STATE OF TENNESSEE

OFFICE OF THE ATTORNEY GENERAL

April 23, 2024

Opinion No. 24-007

Interpretation of Tennessee Code Annotated § 4-3-802(b) and Related Issues

Question 1

Must an individual satisfy all the following statutory requirements in Tennessee Code
Annotated § 4-3-802(b) to qualify for appointment to serve as the chief executive officer of the
Tennessee Department of Education:
a. be a person of literary and scientific attainments;
b. be of skill and experience in school administration; and
c. be qualified to teach in the school of the highest standing of which the
commissioner has authority?

Opinion 1

Yes.

Question 2

What is contemplated and/or meant by the statutory requirement to “be a person of literary
and scientific attainments”?

Opinion 2

This phrase likely refers to a person’s literary and scientific knowledge relating to
Tennessee’s school curriculum. It imposes a general standard to be administered principally by
the Governor through the appointment and removal process.

Question 3

What is contemplated and/or meant by the statutory requirement to “be a person . . . of skill
and experience in school administration”?

Opinion 3

This phrase likely refers to a person’s abilities and prior involvement in school
administration. It imposes a general standard to be administered principally by the Governor
through the appointment and removal process.
 Question 4

What is contemplated and/or meant by the statutory requirement to “be qualified to teach
in the school of the highest standing over which the commissioner has authority”?

Opinion 4

This phrase likely refers to the education, experience, and strength of character necessary
to teach. It imposes a general standard to be administered principally by the Governor through the
appointment and removal process. The phrase likely does not require a certification to teach.

Question 5

Is an individual who fails to meet all three statutory requirements legally qualified to be
appointed to serve as the Chief Executive Officer of the Department of Education?

Opinion 5

See Response to Question 1.

Question 6

Is an individual who fails to meet all three statutory requirements legally qualified to serve
as the Chief Executive Officer of the Department of Education?

Opinion 6

See Response to Question 1.

Question 7

Does the legislature have any legal authority to remove an unqualified Chief Executive
Officer of the Department of Education?

Opinion 7

The General Assembly has no authority to remove the Commissioner of Education.

Question 8

Are any legal remedies available to the state legislature or general public to remove an
unqualified Chief Executive Officer of the Department of Education?

Opinion 8

The General Assembly likely lacks any viable route to removing the Commissioner of
Education from office through litigation. The State—acting through its District and State
Attorneys General—may have a right to seek court-ordered removal of an unqualified state officer

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through Tennessee’s “quo warranto” statute. Individual members of the public likely have no
direct avenue to prosecute a “quo warranto” action or other removal litigation.

Question 9

Who would have a right of legal action to pursue or request said remedy or remedies?

Opinion 9

See Response to Question 8.

ANALYSIS

1. In 1923, the General Assembly passed a law “reorganiz[ing] the administration of the
State in order to secure better service[] and . . . promote economy and efficiency in the work of the
[Tennessee] government.” 1923 Pub. Acts ch. 7, p.8. Among numerous other provisions, this
legislation discarded the office of Superintendent of Public Instruction and established a new
“Department of Education” to be run by a “chief executive officer” called the “Commissioner of
Education.” Id. §§ 1–2, pp.8–9; see also 1835–36 Pub. Acts ch. 23, § 1, p.110 (creating the office
of “Superintendent of [P]ublic [I]nstruction”). As initially conceived, the new office had no set
qualifications other than “appoint[ment] by the Governor.” 1923 Pub. Acts ch. 7, § 2, p.9. But
two years later, in the General Education Law, the General Assembly imposed qualifications that
remain applicable today. See 1925 Pub. Acts ch. 115; Tenn. Code Ann. § 4-3-802(b).

As relevant here, those qualifications include that the Commissioner be (1) “a person of
literary and scientific attainments,” (2) a person “of skill and experience in school administration,”
and (3) a person “qualified to teach in the school of the highest standing over which [the
Commissioner] has authority.” 1925 Pub. Acts ch. 115, § 4, p.314.

