Das To School Boards, Tennessee Covid Session Takes Wide Aim

NASHVILLE, Tenn. (AP) — Republican lawmakers in Tennessee are gearing up to take a broad swipe at officials who have had a role in maintaining COVID-19 pandemic protections, from school boards that passed mask mandates to a prosecutor who has pledged not to enforce the governor's order letting parents exempt their students from classroom mask wearing.

Wednesday's special session kickoff marks the third time lawmakers call themselves into action in Tennessee history without the governor. Democrats have blasted the COVID-19 session as politically motivated and dangerous for public health.

The session will have a starkly different tone than last week, when GOP Gov. Bill Lee brought lawmakers back for overwhelming bipartisan votes for economic incentives and oversight plans related to a massive Ford electric truck and battery project coming to West Tennessee.

Republican legislative leaders are keeping the topics in play broad and have not promised what will pass.

They have indicated they could even try to circumvent elected district attorneys if they publicly decline to enforce certain laws — a national trend by progressive prosecutors that Nashville District Attorney Glenn Funk has carried out on multiple hot-button policies that target abortion rights, transgender people, mask requirements in schools and small marijuana possession cases.

President Joe Biden’s administration is likely the main target during session, even though his workplace vaccine order trumps state government’s authority. Six, large independent county health departments could see a change to the additional autonomy they have over pandemic precautions, and the governor could yield some of his emergency powers to oversight from lawmakers.

School board members, who at times have drawn conservatives' ire by implementing mask mandates in classrooms, could be required to declare a party affiliation to run for office, or mask mandates in schools could be banned.

And businesses who require vaccines for employees or customers could be made liable for “harm or injury” from employees taking a vaccine, workers fired for refusing could be assured they can receive unemployment, and lawmakers could potentially bar vaccination as a condition of employment.

For district attorneys, it's unclear how far lawmakers might be willing to go in restricting their discretion.

Republican Lt. Gov. Randy McNally, the Senate's leader, said one option would be letting state Attorney General Herbert Slatery, a Republican, go to court to ask for another prosecutor to bring a case in place of one who won't enforce a certain law.

“I think it’s something that’s worthy of discussion, that we’ve had a district attorney who has refused to prosecute in a number of instances, and that just leaves people without a way to seek justice,” McNally said.

Earlier this month, before legislators made it known that prosecutorial discretion could be a focus of the session, Funk told The Associated Press the state Constitution includes "means through which people who have differences of opinion can stay in their lanes and do the job that they have been elected to do.”

It's unclear, however, how much of a difference lawmakers might make. The state Constitution already says that when a district attorney “fails or refuses to attend and prosecute according to law, the court shall have power to appoint an attorney pro tempore.” David Raybin, a prominent Nashville criminal defense attorney and former assistant district attorney, said that constitutional option is used sparingly, and most commonly, after a prosecutor decides there is not enough evidence to try an individual case.

Raybin said police are not going to make arrests on an offense that the district attorney won't prosecute. If more cases were handed off because a prosecutor won't enforce a particular law, Raybin said it would likely require an additional, undetermined source of investigators and would be expensive.

"Could the General Assembly pass legislation to say that when certain classes of laws are not being prosecuted, then the court shall appoint a special prosecutor to pursue them? That certainly would be consistent with the Constitution," Raybin said. “But it would create all sorts of procedural problems as to exactly how that would work.”

Funk this summer said he would not prosecute teachers and school officials enforcing mask mandates in defiance of the governor's executive order that let parents opt their students out of mask mandates. He also refused to enforce a 2020 law requiring medical professionals to inform women undergoing medication-induced abortions that the procedure could be reversed, which medical experts say is not backed by science.

Funk also said he would not enforce Tennessee's new first-of-its-kind law that required a notice outside multi-stall public bathrooms at businesses that effectively says transgender people could be inside.

He's also previously said he won't prosecute low-level marijuana cases after lawmakers blocked Nashville's previous effort to ease up on the cases.

Judges paused the policies about bathroom signs and abortion reversals statewide and blocked the school mask opt-outs in three big counties, one in each Tennessee federal court district.

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Follow AP’s coverage of the pandemic at https://apnews.com/hub/coronavirus-pandemic.