May 13, 2011

On May 13, 2011, in News from Nashville 2011, by Mark Norris

May 13, 2011

From Mark’s desk 

Another fast-paced week of the General Assembly has passed and we are ever closer to our adjournment. The continued focus this week, however, was the destruction caused by the recent storms and floods and the inevitable devastation we will be facing in the ensuing week as the Mississippi continues to rise to unparalleled and historic levels.

Last week I flew over West Tennessee with Governor Haslam to survey the damage, first-hand. There are truly no words to describe such a sight. The Mighty Mississippi looked more like a vast ocean than its normal meandering self. The levees are serving their purpose, although the visible white-caps of water beginning to spill over them were starting to take place.

I urge everyone in the vicinity of the Mississippi or its tributaries to pay close attention to the still rising waters over the next week. Please exercise extreme caution if you are travelling, and if you come upon a section of road that has been flooded, refrain from crossing. Remember, it takes only one foot of water to sweep a vehicle away.

As you have been doing, please continue to keep those less fortunate in your thoughts and prayers during the difficult days ahead, and don’t hesitate to contact our office if we can assist you in any way.

Mark

State Senate passes Civil Justice Reform  

The Tennessee General Assembly worked in marathon floor and committee sessions this week towards the conclusion of the 2011 legislative session.  Among major legislation approved by the State Senate is a civil justice law to help create jobs in Tennessee, several measures cracking down on child sex offenders and those who engage in human trafficking, and state’s rights legislation, to name a few.  

The Tennessee Civil Justice Act of 2011, sponsored by Senate Majority Leader Mark Norris (R-Collierville) and Senator Brian Kelsey (R-Germantown), was approved in the State Senate by a vote of 21 to 12.  The legislation is designed to provide certainty and predictability for businesses, while ensuring that injured plaintiffs receive all of the economic, quantifiable damages they suffer.   

Norris said Tennessee’s current civil justice law puts the state at a competitive disadvantage when it comes to attracting new businesses and jobs, especially since it is one of the few in the Southeast which has yet to reign in lawsuit abuse through tort reform.  

“This is very important legislation,” said Senator Norris.  “It is much more than tort reform, as we must be competitive with other states.  The state of Tennessee has always been on the cutting edge of tort reform.   We must remain competitive, not just in the South or in a regional economy, but in the global context.  This bill is designed to put us on a level playing field so we have predictability and certainty for businesses which look to locate or expand their operations in Tennessee.” 

“Our current civil justice system threatens Tennessee’s business climate and hampers our ability to create jobs,” said Lt. Governor Ramsey (R-Blountville)“Unlimited exposure to costly litigation drives up business costs and drives away new jobs.  Every citizen should have access to the courts but it is critical that damage awards do not spin out of control and hurt our ability to grow jobs in Tennessee.” 

“The legislation will provide certainty and predictability for businesses that want to locate in Tennessee,” said Senator Kelsey.  “When we attract businesses, we attract jobs.   Without this law, Tennessee is the only state in the southeast that has no limits on possible punitive damage awards.  With this law, Tennessee can become the number one state in the southeast for high quality jobs.” 

Key provisions of Senate Bill 1522 include:

  • The bill limits the maximum appeal bond amount from $75 million to $25 million or 125 percent of the judgment amount.
  • It defines two components of compensatory damages:  economic and non-economic damages.
    • The measure places a cap on non-economic damages, which are subjective damages like pain and suffering, at $750,000 per injured plaintiff for both healthcare liability action and other personal injury actions.  However, if the harm suffered is intentional, the caps would not apply. 
    • As amended, the bill raises the cap to $1.0 million if the plaintiff becomes a paraplegic or quadriplegic because of spinal cord injury, sustains third degree burns over 40 percent or more of his or her body or face, has an amputation of a hand or foot, or wrongfully dies leaving one or more minor children.
    • There is no cap, under the measure, on economic damages and any damages that can be objectively quantified may be recovered.
  • Caps punitive damages, which must be proved by clear and convincing evidence, at two times compensatory damage or $500,000, whichever is greater unless the defendant intended to injure the plaintiff, was under the influence of drugs or alcohol, or intentionally falsified records to avoid liability.
  • Prevents punitive damages in products liability actions, unless the seller had substantial control over the design or manufacturing of the product or had actual knowledge of the defect in the product at the time it was sold. 

Norris pointed to the success of the 2008 medical tort reform law which he sponsored and that has been successful in reducing lawsuits since its implementation.  The law has resulted in a reduction in non-meritorious claims by 50 percent.   

