March 05, 2004 

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

Guard Tuition Bill Advances  Best Chance Yet of Becoming Law 

NASHVILLE—This week on Nashville’s Capitol Hill, the Senate Education Committee unanimously approved Senate Bill 127 to enact the Tennessee National Guard Tuition Assistance Act which is designed as a recruiting tool and also may act as an aid to retention.  The bill now goes to Senate Finance, Ways and Means Committee where it is calendared for a hearing on March 9.           

The House companion bill, House Bill 233, is sponsored by Rep. Stratton Bone, who is a retired Master Sergeant from the Tennessee Air National Guard where he is held in high regard.

            The timing of the bill’s regularly scheduled hearing came on the heels of over 4,000 Tennessee National Guardsmen being put on alert for possible activation for a forward deployment to Iraq as part of the troop rotation now under way in Southwest Asia.

Previous measures in 2001 and 2002 drew bipartisan support and came close to becoming law but fell prey to a lack of a state funding source for the bill or the funding being cut out of the proposed budget during the final balancing process for the appropriations act.  The current administration announced Saturday (Feb. 28) that there is more than $400,000 in the proposed budget to fund the program and that this year it wanted to make it a reality.

A corrected Fiscal Note under the Bill Summary states that it would increase state expenditures by $445,800 and is reflected in the Governor's 2004-05 Budget.

According to information in the bill summary, SB 127 would create the Tennessee National Guard Tuition Assistance Program to provide members of the National Guard with the opportunity to attend a state educational institution.  This program would be established under the Adjutant General of Tennessee who would promulgate rules and regulations to establish eligibility requirements for participation.  For purposes of this bill, a "state educational institution" means any state-supported university, community college, or vocational or technical school or any private college or university located within this state.  Under this program, the Military Department would pay, to the extent that funds have been appropriated by the General Appropriations Act and are available to the program, the cost of the eligible member's tuition at a state educational institution.  An active member of the Tennessee National Guard who is not a Tennessee resident would qualify for the tuition assistance benefits provided that: (1) The member is enrolled in an educational institution within the state; (2) The tuition assistance benefits could not exceed the amount of in-state tuition assistance the member would have received if the member were a Tennessee resident; and (3) The tuition assistance benefits provided to the member who is enrolled at a private college or university could not exceed the amount of in-state tuition assistance the member would receive if the member were enrolled at a state-supported educational institution.  These provisions would not be construed as an appropriation of funds and no funds would be obligated or extended unless the General Appropriations Act specifically appropriates such funds.

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Senate Hears Resolution to Hold Referendum on Abortion Language

The full Senate heard the words read verbatim from Senate Joint Resolution 127 by Senator David Fowler (R-Signal Mountain) on Monday and again on Wednesday, completing the first two of three required readings.  The measure, and at least two amendments, are set for votes on Monday following the third and final reading of the resolution.  SJR 127 seeks a people’s referendum on adding to the state constitution the following language:  “Nothing in this Constitution secures or protects a right to abortion or the funding thereof.”

According to the online Senate Publications page:  “The state constitution was adopted in 1870 and has been amended seven times.  The latest amendment, adopted in November 2002, amended Article XI, Section 5 to authorize the creation of a state lottery to fund college scholarships.”   http://www.legislature.state.tn.us/senate/Publications/SPublications.htm

            SJR 127 would put the question to the people during the next gubernatorial election (November 7, 2006) as to whether to change the state constitution using that same process through which the 168-year-old lottery prohibition that originated in the Constitution of 1834 was removed by the people in the November 5, 2002, election.  The same day, the people chose to leave intact a 206-year-old constitutional protection from fines in excess of $50 without a jury trial which carried over from their first Constitution of 1796 through the Constitution of 1834 and into the current Constitution of 1870, as amended.

