EXPELLED! THE LAW & POLICY OF EXPULSION IN THE TENNESSEE LEGISLATURE

Introduction

Recent events have focused the Nation’s attention on the Tennessee Legislature’s discretionary power to discipline its members for perceived acts of misconduct. Specifically, on April 6, 2023, the Tennessee House of Representatives, exercising its power of expulsion, moved to expel three of its members, to wit, Representatives Justin Jones, Justin J. Pearson, and Gloria Johnson, for “knowingly and intentionally bringing disorder and dishonor to the House of Representatives through their individual and collective actions.” 1 Representatives Jones and Pearson were expelled, while Representative Johnson survived expulsion by a vote of 65-30, one vote shy of the sixty-six votes required for expulsion. 2 The purpose of this piece is to explore the Tennessee House’s disciplinary powers and authority, not to be an apologist for, or a critic of, the Tennessee Legislature.

Tennessee’s Expulsion Laws & Rules

Black’s Law Dictionary defines expulsion to mean, “A putting or driving out. The act of depriving a member of a corporation, legislative body, assembly, society, commercial organization, etc., of his membership in the same, by a legal vote of the body itself, for breach of duty, Improper conduct, or other sufficient cause.” 3 The “expulsion clause” of the Tennessee Constitution gives both the Senate and the House of Representatives the authority to expel a member for “disorderly behavior.” As a bicameral body, each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds of its membership, expel a member, albeit not a second time for the same offense. Further, both the House and the Senate enjoy all other powers necessary for a branch of the Legislature of a free State. 4

In order to effect the expulsion of Representatives Pearson and Jones, the House passed House Resolutions 63 and 65 respectively, and House Resolution 64 to expel Representative Johnson. All three Resolutions alleged that the aforementioned, inter alia, “shouted, pounded on the podium, led chants with citizens in the gallery, and generally engaged in disorderly and disruptive conduct, including refusing to leave the well, sitting on the podium, and utilizing a sign displaying a political message.” Representatives Pearson and Jones were additionally accused of using “a bullhorn to amplify their protestations.”

Although Tennessee’s expulsion clause has remained unchanged since its inclusion in the original Tennessee Constitution of 1796, Tennessee courts have yet to construe the meaning of “disorderly behavior” or the scope of the expulsion clause more generally. Although the Tennessee Senate has never exercised its power to expel a member, until recently, the Tennessee House of Representatives has used its power to expel only three times. Specifically, in 1866, six lawmakers were expelled for blocking the ratification of the 14th Amendment. 5 In 1980, a House member was expelled for seeking a bribe in exchange for scuttling a piece of legislation. And then in 2016, a representative was expelled amid state and federal investigations for sexual misconduct after a state attorney general report found that he had engaged in inappropriate sexual conduct with at least 22 women.

To date, Tennessee courts have not specifically opined on the breadth and scope of Tennessee’s expulsion clause. The Tennessee Court of Appeals has opined that, generally under the Tennessee Constitution 6 each chamber has the right to make its own rules and is the sole judge of its rules, but cautioned that even that broad power of the legislature is always limited “by the Constitution of the state and of the United States.” 7 However, it stands to reason that such an extraordinary remedy should be used sparingly. In an opinion issued by the Tennessee Attorney General in response to a question regarding the General Assembly’s expulsion powers the Attorney General opined:

Historical practice, sound policy considerations, and constitutional restraints counsel against, but do not absolutely prohibit, the exercise of the legislature’s expulsion power to oust a member … Given those considerations, the expulsion power is best exercised only in extreme circumstances and with extreme caution.8

Censure

Along with the power to expel a member, the House may avail itself of a less extreme measure of discipline for inappropriate conduct: they can publicly censure their member. 9 Relying once again on Black’s Law Dictionary, we find that censure is defined as “an official reprimand or condemnation; an authoritative expression of disapproval or blame.”

10 The term “censure,” unlike the term “expel,” does not appear in the Tennessee Constitution, although the authority is derived from the same

Cover Story

By: Joe Jarret, J.D., Ph.D. Attorney, University of Tennessee

clause—Article II, Section 12, concerning the authority of each house of the Legislature to “punish its Members for disorderly behavior.” Censure, reprimand, or admonition are traditional ways in which legislative bodies have disciplined their members and maintained order and dignity in their proceedings. 11 For instance, an errant member may be deprived of a chairpersonship or membership on legislative committees.

