May 14, 2009

Law and order legislation dominates Senate Debate on Capitol Hill

Law and order legislation dominated debate in the State Senate this week as several key bills advanced, including legislation to revise the current method for selection of appellate judges, two proposals providing aid to victims of crime, a measure protecting children from Internet predators, and a bill to help deter abuse of prescription drugs.

Judicial Nominating Commission — The legislation to revise the current method for selecting the state’s appellate and Supreme Court judges comes as the Judicial Selection Commission, a key component of Tennessee’s plan for appointing judges, is set to expire next month. Under that plan, called the Tennessee Plan, the commission that nominates these judges is selected by the Speakers of the House and Senate and the Governor from a list controlled by various legal organizations. Lt. Governor Ron Ramsey (R-Blountville) has said a fairer and more open process should be put into place which also allows for appointment of citizens outside these special interest groups.

The legislation approved by the Judiciary Committee sets up a new 17-member Judicial Nominating Commission which would recommend a panel of three nominees to the governor for appointment to the state’s appellate and Supreme Courts. The governor would then appoint one of the nominees, or reject the panel and request a second panel. If the governor rejects both panels, he or she can select another person vetted by the Commission, under the bill.

The bill, SB 2114 sponsored by Senate Majority Leader Mark Norris (R-Collierville), would provide public access to every aspect of the nominating process. The 17-member Commission would be limited to 10 attorney members. The bill also would ban lobbyists and their employers from serving on the Nominating Commission.

After being appointed through this process, the judge would stand for approval by the voters who could decide whether or not to “replace” or “retain” them. Currently, citizens vote “yes” or “no” on the ballot regarding the retention of judges. If voters decide to replace a judge, an interim judge would be appointed by the governor until the next election. At that point, the people could decide who would fill the slot through a popular election, which is the same process that the state’s trial judges are currently selected.

Next week the Judiciary Committee will consider a resolution, which is also sponsored by Senator Norris to allow Tennesseans to vote through a Constitutional Convention or referendum on whether or not they want to keep the judicial selection process if it passes the full General Assembly, or elect judges through popular election. Several lawmakers on the Committee said they see the revised judicial selection process as a bridge to buy time until a constitutional convention or referendum on the matter can be held in 2014. Before that can occur, however, the General Assembly must pass a Resolution to authorize a Constitutional referendum or convention by a simple majority in the current General Assembly and by 2/3 vote in either the 2011 or 2012 session. It would then be placed on the ballot where it must receive a majority of votes in the gubernatorial election.

Tennessee’s Constitution says judges must be “elected by the qualified voters of the state.” The debate in the legislature has focused on whether or not the selection process with a retention vote meets that test.

“Over the weeks we have sought to find compromise from all parties, lawyers and non-lawyers alike, to get to “yes” in a way that meets what justice requires, but also which addresses what many of us believe the Constitution of the State of Tennessee requires,” said Norris.

“I’ve heard very eloquent arguments on both sides of the constitutional issue and I suspect will continue to hear arguments and discussions on both sides of the constitutional issue,” said Leader Norris. “And I for one continue to believe that at the end of the process we have a mechanism by which I believe the constitutional issues need to be addressed whether it’s by a referendum or a convention.”

Victims of Crime — Legislation to provide funding for a program that gives victims of crime notification regarding any change in status of the offender was approved by the Senate Finance Committee this week. The bill, SB 1684 sponsored by Senator Bill Ketron (R-Murfreesboro), creates the Statewide Automated Victim Information and Notification System Fund by adding a $1 litigation tax on all criminal charges.

“The purpose of this statewide automated victims program is to increase the safety of victims of crime by providing access to timely and reliable information about the custody status of offenders in our county jails,” said Senator Bill Ketron (R-Murfreesboro). “This system is operable 24 hours a day over the telephone, through the Internet, or by email.”

Currently 56 counties in Tennessee participate in the Statewide Automated Victim’s Notification Program, known as VINE. Another 19 counties are expected to join the program by the end of the year, to boost the total number of participating counties to 75. However, federal grants that provided funding for the program are set to expire. This legislation would raise the necessary funds to keep the program up and running and expand its scope to more Tennessee counties.

