Bill Lee

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.

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.”

Lee doesn’t sign bill banning camping on public property

Gov. Bill Lee speaks to reporters outside the War Memorial Auditorium in Nashville on Jan. 19, 2021. (Erik Schelzig, Tennessee Journal)

Republican Gov. Bill Lee has declined to sign a bill criminalizing camping on public property, allowing the measure to become law without his approval.

The bill sponsored by Rep. Ryan Williams (R-Cookeville) and Sen. Paul Bailey (R-Sparta) has been criticized as targeting homeless people. The measure defines camping as erecting temporary structures, cooking, or sleeping outside of a motor vehicle.

Lee earlier this week expressed concerned about “unintended consequences” contained within the bill, but didn’t elaborate.

During the debate over the measure, Sen. Frank Niceley (R-Strawberry Plains) gained national attention for delivering what he called a “history lesson” about Adolf Hilter and homelessness.

“In 1910, Hitler decided to live on the streets for a while,” Niceley said. “So for two years, Hitler lived on the streets and practiced his oratory and his body language and how to connect with the masses, and then went on to lead a life that’s got him into history books.” 

Niceley said homelessness shouldn’t be considered a “dead end.”

“They can come out of this, these homeless camps, and have a productive life,” he said. “Or in Hitler’s case, a very unproductive life.”

Lee halts executions for rest of year, calls for independent review

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

Republican Gov. Bill Lee is placing a moratorium on executions in Tennessee for the rest of the year to allow for an independent review of lethal injection processes.

Lee had postponed the execution of death row inmate Oscar Smith on April 21 due to an unspecified “oversight in preparation for lethal injection.” The governor’s office has hired former U.S. Attorney Ed Stanton of Memphis to oversee the review.

Here’s the full release from the governor’s office:

NASHVILLE, Tenn. – Today, Tennessee Governor Bill Lee announced plans to launch a third-party review of a lethal injection testing oversight that resulted in a temporary reprieve for death row inmate Oscar Franklin Smith.

“I review each death penalty case and believe it is an appropriate punishment for heinous crimes,” said Lee. “However, the death penalty is an extremely serious matter, and I expect the Tennessee Department of Correction to leave no question that procedures are correctly followed.”

Both the United States Supreme Court and Lee declined to intervene on the merits of Smith’s case, but questions surrounding lethal injection testing preparation for the April 21 execution resulted in a temporary reprieve by the governor.

Tennessee will retain former U.S. Attorney Ed Stanton to conduct an independent review of the following:

— Circumstances that led to testing the lethal injection chemicals for only potency and sterility but not endotoxins preparing for the April 21 execution.

— Clarity of the lethal injection process manual that was last updated in 2018, and adherence to testing policies since the update.

— TDOC staffing considerations.

“An investigation by a respected third-party will ensure any operational failures at TDOC are thoroughly addressed,” said Lee. “We will pause scheduled executions through the end of 2022 in order to allow for the review and corrective action to be put in place.”

Since 2019, three of four executions have been carried out by electric chair. Death row inmates may choose to be executed by electric chair rather than lethal injection, and lethal injection is the default execution method in Tennessee. The April 21 execution was set to be the first execution since February 2020 due to disruptions caused by COVID-19. This execution was one of five executions scheduled to take place this year. The Tennessee Supreme Court will determine rescheduled dates for the 2022 executions.

Not natural? Lee declines signature for bill treating people who have had COVID-19 same as vaccinated

Gov. Bill Lee speaks to reporters after a bill signing ceremony in Nashville on May 24, 2021. (Erik Schelzig, Tennessee Journal)

A bill declaring previous COVID-19 infections to be same as having been vaccinated has become law in Tennessee without the signature of Republican Gov. Bill Lee.

The measure was sponsored by Rep. Bud Hulsey of Kingsport and Sen. Joey Hensley, a Hohenwald physician. Both are Republicans. The bill passed the Senate on a vote of 26-5 in the Senate and 66-20 in the House.

The bill defines natural immunity as being verified by a lab test or a letter for a licensed physician. Critics said the latter does not require any scientific proof to be established.

