Sunday column: On the need for an Office of Legislative Litigation

In hindsight, given the recent emergence of restrooms as a major issue for Republican legislators, perhaps many members of the Supermajority see as a mistake the rejection of Rep. David Hawk’s proposal for annual September sessions of the Tennessee General Assembly.

Hawk, R-Greeneville, proposed in HB1501 to automatically have legislators return for a couple of days each September, explaining, “in this fast paced world in which we live, there are lots of issues that come up outside the constraints of our regular session that really need to be addressed legislatively.”

After winning initial approval in one House committee, the bill got the cold shoulder late in session – about the same time legislators were also deciding against proposals to hold a special veto override session in May, just in case Gov. Bill Haslam should decide to reject some measure favored by the Supermajority.

The decision against a veto override session proved sound. Apparently as Haslam had tacitly suggested, he was ready to go along with anything else passed, despite his previously-voiced public misgivings on some bills. He did and a veto override session proved unnecessary.

On the other hand, developments otherwise have arguably almost proved Hawk correct about the need for post-session return of legislators to address emerging issues. In this fast-paced world, President Obama’s administration has moved in a post-session “directive” to have transgender persons admitted to restrooms based on their chosen gender, not on the gender appearing on their birth certificate.

Aghast at this development, House Republican Caucus Chairman Glen Casada surveyed his 72 fellow GOP representatives on whether to call a special legislative session to do something about the situation. The leading idea was to have the Legislature issue a directive to Attorney General Herbert Slatery calling on him to file a lawsuit against the feds and/or at least mandate that he defend any school system accused of barring a transgender student from using the restroom of his/her choice.

Had Hawk’s guidance been heeded, legislators would have been ready for September action. As it was, Casada had to launch the laborious process of assuring that Slatery does as he should to accommodate prevailing political winds. Instead Casada had to launch the laborious process of calling a special session of calling a special session of the Legislature.

At last report, he had gathered signatures of 57 of the 66 Republican representatives needed to call a special session – a majority of the Supermajority but not enough – and the Senate had not even begun a signature collection. So a special session was probably not going to happen.
Fortunately, Slatery – having received demands for action in formal letters from a majority of the Supermajority – complied last week with legislator wishes on his own, joining 10 other GOP-controlled states in a restroom lawsuit. So maybe the session wasn’t necessary.
But, hey, it could have been. What if the attorney general acted independently and ignored them! Then a majority would certainly believe legislative input essential, at least to make impassioned speeches against federal overreach into restrooms and such. And maybe get someone else to sue.
One of the measures Haslam didn’t like this year, but let become law without his signature (SJR467), directs the attorney general to file a lawsuit against the federal government over refugee resettlement within Tennessee. It includes a provision declaring that, should Slatery decide such a lawsuit would be ill-advised, a conservative activist legal firm can step in to represent the state – so long as it does so for free without any taxpayer cost. Slatery is still pondering what to do about that.

The attorney general’s office fairly often retains outside counsel, but the surrender of its function in representing the state to a political advocacy law firm would apparently be unprecedented. The Legislature now seems ready to set that precedent.

That being the case, perhaps an option to Hawk’s call for direct post-session lawmaker oversight would be new powers for the Legislature’s Office of Legal Services. Precedents are being set there, too. Examples include working with the attorney general to investigate Rep. Jeremy Durham’s supposed sexual harassment tendencies and having a “repealer” within the legal services office – the name was changed this session to “revisor of statutes” (HB1521) – tasked with recommending laws that should be repealed by the General Assembly without the attorney general’s input.

The new Office of Legislative Litigation within legal services, after appropriate discussion with legislative leadership and a survey of Supermajority members, could then direct the attorney general on lawsuits that should be filed when the General Assembly is out of session and, if he balks, designate appropriate and politically-correct lawyers to step in and represent the state. Such a move could be authorized, by statute, to be achieved upon delivery of a petition to the legislative litigator signed a majority of House and Senate members.

This would spare taxpayers the cost of a September session – one of the objections raised to Hawk’s bill – and assure appropriate deference to litigation-minded lawmakers at all times.

And the lawmakers could make their speeches on the campaign trail in support of the lawsuits within their home districts, just as they are doing now.

Note: This is a somewhat revised and expanded version of a column written for the News Sentinel and appearing HERE.