Legislative Update From the 110th Tennessee General Assembly

The 110th General Assembly adjourned sine die on April 25, 2018. The 111th General Assembly will convene on Jan. 8, 2019.  The entire House of Representatives and half the Senate will face reelection in November.  Twenty-seven current members have already announced that they will not seek reelection. The next governor of Tennessee will also be elected in November. 

Below is a look at the highlights of this legislative session, including TBA initiatives and some pieces of legislation important to lawyers in Tennessee that the TBA monitored. A list of all laws that go into effect July 1 can be found here.

TBA Initiative: Indigent Representation Reform

Ensuring that attorneys, appointed to represent the indigent, are compensated fairly is one of the TBA’s top legislative priorities.  This year, the TBA launched a grass roots campaign asking its members to contact their elected representatives on indigent representation reform, and TBA members sent nearly 500 emails asking their legislators to support extra funding to increase the amount attorneys are paid to work on indigent cases, as well as raise the current caps.  Additionally, the TBA worked with the court in lobbying legislators and letting them know how important this issue is. 

On April 19, the House and Senate agreed to the upcoming fiscal year’s $37.5 billion budget for the state of Tennessee.  In response to the TBA and the Supreme Court’s request, the Tennessee General Assembly appropriated $9.7 million in additional recurring funding to compensate Tennessee lawyers for representing the indigent under Tennessee Supreme Court Rule 13, despite an effort in the last days of the legislative session to strip out the $9.7 million from the appropriations bill.  The appropriated amount is half of the amount the court requested ($9.7 million versus $23 million), resulting in a smaller raise in the hourly rate and caps for appointed attorneys. 

In the end, the TBA is disappointed that more money wasn’t funded resulting in higher rates and caps, while being relieved that we were able to win the fight to keep in the $9.7 million, resulting in a raise.  The TBA plans to fight again next year for even more funding and will continue to stress to legislators why it is so important to fairly compensate lawyers who represent the indigent. 

In the meantime, on May 25, the Court issued an order soliciting public input on amending Rule 13 to adjust the hourly rates and per-case caps for this work.  The TBA surveyed all Tennessee licensed lawyers in order to accurately relay our members’ frustrations and sentiments and make sure that the court knows this isn’t enough.  The TBA filed its comment on June 25, 2018.

TBA Initiative: Child Support Interest Rate Legislation

As recommended by the Family Law Section and House of Delegates and approved by the Board of Governors, the TBA presented legislation (SB2268 by Senator Ken Yager and HB2134 by Representative Mike Carter) to change the interest rate on child support arrearages in private cases to 6%.  The current default was 0%.  The interest rate for child support cases handled by the Department of Human Services will stay at 0%.  In both cases, the court has the discretion to raise or lower interest rates.  The bill was enacted and went into effect on July 1, 2018. http://publications.tnsosfiles.com/acts/110/pub/pc1049.pdf

TBA Initiative: TN: First in Adoption Act

The Tennessee: First In Adoption Act, SB1851, drafted by members of the TBA Adoption Law Section, specifically Dawn Coppock, Mike Jennings and Robert Tuke, was signed by the governor and went into effect July 1, 2018.  Sponsored by Sen. Ferrell Haile, R-Gallatin, and Rep. Mike Carter, R-Ooltewah, the legislation makes significant changes to Tennessee adoption laws. First in Adoption makes a number of modifications in adoption and termination law, some extremely important and some housekeeping measures. The first change is a new, less bureaucratic surrender form, included in the Tennessee Code, which is only two pages and much clearer. Second, the bill both increases protections for active, unwed fathers and limits the rights of inactive fathers seeking to disrupt or delay adoption plans. It also expands jurisdiction and venue requirements, including an expansion of jurisdiction to include new residents and Tennesseans in military service who are stationed outside of Tennessee. Additionally, the bill removes some of the requirements on four key grounds for involuntary termination of parental rights that are not constitutionally required. 

• http://publications.tnsosfiles.com/acts/110/pub/pc0875.pdf

TBA Initiative: Tennessee Uniform Limited Partnership Act Clean Up

The Tennessee Uniform Limited Partnership Act (TULPA) passed the legislature and went into effect in 2017.  As with most major proposals, TULPA needed a few minor legislative adjustments discovered in implementation by the Tennessee Secretary of State.  The TBA worked with the Secretary of State’s office on legislation that will make the new law more consistent with other business entity types and more practical for legal practitioners.  The TULPA Clean Up bill went into effect March 16, 2018. 

