Legislature takes discretion from district attorneys general

By: and - October 29, 2021 7:39 pm
Members of the Tennessee House of Representatives in House Chambers.

Members of the Tennessee House of Representatives in House Chambers. (Photo: John Partipilo)

The House and Senate both voted Friday for legislation enabling the state attorney general to request courts appoint district attorney pro tems for any district attorney general who makes a blanket statement against prosecuting certain classes of illegal activity.

The Senate passed its version of the bill on a 25-6 vote.

The measure passed the House 64-17, but it drew opposition from an unlikely source, Republican Rep. Bruce Griffey of Paris, who said the state already has the means to remove district attorneys general.

“We may have a situation where we have a district attorney who says we have these low-level marijuana cases, I just don’t have the resources to devote to them,” Griffey said.

Several Democrats agreed with Griffey’s contention, arguing district attorneys general should have the discretion to concentrate on crimes that have the greatest impact on public safety.

Rep. Scotty Campbell, R-Mountain City, who carried the legislation for House Speaker Cameron Sexton, told lawmakers the law would apply only when a DA refuses to prosecute certain cases regardless of the facts.

Such a law could apply to Davidson County DA Glenn Funk, who has stated he will not prosecute possession of small amounts of marijuana and cases in which businesses decline to post signs letting people know a transgender person could be using a restroom marked for men and women. Funk’s office has not responded to questions.

Sen. Jeff Yarbro, D-Nashville, protested that the measure would put unelected lawyers in place of duly elected District Attorneys. 

Sen. Jeff Yarbro, D-Nashville: "Every person here could be a litigant." (Photo: John Partipilo)
Sen. Jeff Yarbro, D-Nashville. (Photo: John Partipilo)

But Republican lawmakers pointed to existing statutes that allow judges to intervene to replace rogue DAs.

“A District Attorney does not have the authority to decide what law is good and what law isn’t good,” said Sen. John Stevens, R-Huntingdon. 

Enforcing such a law could be impractical because Metro Nashville Police are not arresting people for possession of a half-ounce of pot or less. In some cases, they’re writing citations. Thus, such cases don’t exist and aren’t finding their way to court.

  • HB9072/SB9009. By a 20-10 margin, the Senate voted in favor of a measure allowing counties to make school board races partisan, with a handful of Republicans voting ‘no’.

The measure would give school board candidates “freedom” to identify with a political party, said Sen. Mike Bell, R-Riceville. Bell said it was important to know the “underlying political philosophies of those representing them on school boards.” 

Sen. Heidi Campbell, D-Nashville — who opposed the measure — said she had gotten calls from moderate Republicans interested in school board positions whose workplace policies barred them from partisan races.

In one of the closest votes of the session, the House passed its version of the bill 52-39 even though it would preclude federal employees from seeking election in partisan races. The bill allows county political parties to decide if they will hold primaries.

“Do you not think that we’re partisan enough, not just in this body but this nation? Now what we want to do is make education partisan? How asinine, how ridiculous that sounds,” said Rep. Larry Miller, a Memphis Democrat.

  • HB9073/SB2010, a non-controversial banking measure passed 28-1 allowing banks — where counties and other gov’t entities are depositing COVID relief funds — leeway in putting up the necessary collateral to take in high dollar deposits. The measure passed unanimously in the House.
  • HB9075/SB9012. The Senate voted 24-5 in favor of a measure reducing the timeline of a governor’s executive order from 60 days to 45 — a reflection of frustration by some Tennessee Republicans over the sweeping emergency powers available to Gov. Bill Lee during the pandemic. 

The House passed its version on a 76-14 vote. State Rep. Michael Curcio, R-Dickson, said, “Shortening that from 60 down to 45 days would make us a little more nimble, so that we can respond to the facts on the ground instead of letting it live on.”

Democrats questioned whether this was an attack on Gov. Lee’s handling of the pandemic, but Curcio said he thought the governor did an “excellent job.” 

  • SJR9005, a resolution that calls on the Legislature to give the Attorney General authority to take legal action against the federal government and its move to force companies with more than 100 employees to require COVID-19 vaccinations passed the Senate handily.

