again this year.

Robin Smith (R-Hixson). Resigned in March after pleading guilty to participating in a kickback scheme.

Rick Tillis (R-Lewisburg). Lost Republican primary in 2020.

Micah Van Huss (R-Gray). Lost Republican primary in 2020.

Two other representatives abstained when the vote was initially recorded, but later changed asked the clerk to have their votes changed to yes. The moves are considered a formality because they only be accepted if it doesn’t change the outcome. Neither won’t feature in the next General Assembly:

Martin Daniel (R-Knoxville). Didn’t run again in 2020.

Brandon Ogles (R-Franklin). Not running again this year.

New TNJ edition: Lee’s signature bill and Lee’s unsigned bills

Gov. Bill Lee speaks at a press conference in Nashville on Jan. 23, 2020. (Erik Schelzig, Tennessee Journal)

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

— Lee’s signature voucher law gets Supreme Court win. Now what?

— Unsigned, Bill: Governor avoids vetoes but increasingly turns to refusing to sign measures.

— From the campaign trail: Winstead runs first ad and gets a conservative endorsement, Ortagus launches a PAC, and The Tennessean lets ousted GOP candidate Starbuck attend forum anyway.

Also: The big Legislative Plaza overhaul gets the green light, a potential defense witness for Brian Kelsey’s federal trial dies, Nashville mayor’s office blames “clerical error” for missing $200 million in cost projection for football stadium, and a “satisfied customer” gets escorted out of a Registry meeting.

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

Or subscribe here.

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.