herbert slatery

Asking for permission after the fact? State seeks judge’s OK to keep taking voucher applications

Gov. Bill Lee speaks at an event in Nashville on April 2, 2019. (Erik Schelzig, Tennessee Journal)

Gov. Bill Lee on Tuesday declared the state would plow ahead with laying the groundwork for school vouchers while appealing a judge’s ruling that the program is unconstitutional. The governor’s declaration raised eyebrows in legal circles because Nashville Chancellor Anne Martin had explicitly enjoined the state from “implementing and enforcing” the Education Savings Account Act.

Attorney General Herbert Slatery’s office appears to be trying gain some post hoc approval for the governor’s plan to keep encouraging parents to apply for the program while the state appeals the decision. In a court filing submitted to Martin at 10:21 p.m. Tuesday, the defendants “respectfully move to stay the injunction ordered by this Court,” WPLN-FM’s Sergio Martínez-Beltrán reports.

“The trial court’s injunction preventing state officials from implementing and enforcing the ESA Program will result in irreparable injury,” according to the filing. “… Participating students and parents who have begun the application process for participation in the ESA Program are now facing the prospect of returning to underperforming schools.”

Left unsaid in the filing is that nothing in the voucher law limits eligibility to students attending failing schools. The law allows families meeting income requirements whose children attend any public school in Nashville and Shelby to apply.

The Lee administration has pressed ahead with launching the program this fall, much to the consternation of Republican leaders like House Speaker Cameron Sexton. While the controversial state law allows the governor to launch the program this year, it doesn’t actually require the program to go online until the academic year starting in August 2021.

The state’s filing argues that putting a hold on the school voucher program while the appeals are pursued would negatively affect the families of more than 2,500 students who have already applied and could lead private schools to lay off teachers they had hired in anticipation of growing their enrollment.

AG: Governor’s emergency powers preempt locals

State Attorney General Herbert Slatery, right, speaks with Rep. Jerry Sexton (R-Bean Station) on the House floor in Nashville on Feb. 3, 2020. (Erik Schelzig, Tennessee Journal)

The governor’s emergency powers trump the authority of local health departments to issue restrictions in response to the coronavirus pandemic, according to a rare legal opinion issued by state Attorney General Herbert Slatery.

The opinion was requested by Senate Speaker Randy McNally (R-Oak Ridge) and House Speaker Cameron Sexton (R-Crossville)

It’s just the seventh legal opinion issued by Slatery’s office this year. Here it is:

Question

Because of the COVID-19 health crisis, the Governor has exercised his authority to declare a state of emergency in Tennessee and to issue a series of executive orders governing the State’s emergency response to the COVID-19 pandemic. Do these executive orders serve as the exclusive regulation of the State’s emergency management in response to the pandemic, and to what extent, if any, may local governmental entities take actions or issue orders that conflict with the Governor’s executive orders?

OPINION

The General Assembly has vested the Governor with exclusive responsibility and authority to assume control over all aspects of the State’s response to an emergency such as the COVID-19 pandemic. Tenn. Code Ann. § 58-2-107(a)(1). Because the executive orders that the Governor issues pursuant to that authority have the force and effect of law, Tenn. Code Ann. § 58-2- 107(a)(2), the Governor’s directives in response to an emergency supersede and preempt any action taken by political subdivisions of the State.

Absent an express delegation of power by the Governor, local governmental entities may not take actions that are either more restrictive or less restrictive with respect to the subjects addressed in the Governor’s executive orders governing the State’s emergency response to COVID-19. Such action would be at cross purposes with the Governor’s orders, which are the law of the State, and would constitute an impermissible legal conflict.

Just as the Governor may exercise his authority under Tenn. Code Ann. § 58-2-107(a)(1) to delegate to a local governmental entity or to the local health department “such powers as the governor may deem prudent,” the Governor may exercise his emergency powers to expressly authorize, or recognize the authority of, county health departments to take action that may otherwise be inconsistent with his executive orders. Such a delegation of authority may be revoked or modified at any time, § 58-2-107(a)(2), and, absent an express delegation or authorization by the Governor, the local health department or other local governmental entity may not take any action inconsistent with the Governor’s executive orders.

ANALYSIS

Because of the COVID-19 health crisis, the Governor has exercised his authority to declare a state of emergency in Tennessee and to issue a series of executive orders governing the State’s emergency response to the COVID-19 pandemic.[1] The executive orders are all aimed at diminishing the spread of COVID-19 and ensuring that the State maintains the resources needed to protect the health and well-being of its citizens. Among other provisions, the orders currently require all persons in Tennessee to stay at home unless engaging in essential activity or essential services, and they place restrictions on social gatherings and business operations. Some local governmental entities have issued orders that are either more restrictive or less restrictive than the Governor’s executive orders.

The Governor’s power to issue these executive orders is grounded in the broad grant of authority—a responsibility and authority that the General Assembly has vested solely in the office of the governor—to assume control over all aspects of the State’s response to an emergency such as the COVID-19 pandemic:

The governor is responsible for addressing the dangers presented to this state and its people by emergencies. In the event of an emergency beyond local control, the governor . . . may assume direct operational control over all or any part of the emergency management functions within this state The governor is authorized to delegate such powers as the governor may deem prudent.

Tenn. Code Ann. § 58-2-107(a)(1) (emphasis added). To exercise this exclusive authority “the governor may issue executive orders, proclamations, and rules and may amend or rescind them. Such executive orders, proclamations, and rules have the force and effect of law.Id. § 58-2- 107(a)(2)(emphasis added). See also Tenn. Code Ann. § 58-2-107(b)(1)(A) (authorizing issuance of executive orders to implement governor’s authority).

