Advisory Opinion Text
S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207 NASHVILLE, TENNESSEE 37202
August 13, 2007
Opinion No. 07-119
Recall Elections
QUESTION
Is a constitutional amendment necessary in order to authorize recall elections for county commissioners and other county officers (i.e., sheriff, trustee, etc.)?
OPINION
No. The legislature already has the authority to enact provisions for recall elections for county commissioners and other county officers.
ANALYSIS
While Art. VII, § 1, of the Tennessee Constitution provides for the election of the members of the county legislative body and other county officers and states that such officers "may be removed for malfeasance or neglect of duty as prescribed by the General Assembly," it does not mention recall elections as a mechanism for removing incumbent county office holders. Indeed, there is no express mention of recall elections in the Tennessee Constitution. This Office has previously opined, however, that the silence of the Constitution on this point does not mean that the legislature is prohibited from enacting provisions authorizing recall elections; rather, the legislature can do all things not prohibited by the Tennessee or United States Constitutions. See Op. Tenn. Atty. Gen. 89-59 (April 20, 1989) (copy attached). We noted in that opinion that this principle is based upon the concept that the state is a government of general powers, and the Constitution of Tennessee is a "limitation on and not the source of the power of the people acting through their representatives, the legislature." Id. (citing Perry v. Lawrence Co. Election Comm., 219 Tenn. 548, 551, 411 S.W.2d 538, cert. denied, 389 U.S. 821 (1967)). We concluded that, in the absence of any express constitutional prohibition against legislation authorizing recall elections, recall elections may be permitted by the legislature. Accordingly, a constitutional amendment authorizing recall elections for county commissioners and other county officers is not necessary. The legislature already has the authority to enact provisions for such recall elections.
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ROBERT E. COOPER, JR.
Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
JANET M. KLEINFELTER
Senior Counsel
Requested by:
The Honorable Gerald McCormick State Representative 207 War Memorial Building Nashville, TN 37243-0126