In a legislative context, a censure, like an expulsion is usually preceded by the passage of a resolution that publicly condemns the member’s conduct. Although considerably less harsh than expulsion, censure is not a disciplinary tool without its critics. While it is often used to condemn problematic behavior that doesn’t rise to the level of expulsion, nevertheless it is susceptible to becoming weaponized, thereby serving to cause dissension, rather than promote unity in the Legislative ranks. 12 It is interesting to note that there exists no specific punishment or express consequence provided in the Tennessee House Rules after a Member has been “censured.”

The Federal Perspective

The United States House of Representatives—in the same manner as the United States Senate—is expressly authorized within the United States Constitution 13 to discipline or “punish” its own Members providing that “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour [sic], and, with the Concurrence of two thirds, expel a Member.” 14 The most common forms of discipline in the House are public censure, or private reprimand. However, the House may also discipline its Members in other ways, including fines or monetary restitution, loss of seniority, and suspension or loss of certain privileges.

When the most severe sanction of expulsion has been employed in the House, the underlying conduct deemed to have merited removal from office has historically involved either disloyalty to the United States, or the violation of a criminal law involving the abuse of one’s official position, such as bribery. Reflecting on the House’s ability to remove its members, the United States Supreme Court in United States v. Brewster noted:

The process of disciplining a Member in the Congress is not without countervailing risks of abuse since it is not surrounded with the panoply of protective shields that are present in a criminal case. An accused Member is judged by no specifically articulated standards and is at the mercy of an almost unbridled discretion of the charging body that functions at once as accuser, prosecutor, judge, and jury from whose decision there is no established right to review. 15

Aftermath

Since the expulsion of Representatives Jones and Pearson, and the attempted expulsion of Representative Johnson, civil rights groups and many media outlets have dubbed them “The Tennessee Three,” and have excoriated those who voted for expulsion, many claiming that the actions taken were motivated by race, gender, and partisan politics. Proponents of the House’s actions have opined with equal fervor that a failure to resort to swift and severe action would allow future meetings to precipitate into chaos, disrupting the legislative process, thus preventing anything from getting done.

Public service is a difficult and venerable calling. Like many self-governing entities, the Tennessee Legislature is empowered to create and amend its own rules. Some would argue that the Legislature’s own vision of itself is embodied in the rules of what constitutes decorum and acceptable member conduct. Because the Legislature deals so much with the principles of public service, legislators are presumed to be principled, and as such know right from wrong. But, legislators and legislative bodies are not infallible; they are vulnerable to making mistakes the same as anybody else. The debate as to whether the House did in fact make a mistake by exercising the extreme punishment of expulsion over the less punitive option of censure may continue to be debated for some time. It’s ultimately up to the voters to determine whether their representatives are serving within the ethical and moral boundaries of their service to the people of Tennessee.

1 Tenn. Gen. Assemb. HB 63. Reg. Sess. 2023.

2 Tenn. Const. art. II, § 12 requires the concurrence of two-thirds of its membership before a member may be expelled.

3 Expulsion Definition, Black’s Law Dictionary (11th ed. 2019).

4 Tenn. Const. art. II, § 12.

5 Passed by Congress June 13, 1866, and ratified July 9, 1868, the 14th Amendment extended liberties and rights granted by the Bill of Rights to formerly enslaved people.

6 Tenn. Const. art. II, § 12.

7 See Mayhew v. Wilder, 46 S.W.3d 760, 774 (Tenn. Ct. App. 2001), perm. app. den. (2001) (citing Bank of Commerce & Trust Co. v. Senter, 260 S.W. 144 (Tenn. 1924); see also Lynn v. Polk, 76 Tenn. 121, 130 (1881) (explaining that the legislature, like the other two branches of government, derives its power and authority from the Constitution and must, therefore subordinate itself to the requirements of the Constitution).

8 Tenn. Op. Att’y Gen. 19-20.

9 Tenn. Gen Assembly Permanent Rule of Order 19, Reg Sess. 2023.

10 Censure Definition, Black’s Law Dictionary (11th ed. 2019).

11 Maskell, J. (2002, April). Expulsion, censure, reprimand, and fine: legislative discipline in the house of representatives. Congressional Research Service, the Library of Congress.

12 Marshall, A. (2022). Just Because You Can, Doesn’t Mean You Should: A New Framework for Local Government Censures. Municipal Lawyer, Vol. 63, No. 4, 1014.

13 U.S. Constitution. Art. I, § 5, cl. 2.

14 Id.

15 United States v. Brewster, 408 U.S. 501, 519, (1972).

IN LIMINE: PROFILING FUTURE JDS

By: Carol Anne Long Interim Director, Career Center University of Tennessee College of Law