Bebb Probe May Last Past Session

With state lawmakers hoping to adjourn next week or soon after, House Speaker Beth Harwell said Wednesday that House members might not have time to consider a review of 10th Judicial District Attorney Steve Bebb even if they decide it's needed. While efforts to access files from the Tennessee Bureau of Investigation’s four-month probe of Bebb have been blocked in the House, the state Senate Judiciary Committee earlier this week directed the TBI to let members examine the files. Lawmakers say their investigation is necessary given the public nature of the allegations and a report by Attorney General Robert Cooper that Bebb’s office exhibited poor judgment, mismanagement and deficient record keeping. The Times Free Press and Cleveland Banner have the news.

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Amendment to Cut Legal Funds Still on Agenda

The budget amendment (#271) that strips all of the state funding -- $3.3 million -- from legal aid, transfers responsibility for administration of all appointed counsel and guardians ad litem to the state public defenders conference, and eliminates funds included in the Governor’s budget amendment to make up for chronic underfunding of the Davidson and Shelby county public defenders’ offices remains on the committee's active agenda. 

At the Senate Budget subcommittee meeting last night, amendment sponsor Sen. Randy McNally, R-Oak Ridge, indicated that he wants to continue discussion of the matter, but emphasized concern about the money for Nashville and Memphis. The subcommittee is expected to again take up consideration of amendments at 9:30 a.m. on Wednesday.

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Complaints Continue About Legislative Session’s Pace

The fast pace of this year’s legislative session has sparked bipartisan criticism that some proposed laws are not getting properly vetted, while debate on others is at times short-lived. Lawmakers are set to adjourn by April 18, the earliest date for concluding business since 1990, the Chattanooga Times Free Press reports. Among others, Transportation Committee chairman Vince Dean, R-East Ridge, and Calendar and Rules Chair Bill Dunn, R-Knoxville, have raised concerns as GOP leaders drive lawmakers to complete business quickly.

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Proposal Would Move Civil Indigent Counsel Funding to PDs

Senate Finance Committee Chair Randy McNally, R-Oak Ridge, has proposed to roll civil legal representation funding in with the indigent counsel programs, strip Tennessee courts of funding for indigent representation and place the administration of both the civil and criminal indigent representation in the state district public defender’s office. The programs would then be funded with $3.3 million less for next year. The proposal comes by the way of a budget amendment that just surfaced. The proposal has already drawn wide interest. Advocates have already identified a number of "weaknesses" in the proposal:

Administration of the civil indigents representation fund, which provides $3.3 million to the state's four legal aid offices, would be transferred as part of the plan. Funding for the civil fund would be optional after the constitutionally mandated counsel for indigents, guardians ad litem and experts had been paid.

• Statutes and court rules, which are not amended by the proposal, place responsibility for administering these programs and allocations in the courts and the Administrative Office of the Courts.

• The state public defenders office has no expertise in several of the appointed matters which are civil - mental health commitments, appointments of guardians ad litem and counsel in parental termination cases and child support contempt matter or counsel in dependency and neglect and unruly matters.

• Counsel for criminally accused indigents are often appointed because of conflicts with public defenders, creating a dilemma when paired with public defender administration.

• The proposal transfers the responsibility for paying appointed counsel, but makes no provision for transferring the administrative costs associated with administering the funds, perhaps meaning program funds would be further eaten up by administrative costs.

The proposal could first be heard by the Senate Finance Committee Budget Subcommittee as early as Monday afternoon. The subcommittee members are senators "Bo” Watson, Chair; Mark Norris, R-Germantown; and Jim Kyle, D- Memphis.

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Judicial Selection, Evaluation Votes Deferred

Consideration of the bills extending sunset dates for the Judicial Nominating Commission and Judicial Performance Evaluation Commission today were deferred to next week in the Senate Government Operations Committee.

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Important Issues Still at Play in Legislature

A number of bills of interest to lawyers may see action before the end of the session. They include:

Lawyer Regulation -- A bill (SB 779/HB 635) to impose criminal sanctions on Board of Professional Responsibility panel members, staff, lawyers subject to discipline, and their counsel for certain procedural violations could see action in committees in both chambers. The TBA has resisted this unwelcome intrusion in the Supreme Court’s disciplinary process.