Victims of a crime or other concerned citizens can register to be notified immediately in the event of an offender’s release, transfer or escape through the program.

Victims of crime were also the focus of another bill which advanced in the Senate State and Local Government Committee this week. The bill, SB 880, also sponsored by Senator Ketron, keeps the personal contact information of crime victims participating in the Criminal Injuries Compensation Fund confidential. The legislation keeps the address, telephone number, social security number and the criminal offense from which the victims is receiving compensation closed from public to protect the victim from the perpetrator or others who might seek revenge.

The Victim’s Compensation provides financial help in cases where a crime victim sustains bodily injury or death as a direct result of a violent crime.

Child Sexual Predators — The Senate Judiciary Committee acted this week on legislation designed to let law enforcement act more quickly to protect children from sexual predators using the Internet. The bill, SB 1529, authorizes district attorneys general or assistant district attorneys general to issue a subpoena to require production of records related to the Internet or computer use in cases of sexual exploitation of a minor. The bill would allow the prosecutor to subpoena the name, address, local and long distance connection records, length and types of service utilized, telephone number, and means of payment for the service.

Actor and child protection activists David Keith, spokesman for the National Association to Protect Children, told lawmakers the United States consumes more than 50 percent of the world market of that multi-billion dollar global industry. Since 2005, more than 750,000 pedophiles have been identified by computer in the United States, with only two percent of those being investigated. He said hundreds of thousands of children are being raped, tortured, filmed and traced on the Internet, and law enforcement agencies don’t have the resources to investigate the crime.

“We must keep up with the technology used by these child sexual predators,” said State Senator Tim Burchett, sponsor of the bill. “This legislation speeds up the process to let us get to endangered kids faster.”

Prescription drug abuse – The full Senate has approved legislation that requires all entities that dispense medications to have access to the controlled substance database by January 1, 2010. The bill, SB 224, is designed to cut down on prescription drug abuse by providing information to those prescribing and dispensing the drugs.

“Tennessee has experienced problems with individuals obtaining multiple prescriptions for controlled substances from multiple health care providers,” said Senator Paul Stanley (R-Germantown), sponsor of the bill. “This bill will give us another tool to fight this abuse.”

The Tennessee Board of Pharmacy began accepting prescription information into the Controlled Substance Monitoring Database on December 1, 2006. The database, which is maintained by the Department of Health, includes data on controlled substance prescriptions of schedule II-V drugs. The database includes who the prescribing practitioner is; who filled the prescription; basic patient information; and the name and form of medication that the patient received.

Only those persons authorized by law can access the database to assist in determining treatment history and to ensure a patient is not fraudulently seeking controlled substances. This bill makes sure that those prescribing and dispensing drugs have electronic access to the controlled substance database upon providing health care services to a patient potentially receiving a controlled substance.

Resolution expresses Tennessee’s opposition to federal cap-and-trade proposal

A resolution expressing Tennessee’s opposition to a federal proposal that would establish a carbon cap-and-trade system is on its way to the Senate floor after approval by the Senate Finance Committee this week. The measure, SJR 327, comes after senior U.S. administration officials indicated that if Congress does not pass comprehensive legislation providing for a cap-and-trade system to regulate greenhouse gas emissions they will press ahead unilaterally with proposals using the Environmental Protection Agency (EPA)’s existing authority under the Clean Air Act.

“The cap-and-trade system is going to be very regressive tax,” said Senator Johnson. “Putting a fee on carbon being emitted into the atmosphere is a cost that is going to affect Tennessee consumers on a wide variety of things, from driving cars to burning coal to make electricity.”

Under the federal proposal, government would set a cap on the amount of pollutant that can be emitted by a business. Any company that emits carbon more than the allowable level of emissions would subsequently be taxed. The business might be able to buy credits, or trade, with a company that is under the allowable limit, thus the term cap and trade. The practice has been implemented in some localities in the U.S., but is more commonly used in other nations, with the largest being the European Union Emission Trading Scheme which applies to emission of greenhouse gases.