An “emergency” is defined expressly to include “disease outbreaks and epidemics.” Tenn. Code Ann. § 58-2-101(7). “Emergency management” is defined broadly to cover all stages of dealing with an emergency; it “means the preparation for, the mitigation of, the response to, and the recovery from emergencies and disasters.” Tenn. Code Ann. § 58-2-101(8).[2]

To effectuate emergency management, the General Assembly has given the Governor a broad range of powers. The Governor has the power, among others, to: suspend laws prescribing the conduct of state business; utilize all available resources of the state government and of each political subdivision; commandeer private property; direct and compel an evacuation; control ingress and egress to and from an emergency area; control the movement of persons; control the occupancy of premises; make provisions for temporary emergency housing; and take measures concerning the conduct of civilians. Tenn. Code Ann. § 58-2-107(e).

By giving the Governor “direct operational control over all or any part of the emergency management functions within this state,” the General Assembly has vested in the Governor the exclusive authority to wield these powers to control and limit the acts of political subdivisions in an emergency. Further, when the Governor invokes his emergency management powers, all the “officers and agencies of the State and political subdivisions . . . shall cooperate with and extend their services and facilities to the Tennessee Emergency Management Agency,[3] as it may require.” Tenn. Code Ann. § 58-2-107(h) (emphasis added). In short, the General Assembly clearly intended the Governor’s emergency management powers to be exclusive and to override any action taken by political subdivisions of the State.

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Tennessee AG joins effort to block Equal Rights Amendment

State Attorney General Herbert Slatery, right, speaks with Rep. Jerry Sexton (R-Bean Station) on the House floor in Nashville on Feb. 3, 2020. (Erik Schelzig, Tennessee Journal)

Tennessee Attorney General Herbert Slatery is joining four counterparts in Republican states in trying to block an effort to revive the Equal Rights Amendment to the U.S. Constitution.

Virginia lawmakers last month ratified the amendment stating that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Supporters argue that Virginia is the 38th state to approve of the language, meeting the requirement that three-fourths of states agree to amend the Constitution.

Opponents point to the a ratification deadline set by Congress was 1979 and that it was later extended only to 1982. Those deadlines are unenforceable, according to a lawsuit filed by Virginia, Illinois, and Nevada.

Tennessee lawmakers approved the amendment in 1972, but voted to rescinded their action in 1974.

Read the release from Slatery’s office after the jump:

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About that whole voucher tax thing…

Gov. Bill Lee speaks to reporters on March 19, 2019, about his proposal to introduce an education savings account program in Tennessee. (Erik Schelzig, Tennessee Journal)

The revelation that Tennessee’s new school vouchers could well be considered taxable income by the IRS set off a furor at the statehouse among both supporters and opponents of the “education savings account” law.

Education Commissioner Penny Schwinn’s statement to the House Finance Committee appeared fairly unequivocal when asked during a Monday hearing: “My understanding is this is taxable, yes.”

Voucher supporters were quick to pounce, noting that the law includes a provision that states the more than $7,300 vouchers would not be considered income. But the caveat there is the state can only write legislation affecting Tennessee law. The IRS might have different ideas.

Schwinn told reporters she had come to that determination in consultation with state Attorney General Herbert Slatery’s office. But a spokeswoman for the AG said his office would not be in a position to weigh in on federal tax matters.

Schwinn’s spokeswoman later issued a new statement seeking to clarify matters:

The Commissioner’s comments at the budget hearing today were intended to reflect the possible need for the program’s filing and issuance of federal information reporting returns rather than taxability. We are continuing to work through the details of what will be required for ESA program implementation.

So where does that leave things for parents concerned about being hit with a big tax bill if they take the vouchers? It remains unclear. And now Democratic lawmakers are (perhaps inevitably) asking for a delay in the bill’s implementation so it can all be figured out.

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.

AG asked to opine on power to oust Byrd from House

Rep. Cameron Sexton (R-Crossville) speaks to the House Republican Caucus after winning their nomination for speaker on July 24, 2019. (Erik Schelzig, Tennessee Journal)

Rep. Cameron Sexton, the Republican nominee to be elected speaker during Friday’s special session, is asking state Attorney General Herbert Slatery about whether the chamber has the power to oust Rep. David Byrd over allegations of sexual misconduct with teenage basketball players when he was their coach in the 1980s.

UPDATEThe Tennessean’s Joel Ebert reports that the AG’s office does not anticipate being able to answer in time for the special session.

Here’s the full text of the letter:

Dear General Slatery:

Article 11, Section 12 of the Tennessee Constitution provides:

  • Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member, but not a second time for the same offence; and shall have all other powers necessary for a branch of the Legislature of a free State.

The Tennessee House of Representatives has used the power to expel only twice since 1866. In both instances, the member was expelled for conduct that occurred during the time of the member’s service. I am writing to request an opinion as to the following question:

  • May the House of Representatives expel a member for conduct which occurred more than twenty-five years prior to the member’s initial election to the House of Representatives and that is publicly known at the time of the member’s most recent re-election to the House of Representatives?

As always, I appreciate the work that you and your staff provide to the General Assembly and to the citizens of Tennessee. Thank you for your attention to this matter.

Respectfully submitted,

/signed/
Representative Cameron Sexton
25th Representative District