We are not aware of any judicial precedent construing this statute or analyzing its validity.
Even so, we believe Tennessee courts would likely read the text to impose compounded office-
holder requirements. To begin, the text lists characteristics that the Commissioner “shall” possess,
Tenn. Code Ann. § 4-3-802(b), and Tennessee courts typically construe “shall” to mean “must,”
Bateman v. Smith, 194 S.W.2d 336, 336 (Tenn. 1946). In addition, the text connects these
mandatory characteristics with the terms “and” and “also,” Tenn. Code Ann. § 4-3-802(b), which
Tennessee courts “usually” treat as “conjunctive,” Stewart v. State, 33 S.W.3d 785, 792 (Tenn.
2000). Thus, because context does not appear to dictate otherwise, we presently believe that Tenn.
Code Ann. § 4-3-802(b) requires the Commissioner of Education to possess all the attributes listed.

2. As noted, no court has ever construed the century-old statute requiring that the
Commissioner of Education “be a person of literary and scientific attainments.” Tenn. Code Ann.
§ 4-3-802(b). Were a court to construe the requirement now, it would likely start by affording the
statutory “terms their natural and ordinary meaning in . . . context,” Lawson v. Hawkins Cnty., 661
S.W.3d 54, 59 (Tenn. 2023), as they “would have been understood” in 1925, Crotty v. Flora, 676
S.W.3d 589, 611 (Tenn. 2023).

Readers in 1925, however, would likely have recognized this particular statutory language
as having been borrowed from much older law. Beginning in 1873, the General Assembly required

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by statute that county-level public school “Superintendents” be “person[s] of literary and scientific
attainment[].” 1873 Pub. Acts. ch. 25, § 8, p.41. A court reviewing the 1925 statute would thus
“presume that the [General Assembly] ha[d] knowledge of” the “prior” law when it applied the
exact same requirement to the Commissioner of Education fifty years later. Hicks v. State, 945
S.W.2d 706, 707 (Tenn. 1997) (citing Wilson v. Johnson Cnty., 879 S.W.2d 807, 810 (Tenn.
1994)). In addition, the court would “presume” the General Assembly was “fully aware of any
judicial constructions” given to the language since its initial passage. Id. From this, the court
would likely infer that the “attainments” requirement applied the same type of qualification on the
Commissioner of Education as it had applied to County Superintendents for the prior five decades.

This does not mean the requirement has precise contours. In fact, its history confirms just
the opposite.

From the mid-1870s to the mid-1890s, each County Court “judg[ed]” for itself whether a
locally “elected” County Superintendent was “qualif[ied]” to serve through his or her “literary and
scientific attainment.” State ex rel. Davis v. Evans, 122 S.W. 81, 83 (Tenn. 1909). But the General
Assembly took away the County Courts’ review power in 1895, opting instead to have the
requirement administered by local “examin[ing] . . . commission[s]” acting under state-wide “rules
and regulations.” Id. at 82–83 (quoting 1895 Pub. Acts ch. 54, § 1). This change eventually
prompted a legal challenge claiming the new system impermissibly “devolved legislative power
upon the State Board of Education.” Id. at 83. And in rejecting that argument, the Tennessee
Supreme Court explained both what the “attainments” requirement meant and how it should be
implemented.

First, the Court saw the qualification as “general” but given meaning by context. Id. That
is, the law was not “so general” as to allow “the State Board [of Education]” to effectively “declare
the qualifications necessary for the office.” Id. Rather, the “literary and scientific attainments”
requirement had to be viewed in light of the “subjects to be taught in public schools,” which the
General Assembly had explicitly legislated in detail. Id. Against that backdrop, the Court read
the “attainments” requirement as referring to “a reasonable degree of” prior knowledge “in respect
to the subjects that were to be taught” in school. Id. And that qualification made sense, because
it would ensure “proper judgment in the selection . . . and . . . oversight” of teachers. Id.

