Tennessee’s Autonomous General

The office of the Tennessee’s Attorney General has been more of a focal point of political activity this year than any other year I can remember. From dealing with Washington’s health care legislation to how the Attorney General “gets” the job, one thing is becoming clearer about the office, and there needs to be a way to fix it.

And that one thing that needs to be looked at is the autonomy of the Attorney General’s office. The Attorney General is essentially the attorney for the state—the person charged with the duty of prosecuting various actions on behalf of the state and defending the state against legal actions. While there are other duties, those are the ones with which most people would be familiar. Unfortunately it is a very important position about which most people in Tennessee know very little.

Part of the reason so few Tennesseans know anything about the Attorney General’s office is because of the way a person comes to hold that office. Forty-three states have general, popular elections to fill the post of Attorney General. Tennessee is unique in having its Attorney General appointed by the Justices of the state’s Supreme Court.

There are some significant pros and cons to whether elections or appointment is the better process, which time doesn’t permit a discussion of. But because of the federal health care legislation passed by Congress, things are heating up this season about how the office of the Attorney General should be filled. And, to be honest, it’s time that the issue be put in a posture such that it can be discussed during the legislative primaries in August and the general election in November.

While appointment certainly takes “politics” out of the process of what is essentially a legal office, not a policy office, the Attorney General’s recent refusal to join other states’ Attorneys Generals in filing suit to stop the federal health care bill has irritated a number of people. Telling “protesters” that he isn’t going to bow to their demands is one thing, but now the legislature has gotten involved, and the response would appear to be the same.

The legislature, Tennessee’s policymaking body, is poised to pass a statute (House Bill 3433) declaring it to be the policy of Tennessee that citizens not be mandated to buy health insurance and not be financially penalized if they do not do so. But part of the bill directs the Attorney General to seek legal relief on behalf of the state’s citizens should the public policy of Tennessee be violated, most obviously by the federal health care bill. This is where the problem of autonomy in public office surfaces.

In issuing an opinion on certain other issues related to this bill, the Attorney General made passing reference to his belief that the legislature may not have the constitutional authority to interfere with the his prosecutorial discretion. And in some types of situations that might be true.

The state Constitution does not describe the Attorney General’s duties, but that doesn’t mean the Attorney General gets to “make up” his own duties as he goes along. And the absence of any constitutionally described and mandated duties has been the basis for legislation in the past to move all prosecutorial duties to a statutorily created “Solicitor General,” leaving the appointed Attorney General with only the task of publishing opinions issued by Tennessee’s appellate courts. Removing the Attorney General’s duties and giving them to another official would seem to be the ultimate “interference” with prosecutorial discretion, so how is telling the Attorney General to sue to protect certain public policies any worse? In fact, the Attorney General’s current duties are spelled out by statute. Section 8-6-109 of the Tennessee Code has, for years, said that the Attorney General shall perform “all duties … pertaining to the office of the attorney general and reporter under the statutory law.”

If the Attorney General is not subject to the legislature, then the only measure of accountability and safeguard the people have to ensure the discharge of that office’s duties is to trust the Supreme Court not to appoint or reappoint a particular Attorney General. At one time, when people could run for the state Supreme Court and when Justices were popularly elected, at least there was an indirect accountability of the Attorney General to the people. The people could always make whom the Court appointed Attorney General an issue in a judicial campaign.

But now that these Justices are appointed by the Governor and no one can run against the appointed incumbent Judge, the Attorney General’s office is virtually autonomous from the very people who created the office in the first place. This is not good. Autonomy of officials in government is never good.

The legislature is looking at a way of “fixing” this. Senate Joint Resolution 698 by Sen. Mae Beavers (R-Mt. Juliet) would call for a constitutional amendment to be put on the ballot in 2014 that would call for the popular election of the state’s Attorney General. The Resolution has passed the Senate, but it awaits action in the House.

Perhaps popular elections are not the best thing since this is, essentially, a legal position. Popular elections always measure popularity, but we all know that, in hindsight, the best candidate for a position is not always elected. But, at least there is a re-election on the horizon if the “wrong” candidate is chosen. Popular election of the Attorney General may not result in the best attorney being chosen, but at least through re-election the people have a way to remedy the “wound” inflicted on themselves by their original bad choice. Right now it looks like the people have no remedy, not even through their elected representatives.

It’s time for this issue to be discussed openly and publicly and not just left in the halls of the Legislative Plaza. Passage of SJR 698 this year will not put the issue on the ballot immediately. The resolution would have to be passed again by the legislature elected after this coming November.

It’s time this issue becomes one for all the people to discuss. In the past, as Senator, I generally didn’t support such resolutions, but the federal health care bill has raised issues of autonomy and accountability that have not surfaced in the past. Passing SJR 698 would make this office a topic for discussion with the candidates this fall because they will have to vote on it during the next session. This is the best way I know to ensure that needed discussion take place among our citizens.