The bill now goes back to the House of Representatives for approval of an amendment before it is sent to the governor for his signature.  It will take effect October 1, 2011, and apply to all liability actions for injuries after that date. 

Ballot bill would strengthen integrity of elections  

The Legislature has approved and sent to Governor Bill Haslam legislation sponsored by Senate Majority Leader Mark Norris (R-Collierville) to strengthen the integrity of elections in Tennessee.  The bill requires the Coordinator of Elections to compare the statewide voter registration database with the Department of Safety’s motor vehicle database to ensure non-United States citizens are not registered to vote in this state.   

“This is the result of several years of efforts for us to abide by the constitutional requirement that only citizens of this country vote in this state,” said Senator Norris.  “Other states have used this system with success.”  

Under Senate Bill 352, if evidence exists that a registered voter is not a citizen, the Coordinator shall notify the county election commission who will send a notice to the voter inquiring about his or her eligibility to vote. The voter will then have 30 days to provide documentation regarding their citizenship.  If the voter does not provide evidence of citizenship, that person would be purged from the voter registration database. The voter may appeal to the State Election Commission if they want to challenge the decision.  

The U.S. Constitution already requires citizenship to vote.  In addition, federal law makes it a crime knowingly to make a false statement or claim regarding citizenship upon registering to vote.   

The bill, which also passed the House of Representatives, now goes to Governor Bill Haslam for his signature. 

Minor parties — In other action, the State Senate approved legislation to make it easier for minor political parties to receive statewide recognition in order to place a slate of candidates on the ballot and hold a primary election.  The bill, sponsored by Senate Majority Leader Mark Norris (R-Collierville), allows for voters to sign the petition to place a minor party on the ballot, regardless of whether they proclaim to be a member of that party.  It reverses over 25 years of Democrat-led resistance to allowing more statewide parties on the Tennessee ballot.  

“This bill eases the current qualification requirements for minor parties to be recognized,” said Senator Norris.  “It eases requirements for those signing the petition and simplifies the timeline required.  This eases the burden and extends the franchise to more Tennesseans.” 

Prior to passage of SB 935 / HB 794, Tennessee law required a minor party to gain the signatures equivalent to 2.5 percent of the total number of those voting in the most recent race for governor.  The law required those signing the petition to declare their party membership.  The legislation changes that so any voter may sign the petition, regardless of association with the minor party.   

The bill also gives a minor party wishing to gain recognition an additional 30 days to return their petition to the State Coordinator of Elections for their slate of candidates to be placed on the ballot.  Currently, a minor party’s petition must be submitted 30 days before the two major parties filing deadline.  The bill allows minor parties to simultaneously submit their petition to be recognized as a party on the filing deadline set for major parties, which is the first Thursday in April.  

Finally, the bill gives the State Election Coordinator’s office 30 days to verify that the 2.5 percent is a valid number for recognition.  If verified, the minor party would be allowed to have a primary in August.  If there are not enough valid signatures, those individuals associated with the minor party revert back to independent status, and are listed on the ballot as an independent.   

“This legislation gives minor party candidates more opportunities than any time in recent state history to be placed on the ballot and properly recognized,” added Norris.  “I am pleased this legislation has been approved by the House and Senate. 

The bill now goes to the governor for his signature.  

Bill stiffens punishment against looters who take advantage of storm victims 

The Senate Judiciary Committee has advanced a timely measure in response to reports of looting taking place following the recent storms that tore through Tennessee.  Senate Bill 1095, sponsored by Senator Steve Southerland (R-Morristown), provides a new offense whereby courts may require a criminal to perform public service at a disaster site as a result of looting. The bill authorizes judges to sentence a convicted looter who takes advantage of a natural disaster, like the recent storms, to public service work in addition to any fine or other punishment assessed by the court. 

“We are talking about people who are victimized twice – once by the storms and then by criminals who take advantage of an already horrible situation,” said Senator Southerland. “This is a despicable crime when looters pick through the remainder of any items not already ravaged by the storm to steal.  We must take additional steps to protect families who are already hurting and should not be subjected to this kind of criminal behavior.  Hopefully, it will also help the criminal see the suffering associated with their crime.  At the same time, this legislation will help our communities in cleaning up in the aftermath of the storms.”   