“The cap-and-trade system enacted in Europe has proven to be a dismal failure,” said Senator Johnson. “The initial cap was set so high that the polluters fell under it without making any reductions in emissions at all. Similarly, the voluntary cap-and-trade system in NewYork has already been criticized for questionable offsets that have produced huge profits, but little environmental benefit”

“Our citizens and businesses are already suffering from the current economic climate. Hopefully this resolution will send a message to Congress that Tennesseans don’t want this system implemented in our state,” Johnson concluded.

Legislation approved by the Senate Finance Committee says NO to Federal Real ID Program

Tennessee would be the 12th state in the U.S. prohibiting the issuance of a REAL ID card under legislation approved by the Senate Finance Committee this week. The bill, SB 1934 sponsored by Senator Tim Burchett (R-Knoxville), directs the Tennessee Department of Safety not to implement the provisions of the federal REAL ID program.

“This bill sends a message to Washington that they need to back off plans to implement a national identification card,” said Senator Burchett. “REAL ID is an encroachment on our freedoms that we must not tolerate.”

The REAL ID Act was signed into law in 2005. The federal initiative forces states to standardize driver’s licenses cards across the nation into a single national identity card and database. It does this by stipulating that state driver’s licenses and state ID cards will not be accepted for “federal purposes” unless they are in compliance with the Act. Those purposes include boarding an aircraft or entering a federal facility unless the state issuing the identification meets all of the law’s numerous conditions, like standardizing data element and security features on the IDs, a machine readable zone that allows for easy capture of data, and the construction of a interstate-linked database that makes information in each person’s file available to the government.

To date, 21 states have enacted anti-REAL ID bills or resolutions. However, Maine, Montana, New Hampshire, Oklahoma, South Carolina, Washington, Alaska, Arizona, Idaho, and Louisiana have enacted binding legislation prohibiting participation in the federal program.

“The federal legislation, if imposed by states, turns the states driver’s licenses into an invasive national ID as it imposes numerous new burdens on taxpayers and state governments,” added Burchett. “It will cost Tennesseans millions of dollars, as well as encroaching upon the lives of our citizens.”

Although the Act was passed by Congress, Real ID cannot go into effect without a legislative action by states. State legislatures must also appropriate money to remake or build administrative machinery required to comply with an extensive document storage system. In addition, millions of Americans who do not have driver’s licenses would be required to receive a REAL ID card.

“Real ID is way over the line as far in invading our citizen’s privacy,” Burchett concluded. “I am pleased this bill was approved and hopeful that we will have the support needed to pass it on the floor of the Senate.”

The Department of Homeland Security, which is responsible for implementation of the federal program, has granted extensions to all states which are good through December 31, 2009. In addition, States that meet certain benchmarks for the security of their credentials and licensing processes will automatically be granted a second extension until May 11, 2011 to complete full implementation of REAL ID.

Bills in Brief

Consumer Protection / Pharmacy — Legislation was approved by the full Senate this week that addresses two important problems related to patients understanding their pharmacy benefits and cost of their prescriptions. Currently, pharmacies are often prohibited by language in their provider contracts from telling patients what the pharmacy is being paid for their prescriptions, which prevents patients from knowing the costs. The legislation, called the “Patient’s Right to Prescription Transparency Act of 2009,” would prevent a health plan or Pharmacy Benefit Management Company (PBM) from restricting or prohibiting a pharmacy from giving the patient information regarding actual reimbursement. The legislation would also define that percentage based co-pays be calculated based on the total prescription price the plan agrees to pay to the pharmacy. The bill, SB 774, is sponsored by Senator Doug Overbey (R-Maryville).

Second Amendment Rights / Restaurants – The State Senate approved a Conference Committee Report on SB 962 and sent to the governor the legislation allowing law-abiding handgun permit holders to “carry” into restaurants or other establishments serving alcohol as long as the owners of the premises have not posted notification that they are banned. Those who are in possession of a handgun are already prohibited from consuming alcohol or face a Class A misdemeanor, which carries a $2,000 fine and up to 11 months and 29 days in jail. The Conference Committee report, as adopted, deleted provisions for a “gun free zone” tied to age or time restrictions. There are 220,000 gun carry permit holders in Tennessee. Thirty-seven states allow legal permit holders to carry into locations that serve alcohol.

