A new state attorney general opinion says a House-passed bill declaring courts must use the “natural and ordinary meaning” of undefined words in interpreting Tennessee statutes may not work when it comes to words such as “husband” and “wife,” according to a new attorney general’s opinion.
The bill in question appears to conflict with existing state law on gender-specific words and could also be at odds with the U.S. Supreme Court’s gay marriage ruling, the opinion says. The bill passed the House 70-23 on March 16 and is awaiting a Senate floor vote.
Excerpt from the opinion (the whole thing is HERE):
Question 2: If a Tennessee court construed words such as “husband,” “wife,” “father,” or “mother” by their ordinary meaning as required by Senate Bill 1085/House Bill 1111 if it were to become law, would that construction be counter to the holding of the United States Supreme Court in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015)?
Opinion 2: Statutes that are related to marriage or to the terms, conditions, benefits, or obligations of marriage could, in some instances, be in conflict with the holding in Obergefell if gender-specific words in those statutes were construed according to the proposed legislation. But not every statute that has gender-specific terms would necessarily conflict with Obergefell if it were construed according to the proposed legislation.
We note, however, that if the proposed legislation were to become law, it may not necessarily result in a judicial construction of statutes that preserves the literal meaning of gender-specific words. The Tennessee Legislature has already expressed its intent that gender-specific words are to be construed as gender-inclusive when they appear in the Tennessee Code. The proposed legislation could, in some instances, be in direct conflict with Tenn. Code Ann. § 1-3-104(b) which instructs that “[w]ords importing the masculine gender include the feminine and neuter, except when the contrary intention is manifest.” Any conflict between this existing statute and the proposed legislation would be resolved to allow the specific to control the more general statute. Thus, in construing certain statutes with gender-limiting words, a court would likely apply the very specific gender-inclusive requirements of Tenn. Code Ann. § 1-3-104(b) rather than the very general “ordinary meaning” requirements of the proposed legislation.
Note: The bill, and a similar measure, were inspired by a Knoxville judge’s ruling in a child custody dispute between divorcing lesbians who were legally married in another state. The ruling said only the biological mother of the child, born after artificial insemination, has any legal rights to custody. Previous post HERE.
From Tea Party leader Judson Phillips, writing in Tennessee Star (excerpt):
The Tennessee Republican Party died on April 19, 2017. Ten years after the GOP became the majority party in Tennessee, led by a liberal governor, the party committed political suicide.
By voting for the largest tax increase in the history of the state of Tennessee, the Republicans in the state legislature knifed their base in the back and repudiated everything they claim to stand for. Tennessee Republicans routinely make campaign speeches talking about how conservative they are and how they believe in limited government.
Today, Tennessee’s conservative base knows this is a lie… Unfortunately, the Tennessee Republicans supermajority in the legislature chose to listen to a lame duck, feckless crap weasel governor instead of the people who put them in office.
From Gov. Bill Haslam
“The IMPROVE Act is the largest tax cut in Tennessee history, makes us more competitive as we’re recruiting manufacturing jobs and keeps our transportation network safe, reliable and debt-free for the next generation of Tennesseans. While there remains action to be taken on this legislation, I want to thank both chambers for their votes today on the IMPROVE Act, particularly Senate Majority Leader Mark Norris (R-Collierville) and Reps. Barry Doss (R-Leoma) and Bill Dunn (R-Knoxville) for their work carrying the legislation.”
The House approved Gov. Bill Haslam’s tax package, including increases in gas and diesel fuel taxes, on a 60-37 vote Wednesday after more than four hours of debate.
The Senate followed shortly afterwards — with considerably less debate – on a 25-6 vote.
There are some minor differences on the bill, one clarifying effective dates on parts of the tax package, that must be resolved before it goes to the governor. But should occur quickly, clearing the way for work on the state budget next week.
In the House, there were 80 amendments to deal with. The latest governor-approved version of HB534 raises the gas tax by six cents per gallon and the diesel fuel tax by ten cents per gallon – phased in over a three-year period. That’s coupled with a cut in corporate taxes for manufacturers, a reduction on the state sales tax on groceries and a cut in the Hall income tax on investment income.
Rep. Barry Doss, R-Leoma, acted as sponsor on the House floor, successfully tabling a long list of hostile amendments while others were ultimately withdrawn. A key vote came on a proposal by Rep. David Hawk, R-Rogersville, to rewrite the governor’s bill to exclude both the tax increases and the tax cuts. The Hawk amendment would instead have diverted sales tax revenue from purchase of vehicles to the state’s highway fund.
Hawk’s amendment failed with 38 representatives supporting it, 58 opposed.
House Speaker Beth Harwell, eyeing a run for governor, voted against the Haslam proposal when it first came under as an amendment, then voted for Hawk alternative plan. But she then voted yes on the final vote on the bill, as amended.
Excerpt from the AP’s report:
“While this was not the plan I preferred — I definitely preferred the other plan — at the end of the day infrastructure is a limited role of government and we need to perform it well,” Harwell told reporters after the vote.
The speaker said she doesn’t anticipate revived efforts to change the funding mechanism if the bill ends up in a conference committee to iron out differences.
