Kelsey bill limiting lawsuits against state still in trouble

The Cordell Hull Legislative Building. (Photo: John Partipilo)
The Cordell Hull Legislative Building. (Photo: John Partipilo)

Legislation by state Sen. Brian Kelsey prohibiting local governments from suing the state continues to hit opposition within his own party.

The Senate voted 14-14 last week to kill an amendment by the Germantown Republican, which he hoped to tack on to Senate Bill 915, a measure that already aligns with House Bill 1072. That measure blocks court injunctions from being placed on new state laws, creating yet another piece of legislation with constitutional questions.

Sen. Brian Kelsey, R-Germantown (Photo: Tennessee General Assembly)
Sen. Brian Kelsey, R-Germantown (Photo: Tennessee General Assembly)

Kelsey appeared caught off guard when the Senate rejected his amendment last week, and has been negotiating with Senate leaders in an effort to find the right language for a new amendment.

But with the matter to be considered tonight, he’s still hitting a wall.

The matter could be viewed as “discriminatory” because it would apply only to political subdivisions such as cities and counties, not businesses, Senate leaders say. That’s apparently what put it into hot water.

Regardless of Kelsey’s amendment, though, allowing state laws to take effect without facing the prospect of a trial court injunction to ward off unconstitutional action is seen as unconstitutional in and of itself by many in the legal field.

Sen. John Stevens, a Huntingdon Republican and member of the Senate Judiciary Committee, said he has expressed concerns to Kelsey about his amendment and likely legal challenges over violation of the “separation of powers.” 

“We’ve been trying to figure (out) and walk through that minefield potentially,” said Stevens, an attorney.

Legislative Democrats are clear, too, on their opposition to the legislation, saying it could enable unconstitutional laws to take effect without a reversal until a Supreme Court decision.

House and Senate Democrats contend the Republican supermajority is trying to reconfigure the judiciary in an attempt to get its way in court.

Oddly enough, some Republicans agree with them.

Sen. Ken Yager, chairman of the Senate Republican Caucus, voted against Kelsey’s amendment on the Senate floor, where he argued that as a former county official, he felt local governments need some method to challenge state laws that have a detrimental effect on them.

Yager, of Kingston in East Tennessee, believes the legislation has serious constitutional questions.

“We’re trying to find language to fix the problem,” Yager said, but he noted he will have to be satisfied on “the right of municipalities to use the resources to bring an appeal. It would certainly have to reflect that.”

Kelsey has contended local governments should not be allowed to use tax dollars to file lawsuits against the state.

House Republicans also would rather see local governments avoid legal action against the state.

In the 1990s, rural school systems banded together to sue the state for more equitable funding. Since then, Shelby and Metro Nashville school districts have sued Tennessee, claiming the Basic Education Program, the funding formula for K-12 schools, needs to be reworked to provide them with more money to serve low-income children.

Sen. Ken Yager, R-Kingston (Photo: Tennessee General Assembly)
Sen. Ken Yager, R-Kingston (Photo: Tennessee General Assembly)
Sen. Ken Yager, chairman of the Senate Republican Caucus, voted against Kelsey’s amendment on the Senate floor, where he argued that as a former county official. Yager, of Kingston in East Tennessee, believes the legislation has serious constitutional questions. 

A Supreme Court decision is also pending on a challenge of Gov. Bill Lee’s education savings account program, which was found unconstitutional by Davidson County Chancellor Anne Martin because it violated the Home Rule Provision by applying only to Shelby and Metro Nashville school districts. Her ruling was upheld by the Court of Appeals and is to be heard by the Tennessee Supreme Court.

House Majority Leader William Lamberth is watching to see what happens in the Senate but generally speaking doesn’t like the idea of locals suing the state.

“I think it’s ridiculous that local governments and especially school systems use the money that could be to the benefit of their citizens and specifically to kids and teachers and they waste it in the court system when they should be down here engaging with us in deliberation over how to best utilize the money of the taxpayers that they are paying into the system to the benefit of the services that are provided by government,” Lamberth said.

Those types of lawsuits should never occur, he added. Lamberth contended rural schools didn’t win their lawsuit against the state, but instead forced one change that led to other problems within the BEP. 

“From a philosophical standpoint, small, large or whatever, my preference is that we work those things out here and not have to go to the court system for some sort of deliberation,” Lamberth added.

In contrast, Republican Sen. Page Walley of Bolivar said last week the small school lawsuit of the 1990s stemmed from the Legislature’s “intransigence” in providing enough funding for rural school systems to operate. Walley was among the 14 senators who voted against the measure.

The full House, meanwhile, has not taken up legislation designed to create a so-called super-chancery court, which would be made up of three chancellors from the state’s three grand divisions to rule on constitutional challenges to the state. The chancellors would be appointed by the governor in October, then go up for a statewide election in 2022.

The Legislature did approve $2.4 million last week to put the statewide chancery court into motion, but because of that price tag, the legislation to create the court was pushed behind budget consideration until this week.

Sen. Mike Bell, chairman of the Senate Judiciary Committee, is to take the matter to the Senate Finance, Ways and Means Committee today. Bell and other Republican leaders have been clear about their irritation with the decisions by Davidson County chancellors, who they say are elected by the state’s most liberal group of voters.

Tennessee House Majority Leader Rep. William Lamberth (Photo: John Partipilo)
Tennessee House Majority Leader Rep. William Lamberth says generally speaking he doesn’t like the idea of locals suing the state(Photo: John Partipilo)

Negotiations on that bill are continuing with the Senate, attorney general and the governor, House Speaker Cameron Sexton said. 

“We’re still working through some issues. We have other mechanisms we passed on the House floor that could take effect. I think there were two other options we passed. This is a third option,” Sexton said.

One of those bills would allow creation of a three-judge panel to hear redistricting cases dealing with congressional and legislative district lines.

Lamberth, meanwhile, said he finds it ironic that the bill’s constitutionality is being questioned because the jurisdiction and venue of courts is established by state law. Under state law, cases against the state are considered first in Davidson County because Nashville is the capital city.

“So there is absolutely a way to structure this bill so it is constitutional because much of that framework is set up in the statutes,” Lamberth said.

More than 100 legal and business professionals led by Chattanooga attorney Lee Davis are petitioning against the bill, calling it a “costly power grab over the judicial branch.” Former Supreme Court Justice Penny White is among those signing on to the petition.

“This attempt threatens Tennesseans’ right to a fair and impartial judiciary. It requires a trial judge to run in two costly, statewide elections, which undermines the perception of judicial independence. And it targets critical issues affecting the rights of all Tennesseans, such as constitutional challenges and redistricting,” their letter to the governor and General Assembly says.

Meanwhile, in the House Finance, Ways and Means Committee today, though, Rep. Andrew Farmer, R-Sevierville, passed HB1130, which would create a statewide appeals court, rather than a trial court-level chancery court.

Three appeals court judges would be appointed by the governor for one year and then face a retention election in one year for eight-year terms.

The court would take “de novo” appeals on constitutional challenges to the state, meaning it would rule without any reference to a decision by a previous court. Those questions would skip the current Tennessee Court of Appeals but could be taken up for consideration by the Tennessee Supreme Court, Farmer said.

“They’re just designed and set up just to hear these constitutional issues in regards to the state. That’s all they would hear, very concise issues,” Farmer said.

During committee debate, Rep. London Lamar pointed out creation of such a court could give the governor too much power over the judiciary and argued that the state should leave its court system alone.

But Speaker Sexton asked whether judges are supposed to fair and impartial. Farmer replied in the affirmative