Tort -- Codification of comparative fault with limitations of joint and several liability in several types of cases that the courts have carved out by common law -- including products liability and cases with combined intentional and negligent actors -- still awaits House committee action (SB 56/HB 1099).

Collateral Source Rule -- The effort to limit the effect of the collateral source rule (SB 1184/HB 978) will be studied for now but could return next year.

Workers Compensation Overhaul -- The Workers Compensation overhaul (SB 200/HB 194) continues its march towards expected passage. According to the Associated Press, the plan is scheduled for a full Senate vote on Monday night with the House Finance Committee taking it up on Tuesday.

Conservatorship -- The work of the TBA’s Special Committee on Conservatorship Practice and Procedure has been adopted by the Senate (SB 555/HB 692) and should see action in the House Civil Justice Committee this week.

Trust Law -- A bill (SB 713/HB 873) to rewrite Tennessee trust law and a 52-page amendment debuted 10 days ago will see action in the House Civil Justice Committee.

Criminal -- The Senate Judiciary Committee will hear about legislation (SB 1362/HB 1293) permitting prosecution of an alleged repeat child abuser in any county where an act of of abuse allegedly occurred, and permitting evidence of all prior child abuse by declaring past offenses to be a "continuing offense.”

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Legislature Racing Toward Early Finish

With the General Assembly racing towards its earliest finish in more than a decade, several legislative issues affecting lawyers -- including the fate of the Judicial Nominating Commision and the Judicial Performance Evaluation Commission -- still remain to be resolved before the expected April 19 adjournment. The sunset extension of the Judicial Nominating Commission, which is in wind down mode and will go totally out of existence on June 30, has passed the House but still awaits Senate committee action. There will be no authority to fill vacancies on any trial or appellate bench after June 30 without legislative action. The Judicial Performance Evaluation Commission, which must make recommendations regarding retention of appellate judges in the run up to the August 2014 election, also faces sunset on June 30. It will then have a year to wind down its business before going out of existence in June 2014. See a roundup of other legislative issues under the General Assembly category at right.

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Judicial Evaluation Bill Suffers Setback

Legislation to scramble the Judicial Performance Evaluation Commission (JPEC) and the current performance evaluation process suffered a huge setback today when the House sponsor withdrew the bill from consideration and the subcommittee with jurisdiction closed for the year. The bill (SB 1058/HB 1227), as amended by the Senate Judiciary Committee two weeks ago, would have removed all of the present JPEC members, reconstituted the body without any judges as members, allowed the commission to rewrite evaluation criteria, and provided that if an incumbent appellate level judge was evaluated as “for replacement,” that judge could not stand for retention election. The resulting judicial vacancy would then be filled by gubernatorial appointment after a nominating commission recommendation. The TBA fought the measure with TBA President Jackie Dixon saying that action on the bill would amount to “changing the rules, the referees and the scorekeeping after the two-minute warning.” Retention elections are set for August 2014 for all current Supreme Court, Court of Appeals and Court of Criminal Appeals judges.

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Watson Appointed to Criminal Justice Committee

Tennessee House of Representatives Speaker Beth Harwell has appointed Rep. Eric Watson, R-Cleveland, to the Tennessee Criminal Justice Coordinating Committee. The purpose of the committee, according to, is to identify issues in the criminal justice system that are harmful to public safety and recommend changes. Rep. Watson’s appointment commences immediately and will run until Nov. 2, 2014.

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Lawyers Overwhelmingly Support Tennessee Plan

Lawyers across the state overwhelmingly support maintaining the current plan for merit selection, performance evaluation and retention election of appellate judges according to a TBA survey of Tennessee lawyers. The survey found that TBA members support The Tennessee Plan by 83 percent while non-member lawyers support it by a slightly smaller margin of 72.3 percent. Lawyers also were asked to express their opinion about a new plan that would eliminate merit-based review of potential judges by an independent panel, and instead provide for nomination by the governor, confirmation by both houses of the General Assembly, and yes/no retention votes in subsequent years. According to the study, 73.9 percent of association members oppose that plan, while 50.2 percent “strongly oppose” it. The study, conducted by Yacoubian Research of Memphis, had a very high response rate. According to Berje Yacoubian, chief statistician at the survey research firm, the “statistically significant” response rate reflects the full demographics of the Tennessee legal community and is highly reliable.

