Sunday column: On the legal validity of dumping Durham

Last week’s extraordinary session of the Tennessee Legislature had some ordinary aspects — predictable partisan and bipartisan bickering, for example — but the Jeremy Durham debacle was really something special.

After the 70-2 vote Tuesday to expel the Franklin Republican from his House seat, Durham made the rounds at Nashville television stations declaring that he’s likely to file a lawsuit, contending that his removal from office violated the state constitution.

This was somewhat anticipated during the House floor debate. Rep. Andy Holt, R-Dresden, suggested that a lawsuit would cost taxpayers more than paying Durham’s pension, which he will lose as result of being booted prior to completion of his term in November. That, and concerns about constitutionality, were among the reasons cited by Holt in boldly pushing the blue light on House voting machines, which means he was present but not voting. Three others did the same, including one bold Democrat, Rep. Antonio Parkinson of Memphis.

It’s extraordinary that blue can be deemed bold. It’s certainly not as bold as the two members who actually voted no — that’s a red light — and not even up there with the 70 who voted the anticipated green yes. But contrasted with the 10 members present but just sitting on their hands, it’s an act of courage.

It’s seems to be increasingly ordinary for some legislators to dodge being recorded as taking any stance whatsoever on a controversial decision. A dozen other representatives didn’t show up for the special session. Some, such as Reps. Harry Brooks and Dale Carr, sidelined by surgery, had valid reasons for being absent. But one can wonder whether others were just dodging a decision.

As for a potential Durham lawsuit over the proceedings, informal conversations with several lawyers, legislators and pundits indicate, not surprisingly, conflicting opinions on the prospects for the success of such a proceeding. The guess here is that, no, it’s unlikely to succeed.

To get in the courtroom door, Durham has to show legal standing to sue. He’s probably got that.

The ouster deprived him of several weeks of legislative pay, the $1,000 per month “legislative office allowance” and his pension, which would pave been about $340 per month once he reached age 55. Legally speaking, that would be a “property right,” and to deprive someone of property rights, courts have said “due process” is constitutionally required.

Durham declares he didn’t get due process. His critics say he did, or at least was given the opportunity to engage in the hearings and in the investigation of his alleged sleazy sexually-oriented exploits — and instead chose to sit on his hands. The matter is debatable.

And then there’s Article III, Section 9, of the state constitution, which gives the governor authority to call the Legislature into special session “on extraordinary occasions.” When that happens, the constitution says, the governor “shall state specifically the purposes for which they are to convene; but they shall enter on no legislative business except that for which they were specifically called together.”

The governor called this extraordinary session specifically to deal with a bill concerning drunk driving by people ages 18 through 20 that, as things turned out, would have meant loss of $60 million in federal highway funding if allowed to stand past Oct. 1. To Durham and several legislators, it’s obvious that his ouster is not “legislative business” related to juvenile drunken driving.

However, House leaders say that dumping Durham was merely “procedural” and thus not legislative business. One astute attorney notes that legislative business requires involvement of both the House and Senate; in this situation, only the House was involved, acting under its own rules and procedures and with the right, otherwise declared in the state constitution, to be the sole judge of whether a legislator can be expelled for “disorderly behavior.”

Given that Tennessee’s Supreme Court is composed of judges devoted to the principle of deferring to the Legislature, the leadership position and a 70-2 vote seems likely to prevail as a rather ordinary thing — even though the messy procedures leading to Durham’s departure are extraordinary.

Our court system has, after all, often gone along with laws that would seem to fly in the face of state constitutional construction that dodges what might seem instructions more clear than the phrase “no legislative business” beyond specifics given by the governor.

One example: There’s a provision that says the Legislature can’t give benefits specifically to one individual or corporation. Thus, in order to give state funding to benefit specific corporations, the state first directs the funds to county industrial development boards and the like and those entities then give the money to the corporations. That’s been good enough to embed corporate welfare – or business recruitment, if you prefer — in our system for decades.

Note: This is a somewhat expanded version of a column written for Sunday’s News Sentinel, appearing HERE.