Category Archives: attorney general

AG won’t appeal court decision striking down TN anti-gang law

The Tennessee attorney general will let stand a ruling striking down the state’s gang enhancement law as unconstitutional, a move that could invalidate multiple criminal convictions. One factor cited is the Legislature’s move to change the questioned law during the past legislative session.

From Jamie Satterfield at the News Sentinel:

Harlow Sumerford, spokesman for Attorney General Herbert H. Slatery III, said Wednesday the office will not seek a Tennessee Supreme Court review of a decision in April by a lower appellate court declaring the law constitutionally unsound.

Slatery’s decision comes after the state Legislature quickly passed a new version of the law, which boosts penalties for crimes committed by alleged gang members, in the wake of the Court of Criminal Appeals ruling.

“One of the many factors in that decision included the General Assembly amending this statute this past session,” Sumerford said.

The new law applies only to future prosecutions, so every case in Tennessee in which the old statute — first passed in 2012 — was successfully used is now considered flawed. Knox County has been a hotbed for such prosecutions.

Although exact figures were not available Wednesday, Knox County District Attorney General Charme Allen’s office estimated at least 60 convictions under the old law are in jeopardy. In addition, all pending gang enhancement charges must be dismissed, Deputy District Attorney General Kyle Hixson said.

Hixson said prosecutors will not take the lead in determining which cases now need to be reheard and how.

“It will be up to the convicted parties to determine if they wish to challenge their sentence,” he said.

Using a Knox County case as a backdrop, the appellate court ruled the gang enhancement law was so broad it allowed gang members to suffer extra punishment for crimes that had nothing to do with any gang or gang activity and for the misdeeds of other gang members in which they weren’t even involved.

Tennessee largely stood alone in the nation for punishing criminals simply for being in a gang. Membership in a gang — even a criminal one — is not by itself illegal.

The Legislature revised the law to specifically require proof the underlying crime was committed “at the direction of, in association with or for the benefit of” either the gang or a fellow gang member.

But the Legislature did not address other constitutional issues with the old law raised by the appellate court, said Knoxville attorney Stephen Ross Johnson, who has served as president of the Tennessee and the national associations of criminal defense attorneys.

“How do we determine you are a gang member?” Johnson asked, noting the appellate court faulted that section of the law as well.

AG opines he has authority to investigate Rep. Durham

In a legal opinion issued Tuesday, Attorney General Herbert Slatery says he had authority to investigate Rep. Jeremy Durham because a special House committee requested the probe.

The full opinion is HERE. Excerpt from a Tennessean story on the matter:

The statement came in response to a series of questions posed by Rep. Rick Womick, R-Rockvale, who recently called the Durham probe a “witch hunt” and part of a “hit list” by House Speaker Beth Harwell, R-Nashville

Among his questions to Slatery, Womick asked “what constitutional, statutory or other authority” exists to allow the attorney general to perform an investigation.

That authority was given to Slatery in February after a special committee approved a resolution that designated the attorney general to “conduct a full, fair and thorough investigation of the allegations of disorderly and inappropriate behavior and misconduct by Representative Durham.”

That point, along with several others, was affirmed by Slatery’s opinion.

…The final question Womick asked was who would investigate the attorney general in the event that it was determined that Slatery had engaged in unethical or inappropriate conduct.

“The committee has full discretion to revoke the authority vested in the office of the attorney general at any time. Thus, if it believed that the attorney general has acted outside the scope of that authority, the committee may revoke the authority,” Slatery said.

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.
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Some TN reaction to bathroom lawsuit

From Hedy Weinberg, executive director of the American Civil Liberties Union of Tennessee:

“Title VII and Title IX have long prohibited discrimination on the basis of sex, and federal courts and agencies have recognized that this includes protections for transgender people. Like guidance issued by federal agencies for decades, the guidance in question does not change the law, but explains what agencies think existing law requires.

“The Supreme Court has made clear that you cannot sue an agency just because you disagree with the agency’s non-binding guidance. Moreover, because the guidance is nonbinding, this lawsuit appears to be nothing more than politically-motivated.

“But underneath all of the political bluster are real students, young people who should not have to live in fear of punishment or harassment every time they use the restroom like their peers, or be made to feel like second-class citizens merely for being themselves. We will continue to work toward a day when all students in Tennessee are treated fairly under the law.”