The Tennessee Constitution gives the governor 10 days (excluding Sundays) from receipt of a bill to sign, veto, or allow the measure to become law without his signature.

The governor took similar action on a recent bill seeking to establish a three-year residency requirement for congressional candidates to run in Tennessee primaries. By waiting for the entire period before declining to affix his signature, the bill didn’t become law until after the candidate filing deadline.

Piercey leaving state Health Department

Gov. Bill Lee speaks at a press conference on Tennessee’s coronavirus response in Nashville on March 16, 2020, as Health Commissioner Lisa Piercey looks on. (Erik Schelzig, Tennessee Journal)

Health Commissioner Lisa Piercey is leaving Gov. Bill Lee’s administration at the end next month.

Here’s the release from the governor’s office:

NASHVILLE, Tenn. – Today, Tennessee Governor Bill Lee announced Department of Health Commissioner Dr. Lisa Piercey’s departure from state government to enter the private sector, effective May 31. Lee will name a successor in the coming weeks.

“Lisa led our state’s health response through one of the most challenging crises Tennessee has faced, and I commend her faithful service to Tennesseans,” said Gov. Lee. “She has played an

invaluable role in my cabinet, and I wish her much success as she enters the private sector.”

Dr. Piercey joined the Lee Administration in January 2019. As commissioner, she served as a member of the Governor’s Unified Command Group during the COVID-19 pandemic, spearheaded efforts to innovate public health operations across the state and bolstered the healthcare workforce pipeline.

New TNJ alert: Never mind the constitution, here’s the new state Senate districts

The Tennessee Supreme Court building is seen in Nashville on Dec.8, 2021. (Erik Schelzig, Tennessee Journal)

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

— Supreme Court finds election commission deadlines are more important than pesky constitutional language on state Senate districts.

— Party politics: Lee slow walks (in)action on residency requirements for congressional candidates, dumping 5th District hot potato in lap of state GOP.

— From the campaign trail: 41 state House members get free pass to re-election, Anti-Skulduggery Act to kick in after Brenda Gilmore’s announces plans to withdraw candidacy, and Andy Ogles drops mayoral bid to focus on Congress.

Also: Scott Cepicky wants to tear public education down to the “bare bones,” Butch Spyridon denies “bait and switch” on football stadium, former Nashville Banner executive editor Joe Worley dies, and Todd Warner’s Dixieland band.

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

Or subscribe here.

Lee’s out-of-state recruiting campaign lands 11 troopers

Gov. Bill Lee speaks at a press conference in Nashville on March 22, 2021. (Erik Schelzig, Tennessee Journal)

Gov. Bill Lee’s push to recruit new Tennessee Highway Patrol troopers from other states has resulted in 11 people joining the ranks.

Here’s the release from the governor’s office:

NASHVILLE, Tenn. – Today, Tennessee Governor Bill Lee announced efforts to recruit out of state law enforcement to the Tennessee Highway Patrol have netted early results as the administration focuses on proven crime prevention methods and addressing law enforcement staff shortages

“Just last week, we welcomed five new troopers to our ranks from across the country to strengthen public safety,” said Gov. Lee. “I challenge these new Tennesseans to recruit their former colleagues to the best agency in the country as we continue to welcome troopers nationwide to join us in Tennessee.”

Last fall, Gov. Lee’s nationwide pitch offered out of state troopers incentives to move to Tennessee and join the Tennessee Highway Patrol. So far, early recruiting efforts have brought 11 new troopers who bring new skills and diverse experience to the ranks.

Out of state law enforcement officials interested in joining the Tennessee Highway Patrol can learn more at www.joinTHP.org

In addition to recruitment efforts, Gov. Lee has focused on proven crime prevention and key public safety investments to directly support law enforcement across Tennessee:

— Creation of a $150 million Violent Crime Intervention Fund for law enforcement agencies across the state to invest in evidence-based programming and resources

— $30 million to support relocation bonuses for out-of-state police officers seeking to move to Tennessee

— Expansion of state funding for law enforcement basic training and increasing the frequency of training for new recruits

— Access to a statewide hiring portal that includes qualified law enforcement recruits from outside of Tennessee who are looking to relocate

Read more about Gov. Lee’s statewide public safety agenda here.

