A measure that would allow death row inmates to appeal their sentence on intellectual disability grounds was passed by the Tennessee legislature last night, the Tennessean reports. The bill could create an opportunity for death row inmate Pervis Payne to avoid execution if the court acknowledges his intellectual disabilities. Payne was convicted of double murder in 1987 and sentenced to death despite unanswered questions around the evidence and arguments from his legal team that he has a particularly low IQ. The bill says inmates with intellectual disabilities must suffer from "general intellectual functioning" that is "significantly" below average level among other stipulations. Defense attorneys can petition the trial court to examine the inmate's mental competency, but prosecutors are allowed to appeal the decision. The bill now heads to Gov. Bill Lee’s desk for his signature.

The Tennessee Senate yesterday rejected HB1072/SB915 by Sen. Brian Kelsey, R-Germantown, and Rep. Curcio, R-Dickson, to ban local governments from filing lawsuits to challenge the constitutionality of laws passed by the General Assembly. The bill would also have allowed the state to file an interlocutory appeal in any case in which the constitutionality of a statute is challenged and would have stayed any injunction issued by the court pending the final outcome of the appeal. TBA has been expressing concern to bill sponsors and committee members. Yesterday, the House Civil Justice Committee removed the section banning local governments from filing lawsuits against the state and that amended version passed the full House. In the Senate, the vote on Kelsey’s amendment failed 14-14, with three Republicans and two Democrats missing the vote. Kelsey then asked to move his bill to Wednesday, at which point he is expected to introduce another amendment seeking similar changes as were made to the House-passed bill. Read more from TNJ: On the Hill. 

Tomorrow at 1 p.m. CDT the House Local Government Committee will consider SB282/HB1386, sponsored by Rep. Chris Todd, R-Madison County, and Sen. Paul Rose, R-Covington. The bill will cap attorneys’ fees and expenses for attorneys in lawsuits brought by county officials if counties refuse to provide the resources required to perform their duties. The TBA worked with all of the involved parties and drafted a solution that would implement judicial oversight to ensure that attorneys’ fees are reasonable; however, the amendment Todd is offering tomorrow still caps attorneys’ fees and expenses at $35,000, among other things. We have until 1 p.m. CDT tomorrow to reach out to the members of the House Local Government Committee by calling or emailing them and asking them to oppose HB1386. Thank you for doing your part to protect attorneys’ rights to be compensated for their work.

The Tennessee Court of Workers' Compensation Claims reported today that the Tennessee General Assembly has reinstated its authority to assess attorneys fees under Tennessee Code Annotated section 50-6-226(d)(1)(B). The court may award a fee if it “makes a finding that the benefits were owed at expedited hearing or a compensation hearing" and if the date of the injury is on or after July 1, 2021, but before June 30, 2023. The court also reminds practitioners that anyone collecting a fee of $10,000 or more must file an affidavit detailing the work in the case and referencing the factors in Supreme Court Rule 8, 1.5(a).

Tennessee Rep. Chris Todd, R-Madison County, and Sen. Paul Rose, R-Covington, are moving SB282/HB1386, which will cap attorneys’ fees for attorneys representing both counties and county officials in lawsuits, provided for in T.C.A. 8-20-102, brought by county officials, including sheriffs, clerks and registers of deeds, if the county refuses to provide the resources required to perform their duties. The TBA has spent hours working with the sponsors on legislation that would implement judicial oversight to ensure that fees are reasonable, but the amendment to the bill that will be considered by the House Local Government Committee on Tuesday still caps attorneys’ fees at $35,000, among other things.

Please take a minute to reach out to the members of the House Local Government Committee by calling or emailing them and asking them to oppose HB1386 when it is considered by the committee next week. Passing legislation that caps attorneys’ fees is a terrible precedent and must be stopped. The amendment provides that if fees for either party exceed $35,000, or the amount of recovery for the first budget year of the petitioner, the fee and expense plan is presumed to be unreasonable, and that presumption may only be overcome by clear and convincing evidence.

The state Senate unanimously approved a bill this week limiting the use of chokeholds by police officers, banning “no knock” warrants, requiring law enforcement officials to intervene if they observe excessive force, and mandating de-escalation training for all law enforcement. Sen. Mike Bell, R-Riceville, led the charge to pass the bill and acknowledged during the floor debate that the bill does not do away completely with choke holds. Instead, the bill prohibits chokeholds unless “an officer reasonably believes that deadly force is authorized,” he explained. The bill, SB1380/HB1406, is scheduled for consideration by the House Criminal Justice Committee next week. WKRN reports on the story.

Two bills backed by Gov. Bill Lee as part of his criminal justice reform package passed the state House yesterday with overwhelming support, the Citizen Tribune reports. HB784/SB0767 is designed to keep nonviolent offenders out of prison, especially those suffering from mental and substance abuse issues. HB785/SB0768 creates an assumption that incarcerated individuals will be released on parole when eligible and incorporates provisions for mandatory reentry supervision. Both bills have passed the Senate Finance, Ways, and Means Committee and are awaiting floor action in that body.

Longtime state Senator Thelma Harper has died, the Nashville Post reports. Harper was the longest-serving woman in state Senate history, as well as the first African American female state senator. She served the state’s 19th District for three decades. "Whether she was fighting landfills for her neighbors, serving a community organization or leading a hearing in the legislature, Thelma Harper was a strong voice for her community, for justice and our most vulnerable children," the Senate Democratic Caucus said in a statement. "While this is a sad day for Tennessee, our state is a better place for her legacy of leadership. Thelma Harper loved the Tennessee Senate and the Tennessee Senate loved her right back." Harper decided not to run for re-election in 2018 and was replaced by then-Rep. Brenda Gilmore.

Sen. Paul Bailey, R-Sparta, says he will hold off on a proposal to limit the attorney general's power to represent state interests in federal court after Attorney General Herbert Slatery's office expressed willingness to address lawmakers’ concerns, the Tennessean reports. "The commitment is that they are willing to sit down, hear all of our concerns and see if there is not a way that those concerns can be met without fully pulling the solicitor general's office outside of the attorney general's office," Bailey said. The bill would have removed the solicitor general from the attorney general's office and made the position accountable to the legislature.

Before it adjourned for the year, the House Civil Justice Committee today approved legislation introduced by State Sen. Mike Bell, R-Riceville, and Rep. Andy Farmer, R-Sevierville, that would create a new statewide chancery court, composed of three chancellors, each from a different grand division of the state. The Senate Judiciary Committee passed the bill yesterday before it adjourned for the year. This new court would have exclusive jurisdiction over any civil cause of action that challenges the constitutionality of a statute, regulation or executive order; includes a claim for declaratory judgment or injunctive relief; or is brought against the state or a state department. The measure is one of several proposals introduced this year that would restructure how the state judiciary handles certain cases, but ultimately the House and Senate leadership decided to scrap the other bills and go with this one. Under the latest amendment to SB868/HB1130, the governor would pick three chancellors to serve on the court from the state’s three grand divisions, using a candidate list put together by the Trial Court Vacancy Commission. The chancellors would serve until the August 2022 statewide election, when voters would determine the three chancellors who would serve a full eight-year term. Read background on the proposal from Courthouse News. Tune into TBA’s Legislative Update tomorrow on Facebook Live and the TBA Podcast Network to get additional details on TBA’s lobbying efforts related to this and similar legislation.