The bill applies to looting which occurs during or within 30 days of the disaster and within the area affected, if the owner is unable to properly guard his or her property due to the destruction.  The legislation also says that the person who violates the law under these circumstances shall be required to perform debris removal, clean-up, restoration or other necessary physical labor at the location of the disaster for a period of not less than 30 days or more than the maximum sentence authorized for the class of theft committed. 

Disaster relief sought for storm-ravaged and flooded Tennessee counties 

Tennessee Gov. Bill Haslam announced this week that President Obama granted a request to declare 15 Tennessee counties as federal disaster areas due to a series of severe storms, straight-line winds, flash flooding and the record flooding of the Mississippi River, beginning on April 19, 2011.  Benton, Carroll, Crockett, Dyer, Gibson, Henderson, Henry, Houston, Lake, Lauderdale, Madison, Montgomery, Obion, Shelby and Stewart were added to receive assistance for record river flooding. 

As a result of the severe weather, Tennessee suffered 37 fatalities and more than 500 homes were destroyed or sustained major damage.   

Governor Haslam has asked President Barack Obama to authorize emergency funding of $10 million to assist the state and local jurisdictions with evacuation preparedness and activities in West Tennessee due to flooding that began April 21, 2011, a result of the record rainfall on the Mississippi, Tennessee and Cumberland rivers.   

“They don’t call it the mighty Mississippi for nothing,” said Senate Majority Leader Mark Norris (R-Collierville), who toured affected counties in West Tennessee with the Governor last Tuesday.  Norris represents several counties which are most affected by the rising flood levels.  “We are working very diligently with federal and local officials.”  

Senate Finance Committee approves McNally Resolution asking Congress to end unfunded mandates to states 

The Senate Finance Committee approved legislation, sponsored by Senator Randy McNally (R-Oak Ridge), asking Congress to submit to the states for ratification an amendment to stop the practice of passing unfunded mandates and programs to the states.   

“States are struggling right now,” McNally added.  “We cannot continue to fund federal programs or mandates without making substantial cuts to critical programs like education.  Hopefully, this resolution will send Washington a message that states need stability in budgeting, rather than more federal mandates.” 

The proposed amendment, Senate Joint Resolution 118, would ban unfunded mandates, except in a situation of financial emergency as declared by a two-thirds vote of their membership.  It would also prohibit the federal government from authorizing state participation in federal programs or services unless funding is guaranteed by the federal government for the full duration of the programs or services. If federal funds are not appropriated for the program or service, the law enacted or regulation promulgated would become null and void. 

Senate approves bill to allow the “Good Faith Exception” to the “Exclusionary Rule” for Tennessee Courts 

The State Senate voted 26 to 4 to approve legislation to enact what is known as the “common sense” or “good faith exception” to the “exclusionary rule” regarding suppression of evidence in violation to the fourth amendment or unreasonable search and seizure.  Senate Bill 559, sponsored by Senator Randy McNally (R-Oak Ridge) would allow a judge to give a jury access to evidence or facts obtained as a result of a search or seizure which contains a minor technical error.  

The bill attempts to balance the scales of justice to a standard embraced by the U.S. Supreme Court in United States v. Leon and Herring v. United States, which was the law in Tennessee prior to 1979.  McNally says the standard allows the judge and jury to weigh all the facts and still administer justice in an objective manner.   

“This legislation would allow a judge to admit evidence or facts which have inadvertently been tainted due to a technical error so the jury can then make a determination on all the facts,” said Senator McNally.  “This will allow justice to be administered in an objective and balanced manner.” 

“Prior to 1979, only evidence obtained by unlawful search and seizure was excluded,” added Senator McNally.  “That year the Tennessee General Assembly changed the standard to unlawful or invalid search and seizure.  Unfortunately, the lack of action by the courts as well as the legislature has precipitated the possible release of murderers and rapists since passage of the 1979 law due to minor defects in a warrant.” 

McNally said the current law has hampered prosecution of many hardened criminals, including a man who confessed to authorities for committing the aggravated rape, robbery and murder of multiple young women but who had his conviction vacated as there was a technical error.  The technical error was made by the magistrate in the preparation of the warrant.  The court held that even though the rapist / murderer had collected “trophies” from the victims, those items should not have been admitted into evidence because of the minor defect in the warrant.   

The bill now goes to Governor Bill Haslam for his signature. 

Senate passes legislation which aims to ease professional licensing process for military spouses transferred to Tennessee 

Military spouses transferring into Tennessee should find the state’s licensing procedures a bit smoother following legislation passed by the State Senate today putting into place a system to expedite their professional- licensing process.  The bill would apply to a wide variety of professions, including architects, contractors, real estate agents, cosmetologists, barbers, healthcare professionals, or any other profession for which the state requires a license.   

