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.