Legislature

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.

Coming soon to a store (or keyboard) near you: Two sales tax holidays

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

As part of a late-session compromise between the House and Senate, lawmakers agreed to double to the cap on the price of clothing, computers, and back-to-school items for the annual sales tax holiday. And then they decided to hold it on consecutive weekends. Gone in the legislative deal was a House proposal to also hold a sales tax holiday for automobiles, which would have been a far pricier proposition.

Here’s a release from the state Revenue Department about the sales tax holiday weekends starting July 31 and Aug. 7:

NASHVILLE — Mark your calendars. For 2020 only, the Tennessee General Assembly has approved two sales tax holiday weekends to help Tennesseans save money and support the economy amid the COVID-19 pandemic.

The first tax-free holiday weekend focuses on clothing and other back-to-school items. It begins at 12:01 a.m. on Friday, July 31, and ends Sunday, August 2, at 11:59 p.m. During this time, consumers may purchase clothing, school supplies, and computers and other qualifying electronic devices without paying sales tax. Certain price restrictions apply. For school supplies and clothing, the threshold for qualifying items is $200 or less. For computers and other electronics, the price threshold is $3,000 or less. Download our list of tax-exempt items here.

Exempt items sold online are also eligible. Consumers must purchase items for personal use, not business or trade.

The second sales tax holiday weekend focuses on restaurant sales. It begins at 12:01 a.m. on August 7 and ends Sunday, August 9, at 11:59 p.m. During this time the retail sale of food and drink by restaurants and limited service restaurants, as defined in Tenn. Code Ann.  § 57-4-102, is exempt from sales tax.        

“The COVID-19 pandemic has caused immense economic strain on Tennessee families. These sales tax holidays will allow them to keep more of their hard-earned money and support Tennessee businesses,” said Tennessee Governor Bill Lee. 

“We want to remind everyone about these opportunities for tax relief,” Revenue Commissioner David Gerregano said.  “It’s a good opportunity to save money during these difficult times.”

For more information about the sales tax holiday weekends, visit www.tntaxholiday.com. You can also read our frequently asked questions, as well as this important notice.

The Department of Revenue is responsible for the administration of state tax laws and motor vehicle title and registration laws, as well as the collection of taxes and fees associated with those laws. The Department collects around 87 percent of total state revenue. During the 2019 fiscal year, it collected $15.3 billion in state taxes and fees and more than $3 billion in taxes and fees for local governments. To learn more about the Department, visit www.tn.gov/revenue.

 

The Tennessee legislature in 1879: Secret meetings, prison outsourcing, political rivalries

Taking a page from sports broadcasters showing archived games to make up for the lack of live programming during the COVID-19 pandemic, the TNJ: On the Hill blog is engaging in our own throwback legislative coverage. Today’s offering, a report by the editor of the old Daily Memphis Avalanche, a precursor of today’s Commercial Appeal, about legislative happenings on Feb. 9, 1879.

The author touches on some familiar themes at the General Assembly: legislative secrecy, the need for the Shelby County delegation to stick together, efforts to reduce incarceration costs through outsourcing, rivalries between local officials, and “the doings of lobbyists.”

Here’s the dispatch:

Our Legislative Solons : A Good Word from Them by an Occasional Correspondent

Retrenchment and Reform – A Desire to Do Something

NASHVILLE, February 9, 1879 – Notwithstanding the terrible legislative abortions and the rip-pell-mell style of action of the present General Assembly, it may well be characterized as one of economy, retrenchment and reform. Men of observation concede the fact that more business has been consummated so far during the present session than in some entire sessions of General Assemblies.

The bills passed with special reference to Memphis seem to be necessities and will probably be followed with good results. It is said that additional legislation will be required in order to perfect, if possible, the changed conditions of affairs. The necessary legislation will be enacted without trouble, if the Shelby delegation remains united on the various propositions in the future as in the past.

Committees during recess are working earnestly and sedulously, and if credit and be accorded rumor their labors will produce desirable and satisfactory results. Two committees are at work investigation all the alleged frauds subsequent to the war – by the issuance of bonds, the funding scheme, the Torbett or new issue of the Bank of Tennessee, the leasing of the penitentiary, the doings of the lobbyists, the trading of offices; in fact, their investigation apparently has no limit. But as they sit with closed doors and their proceedings secret nothing will be known until they report.

The State debt will be thoroughly examined, so that holders of the State bonds are likely to learn what class of bonds the State will good and what fraudulent. If any are classed as fraudulent, the people will be warned. The funding scheme and the practice resorted to impair the created of the State, will receive attention. […]

Happily for the State Government there is enough money to in the treasury to pay the current expenses for nearly a year to come; therefore the frauds, if any, in leasing the penitentiary will be thoroughly sifted and the guilty, if any, exposed. Continue reading

Byrd to have GOP primary challenger if he runs again

Embattled Rep. David Byrd (R-Waynesboro) attends a House Education Committee meting in Nashville on March 28, 2019. (Erik Schelzig, Tennessee Journal)

State Rep. David Byrd (R-Waynesboro) will have a Republican primary opponent if he reneges on his previous pledge not to seek another term representing House District 71.

Garry Welch, a former city manager of Savannah, announced he will run for the GOP nomination for the seat representing all of Hardin, Lewis, and Wayne counties and part of Lawrence County.

