April 21, 2005

Bipartisan ethics bill wins support
The Tennessee General Assembly focused much of its efforts this week on hammering out new ethics legislation, and the result is a major bipartisan reform bill that is expected to pass both chambers today.

The new legislation (HB0001/SB184) will prohibit and impose criminal penalties for violations by any legislator, high government office holder or local government lawmaker who provides consulting services for pay or other compensation. The bill defines consulting services to include lobbying of either the legislative or executive branch and extends to what might best be called influence peddling. The measure applies equally to local officials and state officials.

Because of the way lobbying is defined in present law, there was some concern that the new bill might inadvertently forbid lawyer legislators from conducting a normal administrative law practice. For example, if an elected official was representing an injured worker in a workers’ compensation case, would that be considered providing “consulting services” to the worker? To clarify this, the TBA worked with sponsors in drafting the bill to ensure that representing a client before an administrative agency does not constitute consulting, so that attorneys would not face this problem.

Other ethics issues will likely be addressed in additional legislation. Refinements to the Lobbyist Disclosure Act and provisions for registering volunteer, unpaid lobbyists who have somewhat regular presence on Capitol Hill will probably be dealt with in other bills.

Equal parenting bill stalls in House committee
Legislation that would establish the presumption that equally shared parenting is in the best interest of children in divorces likely will not make it out of the House this session. The TBA has opposed the bill, believing children could suffer through the difficulty brought about through splitting the child’s time into equal parts, especially if the parents don’t live in the same area or school zone. The bill remains in a House subcommittee, where it likely will be reconsidered next year.

Marital torts bill deferred until next year
A marital torts bill (SB1948/HB0780) that would allow divorcing parents to seek tort remedies, including pain and suffering, for adultery, alienation of affection and other marital misconduct has been taken off of the calendar for this year in the House Children and Family Affairs Committee and placed on the calendar for the committee’s first meeting next year. The TBA is concerned with this legislation because of the likely damage that children could suffer if their parents were battling in a manner encouraged by this bill.

Domestic relations bill still on hold in House
House action on the TBA-backed domestic relations bill (SB2091/HB2244) has been deferred again in the House Calendar and Rules to allow for preparation of further amendments. The bill, which would divorce the statutory provisions of child support from those of spousal support, has already passed the Senate. Sponsors of the bill are Rep. Kim McMillan, D-Clarksville, and Sen. Douglas Henry, D-Nashville.

LLC reform bill passes Senate
The TBA-backed bill to reform the Limited Liability Company Act (SB421/HB1121) has been placed on the House’s Calendar and Rules Committee for Tuesday and should be acted on soon. Action was slowed on the bill as sponsors worked to make sure the version earlier passed by the Senate – which combined amendments into the bill — was identical to the legislation being considered in the House.

TennCare recovery from estates
Legislation that would have escalated repayment of benefits paid for elderly nursing home patients to include real property not passing through probate was defeated in both houses this week. The TBA has proposed a clarification of the way TennCare claims are handled in probate. Discussions continue on the proposal to include within TennCare claims property that passes by joint tenancy, including tenancy by the entirety.

Right of class bill put off two weeks by sponsors
Legislation that would attempt to override the Rules of Appellate Procedure and establish an appeal of right in class certification or decertification issues was put off two weeks by the sponsors. As amended, the statute would also require expedited review by the Tennessee Supreme Court. Testifying before the Senate Judiciary Committee, Middle Section Court of Appeals Judge Bill Koch pointed out that every time a new matter is to be expedited something else is pushed back. The TBA and appellate judges have pointed out that this is a matter better left to consideration by the Supreme Court’s Advisory Commission on Rules.

Criminal procedures before committees
A bill (SB0203/HB0180) is on the calendar for Judiciary committees in both houses next week that would require any court of record that has found a defendant to be indigent to hold hearings in open court so that it can determinate if investigative or expert services are necessary. The TBA is concerned that the requirement for defense attorneys to publicly justify their requests for these services could force them to reveal strategy or other key information to the prosecution. It would also allow the prosecution to oppose these defense requests, while prosecutors do not have to go through the same procedure to use additional investigative or expert services. This does not appear to be a healthy development. The issue was dealt with extensively and comprehensively last year by the Tennessee Supreme Court when it amended Tenn. Sup. Ct. Rule 13.

Restoration of voting rights
Legislation (HB1722/SB1678) providing a new streamlined process for the restoration of voting rights for convicted felons, after petition and hearing after sentence is served, advanced in both houses this week.

Appellate decision delay
Sponsors put off indefinitely legislation that would have held appellate decisions for 48 hours before they were made public. This came about after discussions with Appellate Court Clerk Mike Catalano resulted in quicker dissemination of opinions to state officials.

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 scobb@tnbar.org or TBA Executive Director Allan F. Ramsaur at aramsaur@tnbar.org