Legal Legislation and Laws from the Last Session of the Tennessee Legislature By BERKLEY SCHWARZ, Director of Public Policy and Government Affairs, Tennessee Bar Association
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he Tennessee General Assembly concluded the 2021 regular legislative session on May 5, 2021, after addressing several controversial legal issues in the very last hours of session.
Budget Before adjourning, lawmakers approved a $42.6 billion budget, a much more robust spending plan compared to last year’s “bare bones” budget of $39.45 billion. With regard to the professional privilege tax, while House and Senate leadership opted against the $100 partial reduction that was discussed earlier in session, there does appear to be a strong resolve among some in leadership to make a more robust reduction — and perhaps repeal the tax entirely — in 2022. Elimination of the professional privilege tax remains one of the Tennessee Bar Association’s (TBA) top legislative priorities, and the TBA has continued to work with both the legislative and executive branches over the summer and fall to ensure it remains a front-burner issue for the 2022 legislative session. Additionally, indigent representation reform received an extra $5 million which ensured that the Administrative Office of the Courts was able to continue compensating court-appointed counsel for the indigent for their time through the end of the fiscal year.
Judges The judiciary took on an unusually prominent role last session. The opening salvo — a House Resolution that sought the formation of a committee to consider the removal of Davidson County Chancellor Ellen Hobbs Lyle, in response to her election law rulings in the summer of 2020 — was strongly opposed by TBA. 8
While the resolution was defeated in subcommittee, several legislative initiatives spawned in the weeks that followed, largely seeking to modify the way in which cases concerning the state are handled, and particularly which judges would hear those cases at the trial court level. As various pieces of legislation moved through the committee system, it became clear that the two chambers differed on how to address the issue. Eventually, the Senate began to favor the approach of creating a statewide chancery court made up of a threejudge panel to hear cases involving the state, with judges initially appointed by the governor and subsequently subject to statewide, partisan elections. That concept, which was heavily pushed by Lt. Gov. Randy McNally, R-Oak Ridge, and Senate Judiciary Committee Chairman Mike Bell, R-Riceville, was based on the premise that Davidson County judges — and the voters that elect them — should not be permitted to be the sole trial court deciding constitutional matters affecting the entire state. Meanwhile, the House-passed version of the same bill instead created a Court of Special Appeals to handle these constitutional cases at the appellate court level. The new appellate court would be comprised of three judges, appointed by the governor, who would be subject to a statewide retention election, as is the case with other appellate judges. After considerable back-and-forth between the two chambers — and considerable feedback from groups such as the TBA and others — a compromise was struck in the final hours of session, brokered by a conference committee appointed by the respective speakers. The compromise provided that special, three-judge panels would be convened to try cases presenting constitutional challenges and declaratory/injunctive claims against the state, a department/agency of the state and/or one of its