Second Amendment Rights / Parks – Legislation advanced in the Senate Finance Committee this week to allow legal gun carry permit holders to posses a firearm in state or federal parks in Tennessee. The legislation also allows local government bodies to maintain control of concealed carry within local parks. According to a report from the U.S. Department of Interior, there were 8 murders, 43 forcible rapes, 57 robberies and 274 instances of aggravated assault in parks nationwide in 2007. In January, the federal government lifted a regulation that banned guns in national parks and wildlife refuges. The measure, SB 976, is sponsored by Senator Mae Beavers (R-Mt. Juliet).

Second Amendment Rights / Judges – The full Senate has approved legislation authorizing judges who possess handgun carry permits to carry a firearm during judicial proceedings. The bill, SB 19, is sponsored by Senator Dolores Gresham (R-Somerville).

Developmentally Disabled Citizens — The Senate General Welfare, Health and Human Services Committee approved a resolution this week supporting the development of an array of cost-effective home- and community-based programs to support people with developmental disabilities. Last year the General Assembly passed comprehensive legislation to give elderly and disabled Tennesseans more long term care options, including a comprehensive measure that simplifies access to home and community-based services and increases the number of people able to stay at home for long-term care needs through the state’s TennCare program. The Family Support Program administered by the Division of Mental Retardation Services, which is the only state program for people of all ages with any type of developmental disability, has a waiting list exceeding 6,000 persons. The resolution, SJR 72, is sponsored by Senator Jim Tracy (R-Shelbyville).

Soldier Heroes – The Senate Finance Committee voted this week to send Congress a resolution asking that an initiative be adopted to honor the wishes of soldiers regarding the disposition of their remains if they die in service to their country. The initiative, called the “Honor the Written Intent of our Soldier Heroes Act,” would amend a federal law that prohibits a service member from designating a person other than a surviving spouse, blood relative or adoptive relative to direct the disposal of the service member’s remains The resolution, SJR 352, is sponsored by Senate Speaker Pro Tempore Jamie Woodson (R-Knoxville).

Restaurant Menus – The full Senate has approved legislation to ban local governments or their boards from imposing requirements on restaurants to provide nutritional information on menus. The concern is that some communities will impose different standards and significantly increase costs to small restaurant owners. In March, Davidson County’s Metro Board of Health voted to enact guidelines on providing nutritional information to customers for certain restaurants, even though Congress is considering the Federal LEAN Act. That act would implement a national standard generally accepted by restaurant owners to provide nutritional information to customers. Adopting a county-by-county approach to the disclosure of nutritional information increases costs to restaurants, many of whom are small business owners. The bill, SB 1092, is sponsored by Senator Paul Stanley (R-Germantown).

DUI – Legislation was approved this week in the Senate Judiciary Committee that would require the testing of a driver’s blood alcohol content level in cases where there is serious bodily injury to a victim or death. The proposal calls for the test to be performed whether or not the driver consents. Presently, only drivers where a death is involved are required to be tested. This legislation would extend that requirement in cases where a victim is seriously injured and the law enforcement official has probable cause to believe that the driver has committed the offense of vehicular assault. The test results may be offered into evidence, subject to the rules of evidence under the bill, SB 534, which is sponsored by Senator Randy McNally (R-Oak Ridge).

Cyber-schools – The full Senate has approved a measure that directs the Select Oversight Committee on Education to study the authorization of cyber-based charter schools in Tennessee and to report back to the General Assembly by January 15, 2010. Cyber schools have gained in popularity over the last several years as yet another educational option. Cyber schools primarily use a computer-based curriculum and accountability methods via internet access. The public cyber charter option is an attractive alternative for untraditional students or those with home-based needs. The bill, SB 621, is sponsored by Senator Steve Southerland (R-Morristown).

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