February 27, 2004 

For more details on bills, visit the legislative website at http://www.legislature.state.tn.us.

Abortion Language Resolution Passes 

NASHVILLE—This week on Nashville’s Capitol Hill, the Senate Finance, Ways and Means Committee unanimously approved Senate Joint Resolution 127 by Senator David Fowler (R-Signal Mountain), with two amendments tacked on, to add to the state constitution the following language: “Nothing in this Constitution secures or protects a right to abortion or the funding thereof.”  http://www.legislature.state.tn.us/bills/currentga/BILL/SJR0127.pdf

            SJR 127 would allow the people a voice on whether to change the state constitution during the next gubernatorial election (scheduled for November 7, 2006) using the same process through which a lottery prohibition in existence since 1834 was removed in a statewide referendum of the people on November 5, 2002.  That same year, the people chose to leave intact their totally unique constitutional protection from fines in excess of $50 without a jury trial which began with their first Constitution of 1796 and carried through the Constitution of 1834 into the current Constitution of 1870, as amended by the people.

This very same process of trusting the voice of the people in a referendum was also used to change the constitution in two places on Nov. 3, 1998.  In November 1998, voters changed their constitution by deleting the outdated Civil War-era language “and comfortable” from Article 1, Section 32, regarding the provision of “safe and comfortable prisons” because of fears of subsequent misinterpretation by activist judges who might choose to rewrite the law and ignore the historical purpose for which that language was first inserted into the Constitution of 1870.  In November 1998, the people also added a new section to Article 1 of their constitution regarding the rights of victims of crimes.  That section is now enumerated as Section 35.

            The Senate Finance, Ways and Means Committee added Amendment 1 to SJR 127 to make the resolution subject to funding in the appropriations bill.  That amendment states that it will have “no effect unless funds are appropriated to fund the cost of printing the notices of the proposed amendment as required by this resolution.”

 AMDT 1 URL: http://www.legislature.state.tn.us/bills/currentga/Amend/SA0706.pdf

            Amendment 2 to SJR 127 would add to the constitution language the sponsor believes is unneeded and can be dealt with by statute.    Amendment 2 adds: “except that government shall not interfere with or prevent a woman from obtaining a medical procedure, including abortion, to protect her life or when she is the victim of incest or rape.”

 AMDT 2 URL: http://www.legislature.state.tn.us/bills/currentga/Amend/SA0707.pdf

            “I’m afraid that Amendment 2 would reopen the whole issue to the interpretation of the court,” stated Senator Fowler.  “In addition, I believe it may be confusing to the voters in the constitutional referendum.  That part can easily be dealt with by statute.”

The resolution would have to receive majority approval from both houses of the General Assembly this year and then be approved by two-thirds of the Senate and two-thirds of the House of Representatives in the next (104th) General Assembly during 2005-2006 before the issue could be put to the people in November 2006.

            The resolution comes in response to the September 2000 state Supreme Court’s decision in Planned Parenthood of Middle Tennessee vs. Sundquist in which the court ruled that the state constitution somehow provides a greater right to privacy than the federal constitution and applied a strict scrutiny standard for reviewing legislation.

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Defending the Rule of Law in Tennessee

by Senator Mark Norris 

Senator Lamar Alexander hit the nail on the head last Saturday night. In an address to the Shelby County Republican Party’s annual Lincoln Day dinner, he said that our country needs judges who “follow the law rather than make it up as they go along.” 

Truer words have never been spoken. Alexander’s timely remark comes after decades of activist courts reading into state and federal constitutions certain “rights” and prohibitions which were never written into those documents in the first place. We end up with courts in Massachusetts imposing homosexual marriage and, in California, banning the Pledge of Allegiance. 

In Tennessee, the Supreme Court created the controversial “right to an abortion” and struck down the legislature’s attempt to require a waiting period and parental notification.  In so doing, Tennessee went even further than the United States Supreme Court in Roe v. Wade.   

This week in Nashville, Senator David Fowler (R-Signal Mountain) will present SJR 127, which I am co-sponsoring, calling for a state constitutional amendment to clarify that nothing in our Constitution creates a right to an abortion. It should not have had to come to this, but it has. The judiciary has increasingly usurped the authority of the legislative branch. As William Kristol wrote in a recent edition of the Weekly Standard , “when courts cast their political preferences as constitutional law, only a constitutional amendment can answer them.” 

Similarly, it should not be necessary to amend our Constitution to define marriage as only the union of one man and one woman. Unfortunately, it has become necessary. As President Bush said in his State of the Union address, “If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process.” Thus, I am also co-sponsoring SJR 27 urging adoption of the Federal Marriage Amendment. 

