New super-chancery court would be appointed by governor, take over cases … against governor
The latest version of the Republican effort to create a statewide chancery court with jurisdiction over constitutional challenges would allow all pending cases to be transferred to the new panel upon the motion of the Attorney General. The initial three members of the court would be appointed by Gov. Bill Lee, who is usually named as the defendant in lawsuits challenging new laws and executive orders.
The governor would select three chancellors — one from each Grand Division — from lists of finalists chosen by the Trial Court Vacancy Commission, which is entirely made up of appointees of the House and Senate speakers. The appointed chancellors would serve until the
August 2022 elections for the next eight-year judicial terms. At that point, the three chancellors would be elected via a statewide popular vote, a process unseen since the state adopted the Tennessee Plan for yes-no retention elections in the 1990s (which was overwhelmingly affirmed in a 2014 constitutional amendment.)
Tennessee currently has only three offices elected statewide: the governor and two U.S. senators. The old Public Service Commission used to be popularly elected — current state Sen. Sara Kyle (D-Memphis) was among the last members until then-Gov. Don Sundquist replaced it with the appointed Tennessee Regulatory Authority in 1996.
Here’s the (UPDATED) amendment proposed by Senate Judiciary Chairman Mike Bell (R-Riceville):
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SECTION 1. Tennessee Code Annotated, Title 16, Chapter 11, is amended by adding the following as a new part:16-11-301.
There is created and established a court of original jurisdiction in this state to be designated and styled the statewide chancery court.
16-11-302.
(a) The statewide chancery court shall be composed of three (3) chancellors, of whom no more than one (1) shall reside in each grand division of the state.
(b) The chancellors of the statewide chancery court shall be appointed and elected in the manner provided by § 17-1-103(b) and title 17, chapter 4, part 3; provided, however, that the judicial district for each chancellor is the state of Tennessee and each chancellor must be elected in a statewide election. Candidates for statewide chancery court must file an original nominating petition, pursuant to § 2-5-103.
(c) The governor shall appoint three (3) persons to serve as chancellors of the statewide chancery court, and each person so appointed shall serve in that capacity until September 1, 2022, or until the person’s successor is elected and qualified. At the August 2022 general election, and every eight (8) years thereafter, the qualified voters of the state shall elect three (3) chancellors for a full eight-year term.
(d) The initial terms of the chancellors shall begin on October 1, 2021.
GOP bill would give Tennessee AG power to prosecute criminal cases
A man scrubs graffiti off of a building following protests in downtown Nashville on June 1, 2020. (Erik Schelzig, Tennessee Journal)\
Among the bills proposed for next week’s special legislative session is a measure to for the first time give the state attorney general the power to prosecute criminal cases. The bill sponsored by House Majority Leader William Lamberth (R-Portland) is aimed at giving the AG jurisdiction over cases related to protests.
Under longtime practice in Tennessee, popularly elected district attorneys general have authority over all criminal prosecutions, while the state attorney general, who is appointed by the state Supreme Court, can file civil lawsuits and is responsible for defending the state in criminal appeals.
Under new legislation, if the AG decides to bring criminal charges related to protests, the office would have “the authority to exercise all of the powers and perform all of the duties before any court or grand jury with respect to such prosecution that the appropriate district attorney general would otherwise be authorized or required by law to exercise or perform.”
The bill also seeks to require local prosecutors to “fully cooperate” with the AG in any from requested.
The bill would take effect on Oct. 1.
UPDATE 1: To say not everyone is impressed would be an understatement.
This looks like some unconstitutional garbage. The TN Constitution is explicit that criminal prosecutions must be by locally-elected prosecutors. If local prosecutor refuses, the court can appoint attorney pro tempore. The AG has no constitutional authority to intervene. 1/ https://t.co/N6lai5mLZH
— Jeff Yarbro (@yarbro) August 8, 2020
UPDATE 2: Word emanating from the corridors of power is that this is a caption bill — in other words one containing placeholder language until the final version can be put together. Whether that was the original intent or in response to criticism is not immediately clear.