“I’m excited to pursue the opportunity, and I am running for the office to serve all the citizens of the district,” Welch said in a statement to The Courier of Savannah. “As city manager, I was in Nashville quite a bit. I understand the process and think I am well qualified to represent the district.”

Welch retired in 2018 after serving as city manager for 12 years.

Byrd told colleagues before a recent special session that he wouldn’t run again amid moves to oust him over allegations of sexual misconduct with teenage girls when he was their high school basketball coach in the 1980s.

House Republican Caucus Chairman Jeremy Faison (R-Cosby) and House Majority Leader William Lamberth (R-Portland) told The Tennessean it will be up to the House GOP’s seven-member campaign committee to decide whether to support Byrd if he runs again.

“Personally, Jeremy Faison will not be a part of that race,” Faison told the paper. “I will stay out of the race and leave it up to his constituents if he runs.”

Lee’s criminal justice task force releases recommendations

Gov. Bill Lee’s criminal justice task force has released its initial set of recommendations.

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

NASHVILLE, Tenn. – Today, Gov. Bill Lee’s Criminal Justice Investment Task Force released a comprehensive package of data-driven policy recommendations for upcoming legislative sessions that seek to improve public safety, increase reentry support and reduce recidivism, address unmet behavioral health needs and make Tennessee communities safer. 

“My administration is committed to addressing public safety and reentry throughout Tennessee, and I’m grateful to have the support of the members of this Task Force,” said Gov. Lee. “Dedicated leaders from across our state have come together to address this important issue, and I look forward to reviewing their recommendations.”

The Task Force’s 23 recommendations are aimed at:

  • Strengthening responses to individuals with behavioral health needs;
  • Equalizing the treatment of those housed in local jails with those housed in state prisons;
  • Tailoring our response to different types of offenses;
  • Improving the efficiency and effectiveness of community supervision; and
  • Minimizing barriers to successful reentry.

Continue reading

Rep. Farmer ends law firm advertising campaign touting lawmaker role

State Rep. Andrew Farmer, a likely choice to become House judiciary chairman had an unrelated leadership vote turned out differently, has abandoned a billboard campaign for his law firm touting his role as “an actual lawmaker,” The Tennessean’Joel Ebert reports.

“Who better to argue the law than an actual lawmaker?” read the billboards advertising Farmer’s personal injury, criminal defense, and family law practice.

Farmer said he sought approval from the state Board of Professional Responsibility and ethics officials about the language used in the ads before putting them up. He then started getting calls from constituents raising concerns.

“The first phone call I got, they said, it might be some people are taking this the wrong way,” Farmer told the paper. He then decided to change the billboards.

Farmer, of Sevierville, is the chairman of the House criminal justice subcommittee. He was widely believed to be the frontrunner to succeed House Judiciary Chairman Michael Curico had the latter won his bid for House Republican Caucus chairman. But Curcio lost to Rep. Jeremy Faison (R-Cosby), so nothing has changed within the Judiciary Committee.

Farmer said he doesn’t use his elected office to drum up business.

“When I talk to clients … I don’t say, ‘Hey hire me because I’m in the legislature,'” he said. “I think that’s over the line.”

Read the full story here.

Casada’s chief of staff resigns after sexual texts with intern

House Speaker Glen Casada’s Chief of Staff Cade Cothren following a whirlwind day of revelations including that he sent text messages soliciting sex acts from an intern and used cocaine in his legislative office, The Tennessean reports.

Cothren the top strategist for Casada’s campaign to nail down his election as speaker by getting involved in contested primaries for open Republican seats last year. Cothren also played a pivotal role in ensuring the razor-thin passage of Gov. Bill Lee’s school voucher bill.

“It was just a distraction,” Cothren told The Tennessean. “We’ve accomplished a lot of great things this year and I don’t want to take away from those for our caucus.”

That’s a wrap! Lawmakers go home for the year

Rep. Matthew Hill (R-Jonesborough) speaks to reporters in the House chamber in Nashville on April 17, 2019. (Erik Schelzig, Tennessee Journal)

In case you hadn’t noticed, the Tennessee General Assembly has concluded its business for the year. Here’s a roundup of some of the last-minute festivities:

GOP colleagues split over Byrd chairmanship

A Tennessean survey of House Republicans has found the caucus is split over whether Rep. David Byrd (R-Waynesboro) should remain chairman of an education subcommittee given allegations of sexual misconduct with teenage basketball players when he was their high school coach in the 1980s.

Byrd has not specifically denied the allegations made by a woman who recorded a phone call with the lawmaker in which he apologized for unspecified past transgressions.

House Republican leadership tried to keep members from answering questions from the newspaper’s reporters, urging them to direct questions to caucus spokespeople. Eleven members declined to answer questions, while others spoke on condition of anonymity.

Read the full report here.

How nigh is the end? House leadership plots course

House Speaker Glen Casada speaks to fellow Republicans in a caucus meeting on Jan. 10, 2019. (Erik Schelzig, Tennessee Journal)

For the Tennessee General Assembly to get around to completing its business for the year, committees need to start closing. And for that to happen, the subcommittees need to wrap up. Here’s a schedule for when House leadership expects those panels to call it quits this year:

March 25: Agriculture, Transportation, Consumer & Human Resources.

April 1: Commerce, Insurance, Local.

April 8: Education, State, Health.

April 15: Judiciary. Also the full committees of Government Operations and Naming & Designating.

If all that happens to plan, the chamber will be on course for adjourning the first week of May. Or so we hope.