CORRECTION: An earlier version of this story incorrectly stated a bill raising liability standards for COVID-19 legal actions applies to lawsuits filed on or before Aug. 3, 2020. The new liability standards actually would apply to lawsuits filed on or after Aug. 3, 2020. This story was updated at 4:28 p.m. on Thursday, August 13, 2020.
NASHVILLE — Tennessee lawmakers on Wednesday voted largely along partisan lines to approve a controversial bill providing sweeping legal protections from COVID-19 lawsuits filed against businesses, schools and other nonprofits, as well as an even more contentious measure cracking down on protests amid recent social unrest.
The Republican-led General Assembly then wrapped up its three-day special legislative session called by Gov. Bill Lee.
Earlier, lawmakers passed yet a third bill, one that brought rare, near unanimity from Democrats as well as Republicans. It was a telehealth pay-parity measure requiring Tennessee insurers to reimburse providers at the same rates as those paid to hospitals and other facilities for similar procedures.
The coronavirus bill passed the Senate on a 27-4 vote, while the House voted 80-10. It substantially raises the legal bar for anyone filing suit alleging loss, damage, injury or death from the coronavirus, saying they must prove a defendant’s “gross negligence or willful misconduct.”
It applies to lawsuits filed on or after Aug. 3, 2020, the day Lee, a Republican, issued his call for the General Assembly to come back to the Capitol for a special session. That was after a similar bill imploded on the House floor in June due to bipartisan concerns that the prior bill’s retroactive restrictions, which applied to lawsuits going back as March 5, were unconstitutional.
Sens. Bo Watson, R-Hixson, Todd Gardenhire, R-Chattanooga, and Mike Bell, a Riceville Republican who as Judiciary Committee chairman took the lead in presenting and defending the measure, all voted yes.
During debate, Senate Democratic Caucus Chairman Jeff Yarbro of Nashville, an attorney, unsuccessfully sought to amend the bill.
“Everyone on this floor is getting calls from schools, colleges, hospitals,” Yarbro argued, saying Tennessee law already makes it difficult to sue and prove in court that infections occurred at specific places. “But at some level the good actors are being used as a human shield for those who are doing the wrong thing.”
If a business has a “consistent pattern and practice of ignoring” state, local government and medically recommended guidelines, Yarbro said, “they shouldn’t receive the protections this legislation provides.”
In order for anyone to win a lawsuit and recover damages, Yarbro said, they would “have to demonstrate that gross negligence led to their illness, which is a barrier no plaintiff will be able to meet.”
Bell countered that what Yarbro was describing about some businesses would constitute “gross and negligent behavior” and “willful misconduct” and thus wouldn’t be protected.
“This bill does not do that, does not protect bad actors,” Bell said.
Bell acknowledged Yarbro had a point on issues related to retroactively applying the law to Aug. 3. But the chairman said that date was chosen because it was when Lee issued his call for the special session, thereby providing public notice to the entire state.
That said, Bell added, the legislation has a severability clause in case courts do strike down the retroactive provision, thus leaving remaining provisions of the bill intact.
Anti-protest bill goes to governor
Debate over the bill imposing stiff new penalties on protesters, primarily aimed at demonstrators, was even more heated and resulted in a roller coaster ride near the end of the special session.
In the House, Nashville Democratic Rep. Bo Mitchell unsuccessfully pushed an amendment aimed at forcing Tennessee Attorney General Herbert Slatery to investigate circumstances around the controversial passage of a school voucher bill in 2019. The GOP super majority easily quashed the effort.
Republicans have been eager to push a crackdown on the protests that erupted in Tennessee and in cities nationwide after the death of George Floyd, a Black man who died after a Minnesota police officer placed his knee on Floyd’s neck for nearly nine minutes.
The debate over penalties on protesters resulted in a considerable back-and-forth between the two GOP-led chambers toward the session’s end Wednesday night.
Read copy of proposed amendment on Tennessee bill cracking down on recent protests
In Tennessee, demonstrators have peacefully occupied space on War Memorial Plaza across from the state Capitol for two months, demanding to speak with Lee, who has refused to meet with them.
There has been vandalism in other parts of Nashville, with at least one person arrested for allegedly setting fire to part of the Metro Nashville Courthouse during a mass demonstration. A Democratic lawmaker said the man arrested has been identified as a white supremacist.
Under the bill now going to the governor, anyone committing “extremely offensive or provocative” physical contact with police — that can include spitting — could be charged with a Class A misdemeanor, bringing a mandatory 30-day sentence and $5,000 fine.
Other actions include beefed-up charges for disrupting a meeting or obstructing a highway or street, which would be Class A misdemeanors with mandatory 12-hour jail holds before a person could be released.
Someone blocking an emergency vehicle, such as an ambulance, could be charged with a felony.
And the bill goes after demonstrators seeking to camp out on state property, making it illegal for them to be there from 10 p.m. to 7 a.m. It started out as a Class E felony with a mandatory 30 days in jail if protesters ignore warnings to leave.
That was, at least initially, too much for Judiciary Committee Chairman Bell, who recalled his own protests against abortion as well as a state income tax in the early 2000s. The language “would appear to criminalize a family throwing a blanket down to have a picnic,” Bell said.
So the language was changed to make it a Class A misdemeanor with 50 hours of community service, along with restitution for property damage and costs for cleanup. But the House refused to go along and maintained it as a felony with up to a year imprisonment.
As Sen. John Stevens, R-Huntington, moved to accept the amendment, Democrats Yarbro and Sen. Raumesh Akbari of Memphis objected, with Yarbro saying someone with a prior felony conviction could lose their right to vote based on camping before the Capitol to exercise their First Amendment rights.
Countered Stevens: “They want a revolution. They disagree with our notion of a civil society.” He said they deserve losing their right to vote “if you don’t want to participate in our form of government by overthrowing it with a revolution.”
It passed 25-7.
One provision that drew fire from District Attorney Neal Pinkston and fellow prosecutors from across the state was dropped. The original House bill would have allowed Tennessee Attorney General Herbert Slatery to initiate prosecutions involving the camping and anti-rioting measures if local prosecutors declined to do so. Pinkston blasted that as an incursion on elected prosecutors’ domain, noting that Slatery is appointed to his post by the state Supreme Court.
The provision was dropped for new language stating that prosecutors will provide an annual accounting to the state on how they handled various anti-protest and riot laws.
In contrast, the telehealth measure this time drew wide bipartisan support. The original bill was sponsored in the House by Rep. Robin Smith, R-Chattanooga. During lawmakers’ June session, the Senate, which initially expressed reservations about it, refused to take it up at the last minute after the COVID-19 liability bill failed in the House.
Contact Andy Sher at firstname.lastname@example.org or 615-255-0550. Follow him on Twitter @AndySher1.