A Tennessee lawmaker’s efforts to bar local authorities from challenging a state law’s constitutionality has stalled in the Senate after failing to gain enough votes it needed to pass the floor Monday night.
Sen. Brian Kelsey, R-Germantown, delayed the Monday vote on the measure after it drew bipartisan concerns from his colleagues. The issue will be placed on Wednesday’s floor calendar.
A similar measure, which would allow a challenged state law to take effect until the court issues a final ruling otherwise, had passed the House 64-26 Monday night. Kelsey’s amendment, however, would take it one step further by banning local suits against the state seeking clarity on whether a state law is constitutional.
The initiative was filed this year following multiple constitutional challenges local authorities launched against the state. Most recently, Shelby and Davidson county officials are challenging Lee’s education savings account program, which was ruled unconstitutional last year by a Nashville judge and later in the Court of Appeals. The ongoing lawsuit awaits an outcome in the state’s highest court.
Constitutional law experts have argued the bill might violate the separation of powers by invading judicial authority. Additionally, some argued it’s bad policy.
“It insulates the state from any significant scrutiny about the unconstitutionality of their actions,” said Steve Mulroy, law professor at the University of Memphis.
Kelsey argued local authorities should stop using taxpayer money to sue the state.
“We don’t want to give a special exception to use taxpayer dollars to challenge the laws that we pass up here,” he said.
Referencing the lawsuit by Shelby and Davidson county school districts challenging the state’s education funding formula, Kelsey said local authorities should have aired their grievances at the legislature instead of bringing lawsuits.
By bringing the measure before the state’s highest court, Kelsey said it would be letting the “state Supreme Court telling this body how to appropriate funds, and in essence, the judiciary becoming the appropriator.”
Kelsey amendment gains tied vote
Kelsey’s amendment drew bipartisan concerns from his Senate colleagues, who voted 14-14 on the change — a tie that effectively killed the amendment.
Senate Minority Leader Jeff Yarbro, D-Nashville, said the bill could harm local governments merely seeking clarity in court. The bill would lead to “administrative nightmares” for cities when implementing state law at the local level, he said.
“There are often times when a city just needs to know what it can do under the law before it starts taking actions that might actually harm its citizens or that might provide no harm at all,” he said.
Additionally, Yarbro said the legislation could diminish protections of local authorities as granted under several constitutional amendments in past decades.
“The first time we amended (the Constitution) in 1953 was to ensure that the legislature didn’t pass abusive private acts,” he said. “What this would do is make those protections exist only on paper.”
Sen. Ken Yager, R-Kingston, said he was reserved about the “unintended consequences” the measure could bring. Yager served as an official in Roane County from 1978 to 2006.
Local governments, he said, are entitled to seeking clarity over a state law in court and can rely on taxpayer money to do it.
“(A local government) should have the right to use taxpayer resources to litigate that question … to determine whether a particular bill is unconstitutional, and as such, would hurt the county financially,” he said.
House bill passes despite bipartisan concerns
In the House, a measure by Rep. Michael Curcio, R-Dickson, cleared the floor Monday night. The initiative would automatically grant state government the right to immediately appeal a court decision — a right typically granted by judges in time-sensitive cases. The contested law would automatically take effect until otherwise struck down at the end of the appeal process.
“It simply provides continuity,” Curcio said Monday. “The actions that we do on this House floor are presumed to be constitutional until the final authority says they are or they are not.”
The measure also drew concerns from both Democratic and Republican lawmakers. Some deemed the bill a legislative overreach into the judicial branch.
Rep. Justin Lafferty, R-Knoxville, said he is concerned the bill would allow governments to implement effectively unconstitutional law while the court system drags on.
“Court cases can take months, sometimes years, to play out,” he said. “I’m concerned about the allocation of the resources on behalf of the state to start implementation of some law that we may pass and then only find out, months or even years later, it’s unconstitutional.”
Curcio responded by saying the same danger also exists when the state holds off on implementing laws that end up being constitutional.
Rep. John Ray Clemmons, D-Nashville, called the bill “purely reactionary” to recent lawsuits against the state. Rep. Bill Beck, D-Nashville, said the bill would defeat the purpose of an injunction by the court, which is used to block state law from taking effect while the court system examines its constitutionality.
“The point of an injunction is to keep injustice from happening, is to stop bad things from happening to our citizenry,” he said.
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