Allan F. Ramsaur, TBA Executive Director
(800) 899-6993 or (615) 277-3200
aramsaur@tnbar.org
March 11, 2004
TBA Legislation
TBA legislation attracted attention this week. TBA’s bill seeking to correct an oversight with regard to the tax treatment of intervivos versus testamentary trusts in family entities continues to carry a very high fiscal note, or cost estimate. In spite of expert testimony to the effect that practitioners today avoid the tax in various effective, if cumbersome ways, the Revenue Department continues to insist that this bill will not just make this area of the law simpler and more consistent but will cost the state substantial revenue. We anticipate arranging a meeting with Revenue Department officials to see if sweet reason can prevail.
The Uniform Trust Code which TBA supports was on the full House Judiciary calendar this week. Due to time limitations, the committee did not consider the bill. It has been rescheduled for next Wednesday morning at 8:30 a.m.
TBA representatives met at length with the Senate sponsor of TBA’s third bill dealing with various probate issues. Changes in the bill were discussed and we hope that the measure will be on the committee calendar week after next. Calendars are getting much longer these days as the session hits full speed and legislators begin contemplating returning home to campaign for re-election. Actual consideration of the bill, therefore, may be delayed as the committee works off the increasing load of bills.
Workers’ compensation
The legislature continues to hear testimony from witnesses on workers’ compensation topics. This week the Ad Hoc Committee heard from the head of the Workers’ Compensation Research Institute, one of the two institutions often cited as authoritative in this area. Richard A. Victor testified at length about the Institute’s vision of an ideal system in which good benefits were paid at moderate costs. His mantra was that to function properly, the system needed to strip out unnecessary costs. The definition of "unnecessary" of course was the million dollar question.
He suggested that paying too much for medical services was one unnecessary cost. His figures showed that Tennessee paid more than most states in certain medical costs. Our physician costs are higher and we have surgery in a substantially higher percentage of cases than elsewhere. We are also one of only a few states without a medical fee schedule. Forty-one states have them.
Another “unnecessary” cost involves the delivery system. By that he meant largely litigation costs. He noted that Tennessee was one of only two states that used the court system. He opined that we spend a lot of money on lawyers that might be wasteful since a substantially higher percentage of cases here show payments to defense attorneys than elsewhere. He indicated that data on plaintiff’s attorney participation was not available. He theorized that many more defense attorneys were involved because workers felt intimidated by the procedures and processes of a court and hired attorneys to help them. This in turn he felt led to greater retention of defense counsel.
Sen. Joe Haynes (D-Nashville) of Nashville asked whether a high level of defense attorney participation might be a sign that workers were not represented by counsel and the defense attorneys were simply getting the agreed settlement approved by the court. In other words, he asked, could there be a lot of relatively small payments to the defense attorneys who were simply completing formalities? Mr. Victor said he didn’t know and that it was a good question which he would follow up on.
TBA’s Ad Hoc committee is also working diligently to develop proposals and positions for improvements in the system which the Bar can entertain and perhaps present to legislators and the administration.
TBA in other areas
As reported last week the Tennessee Health Care Decisions Act (SB 2312 and HB 2581) was set for the House Judiciary Committee consideration this week. The TBA position is to support the maintenance of the living will or durable power of attorney statutes and resist efforts to repeal or otherwise restrict their application. The parties had agreed to delay consideration for one week while discussions continued.
A resolution (SJR 36) to amend the state constitution to undo the Tennessee Plan for merit selection of judges died in the Senate Judiciary Committee this week when there was no second. Meanwhile the House bill to repeal the statute (HB 2637 by Bunch, SB 2592 by Fowler) enacting the Tennessee Plan was not reached on the calendar before the committee adjourned. The bill was reset for March 17.
The TBA continues to be actively working on other measures in a wide variety of areas ranging from domestic relations to whether meetings of the Judicial Selection Commission should all be required to be public hearings. We respond to bills that oppose TBA positions and to requests from legislators for technical assistance with their own measures.
Various bills concerning custody and visitation continue to appear before committees of the General Assembly. The Bar is concerned that the discretion of courts to fit the custody and visitation arrangements to the circumstances of the case not be compromised by legislation that would either mandate or establish a presumption that equal time with both parents is the custody and visitation arrangement that should be ordered. The realities of school life alone make this a questionable assumption for school-aged children.
Keep up to date on legislation of interest
The TBA bill tracking service lets you read abstracts of bills, check their status in both houses, find out who is sponsoring them and link to full versions of the legislation.
TBA Watch List Monitor close to 300 bills and resolutions of interest to the Tennessee legal community.
TBA Action List Monitor legislation in which the TBA has an interest of record — bills the TBA initiated, bills on which the TBA has taken a position or bills on which the TBA has policy.
Questions, comments? Contact TBA Legislative Counsel Steve Cobb at SAC@wallerlaw.com or TBA Executive Director Allan F. Ramsaur at aramsaur@tnbar.org
