Capitol Hill Week: State Senate passes Civil Justice Reform and other Major Bills as General Assembly works toward adjournment

(NASHVILLE, TN), May 12, 2011 –  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 included in Governor Bill Haslam’s legislative package.  It 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.”

“The uncertainties of life command that we balance the need to quantify the risk with our compassion,” he added. “This will strengthen our judicial system and our state as a whole.”

“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.

Legislation cracks down on the growing problem of human trafficking in Tennessee

Legislation sponsored by Senator Doug Overbey (R-Maryville) designed to attack the growing problem of child prostitution and human trafficking in Tennessee was approved Wednesday in the Senate Judiciary Committee.  Senate Bill 64 would enhance penalties against those who patronize or promote the illegal act, as well as gives law enforcement powers to impound a vehicle used in the commission of the offense.

Approval of the bill came only days after a joint operation between the FBI and the Hamblen County Sheriff’s Department resulted in the arrest of nine individuals for human trafficking.  According to law enforcement, the women were lured from Mexico to East Tennessee with the promise of employment, but were forced into prostitution.  In November, federal authorities broke up a human trafficking ring that provided underage prostitutes involving 29 Somali men and women with ties to gangs.  According to the indictment, one of the intentions of those involved was to identify, recruit and obtain girls under age 14 for prostitution.  The ring operated in Nashville, Minneapolis and Columbus, Ohio. 

“These predators and criminal gangs target children because of their vulnerability, as well as the market demand for these young victims,” added Overbey.  “That is why it is so important to strengthen penalties against those who exploit them.  It is intolerable that in 2011, this crime is growing rather than decreasing.  We must continue to take the steps needed to address it.”

Currently, patronizing prostitution is a Class B misdemeanor in Tennessee, unless the crimes are committed within 100 feet of a church or 1.5 miles of a school, which is punishable as a Class A misdemeanor.  The legislation would make patronizing prostitution from a person who is younger than 18 years of age or has an intellectual disability a Class E felony.  Penalties for promoting prostitution would be increased from a Class E to a Class D felony when a minor is involved, under the bill. Additionally, the proposal specifies that if it is determined that a person charged with prostitution is under age 18, they would be immune from prosecution for prostitution and would be released to a parent or guardian after receiving information regarding resources available to put them on the right track. 

In following, the Senate Judiciary Committee approved two other bills, Senate Bill 604 and Senate Bill 605, to provide a comprehensive statewide approach to deal with the problem of human trafficking in Tennessee.  The first bill sets up an Anti-human Trafficking Fund within the Department of Finance and Administration to provide grants to not-for-profit or tax exempt groups that provide services to the victims.  The bill also expands the list of items subject to judicial forfeiture for those convicted of this crime, with funds to be partially used for this purpose.  The other bill requires the posting of a Human Trafficking Resource Center Hotline in places where victims are more likely to be found so they can access help earlier.

Tennessee Bureau of Investigation (TBI) Assistant Special Agent in Charge Margie Quinn told Judiciary Committee members that it is a widespread problem with 78 of the 95 counties in Tennessee reporting the presence of human sex trafficking during the last 24 months.  The TBI has just completed a study of the matter.  She said there is more human sex trafficking in the urban areas in Shelby County, Davidson County, Coffee County, Knox County, all which reported in excess of 100 cases of human sex trafficking in the last 24 months. 

“Sixty-two of those same counties reported the presence of minor human sex trafficking,” Quinn said.  “It is a significant problem when you compare it to the number of counties in 2009 that advised they had the presence of gangs in their counties.  There are more counties affected by human sex trafficking than there are by the presence of gangs in our state.”

Bills passed in Committee and on the Floor of the Senate strengthen Tennessee’s sex offender laws

Several bills were approved this week with aim to strengthen Tennessee’s sex offender laws, including legislation passed by the Senate Judiciary Committee to clarify a Court may increase the sentence for rape of a child above the mandatory 25 years when appropriate.  Currently, there has been confusion concerning additional punishment above the 25-year mandatory sentence for the crime.  Senate Bill 755, sponsored by Senator Dolores Gresham (R-Somerville), clears up any ambiguity.  It spells out that rape of a child is a Class A felony and that punishment is subject to a minimum sentence of 25 years; however, the Court may increase the time when appropriate and in cases where the defendant’s prior history warrants an enhanced sentence of up to 60 years for the most egregious circumstances. 

Likewise, the full Senate has approved Senate Bill 1938, sponsored by Senator Randy McNally (R-Oak Ridge), which adds aggravated rape of a child and statutory rape by an authority figure to the list of offenses requiring HIV testing of the alleged perpetrator.  Under present law, when a person is initially arrested for allegedly committing the offense of rape, aggravated rape, statutory rape, or rape of a child, that person must undergo HIV testing immediately. This bill specifies that testing must be performed no later than 48 hours after the presentment of the information or indictment and that it must be performed with or without the request of the victim.

The full Senate also approved Senate Bill 1051, sponsored by Senator Mike Bell (R-Riceville), which requires registered sexual offenders to notify their registering law enforcement agency before they leave the country and upon re-entering.  This is the last part of the Adam Walsh Act Tennessee must pass to be in compliance with the federal law protecting children from child sexual predators.  The Tennessee Bureau of Investigation interacts with Interpol to notify the other country regarding the travel of an offender.  

Finally, the full Senate has approved Senate Bill 1051, sponsored by Senator Stacey Campfield (R-Knoxville), to ensure that convicted of sex offenders cannot contact their victim while they are in prison.  The bill closes a loophole in the law which bans contact of a victim by the perpetrator upon release from prison, but does not clarify that communication cannot occur while the offender is jailed in prison.  

