In anticipation of the state reaching settlements with four major opioid-related entities, two legislative committees approved legislation this week that will help create a structure for both receiving those funds and determining how they will be spent.  The legislation, which has the endorsement of Attorney General Herbert Slatery, would set up an opioid abatement fund, create an opioid abatement council to oversee those funds, and allow the state to enter into settlement agreements with Amerisource, McKesson, Cardinal, and Johnson & Johnson.  The fund would also be the repository of funds from the Purdue Pharma bankruptcy. The legislation proposes a 60/40 split between the state and counties, respectively, and is patterned after the structure that the state of Kansas has established.  As part of the 60/40 split, the subdivisions and state would each receive 15% of the settlement with no strings attached, but the remainder would have to be used for abatement issues.

The legislation contemplates an abatement council that would have 15 members, with four each appointed by the Governor, Senate, and House, two selected by the counties and one from the cities. The council would oversee the funds and ensure the funds were going to opioid related abatement programs such as treatment, education, drug courts, and numerous data-evidence based programs. The use of the funds must be on the pre-approved list or approved by the council. Medication Assisted Treatment (MAT) will be monitored carefully and guidelines will be established by the council to see the effect it has on patients, to ensure that patients are not simply swapping one drug addiction with another. Attorney General Slatery appeared in committee this week to answer questions and show support.

Creation of New Chancery Court Legislation Advances 

While a number of legislators have offered proposals this session to change the courts and judges that deliberate cases where the state is a party – including cases that deal with election law and redistricting issues as well as those concerning the constitutionality of a state statute or legislative action — one bill emerged this week with the support of Lt. Governor Randy McNally.  That will create a statewide chancery court that would obtain jurisdiction on constitutional challenges and other types of cases involving the state, instead of every decision at the trial court level being decided by Davidson County (Nashville) judges, as has traditionally been the practice. Under the bill, the governor would appoint three chancellors, one from each grand division, and those judges would subsequently stand for election. In presenting the bill to the Senate Judiciary Committee, Senate sponsor Mike Bell (R- Riceville) – who also chairs the committee — asked rhetorically,  “why should judges who are elected by the most liberal constituency in the state… why should they be the ones deciding cases that affect the state in general?”

The legislation states that the statewide chancery court would have original jurisdiction in a number of situations related to the state, including constitutional challenges, state statues, executive orders, administrative rules or regulations, as well as situations where the state is a party and the plaintiff is seeking declaratory orders or injunctive relief.

This bill, and others like it, mirrors the frustration felt by some in state government over recent rulings from Davidson County judges on state-related issues, including some high-profile election law rulings last summer. Those rulings particularly attracted the ire of Republican legislators, as evidenced by a GOP-led House resolution to have one Davidson County judge removed from office. While that resolution died in subcommittee, it did not stem the tide of attempts to change how lower court cases involving the state are handled.  With Nashville growing more Democratic, and having a position akin to an island of blue surrounded by a sea of Republican red in most other counties of the state, the judges in Davidson County have been increasingly under the microscope at the General Assembly. 

The bill moves on to Senate Finance, Ways and Means and House Finance, Ways and & Means Subcommittee next week.

 Solicitor General Legislation Halted for the Year 

Legislation that would move the solicitor general position under the General Assembly and have that position defend the constitutionality of state laws was postponed until 2022. The position currently is housed under the Attorney General’s office, which raised concerns the move could violate separation of powers. Tennessee is the only state that has their Supreme Court appoint their Attorney General, an issue for the Senate sponsor, Paul Bailey (R- Sparta), who argued that he wants someone to represent the legislative branch and possibly work on their behalf when the legislature is at odds with the governor.

The Attorney General’s office said the legislation could lead to inefficiency for the state’s legal interests. After a conversation with the Attorney General’s office, Bailey agreed to delay the bill until next year to discuss solutions on the issue, and expressed a hope that a separate position can be carved out to serve as the legislature’s legal counsel.

Tennessee Unemployment Structure to be Cut with Legislation 

After a change of Senate sponsors, the Senate Commerce committee approved legislation to reduce from 26 to 12 the maximum number of weeks a Tennessean can collect unemployment. Senator Art Swann (R- Maryville), the original sponsor, stated that he no longer wanted to sponsor the legislation once the amendment was crafted to drop the number of weeks to 12, a figure that Swann criticized as being too low. Jon Lundberg (R- Bristol) took over the legislation for the Senate while Rep. Kevin Vaughan (R- Collierville) is pushing it forward in the House.

The legislation intends to replenish the state’s unemployment trust fund balance, which has been below the federally recommended level for the past few years. It would increase the weekly unemployment payments up to $50. The shift to 12 weeks would not begin until July 2023, but would make Tennessee have the shortest length of time for an unemployed person to receive benefits.

The legislation comes from House Speaker Cameron Sexton (R- Crossville), and it appears that the measure now enjoys widespread support among legislative leadership.  It will be heard in Senate Finance, Ways and Means next week and is currently stationed in a “behind the budget” holding pattern in the House, meaning it must obtain budgetary funding in order to move forward.   

