Government Affairs Update

Follow the TBA's efforts to influence federal and state policy as it fulfills one of the core missions of the association – advocacy for the profession and for our system of justice.

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 Chattanoogan.com, 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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