From Senate Majority Leader Mark Norris, R-Collierville

“On behalf of the Senate Republican Caucus, we are pleased that Tennessee will join with other states in challenging the Obama Administration’s actions regarding the redefinition of the term ‘sex’ in connection with Title VII and Title IX and local education, and state sovereignty under the Tenth Amendment.”

“We remain hopeful that the Attorney General will demonstrate similar resolve regarding enforcement of the Refugee Act, public safety and state sovereignty pursuant to SJR467.”

From Family Action Council of Tennessee

Today the state of Tennessee, through the Tennessee Attorney General’s office, joined a lawsuit filed in Texas by that state and several other states over the Obama administration’s attempt to redefine “sex” in Title IX to mean the “gender” by which people subjectively identify themselves, risking the privacy and safety of our citizens. (Link to complaint HERE.)

We are still reviewing the complaint, but give a hearty “amen” to the following statement in it: “Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights.”
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AP story on 11 states (including TN) suing over bathroom directive

By Paul J. Weber, Associated Press
AUSTIN, Texas — Texas and 10 other states are suing the Obama administration over its directive to U.S. public schools to let transgender students use the bathrooms and locker rooms that match their gender identity.

The lawsuit announced Wednesday includes Oklahoma, Alabama, Wisconsin, West Virginia, Tennessee, Maine, Arizona, Louisiana, Utah and Georgia. It asks a North Texas federal court to declare the directive unlawful in what ranks among the most coordinated and visible legal challenges by states over the socially divisive issue of bathroom rights for transgender persons.

The Obama administration has “conspired to turn workplace and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights,” the lawsuit reads.

Many of the conservative states involved had previously vowed defiance, calling the guidance a threat to safety while being accused of discrimination by supporters of transgender rights. U.S. Attorney General Loretta Lynch has previously said “there is no room in our schools for discrimination.”
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Slatery joins Texas lawsuit over transgender bathroom directive

News release from Tennessee attorney general’s office:
Attorney General Herbert H. Slatery III today joined Texas and nine other states in filing a lawsuit against the United States Department of Education (DOE) and the Department of Justice (DOJ). This is in direct response to recent actions taken by DOE and DOJ in connection with Title VII and Title IX. In the joint letter referred to as the “Dear Colleague Letter” sent by DOE and DOJ to school districts across the country, DOE and DOJ redefined the term “sex” as a person’s sense of gender identity and placed federal funding at risk for schools whose facilities and programs do not comply with the new definition.

Slatery said, “The Executive Branch has taken what should be a state and local issue [under the Tenth Amendment] and made it a federal issue. Schools that do not conform under the new rules risk losing their federal funding. This is yet another instance of the Executive Branch changing law on a grand scale, which is not its constitutional role. Congress legislates, not the Executive Branch. Our Office has consistently opposed efforts like this to take away states’ rights and exclude the people’s representatives from making these decisions, or at a minimum being able to engage in a notice and comment period under the Administrative Procedures Act (APA). As the complaint describes, it is a social experiment implemented by federal departments denying basic privacy rights and placing the burden largely on our children, not adults. Sitting on the sidelines on this issue was not an option.”

In 1964, Congress enacted Title VII of the Civil Rights Act, making it illegal for employers to discriminate on the basis of race, color, religion, sex or national origin. Eight years later, Congress took it a step further with Title IX of the Education Amendments of 1972, expanding those protections to federally funded education programs.

Slatery added, “Title IX prohibits discrimination on the basis of “sex” – defined to be a biological category based principally on male or female anatomy. The Administration is incorrectly interpreting Title IX to include self-proclaimed gender identity. By issuing this change as a “guideline,” DOE and DOJ are sidestepping the APA and infringing on a legal territory reserved for the legislature. Tennessee is initiating this lawsuit with the other states to contest the action for all of these reasons.”

Other states joining in the filing are Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Utah, West Virginia, and Wisconsin.

Norris grumbles to governor about refugee resolution rhetoric

State Senate Majority Leader Mark Norris has told Gov. Bill Haslam that he’s “troubled” and “uncomfortable with your mischaracterization” of legislation ordering legal action against the federal government over its refugee resettlement program in Tennessee.

From the Richard Locker report:

In a letter to Haslam on Monday, Norris, R-Collierville, took strong exception to the governor’s remarks on Friday about Senate Joint Resolution 467. Haslam declined to sign it, which has no practical effect other than signifying the governor’s position.

…In his letter, the senator wrote that he was troubled by the governor’s statement “and I am uncomfortable with your mischaracterization of this important resolution. First, as we have discussed, the resolution should not have been necessary in the first place. The attorney general should have acted on his own long before now.”