The rule of law is diminished by the rule of judges who, in Senator Alexander’s words, “make it up as they go along.” Is it any wonder, then, that the Mayor of San Francisco has authorized thousands of homosexual marriages in violation of California law?  

Judge Robert Bork, President Reagan’s unsuccessful nominee to the United States Supreme Court, has monitored the disintegration of society at the hands of “activist courts” for more than a decade. In his most recent book entitled Coercing Virtue , Bork underscores the ultimate threat imposed by such judicial activism: 

The family has no value beyond its importance to the individuals in

it….If the individual belongs only to himself…there is no moral ob-

ligation to obey the law or to take part in the national defense; there

is no obligation to family, neighbors, nation, society, or to anything

outside one’s own skin. 

We are witnessing this in Tennessee. In a recent column, Commercial Appeal columnist Wendi Thomas addressed homosexual marriage and concluded that she doesn’t care whether gays unite because “it doesn’t diminish my rights or affect my daily life in the least.”  

That is the attitude we must guard against if we are to survive as a civilized society. That is what is at stake in Nashville this week.  

Campus Crime Scene Investigation Bill Approved 

Senator Tim Burchett (R-Knoxville) presented Senate Bill 2797, a campus crime scene investigation bill, Tuesday before the Senate Judiciary Committee.  The bill is named the Robert 'Robbie' Nottingham Campus Crime Scene Investigation Act of 2004 after a college student who died at East Tennessee State University.  Nottingham’s parents believe an inadequate investigation followed their son’s death.  Senator Burchett introduced Mrs. Nottingham to testify before the committee.  Then, SB 2797 passed out unanimously.

Senator Burchett stated afterward, “We must ensure that thorough investigations occur on all of our college and university campuses in the event that a serious crime is committed.  We are continuing to make every effort to put adequate laws on the books in order to provide a safer and more secure environment for college students.  This particular bill will address future situations involving a death on campus.”

            The bill would require the chief security officer of any public or private higher education institution to immediately notify the local law enforcement agency with territorial jurisdiction over the institution if the death of a person occurs on the property.  This bill would require the chief security officer to designate one or more persons who would have the authority and duty to notify the law enforcement agency in the event that the chief is absent.  This bill would require the local law enforcement agency to investigate the death in the same way it would if it occurred outside the institution and would require the security officers and other employees of the educational institution to cooperate in every way with the investigation.  A violation of this bill would be a Class C misdemeanor.

            Senators Ben Atchley (R-Knoxville), Rusty Crowe (R-Johnson City), and Ron Ramsey (R-Blountville) co-sponsor the measure.

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Joint Convention to Elect Treasurer Set 

The General Assembly is set to meet under House Joint Resolution 941 in Joint Convention on Monday at 4:30 p.m. to elect a successor to former Treasurer Steve Adams who resigned last fall.  Treasurer Dale Sims is serving as interim Treasurer by recess appointment of the governor, made under Article III, Section 14 of the state Constitution.

Guiding constitutional and statutory laws on the process for filling this constitutional officer position, one of three filled by the General Assembly, are as follows.

Constitution Article VII, Section 3:  Treasurer and comptroller.

There shall be a Treasurer or Treasurers and a Comptroller of the Treasury appointed for the State, by the joint vote of both houses of the General Assembly, who shall hold their offices for two years.

Constitution Article III, Section 14:  Governor to make temporary appointments.

When any officer, the right of whose appointment is by this Constitution vested in the General Assembly, shall, during the recess, die, or the office, by the expiration of the term, or by other means, become vacant, the Governor shall have the power to fill such vacancy by granting a temporary commission, which shall expire at the end of the next session of the Legislature.

State statutes in Tennessee Code Annotated:

TCA 8-5-101.  Election - Term of office.  There shall be a state treasurer, who shall be elected by the joint vote of both houses of the general assembly, and shall hold office for the term of two (2) years, and until a successor is elected and qualified.

TCA 8-5-201.  Vacancy in office.  Whenever the office of state treasurer becomes vacant, by death, resignation, or otherwise, during the recess of the general assembly, the governor shall immediately fill it by appointing some person qualified to discharge its duties. The person appointed shall, before entering upon the duties of the office, enter into bond, with such sureties as shall be approved by the governor, in the penalty of one hundred thousand dollars ($100,000), and shall take the same oath, perform all the duties, be liable to the same penalties and receive the same compensation as the state treasurer appointed by the general assembly.

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Bills, Bills, Bills

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All things considered:  After action this week, the Senate has 3,470 Senate bills filed as of 10:10 a.m. on Thursday (February 26), while the House has 3,564 bills.  Resolutions: Senate Joint Resolutions now number up to 778; HJRs 946; SRs 130; and HRs 291.  The Senate has used 65 legislative days with the House having used 57 days.  Article II, Section 23 of the state Constitution provides for 90 paid regular legislative session days for every two-year-long General Assembly.  The Senate and House reconvene on Monday at 5 p.m. after meeting at 4:30 p.m. in a Joint Convention to elect a state Treasurer.