Second, the Court thought it “impracticable” for the General Assembly to define the
“attainments” qualification with any greater “precision.” Id. Instead, “the nature of things”
dictated that this qualification “must be left somewhat indeterminate” to account for varying
circumstances. Id. On this point, the Court offered a long string of precedents upholding similar
legislative efforts to “commit something to the discretion of [an]other department[].” Hurst v.
Warner, 60 N.W. 440, 441 (Mich. 1894) (quoting Wayman v. Southard, 23 U.S. (10 Wheat) 1, 46
(1825) (Marshall, C.J.)); see Davis, 122 S.W. at 83 (collecting cases). In each case, the court had
determined that a law’s “details” could “be carried out by” some non-legislative actor. Leeper v.
State, 53 S.W. 962, 967 (Tenn. 1899). And that was because, although “[t]he legislature cannot
delegate its power to make a law, . . . it can make a law to delegate a power to determine some fact
or state of things upon which the law makes, or intends to make, its own action depend.” Id.

Third, the Court thought it “highly proper” for the General Assembly to provide for
“competent boards” to apply the “indeterminate” attainments standard. Davis, 122 S.W. at 83. As

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noted, the prior regime required each “[C]ounty [C]ourt” to “judg[e] the qualifications of the
county superintendent[s].” Id. But of course, the judges presiding over those courts came from
various backgrounds themselves. That led to the question of whether those judging the
superintendents’ qualifications were themselves qualified to do so. And the General Assembly’s
amendment aimed to fix that issue by replacing the county courts with specialized commissions.

Having been clearly announced over a decade before the 1925 General Education Law, this
analysis helps inform what it means for the Commissioner of Education to be a person of literary
and scientific attainments.

To begin, the lawmakers understood that this language would impose a “general” and
“indeterminate” standard, which would draw much of its meaning from context. Id. In this
instance, the phrase would invoke “a reasonable degree of” prior knowledge “in respect of the
subjects . . . taught” in Tennessee’s public schools. Id. This would ensure “proper judgment” in
the Department’s “oversight” functions, as well as in the “selection” of state-level administrators
to carry out the Department’s business. Id.

At the same time, the General Assembly chose not to describe the requirement with any
greater “precision,” despite the fact that the statutory language had open and acknowledged
ambiguity. Id. That choice reflects an appreciation for how the Department of Education’s
business would likely grow and change over time. See id.

Finally, the General Assembly dropped the board-certification requirement applied to

County Superintendents, opting instead to vest “appoint[ment]” power in “the Governor” alone.
1925 Pub. Acts ch. 115, § 4, p.314. By 1925, Tennesseans already had fifty-years’ experience
with public officials trying to determine what it meant to be qualified by “literary and scientific
attainments.” 1873 Pub. Acts. ch. 25, § 8, p.41. They knew that the term lacked specifics. See
Davis, 122 S.W. at 83. They knew it required judgment calls. See id. And they knew that whoever
made those calls would need the capacity and incentive to make them wisely.

Knowing all of this, the General Assembly chose to grant the Governor unchecked
authority to appoint the Commissioner of Education. See 1925 Pub. Acts ch. 115, § 4, p.314. It
could have, but did not, subject the Governor’s choice to legislative “confirm[ation].” 1873 Pub.
Acts ch. 25, § 3, p.39. Nor did it require a “certificate of qualification” from some expert third-
party board, as past laws had. 1895 Pub. Acts ch. 54, § 1, p.70. In lieu of such checks, the General
Assembly determined that the Governor should unilaterally judge who had the attainments
necessary to lead the State’s Department of Education. See 1925 Pub. Acts ch. 115, § 4, p.314.

The statute’s text, structure, and history together give rise to three conclusions. First, to
have “literary and scientific attainments” means to have knowledge of school curriculum necessary
to manage the Department of Education effectively. Second, that flexibly worded standard
requires a fact-bound exercise of judgment to determine whether a particular candidate possesses
the requisite knowledge. Third, by vesting the Governor with sole authority to appoint whoever
he or she finds to have the appropriate attainments, the law limits (and perhaps eliminates, see
infra at 8) post-appointment review by coordinate branches of government.