Read the lawsuit filed against congressional residency requirements in Tennessee

The House meets at the state Capitol in Nashville on June 1, 2020. (Erik Schelzig, Tennessee Journal)

A lawsuit has been filed in federal court in Nashville seeking to prevent a state law from going into effect that would impose a three-year residency requirement for congressional candidates in Tennessee. The challenge was filed on behalf of three residents who say they want to vote for Republican Morgan Ortagus in the the open 5th District race. Ortagus has been endorsed by former President Donald Trump, but state lawmakers have chafed at her candidacy because she only moved to the state a year ago.

The case has been assigned to U.S. District Judge Eli Richardson, who was appointed to the bench by Trump. The lawsuit was filed by the Washington, D.C., law firm Dickinson Wright PLLC.

As frequent offenders when it comes to typos, we wouldn’t ordinarily make a point of highlighting the mistakes of others, but misspelled words in the lawsuit are particularly jarring given their central nature to the arguments presented. They include “Tennesse,” “Represenatives,” “unconstitional” “Repulican,” “impermissably,” “Consitution,” “Congressionl,” and “critreria.” They are replicated within the full text of the complaint below:

BARBRA COLLINS, AMY C. DUDLEY and DONALD J. SOBERY, PLAINTIFFS v. STATE OF TENNESSEE, and TRE HARGETT in his official capacity as Tennessee Secretary of State, DEFENDANTS.)

COMPLAINT

Plaintiffs Barbra Collins (“Collins”), Amy C. Dudley (“Dudley”), and Donald J. Sobery (“Sobery”) (collectively, “Plaintiffs”), file this Complaint against Defendants State of Tennessee (the “State”) and Tre Hargett (“Hargett”), in his official capacity as Tennessee Secretary of State, (collectively “Defendants”), and allege as follows:

NATURE OF THE ACTION

1. This is a civil action seeking damages and declaratory relief arising under the Qualification Clause of the United States Constitution. U.S. Const. Art. 1 § 2; U.S. Const. Art. 1 § 5. This action challenges the constitutionality of Tennessee Senate Bill 2616/House Bill 2764 (the “Provision”) that imposes an impermissible residency requirement on candidates running for United States Congress Specifically, the Provision requires that a candidate running for United States Congress reside in Tennessee, as well as within the congressional district they seek to represent, for at least three years in order to appear on the primary ballot as a candidate.

2. This Provision will become law unless Governor Bill Lee vetoes the legislation.

3. Under the challenged Provision, an otherwise constitutionally qualified candidate for whom Plaintiffs intend to vote in the Republican primary for the Fifth Congressional District, will be prohibited from running because she has not lived in Tennessee for at least three years. The Provision blatantly violates Article I of the United States Constitution (the “Constitution”) because the Constitution delineates the only qualifications necessary to serve as a member of the U.S. House of Representatives, and vests with the House of Representatives the exclusive authority to judge the qualifications of its own members.

4. Plaintiffs seek damages and a declaration that the Provision is unconstitutional so that all qualified candidates who wish to run for Congress in the August 4, 2022 primary election may do so.

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Lee’s budget amendment is out. Here’s what’s in it.

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

Gov. Bill Lee’s annual budget amendment is out, marking the beginning of the end of the legislative session. As first reported by Axios on Monday, the plan includes issuing up to $500 million in bonds in support of a new domed stadium in Nashville to replace the current home of the NFL’s Tennessee Titans (initial debt service would be up to $55 million).

According to slides presented by the administration, the majority of the funding for the new stadium would come from Metro Nashville and private sources.

Also in the governor’s plan:

— $80 million for a one-month mortarium on the state’s 4% sales tax on groceries.

— $66 million for air carrier support and $12 million for general aviation.

— $20 million to reduce the professional privilege tax on brokers, lawyers, doctors, and lobbyists from $400 to $300 per year.

— $20 million for riverfront development in Memphis.

— $17 million in grants to prepare a Nashville track for a NASCAR race.

— $15 million for voting machines with a paper trail.

— $10 million for the National Civil Rights Museum in Memphis.