• http://publications.tnsosfiles.com/acts/110/pub/pc0575.pdf

COMMERCIAL LAW

Blockchain - Distributed Ledger Technology

SB1662 by Senator Dickerson/HB1507 by Representative Powell allows businesses to rely on smart contracts using distributed ledger technology, one of which is blockchain.  Distributed ledger technology is defined as any distributed ledger protocol and supporting infrastructure, including blockchain, that uses a distributed, decentralized, shared, and replicated ledger, whether it be public or private, permissioned or permissionless, and which may include the use of electronic currencies or electronic tokens as a medium of electronic exchange. Smart contract is defined as an event-driven computer program, that executes on an electronic, distributed, decentralized, shared, and replicated ledger that is used to automate transactions. It was enacted and went into effect March 22, 2018.

• http://publications.tnsosfiles.com/acts/110/pub/pc0591.pdf

EMPLOYMENT LAW

Non-Disclosure Agreements with Respect to Sexual Harassment

SB2328 by Senator Kyle/HB2613 by Representative Mitchell prohibits an employer from requiring an employee or prospective employee to execute or renew a non-disclosure agreement with respect to sexual harassment in the workplace as a condition of employment.  The legislation also allows an employee to to bring a cause of action against the employer for retaliatory discharge and any other damages incurred if the employer violates the statute. If an employee prevails in such action, the employee will be entitled to recover reasonable attorney fees and costs.   The bill applies to agreements executed or renewed on or after the effective date of this bill, which was May 15, 2018. 

• https://publications.tnsosfiles.com/acts/110/pub/pc0965.pdf

FAMILY LAW

Supported Decision Making

The Supported Decision Making Agreement Act (SB264/HB941), introduced by Senator Massey and Representative Carter, allows an adult with a disability to seek assistance in making certain decisions without forfeiting their self-determination as the ultimate decision-maker in their life.  The bill would allow the disabled adult to participate in important decisions such as education, financial and medical.  The bill was enacted and became effective April 2, 2018. You can find the new law here: 

• http://publications.tnsosfiles.com/acts/110/pub/pc0605.pdf

Parental Relocation

SB1651 by Senator Stevens/HB 1666 by Representative Lamberth provides that if the custodial parent is moving over 50 miles away from the other parent and the other parent objects, the court is required to determine if relocation is in the best interests of the child. ln determining whether relocation is in the best interest of the minor child, the court shall consider several factors including the nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child's life; the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child; the feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties; the child's preference, if the child is twelve years of age or older. The court may hear the preference of a younger child upon request. The court shall also consider whether there is an established pattern of conduct of the relocating parent, either to promote or thwart the relationship of the child and the non-relocating parent.  The bill was signed into law and took effect on July 1, 2018.

http://publications.tnsosfiles.com/acts/110/pub/pc0853.pdf

Statements from Children in Regard to Sexual or Physical Abuse

SB1593 by Senator Yager/HB1480 by Representative Lamberth requires that an out-of-court, non-testimonial statement made by a child who is under twelve years of age at the time of a criminal trial describing any sexual act performed by, with, or on the child or describing any act of physical violence directed against the child shall not be excluded from evidence at the criminal trial as hearsay if all of several factors apply.  The bill was signed by the governor and took effect July 1, 2018.

http://publications.tnsosfiles.com/acts/110/pub/pc0708.pdf

Foster Care Support and Continuity Act

SB1931 by Senator Massey/HB2019 by Representative Ramsey allowed former foster parents, who met certain criteria, to maintain communication with a foster child.  Among other things, the bill allowed the foster parents certain rights and legal standing with regard to their foster child.  TBA members opposed this bill along with several Juvenile Court judges, and the bill was not recommended by the House or Senate committees.

Attorney’s Fees for Alimony Contempt

SB2120 by Senator Kyle /HB2526 by Representative Beck authorizes the winning party to collect attorney fees from the losing party to enforce, alter, change, or modify any decree of alimony, child support, or provision of a permanent parenting plan order.  It was signed by the governor and went into effect on July 1, 2018.

http://publications.tnsosfiles.com/acts/110/pub/pc0905.pdf

GOVERNMENT REGULATION

Uniform Administrative Procedures Act Appeals

SB2603 by Senator Bell/HB2386 by Representative Daniel requires the appeals of contested case hearings to be heard in the chancery court closest to the residence of the person contesting the agency action, or the chancery court nearest the place where the cause of action arose, or in the chancery court of Davidson County. It exempts appeals of contested case hearings involving TennCare. The bill was enacted and went into effect on July 1, 2018.