During the previous governor’s election on Nov. 3, 1998, a people’s referendum was used to change the constitution in two places. Voters changed their constitution by deleting the 128-year-old wording “and comfortable” from Article 1, Section 32, regarding the provision of “safe and comfortable prisons” which was not in the Constitution of 1796 or the Constitution of 1834.  That constitutional protection was added to the Constitution of 1870 by those with bitter memories of Civil War prison conditions between 1861 and 1865 and the subsequent incarceration of Jefferson Davis in shackles in a dungeon-like casemate at Fortress Monroe, Virginia.  Because of fresh fears that activist judges might misinterpret or ignore the original meaning and historical intent of the word “comfortable” and rewrite the law, “and comfortable” was removed.  That same November 1998, the people added a new section, now Section 35, to Article 1 of their constitution regarding the rights of victims of crimes.

Amendment 1 to SJR 127 makes 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.”

Amendment 2 to SJR 127 would add to the constitution language the sponsor believes is unneeded and which can be done 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.”

            If the resolution receives majority approval from both houses of the General Assembly this year, another resolution would have to be approved by two-thirds of the Senate and two-thirds of the House of Representatives in the following 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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Senate Approves Campus Crime Scene Investigation Bill

Senate Bill 2797 by Senator Tim Burchett (R-Knoxville) received unanimous approval of the Senate Wednesday.  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.  Nottingham’s father came and observed the vote being taken from the Senate gallery.

            The bill would require the chief security officer or chief law enforcement 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 medically unattended death of a person occurs on the property of such institution or if such officer or any other official of the institution is in receipt of a report alleging that any degree of rape has occurred on the property of such institution.  The bill requires a joint investigation of the death or alleged rape.  In the case of a medically unattended death, the local law enforcement agency shall lead the investigation.  In the case of an alleged rape, the institution’s law enforcement agency shall lead 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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Defense of marriage in Tennessee

By  Senator Mark Norris 

            A number of constituents concerned about the status of traditional marriage between a man and a woman contacted me last week.  They want to know what the General Assembly has done to defend the institution of marriage from court ordered homosexual marriage.           

Could efforts to legalize marriage between couples of the same sex in Massachusetts result in the legalization of same-sex marriage here in Tennessee?           

In 1996, the Tennessee General Assembly passed Tennessee's Defense of Marriage Act, Public Chapter 1031.  Now codified into law at Tennessee Code Annotated 36-3-113, it established that the only lawful marriage recognized in Tennessee is the matrimony of one man with one woman- and only one man with one woman.            

As Tennessee debated its statute during 1996, 15 states had explicitly defined marriage as a contract between a man and a woman.  At that time, 10 other states were considering such legislation.  The number of states which have successfully passed defense of marriage legislation has increased significantly since then.  A few weeks ago, the State of Ohio became the 38th state to pass such a measure.           

In anticipation that activist courts in states like Massachusetts might one day attempt to usurp the will of the people as expressed by their elected legislatures, The Defense of Marriage Act was written so that, if another state were to issue a license for the sort of marriages prohibited in Tennessee (i.e., marriage between couples of the same sex), any such marriage would be void and unenforceable in Tennessee.           

Action by the Massachusetts Supreme Judicial Court may result in legalization of the first-ever same-sex marriages in America.  If so, test cases in the courts of states like Tennessee are inevitable as gay newlyweds from Massachusetts demand recognition of their marriages notwithstanding our Defense of Marriage act to the contrary.           

"If judges insist on forcing their arbitrary will upon the people."  President Bush declared in his State of the Union address, "the only alternative left to the people would be the constitutional process."           

The Federal Marriage Amendment currently before Congress provides, "Marriage in the United States shall consist only of the union of a man and a woman.  Neither this Constitution or the constitution of any State, nor State or Federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."   

In the State Senate, I am co-sponsoring Senate Joint Resolution 27 which urges passage of the Federal Marriage Amendment to define marriage exclusively as the "union of a man and a woman."  Now that Ohio has become the 38th state to adopt Defense of Marriage legislation, it seems more likely that the Federal Marriage Amendment could become law.  Whether it will become law soon enough to uphold Tennessee's Defense of Marriage Act remains to be seen.

