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By Paul G. Summers

Outside of West Tennessee, people may only be vaguely aware of a state senator’s call for the legislature to remove a popularly elected district attorney in Shelby County by tossing around allegations of being insufficiently aggressive in prosecutions. Some Tennesseans may believe the dispute doesn’t impact their community, but if the General Assembly takes action, it could set a dangerous precedent which could have statewide implications.

Legislative criticism of the Shelby County DA has caused me to reflect on many years of Tennessee legal experience. I have served my state since 1975 as a lawyer; Judge Advocate General (JAG) officer; District Attorney (DA); Judge, Tennessee Court of Criminal Appeals; Tennessee Attorney General; and Senior Judge.

I have seen it all. I have defended the criminally accused; prosecuted the criminally accused; sat in judgment at the trial level; decided appellate cases involving the accused; and argued before the United States Supreme Court on behalf of my state. Most of these cases involved people accused of crimes.

What I haven’t seen, and what Tennessee has not seen historically, is an attempt by the Legislature to remove a duly elected District Attorney without any proof of grave official misconduct, either criminal or ethical. The fact that we are even discussing the setting of such a dangerous precedent is deeply concerning.

There are two ways to remove a judge or a DA. One way is impeachment under Article V of the Tennessee Constitution. Impeachment is a charge. Conviction is the sentence. That applies only when a “crime in their official capacity” has been committed.

The second way, the one which proponents of removal have focused on, is removal under Article VI. Under this article, the House and Senate, voting separately, must agree on the “cause or causes” for removal by 2/3 of the members to which that House is entitled. This is a high burden of proof. Removals under this provision have occurred only for serious official misconduct that is criminal or seriously unethical.

We have 32 locally elected district attorneys (DAs) general across Tennessee. Our constitution provides that they are elected for an eight-year term by the voters in their respective districts. Some districts have tens of thousands of citizens, and some have close to a million. The DA’s office in the more populated areas handle tens of thousands of cases annually. In every case, urban or rural, the DA or his or her subordinate has to make a decision. Regardless of the decision, the district attorney general is always responsible.

The removal process should not be political. It should be free from politics and allege cause or causes which truly warrant removal. The reasons for removal must be compelling and proven.

In the 1978 Tennessee Supreme Court case Pace v. State, the late Chief Justice of our Supreme Court, Joe Henry, wrote about the district attorney’s discretion. He explained that the D.A. “has virtually unbridled discretion in determining whether to prosecute and for what offense. Later he wrote “Indeed, as an incident of the separation of powers, the courts may not interfere with the discretion of the District Attorney in their control over criminal prosecutions.”  That separation of powers concern also applies to interference by the Legislature as well. 

I was an elected DA in West Tennessee for almost nine years. I represented five rural (at that time) counties. I made decisions daily about charging, indictments, presentments, and information. I decided whether to pursue charges or enter a motion for nolle prosequi (drop charges). I made decisions on thousands of felony cases.

I was not elected in an urban area, where the caseload is oftentimes much greater. I never in my life as a DA concerned myself with someone alleging that I was not doing my job, whether it be for pursuing charges or not. At this time, I am unaware of conduct by the Shelby County DA which would warrant the extreme remedy of legislative removal.

I would recommend that if someone wants to make such allegations, he or she must do so in a nonpolitical, nonpartisan, articulate, and probative manner. He or she must meet a high standard to prove one’s case before their legislative peers.

To do otherwise would be a dereliction of duty and an abuse of discretion.

Paul G. Summers, a lawyer, is a former appellate and senior judge, district attorney general, and the Attorney General of Tennessee. Raised in Fayette County, Judge Summers resides in Nashville and Holladay.