Ballot bill would strengthen integrity of elections in Tennessee

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, 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.

Additional counties declared federal disaster areas — 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

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.

In Brief….

DUI / Blood Alcohol Testing — Legislation has advanced in the Senate Judiciary Committee which requires the testing of a driver’s blood alcohol content (BAC) level in cases where the driver has previously been convicted of a DUI or when there is a child present in the vehicle.  Tennessee’s DUI law already requires BAC testing when there is serious bodily injury to a victim or death.  Senate Bill 1270, sponsored by Senator Mae Beavers (R-Mt. Juliet), simply puts these two additional conditions into the law when testing must be performed, whether or not the driver consents.   The test results may be offered into evidence, subject to the rules of evidence. 

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.

Adventure Tourism / Rural Job Creation — The Senate Finance Committee has approved legislation to enact the Tennessee Adventure Tourism and Rural Development Act.  The objective is to establish a plan for Tennessee to promote outdoor recreational opportunities in rural, high-employment areas of the state to create jobs.  Senate Bill 1205, sponsored by Senator Ken Yager (R-Harriman), would direct the Department of Economic and Community Development and the Department of Conservation and Environment to perform a study and create a plan to promote adventure tourism and other recreational and economic development activities in rural areas. 

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. 

Cyberbullying — Two separate bills sponsored by Senator Bill Ketron (R-Murfreesboro), strengthening Tennessee’s law against bullying and cyberbullying through the use of electronic devices, received approval in the State Senate this week.  The action comes after several highly publicized cases of cyberbullying nationwide.  The first measure, Senate Bill 488, clarifies that Tennessee’s elementary and secondary school laws dealing with harassment, intimidation, bullying and cyberbullying applies to after-school activities that create a hostile educational environment.  The second bill, Senate Bill 487, calls for those convicted of using electronic devices to bully to serve up to 30 hours of community service work for transmitting or displaying an offensive image where there is a reasonable expectation the victim will see it.   It would apply in cases where there is a malicious intent by a juvenile to frighten, intimidate or cause emotional distress to the victim.

Foreign Refugees / Resettlement – The full Senate voted this week to require any entity or agency that administers the state’s refugee program to submit quarterly reports to state and local governments and appropriate legislative committees regarding certain resettlement information.  Senate Bill 1670, sponsored by Senator Jim Tracy (R-Shelbyville), is designed to give city, county and state authorities information to help them plan for a variety of needs, including any demands on the education system or emergency services.  Refugees are located as part of a federal government program to resettle those who have left their home country due to political or religious persecution.  Last year about 1,800 refugees from 14 different countries were moved into Tennessee, with the same amount predicted this year.   It does allow cities of counties to send a letter of request to the placement agency and the U.S. State Department regarding a particular resettlement within their boundaries.

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. 

Voting machines – The full Senate gave final approval to Senate Bill 1203 to allow cash-strapped Tennessee counties determine whether or not to replace their voting machines under the Tennessee Voter Confidence Act.  The vote came after both Democrat and Republican county mayors from across the state expressed strong support for flexibility regarding the law due to the costs to taxpayers and the fact that the machines will have to be replaced again in the next ten years to comply with new standards from Washington.  Statewide, administrators estimate it would cost Tennessee taxpayers a combined $11.7 million for storage, printing and transporting the paper ballots.  The bill, sponsored by Senator Ken Yager (R-Harriman), allows counties who so choose to replace their equipment to tap into HAVA (Help America Vote Act) funds to assist them with the purchase, and relieves Tennessee taxpayers in cash-strapped counties from a mandate to purchase new voting machines immediately if they are not financially ready.   More than $25 million in taxpayer dollars have been spent on purchasing DRE voting machines since 2005 which include an audit trail and have been deemed reliable by federal authorities and state courts.

Emergency Response – The Governor announced this week that the Department of Military, Tennessee Emergency Management Agency, Department of Agriculture, Department of Environment & Conservation, Department of Health (EMS), Department of Human Services, Department of Transportation, Department of Safety, Tennessee Wildlife Resources Agency, Civil Air Patrol, American Red Cross and Tennessee Volunteer Organizations Active in Disasters are responding to the current flooding emergency and providing protective services to help local efforts.  Heavy snow-pack melting and above average rainfall in the Midwest raised the Mississippi River to record flood levels along Tennessee’s western border at the end of April.  The rising Mississippi River added to flooding already occurring in many middle and west Tennessee counties due to severe storms and tornadoes in mid-April.  Additional information about state and federal assistance for affected counties will be released as details become available.  For more updates regarding the state’s response, visit the TEMA website at www.tnema.org.

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%.

New Leader for Tennessee’s Achievement School District — The Tennessee Department of Education announced Chris Barbic, founder and chief executive officer of YES Prep Public Schools in Houston, Texas, as Superintendent of Tennessee’s Achievement School District (ASD). Barbic will lead the state’s groundbreaking efforts to turn around the State’s lowest performing schools in order to ensure that all Tennessee students have the chance to receive a high quality public education that will prepare them to be college and career-ready. The newly created Achievement School District was set up under the “First to the Top” legislation passed during the General Assembly’s Special Session on Education in January 2010.

Local Ordinances / Equal Access to Intrastate Commerce Act — The full Senate approved legislation, sponsored by Senator Mae Beavers (R-Mt. Juliet), to provide that no local government can impose on any business or person, other than its own employees, any personnel practice, definition or provision relating to discrimination that deviates from the requirements of state law. Senate Bill 632 also makes null and void any nonconforming requirements imposed prior to its effective date.

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Leadership