Supreme Court: Reversal on vulnerable voters makes absentee balloting ruling unnecessary
The state Supreme Court has vacated a lower court’s temporary injunction allowing anyone fearful of contracting COVID-19 to cast absentee ballots after the state reversed itself to say it considers people with an underlying vulnerability to the virus — or those caring for someone who does — to be eligible to vote by mail.
State Election Coordinator Mark Goins told Associated Press reporter Jonathan Mattise in May that “in consultation with the Attorney General’s office the fear of getting ill does not fall under the definition of ill.”
But under questioning during oral arguments in the Supreme Court last week, Janet Kleinfelder of the AG’s office conceded that voters’ underlying conditions or of those living with them would be allowed to vote by mail.
“If the voter has made that decision, then yes, they may vote absentee,” Kleinfelter said.
Justice Cornelia Clark wrote in the majority opinion:
At oral argument before this Court, the State conceded that, under its interpretation […] persons who have underlying medical or health conditions which render them more susceptible to contracting COVID-19 or at greater risk should they contract it (“persons with special vulnerability to COVID-19”), as well as those who are caretakers for persons with special vulnerability to COVID-19, already are eligible to vote absentee by mail. We hold that injunctive relief is not necessary with respect to such plaintiffs and persons. We instruct the State to ensure that appropriate guidance, consistent with the State’s acknowledged interpretation, is provided to Tennessee registered voters with respect to the eligibility of such persons to vote absentee by mail in advance of the November 2020 election.
The high court said the lower court erred in extending the order to people who have no specific vulnerability to COVID-19.
[TRANSCRIPT] Judge says ‘shame on’ state for not following absentee ballot order
Secretary of State Tre Hargett speaks with Rep. Curtis Johnson (R-Clarksville) on Jan. 29, 2018 in Nashville. (Photo credit: Erik Schelzig, Tennessee Journal)
Davidson County Chancellor Ellen Hobbs Lyle on Thursday found the state had failed to follow her order to make absentee ballots to anyone concerned about the coronavirus. But the judge stopped short of finding the state in contempt of the court.
“Shame on you for not following that procedure and just taking matters into your own hands,” Lyle said. “So, I’m calling the state out on that, for not adhering to the standards of a legal process, and not adhering to the order.”
Read the judge’s whole ruling from the bench here:
Before the court is the motion of the plaintiff under Tennessee Civil Procedure Rule 65 for me to enforce, compel, require the state to comply and adhere to the injunction order that was entered by the court of June 4, 2020. And in addition, the plaintiffs have asked the court to order sanctions asserting that the state has acted willfully in not complying with the court’s order.
The court’s ruling is that it grants the part of the motion concerning enforcement. The court denies the motion for sanctions. And the court’s reasoning is as follows: With respect to enforcement of the temporary injunction, the court finds the state did violate the court’s order, and did not adhere to the order, and did take steps which were in direct contradiction of the court’s order.
No private litigant or business would take a court’s order where they had been told to do something and say, well, I think I’ve got a better idea about how this should be done and just do it their way in derogation of what the court has said. And that’s what the state did in this case. They took my order — I did not segregate COVID voters from other voters who had that excuse No. 3, and they changed and modified my order and added a step and a nuance and maybe even a chilling effect, it’s not clear, that the court had contemplated and determined was not correct.
I just have to say that it’s a matter of standards of legal process that the way that’s done and has always been done, is that you file a motion to modify, you file a motion to alter or amend, you ask for a conference to discuss the remedy. And that’s done every day in this court. And if you think you know a better way to do something, then you come in with a motion and you the court and give the other side an opportunity to have input. And that’s not just the practice, that’s the rule. And it’s followed daily by all attorneys and parties and litigants in this court.
I just really have to say to that point, you know, shame on you for not following that procedure and just taking matters into your own hands. So, I’m calling the state out on that, for not adhering to the standards of a legal process, and not adhering to the order.