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 3. The statutory requirement that a person “be of skill and experience in school
administration” follows the same arc. Again, the language at issue stems from the General
Education Law of 1925, see id., which again borrows that language from the 1873 law overhauling
Tennessee’s public-school system, see 1873 Pub. Acts. ch. 25, § 8, p.41. While the 1873 law
required County Superintendents, “when practicable,” to have “skill and experience in the art of
teaching,” id., the 1925 law similarly required the Commissioner of Education to have “skill and
experience in school administration,” see 1925 Pub. Acts. ch. 115, § 4, p.314. The pre-1925
application of this “skill and experience” requirement to County Superintendents thus informs its
present application to the office of Commissioner of Education.

As with the “attainments” requirement, the “skill and experience” requirement imposes a
general standard that draws meaning from context. It requires the Commissioner to have sufficient
ability and prior involvement in school administration to manage the Department of Education
effectively. And it vests substantial discretion in the Governor, allowing for limited (if any) post-
appointment review by the legislative or judicial branches. See supra at 5; infra at 8.

4. The “qualified to teach” requirement has both roots and meaning similar to the
“attainments” and “experience” requirements. Like the other requirements just discussed, the
“qualified to teach” requirement stems from the General Education Law of 1925. See 1925 Pub.
Acts. ch. 115, § 4, p.314. And like the other two requirements just discussed, the “qualified to
teach” requirement has a historical antecedent that illustrates its meaning.

Specifically, the requirement that the Commissioner of Education be “qualified to teach”

has roots in earlier laws attempting to assure teachers were “competent.” In the mid-1850s, before
the State had much of any role in the education system, the General Assembly perceived a need to
“prevent incompetent persons from teaching” and enacted legislation directed toward that
perceived problem. 1855–56 Pub. Acts ch. 114, p.127. As initially established, the new program
both “authorized and required” the “County Courts” to elect “one or more . . . Commissioners,
whose duty it [would] be to examine all applicants to teach the Free Schools” each year. Id. § 1,
p.127. Applicants who proved themselves “competent to teach Orthography, Reading, Writing,
Arithmetic, Geography, English Grammar, &c.” were then “entitled to a certificate of such
competency,” which the law made a condition of their “employ[ment].” Id.

Fifteen years later, the General Assembly introduced such certified competence as a marker
that one was “qualified to teach.” Under the 1870 Common Schools Law, each “County Board of
Education” had to “prescribe the mode and manner” of “examin[ing]” teachers, as well as “the
extent of qualifications required” for an applicant to fill the position. 1870 Pub. Acts ch. 64, § 51,
p.109. The law then prohibited the local “Common School Commissioners” from “employ[ing]
any person to teach school, unless he or she first produce[d] a certificate that he or she [was]
competent to teach.” Id. § 50, p.109. Three years later, the General Assembly simplified these
provisions by providing that “no teacher of Public Schools shall . . . receive any pay from the
public funds unless he or she ha[s] a certificate of qualification, [issued] by the County
Superintendent for the county within which he or she is employed.” 1873 Pub. Acts ch. 25, § 26,
pp.45–46 (emphasis added). Then, in 1919, the General Assembly deemed it necessary to
legislatively “define the qualifications . . . of public-school teachers” and “provide a uniform
method . . . for certif[ying]” people to teach. 1919 Pub. Acts ch. 40, p.102.

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 To be clear, the law did not equate “certification” with “qualification.” Instead, it
employed both terms in a way that comported with their contemporary legal meanings. That is,
the 1919 enactment treated certification as proof or evidence of qualification, requiring the
“certificate[s] . . . to provide a means whereby the fact of qualification . . . may be ascertained by
persons interested.” Huffines v. Gold, 288 S.W. 353, 353 (Tenn. 1926). “Qualification” itself was
in turn achieved “by education[,] experience,” and strength of character. Id. In this way, the
certification process existed “to prevent [unqualified] person[s] from” serving as teachers. Id.