Looking Ahead 

            As the 112^th General Assembly heads toward what could be the final week of the 2021 session, one can expect a busy few days. Budget negotiations will continue through the weekend, and the budget could potentially be on the chamber floors as early as Tuesday if things go smoothly.  Then there are the scores of remaining bills that need handling unrelated to the budget. All bets are off once the budget is passed however, as once it has completed its only constitutionally required duty, the legislature is known to adjourn with numerous bills still in the pipeline.   

           Stay tuned, and do not hesitate to contact us if you have any questions or concerns. Have a great weekend.

Criminal Justice Reforms, Compensation

for College Athletes Nearing Goal Line

Governor Lee Signs Permitless Carry Legislation into Law

Yesterday, Governor Lee signed legislation into law to allow permitless carry for open and concealed carrying of handguns, making Tennessee the 19^th state to become a “constitutional carry” state. The NRA-backed law will allow persons 21 and older and military members 18 and older to carry handguns without a permit, but it does not apply to long guns, which resulted in some gun rights activists criticizing the law as not going far enough. On the other side, some law enforcement officials expressed concerns of crime increasing as a result of the new law, and also argued that the law would make officers more vulnerable.  

The bill does expand the list of people that were not allowed to have a permit in the first place – such as felons and people with domestic violence offenses – and the new permitless carry right will not expand to persons with a stalking convictions, DUI convictions, or persons that have been committed by a court to a mental institution.   

The bill will take effect on July 1. While it is projected to cost the state $20 million, Republican leaders argue it could cost the state less.

Lee Voices Opposition to Vaccine Passports, Public Universities Will Not Require Vaccination 

This week Governor Bill Lee joined the quickly growing ranks of Republican officials that oppose the concept of “vaccine passports,” which in theory are a requirement of showing proof of vaccination to be able to travel or access businesses.  While no governmental entity in Tennessee has adopted the concept of a vaccine passport, the opposition to them has become a popular GOP policy position.  In a statement to reporters, Governor Lee said “I think vaccine passports are a bad idea. I do not believe governments should impose vaccine requirements or mandates in any way and I’m working with the Legislature to support legislation that backs that up.” The issue of vaccine passports arose too late in session to have legislation initially aimed at the topic, but the Lee administration and lawmakers have managed to amend existing legislation to address the concept.  SB858 (Bowling; R-Tullahoma) / HB 575 (Ragan; R-Oak Ridge), as amended by the Lee administration, provides that government cannot force private businesses to require vaccine passports as a condition to entry, leaving the decision on the issue of masks and proof of vaccine to the businesses themselves.  The legislation also reduces the power of county health boards by making them advisory only, as opposed to being allowed to act unilaterally.  The measure passed the House Health Subcommittee and Senate Commerce & Labor Committee this week. It will most likely be discussed on the Senate floor next week.

          The Governor also confirmed his opposition this week to the concept of public universities requiring students to receive the COVID-19 vaccine in order to attend classes.  While the University of Tennessee system initially indicated that it would require students to be vaccinated, it has since backed off of that position and now strongly encourages students to receive the vaccine, but nothing more.  Governor Lee also made it clear that while he opposed a vaccine mandate for public institutions, private universities – such as Vanderbilt, Belmont and Lipscomb — were free to make their own policies in that regard.   “I think that private institutions have decisions they make on their own. I think government agencies should not have vaccine requirements.”

Senate Committee Approves Legislation to Reform Life-Sentence Law

This week the Senate Judiciary Committee advanced bipartisan legislation that aims to dramatically reduce the time required of a person sentenced to life with the possibility of parole. Under current law, a person sentenced to life with the possibility of parole is not considered for release until they served 51 years in prison, which as proponents argue, essentially leads to life without parole. Moreover, Tennessee’s life-sentence law is double the national average. Bill sponsor Janice Bowling (R- Tullahoma), wants to reduce the sentence to 25 years, the same period of time that was used for this sentence prior to the 1994 Crime Bill. Senator Bowling noted those who received this sentencing were typically younger than 25 years old. Supporters of the legislation, who spoke in front of the committee, noted  that young people that receive this sentencing are prepared to return to society sooner rather than later, but due to the long period in jail, are unable to prove themselves as proper citizens. Although Governor Lee has touted goals of criminal justice reform, this legislation is not a part of his legislative package.

 Tax-Exemption Legislation Passes in House

Monday evening the House unanimously passed legislation to exempt certain COVID-19 related relief payments from the Tennessee excise tax. The deduction would exempt COVID-19 relief payments received between March 1, 2020, and Dec. 31, 2021, from the TN Business Relief Program, TN Supplemental Employer Recovery Grant Program, Coronavirus Agriculture and Forestry Business Fund, Hospital Staffing Assistance Program, Emergency Medical Services Ambulance Assistance Program, and the TN Small and Rural Hospital Readiness Grants Program.  This legislation is being proposed by Governor Lee in an effort to tackle the daunting economic impact the pandemic has had on the state, with proponents of the legislation arguing that businesses should not be taxed on the funds that they need to stay in operation. 

