A bill that would limit the power of lawsuits challenging the constitutionality of state laws remains in flux as the House on Monday passed one version and the Senate sponsor delayed consideration until later this week after an amendment to expand the bill failed on the Senate floor.
As passed, the House bill would allow injunctions issued by trial court judges to be stayed indefinitely until all appeals are heard in lawsuits challenging state law. The proposal follows a Nashville judge’s decision to grant Metro Nashville and Shelby County’s request for a delay in implementation of Gov. Bill Lee’s education savings account program on constitutional grounds.
House sponsor Rep. Michael Curcio (R-Dickson) said the goal was to “ensure laws passed by the General Assembly remain in effect until final determination as to their constitutionality.”
Most Democrats and some Republicans have objected to the proposal, though it passed on a 64-26 vote. Knoxville Republican Rep. Justin Lafferty said he was concerned the state would spend money to implement programs only for the legislation later to be overturned in court.
“We cannot continue to seek to remake the judiciary and the court system simply because we disagree with one or two decisions,” Rep. John Ray Clemmons (D-Nashville) said.
In the Senate, sponsor Brian Kelsey (R-Germantown) sought to amend the legislation to add a provision prohibiting local governments from using taxpayer funds to challenge state laws, as Metro Nashville and Shelby County did in the ESA case.
“In those instances, we’re not saying these lawsuits can’t be brought,” Kelsey said. “It’s the individual Tennessean who should be bringing that lawsuit.”
But he failed to secure the requisite majority support for his amendment after a number of his fellow Republicans raised questions about the rights of local governments to sue the state. Sen. Ken Yager, who chairs the Senate Republican Caucus and is a former longtime Roane County executive, said local governments “should have the right to use taxpayer resources to litigate” when implementation of a state law could cause them financial harm.
After the amendment — which is not included in the House legislation — failed to secure a majority in the Senate, Kelsey asked that consideration of the bill be delayed until later this week.
The push comes amid a wider effort by Tennessee Republicans in the supermajority in both chambers to remake the court system, especially as it pertains to constitutional challenges of state laws, which are often heard at the initial trial level by Democratic judges in the state capital of Nashville before moving on to appellate courts with Republican majorities. One such proposal still making its way through the legislature would create a new three-judge statewide chancery court specifically to hear constitutional challenges, taking them out of the hands of Davidson County judges.