What I’m now going to have to do to straighten it out I’m going to have to take down that form they’ve put together and issue a new form along the lines we discussed today, to change Boxes 3 and 4. I’ll get that order out this afternoon and the state will be ordered to change the forms and post them and require election officials to post these new forms by noon tomorrow, and then to change their instructions to comply with this new form, and that will be done by 5 o’clock tomorrow.
In light of the declarations that had been filed with the court about comments and instructions that are being made to voters about voting absentee, the court will look at the compliance order for these state officials to give direction or instructions to the county officials so they will know what to do and what to say. That order will take me longer. And I hope to have that out tomorrow.
Finally, with respect to the awarding of attorneys’ fees or coming up with some dollar amount by the state, we’re in a time of some budget issues and a time of a pandemic when people have got a lot of concerns. So the court is not going to issue the sanctions. However, there always is the specter of criminal contempt if after today’s orders. If there’s still noncompliance and there’s disobedience, then that’s a route that the court can go.
Gallery: Back in session, though some distance more than others
The Senate convenes on June 1, 2020. (Erik Schelzig, Tennessee Journal)
The Tennessee General Assembly has officially returned into session after a 75-day hiatus during the coronavirus outbreak.
The House GOP held a caucus meeting on Monday afternoon in which a small minority of members wore masks. Some vigorously shook hands and joked that the weekend protests around the state indicate that social distancing is no longer important.
The Senate spaced desks in the chamber to provide maximum distance between the members. The House installed plexiglass shields between lawmakers’ seats.
Here are some photos of Monday’s proceedings:
House members are divided by plexiglas shields on June 1, 2020. (Erik Schelzig, Tennessee Journal)
House Speaker Cameron Sexton addresses the House Republican Caucus on June 1, 2020. (Erik Schelzig, Tennessee Journal)
Senate Speaker Randy McNally presides over a floor session on June 1, 2020. (Erik Schelzig, Tennessee Journal)
The House holds a floor session on June 1, 2020. (Erik Schelzig, Tennessee Journal)
Rep. Curtis Halford, center, attends a floor session June 1, 2020. (Erik Schelzig, Tennessee Journal)
Reps. Matthew Hill and William Lamberth, standing right, confer during a floors sesion on June 1, 2020. (Erik Schelzig, Tennessee Journal)
Rep. Jerry Sexton attends a House floor session on June 1, 2020. (Erik Schelzig, Tennessee Journal)
Rep. David Hawk, left, confers with Rep. Kent Calfee on June 1, 2020. (Erik Schelzig, Tennessee Journal)
Speaker Cameron Sexton presides over a floor session on June 1, 2020. (Erik Schelzig, Tennessee Journal)
Will the General Assembly return full bore?
A tentative House schedule for the week of May 25, 2020.
Lawmakers are preparing to return to Nashville to start getting ready for the resumption of the legislative session put on hold by the coronavirus pandemic. The session is scheduled to resume on June 1, but meetings are scheduled to begin the previous week.
The Senate favors limiting deliberations to downward adjustments to the state’s spending plan and other bills directly related to the COVID-19 response. Lee appears to agree. The House, on the other hand, wants to pick up where it left off on a raft of bills.
“COVID-19 is not the only thing Tennesseans care about,” House Majority Leader William Lamberth (R-Portland) told The Tennessean. “It is the most important thing right now to combat this virus, but there are a lot of other important things to debate.
“We’re not going to allow COVID-19 to dictate to us that every single aspect of our society must be shelved because of this virus.”
TN Attorney General’s Office responds to COVID-19
The Tennessee Attorney General’s Office is working at full strength even as most of its staffers work from home. Lawyers are handling mediations and depositions through video conferencing and filing court documents through a fax machine.
Samantha Fisher, the communications director for AG Herbert Slatery, is giving an inside look at how the office is continuing to function under these trying circumstances.
Nearly 250 staffers are working remotely with a focus on legal issues related to the coronavirus response, she said. The Consumer Advocate Unit successfully petitioned the state Public Utility Commission to prevent disconnection of service for nonpayment while the the governor’s state of emergency was in effect.