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Senate Floor Actions

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SB 2300 by Senator Randy McNally (R-Oak Ridge) passed through unanimous consent of the Senate Monday to require employers to notify the Department of Children’s Services and court clerk if the employer files bankruptcy or ceases to operate as a business and to require that income assignment not be affected by bankruptcy or cessation of business.  The filing would include the names of employees subject to income assignment and the employees’ last known address and address of their new employer or source of income, if known.

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SB 2852 by Senator Curtis Person (R-Memphis) passed through unanimous consent of the Senate Monday to clarify reasonable charges for medical records provided to a patient by a hospital by deleting the words "handling" and "retrieval" in the description of the fees.  The bill removes a conflict between a state statute and federal HIPAA privacy regulations and does not change the fee schedule or alter any contracts.

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SB 2244 by Senator Fowler passed the Senate unanimously Monday to create a new violation of the Consumer Protection Act for those who make a false representation as a licensed contractor or home improvement contractor when the person is not so licensed and to impose personal liability upon individuals who make such representations even though they might otherwise have limited liability because of a limited liability status, such as a corporate shield.  An additional floor amendment clarifies that piercing of the limited liability status applies to actions by a person with an ownership interest in a limited liability entity and not those of an employee of the business.

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SB 2668, in final form as amended, passed the Senate unanimously Monday to require the Commissioner of Commerce and Insurance to develop a proposal to create a natural catastrophic disaster property insurance pool.  The pool is for the purpose of providing full coverage to residential and commercial property owners unable to obtain insurance coverage because of a widespread cancellation of insurance due to a natural catastrophic disaster.  The proposal shall also provide a method to insure that insurance fees assessed to those obtaining insurance from the pool are reasonable.  The commissioner shall present the proposal in written form as well as making a presentation to the 104th General Assembly no later than February 1, 2005.

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HB 2186/SB 2150 by Senator Atchley passed the Senate unanimously on Wednesday to revise the nonforfeiture requirements for individual deferred annuities and to create a formula tied to an index for establishing minimum nonforfeiture amounts on paid-up annuity, cash surrender or death benefits available under an annuity contract instead of setting a fixed statutory rate of interest.  Senator Bill Ketron (R-Murfreesboro) co-sponsors the measure.

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SB 2080 passed unanimously through the Senate Wednesday to require that an attorney who is performing the duties of a private investigator must be licensed as an attorney in Tennessee and be in good standing as an attorney in order to qualify for the statutory exemption from licensing as a private investigator.

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SB 2681 passed unanimously through the Senate Wednesday, as amended on the floor, to define the word grandparent for purposes of the grandparent visitation statutes.  This latest version of the bill now includes three specific statutory definitions.  Present law authorizes grandparents to petition for child visitation rights under certain circumstances.  This bill would specifically apply that present law authorization for grandparents to petition for visitation to the following types of grandparents:  a biological grandparent, the spouse of a biological grandparent, or a parent of an adoptive parent.

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SB 2305 by Senator McNally, as amended, passed the Senate Thursday unanimously to create a Class A misdemeanor for a person who knowingly issues, sells or manufactures a false academic degree and to create a Class C misdemeanor for an individual who knowingly uses or claims to have a false academic degree to obtain employment, promotion in employment, or admission to an institution of higher learning.  An amendment defines false academic degree and exempts honorary degrees.

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SB 2603 passed through unanimous consent of the Senate Thursday to redefine "average monthly balance" for purposes of the collateral pool for public deposits and to specify that the balance must not exceed 110 percent of the average daily balance in the collateral pool for public deposits.  The measure was brought at the request of the state treasurer who indicated that the pool secures over $4 billion in state and local money.

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SB 2792 passed through unanimous consent of the Senate Thursday to clarify that funds remaining in the risk management fund will not revert to the general fund at the end of a fiscal year.  The measure was brought at the request of the state treasurer and relates to the section of law dealing with the state Board of Claims.