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Joint Convention Elects Sims Treasurer

The General Assembly met in Joint Convention Monday and elected Dale Sims as Treasurer.  The governor had appointed him in the interim by recess appointment last fall.

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Bills, Bills, Bills

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All things considered:  After action this week, the Senate has 3,472 Senate bills filed as of 10:24 a.m. on Thursday (March 4), while the House has 3,568 bills.  Resolutions: Senate Joint Resolutions now number up to 797; HJRs 949; SRs 132; and HRs 299.  The Senate has used 67 legislative days with the House having used 59 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 the House reconvene on Monday at 5 p.m.

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Senate Floor Actions

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SB 2286 passed the Senate unanimously Monday to require, under certain circumstances, each local education agency to allow students age 12 and older to carry and self-administer asthma medications with written permission from parents or guardians.

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SB 2853 by Senator Curtis Person (R-Memphis) passed through unanimous consent of the Senate Monday 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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SB 3102 by Senator Southerland (R-Hamblen County) passed through unanimous consent of the Senate Monday to add skateboarding to the list of recreational activities for which a landowner has limited liability.  Senator Bill Ketron (R-Murfreesboro) is co-prime sponsor.

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SB 3223 by Senator Jeff Miller (R-Cleveland) passed through unanimous consent of the Senate Monday 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 3341 by Senator Southerland passed through unanimous consent of the Senate Monday to consolidate references to sheriffs' duties found throughout the code into one subsection.

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SB 2601 by Senator Burchett unanimously passed the Senate Wednesday 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 and does not apply to those regulated by TennCare.

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HB 2198/SB 2079 unanimously passed the Senate Wednesday to require nursing homes, assisted-care living facilities, and residential homes for the aged to give documented written notice prior to admission to a resident, or to the guardian, conservator, or representative, regarding the lack of a sprinkler system throughout the facility and/or a smoke detector or an alarm in each room.  For residents who are unable to read, the written notice would be read, witnessed and then signed.  In addition, notice is to be posted by the main public entrance.  It would require the Board for Licensing Health Care Facilities to post on its website all of the facilities and whether they have sprinklers or smoke detectors or alarms in each room.

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Selected Senate Committee Actions

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Senate Finance, Ways and Means Committee:

SB 3212 passed through the Senate Finance Committee with some protective amendments added on to enact the Tennessee Charitable Gaming Implementation Law.  A related measure, SB 3445, to enact the Charitable Gaming Operators Licensing Law remains behind in committee.  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.

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SB 2252 passed out of Senate Finance Committee to prohibit air fare reimbursement in excess of standard coach fare for any official, officer, or employee of the state of Tennessee, or the state board of regents, the UT board of trustees, or their institutions.  The bill comes in response to an audit last year of a former UT president.  Senator Fowler co-sponsors the bill.

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Senate Commerce, Labor and Agriculture Committee:

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SB 3401, a clarifying bill, passed out of Senate Commerce Committee to require certain employers using leased employees to be jointly and severally liable along with employee leasing businesses for unemployment premiums attributable to leased employees.

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Senate Judiciary Committee:

SB 3019 passed through the Senate Judiciary Committee to direct that up to $3,500 from the Criminal Injuries Compensation Fund shall be payable to certain family members of victims for unreimbursed or unreimbursable mental health counseling or treatment for witnesses to a sexually-oriented crime or domestic assault involving someone under 18.

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SB 2316 by Senator Bill Clabough passed through the Senate Judiciary Committee to add grounds for hearing a petition regarding grandparent visitation.  The bill would add the situation when the child and the grandparent had a significant existing relationship for 12 months or more, the parents severed the relationship for a reason other than abuse or a danger of substantial harm to the child, and the severance of the relationship is likely to cause substantial emotional harm to the child.

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Senate Education Committee:

SB 3152 passed through the Senate Education Committee to provide that a child who is receiving a tuition discount based on a parent being a teacher shall continue to be eligible to receive the discount if the child's parent dies while the child is receiving the discount.