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Judicial Evaluation Bill Set for House Consideration

Legislation to significantly revamp the Judicial Performance Evaluation Commission could be heard as early as tomorrow in a House Judiciary subcommittee. The bill (SB 1058/HB 1227), as amended last week in the Senate Judiciary Committee, removes all of the present Judicial Performance Evaluation Commission members, reconstitutes the body without any judges as members, allows the commission to rewrite evaluation criteria, and provides that if an incumbent appellate level judge is evaluated as “for replacement,” that judge may not stand for retention election. The resulting judicial vacancy would then be filled by gubernatorial appointment after a nominating commission recommendation. TBA President Jackie Dixon said action on this bill right now amounts to “changing the rules, the referees and the scorekeeping after the two minute warning.” Retention elections are set for August 2014 for all current Supreme Court, Court of Appeals and Court of Criminal Appeals judges.

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Collateral Source Bill Deferred for Study

Legislation set for consideration in the Senate Judiciary Committee today to limit the effect of the collateral source rule in litigation (SB 1184/HB 978) will be studied over the off-legislative session instead. The Senate sponsor, Jim Tracy, R-Shelbyville, expressed his intention that the bill be first on the Senate Judiciary Committee calendar in 2014. The TBA has opposed the change in Tennessee tort law.

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No-Helmet Bill Passes Senate Panel

A proposal to do away with the state’s motorcycle helmet law was approved by the Senate Transportation Committee despite Gov. Bill Haslam’s opposition, the Memphis Daily News reports. The bill, sponsored my Sen. Mike Bell, R-Riceville, would allow riding without a helmet but require the driver to have $25,000 in additional medical coverage, a minimum two-year motorcycle license, have taken a motorcycle riding course and be at least 25 years old.

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Three Vying to be Memphis Democratic Chair

Three contenders for chair of the Shelby County Democratic Party will gather supporters Saturday at the district caucuses to determine who will be delegates to the county party convention, where they will elect the new chair. The Memphis Daily News reports that Jennings Barnard, Bryan Carson and Terry Spicer are in the running to replace attorney Van Turner who has served as chair for four years.

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AG: Bill to Dismantle Vanderbilt Police Unconstitutional

A bill to strip Vanderbilt University of its police powers unless it drops a controversial nondiscrimination policy has been ruled unconstitutional by Attorney General Robert Cooper, the Tennessean reports. Senate Bill 1241, sponsored by state Rep. Mark Pody, R-Lebanon, proposes dismantling the university’s police department into an armed security guard service if the institution does not repeal a policy requiring officially recognized campus groups to allow any student to participate regardless of the student’s beliefs or status. The policy was instituted after a Christian fraternity tried to exclude gay members.

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Governor Signs Guns-in-Trunks Bill

Today Gov. Bill Haslam has signed into law Senate Bill 142 allowing handgun permit holders to carry their guns anywhere in their cars, even to work, the Tennessean reports. The bill, which goes into effect July 1, removes criminal penalties for carrying a firearm in a car onto private property without the owner’s permission. It left open the legal question of whether an employer could fire someone for bringing a gun to work, however.

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Judge Bars State from Defunding Planned Parenthood STD Program

U.S. District Court Judge William J. Haynes Jr. barred the state from defunding Planned Parenthood of Tennessee in contracts totaling more than $170,000 last year. According to WATE News Channel 6,  Haynes blocked Republican leaders' efforts to keep Planned Parenthood from participating in a federally funded venereal disease prevention program aimed at reducing the infection rate of HIV and syphilis.