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Selected Senate Committee Actions

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Senate Finance, Ways and Means Committee:

SB 2670 passed out of Senate Finance Committee to revise the method for a tobacco manufacturer who is not participating in the Master Settlement Agreement to use in establishing an overpayment of funds into an escrow account and thus have such excess funds released from escrow and revert back to the manufacturer.  According to the bill summary, present law requires tobacco manufacturers to either participate in the Master Settlement Agreement or annually place funds into escrow for each unit of tobacco product sold.  The purpose of the escrow account is to pay any future judgments against the non-participating tobacco manufacturer.  If a tobacco manufacturer escrows an amount above the state’s share of the total payments that the manufacturer would have paid under the Master Settlement Agreement before any adjustments, the tobacco manufacturer is entitled to take back the difference.  This bill would revise the above provisions to specify that nonparticipating tobacco manufacturers must escrow funds based on the units of product sold in Tennessee.  Also, this bill would require that any adjustments for overpayment or underpayment in the previous four years be applied to the balance of a nonparticipating tobacco manufacturer’s annual escrow deposit before any release of escrowed funds is permitted.  Republican Senators Bill Clabough (R-Maryville), Ron Ramsey (R-Blountville), Mike Williams (R-Maynardville), Mark Norris (R-Collierville) and Jeff Miller (R-Cleveland) are co-sponsors of the measure.

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Senate State and Local Government Committee:

The Senate State and Local Government Committee overwhelmingly rejected in a 3-6 vote SB 2155 which sought to remove the state preemption concerning the local regulation of tobacco products.

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SB 3212 passed through the Senate State and Local Government Committee to enact the Tennessee Charitable Gaming Implementation Law along with a related measure SB 3445 to enact the Charitable Gaming Operators Licensing Law.  Both measures would establish the procedures for nonprofit 501(c)(3) organizations to conduct an annual fundraising raffle event. Senator Atchley co-sponsors SB 3212.  Both measures go to Senate Finance Committee.

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SB 2933 by Senator Ron Ramsey (R-Blountville) passed through the Senate State and Local Government Committee to retain the office of constable in selected counties, including Johnson County, which have subsequently grown into excepted population figures originally based on the 1990 census.  Those statutory exceptions would eliminate the positions from some rural counties which still rely extensively on constables for some law enforcement functions.

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Senate Commerce, Labor and Agriculture Committee:

SB 2601 by Senator Burchett passed through the Senate Commerce Committee to establish a reasonable time of no more than 30 days for an insurance company to respond to an inquiry received from the Department of Commerce and Insurance based on a complaint filed with the department against an insurance company by an insured party.  It would not apply if another statute requires a shorter turnaround time for a response.

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SB 3338 passed through the Senate Commerce Committee to extend the duration of professional boxing licenses for promoters, boxers, managers, seconds, referees, judges and timekeepers to three years by superceding an administrative rule which sets it at two years.

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SB 3302 by Senators Bill Clabough (R-Maryville) and Curtis Person (R-Memphis) passed through the Senate Commerce Committee to enact the Assistive Telecommunications Device Distribution Program Renovation Act.  According to the bill summary, present law requires the Tennessee Regulatory Authority to establish and maintain a program whereby telecommunications providers contribute toward telecommunications equipment for persons who have a hearing or vision impairment.  Equipment is distributed under the program based on medical and financial need and is limited to text telephones [TTY] and telephone devices for the deaf [TDD] and the blind [TB for Telebraille].  This bill would expand the program by authorizing the use of program funds to assist individuals with any disability in using the basic telephone network.  The bill goes to Senate Finance Committee.

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Senate Judiciary Committee:

SB 3101, with amendments, passed through the Senate Judiciary Committee to rewrite the communications theft offense and provide appropriate criminal and civil penalties.  Senator Curtis Person (R-Memphis) is co-prime sponsor of the measure which is also co-sponsored by Senators Jim Bryson (R-Franklin) and Mark Norris (R-Collierville).

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SB 2683 passed through the Senate Judiciary Committee to create a Class A misdemeanor offense of using an audiovisual recording device to record, without the consent of the owner, the exhibition of a motion picture and gives that owner the same power to detain a person as retail merchants have to detain a shoplifter.  Judiciary Chairman Person co-sponsors the bill.

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SB 3102 by Senator Southerland (R-Hamblen County) passed through the Senate Judiciary Committee to add skateboarding to the list of recreational activities for which a landowner has limited liability.

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SB 3341 by Senator Southerland passed through the Senate Judiciary Committee to consolidate references to sheriffs' duties found throughout the code into one subsection.

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SB 2853 by Senate Judiciary Chairman Curtis Person passed through the Senate Judiciary Committee to allow the state Attorney General and Reporter, upon consent of a district attorney general, to designate any full-time salaried Attorney General investigator to act with the same authority as a district attorney criminal investigator when on active duty in connection with criminal matters where the Attorney General and Reporter has jurisdiction.

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Senate Education Committee:

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SB 3223 by Senator Miller passed the Senate Education Committee to allow local education agencies to advertise surplus property for sale on the Internet as well as in newspapers of general circulation.

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SB 2286 passed the Senate Education Committee to require, under certain circumstances, each local education agency to allow certain students to carry and self-administer asthma medications.

Senate General Welfare, Health, and Human Resources Committee:

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Senate Transportation Committee:

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