It drew a 64-17 vote in the House but not before its sponsor, Republican Rep. John Ragan of Oak Ridge, drew somewhat of a rebuke from fellow Republican Curcio, after castigating President Biden and anyone who backs vaccinations and mandates.

Ragan told the chamber his move for nullification stems from a stand-off between South Carolina and President Andrew Jackson in 1832 when the state wanted to secede in opposition to federal tariffs.

Jackson was prepared to invade, but Ragan said he backed down. Curcio corrected him and pointed out the president decided not to invade after South Carolina withdrew its nullification resolution. Ultimately, South Carolina continued to rebel, leading to the Civil War.

Curcio pointed out that James Pettigrew of South Carolina said, “‘South Carolina is too small for a republic but too large to be an insane asylum.’ I want to make sure that Tennessee doesn’t become an insane asylum.” 

  • The House voted 67-23 in favor of House Bill 9076, which gives the Department of Health commissioner the power to set all rules and regulations in the COVID-19 pandemics and to determine quarantines for any individual or business.

The measure would apply only to the six independently run public health departments in Tennessee. 

Sen. Jeff Yarbro, D-Nashville, pointed to Tennessee’s high rates of infection compared to the rest of the country. Those rates of infection, however, remain lower in the six jurisdictions overseen by independent health departments. 

“I don’t know why we’d want our public health outcomes to be worse,” Yarbro said. 

The Senate wound up adopting a different version which would give the governor authority to determine health rules during a pandemic, forcing a conference committee to reach an agreement.

“What we’re trying to do is have a consistent plan across the state,” said state Rep. Kevin Vaughan, who carried the legislation for House Speaker Cameron Sexton.

Democratic Rep. Mike Stewart of Nashville complained that Vaughan could present no facts showing the 89 state-controlled health departments performed better than the six urban departments, including Davidson County Health Department, which operate independently.

Vaughan, a Collierville Republican, has been irritated for more than a year and a half with strict rules set by the Shelby County Health Department, based in urban Memphis, which didn’t mesh with the views in Collierville some 20-plus miles from downtown Memphis and surrounding counties such as Hardeman and Haywood.

Democratic Rep. Mike Stewart of Nashville complained that Vaughan could present no facts showing the 89 state-controlled health departments performed better than the six urban departments, including Davidson County Health Department, which operate independently.

“This is one of the areas where our health departments have excelled,” Stewart said. He pointed out Davidson County has a 63% vaccination rate compared to the state total of less than 50%.

Rep. Antonio Parkinson, a Memphis Democrat, pointed out that the Legislature will be removing control from health department directors and board members who have a better understanding of their communities.

Shelby County is one of the safest counties in the state after being hit hard early in the pandemic, Parkinson noted.

“Now we’re going to take that authority from ground zero and move it to the middle of the state where those authorities are not on the ground,” Parkinson said.

He also questioned whether the bill is an indictment of the governor and his “lack of decision-making” early in the pandemic when Gov. Bill Lee allowed independent health departments to continue operating without state interference.

The bill also would allow the health commissioner to decide which businesses should be closed because of COVID-19 outbreaks. But it was unclear whether the commissioner could close entire classifications of businesses.



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Sam Stockard
Sam Stockard

Sam Stockard is a veteran Tennessee reporter and editor, having written for the Daily News Journal in Murfreesboro, where he served as lead editor when the paper won an award for being the state's best Sunday newspaper two years in a row. He has led the Capitol Hill bureau for The Daily Memphian. His awards include Best Single Editorial from the Tennessee Press Association.

Anita Wadhwani
Anita Wadhwani

Anita Wadhwani is a senior reporter for the Tennessee Lookout. The Tennessee AP Broadcasters and Media (TAPME) named her Journalist of the Year in 2019 as well as giving her the Malcolm Law Award for Investigative Journalism. Wadhwani is formerly an investigative reporter with The Tennessean who focused on the impact of public policies on the people and places across Tennessee.