The Division of Consumer Affairs and the Public Protection Section look into each complaint filed. The division had received 202 formal complaints regarding the coronavirus, inclduding 139 for alleged price gouging (including one high-profile case that received national media attention) and 51 involving refund disputes such as for a vacation rental or event.
A Tennessee man who stockpiled 17,700 bottles of hand sanitizer donated all of the supplies on Sunday. “It was never my intention to keep necessary medical supplies out of the hands of people who needed them,” he said. “That’s not who I am as a person." https://t.co/VXhUNjrTnQ
— The New York Times (@nytimes) March 15, 2020
The Medicaid Fraud and Integrity Division lawyers have maintained their efforts at civil recovery for TennCare overpayments due to fraud. The division recovered $14 million last year, according to the AG’s office.
AG asked to opine on power to oust Byrd from House
Rep. Cameron Sexton (R-Crossville) speaks to the House Republican Caucus after winning their nomination for speaker on July 24, 2019. (Erik Schelzig, Tennessee Journal)
Rep. Cameron Sexton, the Republican nominee to be elected speaker during Friday’s special session, is asking state Attorney General Herbert Slatery about whether the chamber has the power to oust Rep. David Byrd over allegations of sexual misconduct with teenage basketball players when he was their coach in the 1980s.
UPDATE: The Tennessean’s Joel Ebert reports that the AG’s office does not anticipate being able to answer in time for the special session.
For those wondering whether the @TNattygen's will be answer to answer the request before Friday's special session – the answer is no. A spox told me the AG's office does not "anticipate being in a position to reasonably answer the request by Friday."
— Joel Ebert (@joelebert29) August 21, 2019
Here’s the full text of the letter:
Dear General Slatery:
Article 11, Section 12 of the Tennessee Constitution provides:
- Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member, but not a second time for the same offence; and shall have all other powers necessary for a branch of the Legislature of a free State.
The Tennessee House of Representatives has used the power to expel only twice since 1866. In both instances, the member was expelled for conduct that occurred during the time of the member’s service. I am writing to request an opinion as to the following question:
- May the House of Representatives expel a member for conduct which occurred more than twenty-five years prior to the member’s initial election to the House of Representatives and that is publicly known at the time of the member’s most recent re-election to the House of Representatives?
As always, I appreciate the work that you and your staff provide to the General Assembly and to the citizens of Tennessee. Thank you for your attention to this matter.
Respectfully submitted,
/signed/
Representative Cameron Sexton
25th Representative District
AG says Tennessee could legalize sports gambling without constitutional change
Tennessee could enact sports betting without changes to the state constitution, according to an attorney general’s opinion obtained by the Daily Memphian’s Sam Stockard.
Attorney General Herbert Slatery’s opinion is dated Friday but has not yet been posted to his website. It states that the General Assembly “may legalize the contest solely through legislative action without a constitutional amendment” as long as the sport is based on skill and not predominantly on “chance.”
The Shelby County Commission on Monday voted to add sports betting on Beale Street to its legislative agenda for the year.
Republican Gov.-elect Bill Lee has said he doesn’t favor expanding gambling in the state.
Slatery’s opinion was written in response to a question by Sen. Brian Kelsey (R-Germantown), who has said he is interested in pursuing legislation on sports gambling next session. Rep. Rick Staples (D-Knoxville) has already filed a bill seeking to allow sports betting.
Slatery’s opinion says betting would involve only “actual sporting events,” and not fantasy sports or amusement devices.
Guber candidates talk on electing AG, marijuana, Confederate statutes at TN Bar Association forum
Four gubernatorial candidates – Republicans Randy Boyd and Beth Harwell; Democrats Karl Dean and Craig Fitzhugh — told the annual convention of the Tennessee Bar Association Thursday that they favor keeping the Tennessee Attorney General a position appointed by the Tennessee Supreme Court, reports the Memphis Daily News.
