published Tuesday, February 25th, 2014

Bill would give Tennessee Legislature power over attorney general

  • photo
    Tennessee Gov. Bill Haslam speaks at a legislative planning session sponsored by The Associated Press and the Tennessee Press Association on Thursday, Feb. 6, 2014, in Nashville.
    Photo by Associated Press /Chattanooga Times Free Press.

A legislative bill on the state Senate calendar this week would, if approved, give the state Legislature unprecedented power over the state attorney general.

Bill sponsors say the move would bring the attorney general one step closer to public accountability.

Opponents say the bill is a shortsighted "power play" that undermines independence among the separate branches of government.

"I think the attorney general needs to be responsive to the people," said state Sen. Brian Kelsey, R-Germantown.

But state Senate minority leader Sen. Jim Kyle, D-Memphis, said this move is the "dark side" of a Republican super majority.

"This is a power play with the attorney general," Kyle said. "You will do as we say, what we say, when we say."

Though he opposes the bill, Kyle said he has "every expectation that it will pass," given the Republican majority.

The bill would allow the Legislature to direct the attorney general to take up or drop lawsuits.

And this bill is but one of multiple pieces of legislation that aim to change how the judicial branch operates in Tennessee. Republicans also seek to make appellate judges elected positions and change how the attorney general is selected for office.

Tennessee is the only state that has its state Supreme Court appoint the attorney general, and four of the five sitting justices were appointed by a Democratic governor.

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Gov. Bill Haslam opposes the bill that would allow lawmakers to direct the attorney general, citing the office's independence.

"Such a proposal would politicize the office and alter a system that's worked well for more than 100 years," Haslam said through spokesman David Smith.

As recent impetus behind the bill, Kelsey cited state Attorney General Robert E. Cooper Jr.'s decision not to join a multi-state lawsuit against the Affordable Healthcare Act, among other litigation.

Cooper's office spokeswoman, Sharon Curtis-Flair, responded to questions for comment with a statement that said the current system is appropriate and statutes allow the Legislature to hire an outside attorney if there are issues the attorney general can't defend.

Judiciary Committee vice-chairman state Sen. Doug Overbey, R-Maryville, said he is concerned about separation of power problems with the bill.

"Does this bill alter the independence of the Attorney General's office?" Overbey said. "What sort of precedent would this set?"

Tennessee Bar Association President Cynthia Wyrick said the TBA opposes the bill and she worries that constitutional questions make the bill "untenable."

At least one law professor has similar questions.

University of Tennessee law professor Dwight Aarons pointed to Tennessee law that allows for the attorney general not to defend a law passed by the Legislature that he or she deems unconstitutional.

Because the proposed bill could be interpreted to violate the constitutionally-protected separation of powers, Aarons said the attorney general could decline to follow it once it's passed.

It's more likely that the law would be challenged in the courts after passage to test its constitutionality, Aarons said.

As a practical matter, the professor said the bill muddles the attorney-client relationship. Aarons said the people of Tennessee are the attorney general's client.

If the Legislature began ordering the attorney general when to get involved in a lawsuit and when to get out, Aarons said it would compromise the legal judgment and independence of the office.

"When the client tries telling the lawyer what to do, that is really foolish," Aarons said.

But Kelsey countered that the comparison leaves out one fact -- Tennesseans don't choose their attorney general, so they have no input in the process.

Kelsey and supporters are working to change that, too.

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An initiative on the November ballot, also supported by Kelsey, seeks to change appellate judges from governor appointment to popular election.

Two bills would change how the attorney general is selected for office.

A bill that would have allowed for a popularly elected attorney general failed to get the needed 17 votes in the 33-member Senate earlier this month. The other bill seeks to allow the General Assembly to appoint the attorney general. That bill remains active but was taken off of the schedule for immediate consideration.

State Supreme Court justices are appointed by the governor and then subject to a yes/no retention vote at the end of their 8-year terms. Of the five sitting justices, four were appointed by former Democratic Gov. Phil Bredesen. One was appointed by former Republican Gov. Don Sundquist.

Forty-three states elect their attorneys general. Five states allow the governor to appoint the position. Maine lets its legislature appoint the attorney general.

Wyrick wrote recently on the association's website that she supports the current attorney general selection process as the best available. Other methods "would simply interject politics unnecessarily into the office of attorney general," she wrote.

Bell, the bill's co-sponsor, said there's a reason for support of the appointment system and opposition to the legislation.

"Many of the elitists like our current system because it's controlled by the elitists," he said.

Contact staff writer Todd South at tsouth@timesfreepress.com or 423-757-6347. Follow him on Twitter @tsouthCTFP.

about Todd South...

Todd South covers courts, poverty, technology, military and veterans for the Times Free Press. He has worked at the paper since 2008 and previously covered crime and safety in Southeast Tennessee and North Georgia. Todd’s hometown is Dodge City, Kan. He served five years in the U.S. Marine Corps and deployed to Iraq before returning to school for his journalism degree from the University of Georgia. Todd previously worked at the Anniston (Ala.) Star. Contact ...

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