By David Tulis
You and nine other people in your hometown could haul Gov. Bill Haslam into court and try him for abuse of office in imposing gay marriage on Tennessee.
That abuse is his rejection of his oath to uphold the Tennessee constitution on the point of the Tennessee Marriage Protection Amendment. The people declared by plebiscite in 2006 that marriage is between one man and one woman. Gov. Haslam declares he will do better than that. He ordains that marriage is between one man and another and between one woman and another.
His claim to authority is an opinion from the judicial department of the federal government, Obergefell v. Hodges. Conservatives in the legislature are talking impeachment at his hapless surrender on marriage to the U.S. supreme court. But there might be an easier way than impeachment to remove Gov. Haslam.
The remedy for the violation of his oath is a stick of democratic dynamite tucked into Tennessee law that effectively allows the people to stir a bit of revolution into the staid mix of Nashville suits, oak-paneled state offices and droning attorney general reports after the morning coffee.
Or, should I say the statutory TNT is a bit of earth-moving democratic counter-revolution. For the revolution is not among grizzly long-haired anarchists at UTC dreaming of hurling Molotov cocktails at police cars and the dean’s office. Anarchy is among those in the seat of state government. Revolution is there, among those elected to high office, and has been grinding against constitutional government at least since 1973.
The stick of dynamite is the “relator” statute that in Title 8 of the Tennessee Code Annotated says 10 “citizens and freeholders” of the state can petition a court for the officer’s removal.
The relators have that name because they are suing Gov. Haslam on behalf of the state. They “relate” a grievance on its behalf as its (and our) representatives. Their case would be styled “STATE OF TENNESSEE, ex rel [on the relation of] John Doe, Jim Jones, etc., VS. WILLIAM HASLAM, GOVERNOR, STATE OF TENNESSEE.”
Gov. Haslam on trial
The causes for “removal of officers” under TCA Title 8, chapter 47, are not enumerated or limited. Anyone in office from city council member up to governor might be removed by this pinprick of ire in a committee of 10. Their petition may be filed in the court of their choosing, whether circuit, chancery or criminal. But chancery appears the favored venue, since the proceedings “shall be conducted in accordance with the procedure of courts of chancery.”
Where would the relators sue? If they are from Chattanooga, their case could be heard by chancery judges Jeff Atherton or Pamela Fleenor in Hamilton County. Gov. Haslam couldn’t easily change venue to his own backyard. This action is apart from the Uniform Administrative Procedures Act that would dictate that a complaint against government arising out of an agency dispute be appealed to chancery in Davidson County. A relator action is not in administrative law or under the UAPA. The state actor could be tried in a county court in East Tennessee farm country, a Memphis suburb or Hamilton County courthouse.
The lawsuit against Gov. Haslam would be filed in equity, as would a car wreck or a business deal gone bad. The pro-marriage party would argue that Gov. Haslam and his Republican cronies acted in defiance of the constitution. That is no matter of mere political pique, irritation or political correctness. Violating directly a provision of the state constitution as he has is a legal fault — the best kind for a defendant to have had committed. The delinquent’s sin “involves the failure or neglect of the accused to perform the accused’s duty under any law or laws of the state” (TCA 8-47-112).
The relators are required to verify their complaint by oath or affidavit, state “the charges against the defendant *** with reasonable certainty” in a document “subject to amendment” as needed. Their filing and the governor’s answer are the sole pleadings allowed. In other words, the statute forbids motions and hearings on side or related issues.
The law lets the people act and get results in haste, like a muscular ejection in the act of vomiting. Speed is of the essence. Gov. Haslam would be served the complaint and have 20 days to answer (TCA 8-47-114). What’s more, “Such proceedings in ouster shall be summary and triable as equitable actions, shall have precedence over civil and criminal actions, and shall be tried at the first term after the filing of the complaint” (TCA 8-47-119). The trial is expedited, and “no continuance shall be granted by an agreement of the parties.”
What can be more important that the satisfaction of the people in ousting a governor who has spat in their faces and trampled on civilizational essentials such as marriage?
Jury trial if any dispute over facts
If the governor and the relators have a difference as to the facts and cannot stipulate the facts ahead of time, the governor can demand a jury trial.
“If the defendant is found guilty, judgment of ouster shall be rendered against the defendant, and the defendant shall be ousted from office” (TCA 8-47-120) The ouster is in the hands of the judge. The defendant obviously has a right of appeal.
Attorney general must help the people
A detail in the law showing its remarkably democratic spirit is that the relators have a right to the “aid and assistance” of the state’s attorney general on the state’s dime. Now, Herbert Slatery III is the servant of Gov. Haslam, who appointed him. If the people seek to oust the boss, the statute makes it the “duty” of Mr. Slatery to switch his allegiance to the people from his master. He must help the citizens with with advice, research, counsel and support, despite his personal affinity for the governor.
The relators should be confident in their claims about the governor’s breach of law. If they lose, the statute lets Gov. Haslam demand they pay his legal expenses. That might be a large wad, but with crowdfunding the F$200,000 could be raised in a month.
If they succeed, the governor’s expenses are his own.
— David Tulis hosts a show 9 to 11 a.m. weekdays at AM 1240 Hot News Talk Radio, covering local economy and free markets in Chattanooga and beyond.
Looking it up
Relator. 1. The real party in interest in whose name a state or an attorney general brings a lawsuit. See ex rel.
Ex rel. A suit ex rel. is typically brought by the government upon the application of a private party (called a relator) who is interested in the matter.
— Black’s Law Dictionary