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Maryland Legislature Votes to Overturn Death Penalty

The Maryland House of Delegates today joined the Senate, voting to overturn the state's death penalty, putting it a step closer to becoming the 18th U.S. state to abolish executions, Reuters reports. By a vote of 82 to 56, the House agreed to replace capital punishment with a sentence of life without parole. Gov. Martin O'Malley -- who said the death penalty was expensive, did not work and cited a study that death penalty sentencing was racially biased -- has pledged to sign the bill into law.

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Voter ID Bill Moves to House

A bill forbidding use of Memphis Library photo identification cards for voting, but allowing student photo IDs won approval from the state Senate Thursday and now moves on to the House for consideration, the Commercial Appeal reports.

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Judicial Selection Plan to Go Before Voters

With House passage this week, the proposed constitutional amendment that would change how appellate court judges are selected will now go before voters in 2014. The proposal (SJR 2) would replace Tennessee’s current plan of merit selection and retention elections with a system allowing for the governor to appoint appellate judges, subject to legislative confirmation, followed by retention elections. The House passed the proposal 78-14 on Monday, the City Paper reports, while the Senate had earlier given its OK on a 29-2 vote.

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Bill Would Dramatically Alter Judicial Evaluations

An amended bill (SB1058/HB1227) that emerged from the Senate Judiciary Committee today reconstitutes the Judicial Performance Evaluation Commission, and also provides that if the commission recommends against a judge then “a vacancy occurs," apparently not permitting the sitting judge to stand for retention election.

The surprise move by Sen. Brian Kelsey, R-Germantown, who chairs the Judiciary Committee, amended a caption bill with an unrelated body to dramatically change the way that evaluations of appellate judges occur under the Tennessee Plan. When advocates for the present system earlier asked for copies of the amendment they were denied copies. The committee adopted the amendment by a 6-1-1 vote, with Vice Chair Sen. Doug Overbey, R-Maryville, and Sen. Lowe Finney, D-Jackson, objecting to the committee voting when advocates had not had an opportunity to see or consider the change.

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Lt. Gov. Releases Judicial Redistricting Proposals

Lt. Gov. Ron Ramsey has released 14 different judicial redistricting plans put forward for consideration. “The response we have gotten to our public call for judicial district maps is extremely encouraging,” Ramsey earlier said in a statement to TNReport. “I would especially like to commend the Public Defenders Association as well as the Tennessee Bar Association for coming to the table and sharing their ideas.” A bill (SB 780/HB 636), which is expected serve as the vehicle for redistricting, is set for a hearing in the Senate Judiciary Committee on Tuesday afternoon.

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Bill Would Allow Student ID, Ban Library Card for Voting

A new bill introduced by state Sen. Bill Ketron, R-Murfreesboro, and Rep. Susan Lynn, R-Lebanon, would allow student photo identification cards issued by state universities and colleges to comply with Tennessee’s voter photo ID law. But SB 125 also would explicitly prohibit photo IDs issued by public libraries and other local agencies and governments from meeting that requirement, The Commercial Appeal reports. The legislation would reverse a Tennessee Court of Appeals decision upholding library cards as valid ID for voting. That case is pending before the state Supreme Court, which is expected to issue a ruling by summer.

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AG: State Cannot Nullify Federal Gun Laws

Tennessee Attorney General Robert Cooper has found that legislative attempts to block the enforcement of federal gun laws in the state are unconstitutional. The opinion says the U.S. Constitution’s Supremacy Clause trumps state statutes, making it unlawful to nullify firearms laws made on the national level. He goes on to say the state legislature also can’t take a backdoor route and criminalize the enforcement of gun laws in Tennessee. Nashville Public Radio has the story.

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Bill Would Raise Standard for Protection Orders

State Rep. Timothy Hill, R-Blountville has introduced legislation that he says will help “avoid abuse of the judicial system by making it tougher to get orders of protection,” the Elizabethton Star, reports. But the director of a domestic violence prevention group says it could put more women in danger. HB 1128 would raise the level of proof needed for a one-year order of protection from “preponderance of the evidence” to “clear and convincing evidence.” Hill said he introduced the bill to begin a conversation on the issue, leaving the door open to further revision.

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