Looking Ahead  

Next week the Finance Committees will hear from the Department of Finance & Administration Commissioner Butch Eley, as he unveils Governor Lee’s proposed supplemental budget.  Meanwhile, back-room negotiations over potential budget issues are well underway, concerning potential changes to taxes such as the professional privilege tax on doctors, lawyers, financial advisors and other professions,  as well the aviation fuel tax. All of the final decisions on those and a myriad of other issues will emerge in the next few weeks. 

Have a great weekend.  

“Constitutional Carry” Passes House; Advances to Governor Lee for Signature

One of the most heavily-discussed pieces of legislation this session has now passed the House and is headed to Governor Lee’s desk for signature.  The “Constitutional Carry” bill, as it is often called, allows adults ages 20 and older to carry open or concealed handguns without a permit, and allows members of the military to do the same provided they are 18 or older.  Currently, gun owners have to take a training course before carrying a handgun. 

The bill has been a centerpiece of Governor Lee’s legislative package for 2021, and it passed easily in the Republican-controlled House this week, by a 64-29 margin. Majority Leader William Lamberth (R-Portland) called the vote “a massive step forward for freedom in our great state.”  Tennessee issued 145,000 permits in 2020.   

Governor Lee Brings Back Push for Mental Health Trust Fund for Students

 This week, Governor Lee reintroduced a proposal for a $250 million fund for mental health services for school-aged children in Tennessee. The Mental Health Trust Fund would support direct clinical services in schools, mental health awareness, suicide prevention and other related concerns. The fund was originally proposed in the Governor’s 2020-21 budget, but was put on pause amid the COVID-19 pandemic. Governor Lee says the pandemic makes mental health “important now more than ever. The challenges of this past year have complicated those mental health challenges for those kids.”

One in five children currently receive a mental health diagnosis, with most students receiving services through their school. The fund will utilize state dollars, but it is unclear when the schools will receive the funding.

Businesses to Decide which Health Guidelines to Follow under Passed Legislation

The House unanimously passed legislation Monday evening that allows businesses to decide whether to follow health guidelines issued by either state or local authorities during a pandemic. The “Business Fairness Act,” which was championed by the National Federation of Independent Businesses (NFIB), still requires businesses to follow public health guidelines, but allows them to choose between the state or local guidelines, which sometimes differed, with the state guidelines tending to be somewhat less stringent.  The impetus for the bill arose during the pandemic, when Governor Lee lifted certain statewide orders for the 89 counties that operated under the authority of the Tennessee Department of Health, while businesses in the state’s six largest counties – with their own, independently operating public health departments — were forced to continue to operate under requirements that were unique to those counties, which tended to be more restrictive. 

The bill also aims to protect small businesses and ensure they are able to open if larger businesses are allowed to open. In the spring of 2020, Governor Lee temporarily required “nonessential” businesses to shut down due to the pandemic.  Proponents of the legislation argue that tended to affect smaller retail stores, while the nature of operations of some larger stores such as Target and Walmart placed them into the “essential” category, thus allowing them to remain open. Once the Governor lifted those restrictions, the proponents argue, businesses in some counties were allowed to reopen while certain businesses in the large counties with their own health departments were often required to remain closed.   

The legislation passed unanimously in both chambers and heads to Governor Lee for signature.

Legislation to Prohibit Government from Requiring Vaccine Advances

With the hallway outside its meeting room clogged with anti-vaccine protesters —  a first for this Covid-19 legislative session — the Senate Health & Welfare Committee advanced legislation yesterday to prohibit governments from requiring Tennesseans to receive the COVID-19 vaccine. Senator Janice Bowling (R- Tullahoma) presented the bill, stating people are afraid of the government and they have a right to be. The legislation would prohibit the Governor from issuing executive orders, as well as prohibit departments and agencies from issuing rules mandating that residents receive the COVID-19 vaccine. Hospitals, long-term facilities and public universities controlled by the state will be excluded.

Despite clearing an important hurdle in the Senate, the legislation still has work to do in the House, where it was moved to the final calendar of the House Health Committee due to concerns over which government entities should be allowed to require vaccines.

More Committees Targeting Closure

 Several committees and subcommittees officially closed this week, with one of the most significant committees in the entire legislature – Senate Commerce – targeting the end of next week to complete its work for the year.  Observers will note that while a number of committees are on what are referenced as their “final calendar,” it may take multiple meetings over days or weeks to actually complete that work. Along those lines, Senate Judiciary will begin to work through its final calendar next week, but may not complete its work until the week of April 12.  It is also important to note that even a closed committee is subject to be reopened at the call of the Chair, which is a phenomenon that is frequently observed in the closing days of session. 

With so many committees on final calendars, please take a close look at your bill tracking report.  Any bill that has not begun to move through the legislative process is highly unlikely to move at all this year, absent unusual circumstances.  Please note however that as 2021 is the first year of a two-year General Assembly, any bill that does not make it into law this year is still subject to be revived in 2022 as long as it has not been voted down in committee.

As always, please do not hesitate to reach out to us if you have any questions. Have a safe and joyous Easter weekend.