Despite legislative clamor during last year’s Syrian refugee crisis, Slatery did not try to block resettlement of refugees in the state. He issued an advisory opinion Nov. 30 that Tennessee cannot refuse to accept refugees the federal government has processed and admitted to the United States because “such a refusal would impinge on and conflict with the federal government’s authority to regulate the admission of aliens to the U.S. and thus would violate the Supremacy Clause of the U.S. Constitution.”

Norris also wrote that the resolution “is not about ‘dismantling the Refugee Act’ as you said. It is about enforcing it.” He said Haslam’s safety and homeland security commissioner, Bill Gibbons, testified before a legislative committee in December that the federal government is not providing adequate information to the state regarding the refugees it’s sending to Tennessee.

“He recently confirmed that is still the case,” Norris wrote. “Alabama and Georgia have taken action. Why can’t Tennessee?”

Norris said one of the goals of the governor’s Public Safety Action Plan, released in January and cited in Haslam’s message on Friday, is to enhance the state’s ability to analyze information for links to terrorist activity, but that federal officials are not providing the information needed for such analysis even though the state has rights to such information under the Refugee Act.

“It is ironic that your administration appears reluctant to enforce those rights,” Norris wrote. “We also need to know who is resettled, where they are resettled, whether they have been property screened for contagious diseases like tuberculosis and measles, and whether they have been properly vaccinated.”

The governor’s press secretary, Jennifer Donnals, said later on Tuesday, “I’m sure the governor and Leader Norris will have a chance to talk about this at some point but the governor stands by his statement issued Friday.”

Ramsey: AG ready for legal fight over bathrooms

Attorney General Herbert Slatery has promised Lt. Gov. Ron Ramsey that he will “wholeheartedly” defend Tennessee school systems against a federal directive on transgender bathroom use, reports the Times-Free Press. That, says Ramsey, means there’s no need for a special legislative session on the matter.

“Herbert Slatery, the attorney general, called me to say we’re going to defend that wholeheartedly,” Ramsey, the Republican Senate speaker, told Bradley County Republicans on Saturday night at their annual Lincoln Day Dinner.

House Republican Caucus Chairman Glen Casada has been canvassing colleagues, seeking support for a possible special session to require Slatery to defend schools sued for violating President Barack Obama’s transgender student policies.

A recent directive from the U.S. Justice and Education departments said students should be allowed to use bathrooms and locker rooms based on their gender identity, not biological sex.

The American Civil Liberties Union-Tennessee fanned conservative Republicans’ ire last week by asking Education Department officials to enforce the directive against Sumner County schools. The ACLU complained the district is not complying with the policy, though Sumner officials say they try to be accommodating.

The Justice Department is suing North Carolina over its law restricting transgender students to bathrooms matching their biological sex.

After the dinner, Ramsey said Slatery told him Friday “he didn’t feel like we needed a special session” to require him to defend Sumner County. He said Slatery is “100 percent on board with it.”

“He feels confident they have statutory authority to [defend a local school system],” Ramsey added.

AP story on Haslam’s grumbling acquiescence to refugee lawsuit

By Erik Schelzig, Associated Press
NASHVILLE, Tenn. — Republican Gov. Bill Haslam has decided not to veto a resolution demanding a lawsuit be filed over the federal refugee resettlement program in Tennessee.

The governor announced Friday that despite his concerns about the measure, he was allowing it to go forward without his signature.

“I have constitutional concerns about one branch of government telling another what to do,” Haslam said in a written statement to lawmakers.

Haslam said he had asked state Attorney General Herbert Slatery to clarify whether lawmakers have the authority to hire outside attorneys to represent the state.

Sponsors of the resolution have said that the Thomas More Law Center in Michigan has agreed to represent the state on a refugee lawsuit free of charge if the attorney general declines to sue.
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Womick seeks AG opinion on Durham investigation

State Rep. Rick Womick, R-Rockvale, has asked Attorney General Herbert Slatery for a formal legal opinion on the propriety of an investigation into alleged sexual harassment by state Rep. Jeremy Durham, R-Franklin.

Womick’s request comes after the appearance of a Breitbart News article questioning the investigation’s legal basis as well as reporting comments from some persons interviewed suggesting the Slatery-led investigation is a fishing expedition. (Previous post HERE.)

Text of the Womick letter to Slatery requesting his opinion is available by clicking on this link: womickletter