http://publications.tnsosfiles.com/acts/110/pub/pc1021.pdf

Attorney General Selection

SJR611, introduced by Senator Ken Yager and Representative Glen Casada, proposed to amend Article VI, Section 5 of the Tennessee constitution and change the way the Tennessee Attorney General is selected.  The legislation would have the Supreme Court nominate the attorney general in an open meeting with recorded votes, and both houses of the Tennessee General Assembly would then confirm or deny the nomination by a majority vote.  If the nomination fails, the court would then be required to nominate someone else within 60 days. The amendment also calls for a six-year term instead of eight years. The amendment passed the Senate but was not considered by the House.

Appeals from General Sessions

SB2383 by Senator Lundberg/HB2202 by Representative Lamberth provides that incivil cases, if one or more of the parties before the general sessions court, on one or more warrants, perfects an appeal of a decision of the general sessions court to the circuit court, then cross appeals and separate appeals are not required, and upon the filing of a notice of appeal by any party, issues may be brought up for review by any party.  This new law went into effect on May 8, 2018.

http://publications.tnsosfiles.com/acts/110/pub/pc0858.pdf

New Judges

Legislation introduced by Senator Green and by Representative Farmer funds three new judge positions in Tennessee. The new positions will be in the state’s 19th Judicial District, which serves Montgomery and Robertson counties; the 16th Judicial District, which includes Rutherford and Cannon counties; and the 21st Judicial District, which includes Hickman, Lewis, Perry, and Williamson counties. The legislation is effective September 1, 2018 and the new judges will be appointed by the governor to serve until September 1, 2020. Elections for the new positions will be held in the August 2020 general election. The legislation has been enacted and funded.

Abusive Civil Actions

SB1601 by Senator Yager/HB1793 by Representative Carter allows courts to address abusive civil actions filed by a plaintiff against a defendant with whom the plaintiff shares a civil action party relationship.  The bill was signed by the governor and went into effect July 1, 2018.

http://publications.tnsosfiles.com/acts/110/pub/pc0872.pdf

Uniform Law Commission: Real Estate Receiverships

The Uniform Commercial Real Estate Receivership Act,SB1921 by Senator Johnson/HB1792 by Representative Farmer, authorizes the court, that appoints a receiver, exclusive jurisdiction to direct the receiver and determine any controversy related to the receivership or receivership property. It also grants a receiver certain rights regarding receivership property and requires an owner to assist and cooperate with the receiver in the administration of the receivership and the discharge of the receiver’s duties, preserve and turn over to the receiver all receivership property under the owner, and identify all records and other information relating to the receivership property. This bill was drafted by the Uniform Law Commission and went into effect on April 23, 2018.

http://publications.tnsosfiles.com/acts/110/pub/pc0731.pdf

TORT LIABILITY

Phantom Damages

SB1813 by Senator Ketron/HB1768 by Representative Sargent provided that in a civil action for damages because of injury, economic damages for medical care and treatment are limited to the amount actually paid by the claimant or the amount that is actually necessary to satisfy the unpaid charges for which the claimant or a third party on behalf of the claimant has a legal obligation to pay. This bill died in committee.

Waiver of Liability on Behalf of Minors

SB1940 by Senator Johnson/HB2095 by Representative Casada would have allowed the parent or guardian of a children to waive in advance any claim against an organization providing any activity that could result in the child's injury or death on behalf of the child. This bill died in committee.


Index


TBA INITIATIVES

  1. Indigent Representation Reform
  2. Child Support Interest Rate Legislation
  3. TN: First in Adoption Act
  4. Tennessee Uniform Limited Partnership Act Clean Up

COMMERCIAL LAW

  1. Blockchain - Distributed Ledger Technology

EMPLOYMENT LAW

  1. Non-disclosure agreements

FAMILY LAW

  1. Supported Decision Making
  2. Parental Relocation
  3. Statements from children in regard to sexual or physical abuse
  4. Foster Care Support and Continuity Act
  5. Attorney’s fees for Alimony contempt

GOVERNMENT REGULATION

  1.   Uniform Administrative Procedures Act Appeals

JUDICIARY

  1.   Attorney General Selection
  2.   Appeals from General Sessions
  3.   New Judges
  4.   Abusive Civil Actions
  5.   Uniform Law Commission: Real Estate Receiverships

TORT LIABILITY

  1.   Phantom Damages
  2.   Waiver of Liability on Behalf of Minor