The law’s procedures confirm the distinction between “certification” and “qualification.”
The 1919 law imposed both specific and general teaching qualifications alongside a host of
methods for certifying teachers as qualified. Teachers had to be at least “eighteen years of age.”
1919 Pub. Acts ch. 40, § 1, p.102. They needed “good moral character.” Id. at 103. And they
could not be “addicted to the use of intoxicants, or opiates, or cigarettes.” Id. In addition to those
personal traits, teachers had to demonstrate their knowledge and teaching ability by “pass[ing] a
satisfactory examination in the subjects prescribed to be taught in the . . . schools, and in the
principles and practice of teaching and school management.” Id. § 6, p.104. In lieu of
examination, a teacher could show his or her knowledge by completing relevant coursework at the
“State University,” id. at 106, the “State Normal Schools,” id., or through several other means of
“credential[ing],” id. § 7, p.109.

This regime would have been familiar to those who imposed the “qualified to teach”
requirement on the Commissioner of Education in 1925. And its history shows that this
requirement, too, gives the Governor power to exercise considerable judgment. As with the
“attainments” and “experience” requirements just discussed, the “qualified to teach” requirement
speaks to the attributes that make a teacher “competent.” 1870 Pub. Acts ch. 64, § 50, p.109. And
although teachers and some administrators had to be both “qualified” and “certifi[ed],” 1925 Pub.
Acts ch. 115, § 14, p.352; see id. § 11, p.341–46, the law imposed no such “certification”
requirement on the new head of the Department of Education. In fact, in sharp contrast to some
of the Commissioner’s subordinates—who needed “certificate[s] to teach in the schools . . . over
which [they] exercise[d] supervision,” id. § 7, p.333—the Commissioner did not need to be
certified but only “qualified,” id. § 4, p.314. And the task of choosing a Commissioner “qualified
to teach” was given to the Governor. Id.

5. The response to Question 1 resolves Question 5.

6. The response to Question 1 resolves Question 6.

7. The General Assembly has no authority to remove the Commissioner of Education. The
Tennessee Constitution “divide[s]” the “powers of the Government . . . into three distinct
departments: the Legislative, Executive, and Judicial.” Tenn. Const. art. II, § 1. The General
Assembly created the Department of Education by statute as an “administrative” body within the
executive branch. 1923 Pub. Acts ch. 7, § 1, p.8; see Tenn. Code Ann. § 4-3-101; see House v.
Craveling, 250 S.W. 357, 358–59 (Tenn. 1923). By statute, the Department’s Commissioner
“hold[s] office at the pleasure of the governor.” 1923 Pub. Acts ch. 7, § 2, p.9; see Tenn. Code
Ann. § 4-3-112(b). This means that the Governor has primary authority and “discretion” to
“remov[e]” the Commissioner of Education “at will.” Williams v. Boughner, 46 Tenn. (6 Cold.)
486, 489 (1869); see House, 250 S.W. at 363.

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 Although the Tennessee Constitution does empower the General Assembly to remove
certain officials in the other branches through impeachment, see Tenn. Const. art. V, § 4, that
power likely does not allow the removal of a Commissioner of Education for lacking the requisite
“attainments,” “experience,” or “qualif[ication]” to teach, Tenn. Code Ann. § 4-3-802(b). To
begin, the Tennessee Constitution lists the officers “liable to impeachment” and “removal from
office,” and that list does not include the Commissioner of Education. Id. Moreover, the
Tennessee Constitution specifies that impeachment “liab[ility]” arises from acts which, “in the
opinion of the House of Representatives,” constitute “crime[s]” committed in an officer’s “official
capacity.” Id. Although this language likely grants the House some flexibility to determine what
constitutes a “crime,” id., we doubt that a Commissioner of Education could act in his or her
“official capacity” to hold office without qualification. Id. We also doubt that holding this office
without the requisite attainments, experience, or teaching acumen could, in and of itself, constitute
a “crime.” Id.

8. As discussed, the General Assembly has already provided a statutory framework for
ensuring that the Commissioner of Education is qualified. The General Assembly has set the
office-holder requirements. Supra at 3-7. Through those requirements, it has imposed general
guidelines and granted substantial leeway to the Governor. Id.