Senate Bill 1039, sponsored by Senator Bill Ketron (R-Murfreesboro), requires Tennessee’s licensing boards to establish a procedure to expedite the issuance of a license, certification or permit to perform professional services regulated by each board to the spouse.  It would apply to military spouses who are currently licensed in a profession in another state, as long as they relocate with their husband or wife and have been transferred in the line of duty.   

“Most decisions to stay in the military are made around the kitchen table and not in the personnel office,” said Senator Ketron.  “To retain our trained and experienced military we must maintain the family.  This bill helps spouses with some complications that arise as a result of military service such as a delay in obtaining a professional license upon being transferred.” 

Ketron said professional-licensing requirements often differ among states, limiting career advancement or deterring re-entry into the work force for military families moving to new locations.  Military spouses relocate every two to four years on average.  Over 70 percent of those surveyed say they either want or need to work.  However, delays of four to six months are commonly incurred in getting a license.  Ketron says this has a detrimental impact on the military spouse’s ability to find employment due to the frequency of military moves. 

“This bill is to support our troops and their families and ease a burden that presents a significant problem,” added Ketron.  “Sometimes spouses become discouraged and give up their careers in health professions, law, finance and education to take lower paying jobs for which they are frequently over-qualified.  We need to do everything we can to help expedite the licensing process so this does not happen.” 

The bill now goes to Governor Bill Haslam for his signature. 

In Brief…. 

Fallen officers — The State Senate stood in a moment of silence on Thursday for the late State Trooper Andy Wall of Dickson, Tennessee who died last weekend in the line of duty.  The Senate observed the passing of Trooper Wall and stood in a moment of prayer for his family at the request of State Senator Jim Summerville (R-Dickson).  Last week, the State Senate stood in prayer for the passing of Wartburg Police Captain, Ralph Braden, who was also killed recently in the line of duty.  That recognition was done at the request of Senator Ken Yager (R-Harriman).  This week marks Police Week, a nationwide observance in which May 15th has been designated as Peace Officers Memorial Day to honor fallen officers. 

No state income tax resolution — A “No State Income Tax” amendment resolution was approved by the Senate Finance Committee and was read on the first of three required readings before the full Senate.  The proposal would clarify that an income tax and a payroll tax are prohibited by the Tennessee Constitution if voters agree to amend the Constitution in a vote in 2014.  Senate Joint Resolution 221, sponsored by Senator Brian Kelsey (R-Collierville) specifies that the legislature as well as Tennessee counties and cities shall be prohibited from passing either an income tax or payroll tax, which is a tax on employers measured by the wages they pay their workers.  In order for a constitutional amendment to pass, it must first be approved by a simple majority in both the House and the Senate this year.  Then, it must be approved by a two-thirds vote in each chamber during the next General Assembly in 2013-2014 before it goes to voters for final consideration.  

Illegal Immigration / Government Benefits – The Senate State and Local Government Committee has approved Senate Bill 1325, sponsored by Senator Jack Johnson (R-Franklin), that authorizes state departments or agencies to verify the lawful status of an alien in Tennessee.  Under the “Eligibility Verification for Entitlements Act,” the agency could then prohibit an unlawful alien who is an adult from receiving any “non-emergency” taxpayer-provided benefits in Tennessee.   

Meth vehicles – The Senate voted 33 to 0 this week to require notice must be given on the title of a vehicle in cases where it has been impounded due to the manufacture of methamphetamines.  The notification must be made within 30 days of the impoundment.  Senate Bill 266, sponsored by Senator Jim Tracy (R-Shelbyville), applies when meth has been manufactured on or within the vehicle.  Under the legislation, the Department of Revenue would be required to issue a new title denoting that it has been used in the manufacture of meth, in the same way that notification is given for flooded vehicles, so citizens have adequate notice.   

Revenue Collections — Tennessee revenue collections continued a very modest positive growth trend in April.  Overall April revenues were $1.264 billion, which is $600,000 more than the state budgeted.  Sales tax collections recorded the 13th consecutive month of positive growth dating back to April of 2010.  The general fund was under collected by $6.9 million, and the four other funds were over collected by $7.5 million.  Sales tax collections were $22.8 million more than the budgeted estimate for April.  The April growth rate was positive 3.52%. For nine months revenues are over collected by $140.6 million. The year-to-date growth rate for nine months was positive 4.34%.

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