…The House vote on the bill illustrated how closely divided the Republican supermajority is on the measure, with 37 members voting for and 35 voting against. Democrats voted 23-2 in favor of the amendment.
House roll call vote (cut and pasted from legislative website – which also has votes on amendments, parliamentary moves and such HERE if you click on ‘votes’ at the top right of the page.).
Legislation prohibiting open containers of an alcoholic beverage in moving vehicles is dead again this year even though Gov. Bill Haslam made it part of his official legislative package for 2017.
Sen. Jon Lundberg, R-Bristol, who has pushed the idea for years, had hoped Haslam’s backing would make a difference, reports WJHL-TV, and is disappointed by Senate Majority Leader Mark Norris (sponsoring SB1219 for the administration) pulled the bill without a vote.
Norris said there’s not enough support among legislators for passage and debating the matter would be “a distraction” from the push for passage of the governor’s priority bill of the year — a package of tax legislation including increases in gas and diesel fuel taxes.
Gov. Bill Haslam’s bill responding to a fatal school bus wreck in Chattanooga last year has been moved ahead without opposition but he’s staying out of a more controversial debate over whether the vehicles should be required to have seat belts, reports the Times-Free Press.
The governor told reporters that his administration is “technical deferred” on HB395 by Rep. JoAnn Favors, D-Chattanooga. His bill (HB322) won unanimous House approval Monday. Favors’ bill has cleared a couple of key committees on close votes, but still has a long way to go.
“I think there’s a big discussion back and forth in the Legislature,” Haslam said. “Deferred means if they pass it, we’ll sign it and figure out a way to fund it. But we’re not actively engaged in that one. The proposal we made was the proposal that we obviously wanted to make certain would happen.”
A bill to reduce penalties for illegally carrying a gun couldn’t get a seconding motion in the Senate Judiciary Committee Tuesday, leaving it dead for the year after clearing a House committee that has shot down some other bills pushed by Second Amendment advocates this year.
Sen. Frank Niceley, R-Strawberry Plains, sponsor of SB339, tells The Tennessean that some senators may have thought that reducing penalties for carrying a pistol without a permit would undermine future efforts for passage of “constitutional carry” legislation, which would make it legal to carry a gun without any permit.
The House Civil Justice Subcommittee killed “constitutional carry” bills earlier this year. (Previous post HERE.) But it had approved the House version of Niceley’s bill, sponsored by Rep. Jeremy Faision, R—Cosby.
The bill would have removed jail time from the first two offenses of carrying without a permit, and only subjecting people to a $100 fine for the first offense and $250 for the second offense. Currently, the first offense is a Class A misdemeanor.
“The way the law is now, if you get a Barney Fife out there somewhere — they don’t all act like Andy Griffith — if you get one like Barney Fife, he can take her gun, fine her $500 and put her in jail if he wants to. Now why wouldn’t they (senators on the committee) listen to that,” Niceley said.
The measure has moved through House committees despite opposition from major law enforcement agencies who have argued it could create loopholes that would prevent officers from being able to confiscate firearms from people officers know are armed and believe to be dangerous.
A House committee voted Tuesday to require audits of all future legislative campaigns that involve spending more than $175,000 – a figure that would catch almost all Senate campaigns but few in the House.
The House Local Government Committee approved the provision in an amendment offered by the panel’s chairman, Rep. Timothy Wirgau, R-Buchannan, who is also sponsor of the bill (HB992). The amendment and the overall bill were approved on voice vote after brief discussion, including questioning of Drew Rawlins, executive director of the Bureau of Ethics and Campaign Finance.
As approved in Senate committee, the bill would increase the number of random audits conducted by the Registry of Election Finance. Currently, the Registry selects 2 percent of legislative campaigns for random audits; the bill would raise that to 4 percent. That part remains in the House version with the $175,000 provision as an extra.
The Sycamore Institute, founded in 2015 by former state Sen. Jim Bryson of Franklin (also the Republican nominee for governor in 2006) and billing itself as a “nonpartisan policy research center for Tennessee,” has issued a 20-year comparison of state fuel tax revenue and sales tax revenue from vehicle sales taxes.
The accompanying chart shows state sales taxes on vehicles dipped by nearly 20 percent during the 2008 recession. Fuel taxes dipped by about 5 percent during that time.
With Gov. Bill Haslam’s gas tax bill scheduled to hit the House and Senate floors on Wednesday, GOP House Speaker Beth Harwell is urging divided fellow Republicans to “try to keep personalities out of it” during debate, reports the Times-Free Press.
“This will be a hard week,” Harwell told GOP Caucus members Monday. “We got big votes and I’m just asking y’all no matter how you come down on this — we’re going to have good Republicans for this bill, we’re going to have good Republicans against this bill — I’m asking you to be kind to each other.
In an op-ed piece appearing in the News-Sentinel, Bill Carey writes that a lot of Tennessee history being taught in the state’s schools will be ignored under new social studies standards recommended by a study committee advising the State Board of Education. Cary was a member of the committee who dissented from the majority report and is the founder of Tennessee History for Kids.
Jason Roach, a Hawkins County school principal who chaired the committee, has an op-ed piece in the Commercial Appeal voicing support for the majority recommendations.