House Speaker Sexton won’t pursue Byrd ouster following AG opinion (UPDATED)

Rep. David Byrd (R-Waynesboro) and Rep. Sheila Butt (R-Columbia) attend a committee meeting in Nashville on March 28, 2018. (Erik Schelzig, Tennessee Journal)

House Speaker Cameron Sexton says he won’t move to oust a Republican state lawmaker following an attorney general’s opinion advising against it.

“After consulting with House leadership and our committee chairmen, we will heed Attorney General Slatery’s advice and not move forward,” Sexton said in a release.

State lawmakers may have the power to oust Rep. David Byrd (R-Waynesboro) for allegations of sexual misconduct with teenage basketball players before he was elected to office, but “historical practice, sound policy considerations, and constitutional restraints counsel against” such a move, Attorney General Herbert Slatery said in a legal opinion released Wednesday.

The state constitution provides for each chamber of the General Assembly to “determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member.”

That language has been unchanged since the adoption of the 1796 constitution, but Slatery notes that state courts “yet to construe the meaning of ‘disorderly behavior’ or the scope of the expulsion clause more generally.”

Much of the opinion appears to hinge on whether lawmakers need to find their colleagues guilty of disorderly behavior in order to expel them. Others have argued that the provisions dealing with punishment for disorderly conduct and expelling members are not linked, and that the House and Senate can oust any of their members for any reason the choose so long as they can get a two-thirds vote.

Slatery concludes:

  1. There is no federal or Tennessee historical precedent of expelling a member other than for conduct that occurred while the member was in office. Historically, the power of expulsion has been used very sparingly and then only to punish a member for “disorderly conduct” that occurred during the member’s current term in office.
  2. Sound policy considerations counsel that the power of expulsion should rarely if ever be exercised when the misconduct complained of occurred before the member’s election and was generally known to the public at the time of the member’s election. Because expulsion under those circumstances essentially negates the choice of the electorate, the House must weigh its interests in safeguarding the public trust in its institutional integrity against the deference and respect owed to the choice of the electorate before it expels the member. That is, in light of the particular facts and circumstances of each case “the [House] must balance its interest in ‘assur[ing] the integrity of its legislative performance and its institutional acceptability to the people at large as a serious and responsible instrument of government,’
    with a respect for the electoral decisions of the voting public and deference traditionally paid to the popular will and choice of the people.” Expulsion of Members of Congress, CRS Report 7-5700 at 13 (quoting Powell v. McCormack, 395 F.2d 577, 607 (D.C. Cir. 1968)  (McGowan, J., concurring)).
  3. In any event, since even the broadest legislative power is subject to state and federal constitutional restraints, the expulsion power may be exercised only to the extent consistent with the voters’ constitutional right to choose their representatives and with the member’s state and federal constitutional rights, such as the right to due process and equal protection.

10 Responses to House Speaker Sexton won’t pursue Byrd ouster following AG opinion (UPDATED)

  • Perry Aubric says:

    As big a creep as this clown is, I reluctantly agree. The voters in his district knew he was a sexual predator in the past and elected him anyway. That, to me, reflects pretty damn poorly on them as much as him. But unless he is criminally charged or dies something like lie under oath in a civil suit while in office—and there is no reason to think either will happen—I don’t think expulsion is appropriate.

  • LeeAnn C. says:

    Seems perfectly reasonable, considering that in our country individuals are innocent until proven guilty. Rep. Byrd’s constituency reelected him with a strong majority. The state should respect their decision! As for the allegations against him, those should be proven in a court of law.

  • Beatrice Shaw says:

    Another Republican I see……………………..smh In Oregon, they would have been really tough on this man

    • MARLE says:

      We’re not IN Oregon, Beatrice. In Tennessee we like to do things our own way and only when forced do we compare ourselves~ usually to Mississippi. TGFM !

  • Misty Pardner says:

    He stood before the caucus and stated he would serve out his term and not seek another term. Let’s see if he holds to his word.

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  • David Collins says:

    From a purely legal standpoint I think the AG is wrong. It’s the constitutional power of each house of the legislature to determine what constitutes “unruly behavior” along with the power to expel. It is the sole judgment of each house and therefore would not be subject to judicial review. While politically speaking, it may make sense to ultimately leave it up to the voters at the ballot box, I submit that if either house decides that being a sex pervert constitutes “unruly behavior”, and 2/3 of them feel that way, that they have the inherit power to expel that member and it’s none of the judicial branch of governments business.

    • Bob Fischer says:

      I would have to reluctantly disagree with you. Impeachment and censure are serious issues.

      Impeaching for actions taken before being elected, while morally the proper thing to do, does not really fall under a clear-cut definition of these processes. Being a pervert and acting on those impulses are two different things , and unless the guy was caught with his pants down, so to speak, while in office, when one expands the causes to include virtually any mistake one has made in life is simply over-reach.

      The statute of limitations though, should be suspended when one holds public office and any pre-elected crimes an officeholder may be hiding from should be prosecuted to the full extent of the law up the completion of the officeholders term.

      • MARLE says:

        So if you can remain in office you get to endlessly defer your day in court? Oh, my! Now there’s a notion I cannot get behind.

  • Phil Lassiter says:

    He has a good looking wife in that picture. Why would he want to stray?

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