If the General Assembly nonetheless sought to have the judicial branch order removal of a
Commissioner of Education from office through legal proceedings, it would face two substantial
obstacles. First, our research has uncovered no positive law or precedent supporting the idea that
the Tennessee General Assembly is a juridical person “with capacity and standing to litigate.”
State ex rel. Comm’r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, (Tenn.
Ct. App. 2001) (citing Silver v. Pataki, 711 N.Y.S.2d 402, 404–05 (N.Y. App. Div. 2000)). This
is not surprising, given the General Assembly’s core power and purpose is “to make and repeal
laws,” rather than “enforce” or “apply” them. State ex rel. Tenn. Gen. Assembly v. U.S. Dep’t of
State, 931 F.3d 499, 517 n.13 (6th Cir. 2019); see also id. at 507–19 (holding the General Assembly
lacked standing to sue in federal court on behalf of itself or the State).

Second, even assuming the General Assembly is a juridical person, we have found no law
granting the General Assembly any role in determining the Commissioner’s qualifications or any
right to challenge the Commissioner’s qualifications. Just the opposite, the General Assembly has
explicitly and voluntarily relinquished any “confirm[ation]” role it might otherwise have played
in the Commissioner of Education’s selection. 1873 Pub. Acts ch. 25, § 3, p.39; see Tenn. Code
Ann. § 4-3-802(c). At the same time, the General Assembly has quite specifically mandated that
the Commissioner serve at the Governor’s “pleasure.” Tenn. Code Ann. § 4-3-112(b). Those
provisions create a baseline inference that Tennessee law prohibits the Commissioner’s removal—
at least for lack of qualification—by other, more “general[ized]” means. Falls v. Goins, 673
S.W.3d 173, 180 (Tenn. 2023) (quoting Lovlace v. Copley, 418 S.W.3d 1, 20 (Tenn. 2013)); cf.
State ex rel Thurman v. Scott, 195 S.W.2d 617, 618 (Tenn. 1946) (affording similar protection to
committee members serving “at the will and pleasure of [a] county court”).

Those caveats aside, the most likely avenue for litigating the Commissioner’s
qualifications is through Tennessee’s “quo warranto” statute. See Tenn. Code Ann. § 29-35-101
et seq. “[A]t some unascertained period early in the history of the common law,” the courts of
England devised the “writ of quo warranto” to remove any “usurpe[r]” of a public “office.” State

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ex rel. Cates v. Standard Oil Co., 110 S.W. 565, 572 (Tenn. 1908) (quotation omitted). This “was
a high prerogative writ,” which the King alone could utilize “to inquire by what authority” a
purported royal officer was exercising power. Id. (quotation omitted). It fell “into disuse in
England prior to . . . 1715” and was thus never “adopt[ed]” as part of the common law in
Tennessee. Attorney General v. Leaf, 28 Tenn. (9 Hum.) 753, 755 (1849); see id. at 755–56. But
in the mid-1800s, the General Assembly introduced a statutory version of the ancient quo warranto
action, providing the State of Tennessee itself a “remedy against the usurpation of any public
office.” State v. Wright, 57 Tenn. (10 Heisk.) 237, 242 (1872).

Over time, the Tennessee courts have made this a highly circumscribed and exclusive
mechanism for testing a public official’s qualification through litigation. See Snow v. Pearman,
436 S.W.2d 861, 864 (Tenn. 1968); Wright, 57 Tenn. (10 Heisk.) at 241–47; State ex rel. Harris
v. Brown, 6 S.W.2d 560, 561 (Tenn. 1928). The statute says that “the [S]tate” may bring a civil
“action . . . against . . . any person unlawfully hold[ing] or exercis[ing] any public office or
franchise within [Tennessee].” Tenn. Code Ann. § 29-35-101(1). And the Tennessee courts have
“construe[d]” it “so as to interfere as little as possible with the previous practice[s]” surrounding
the common-law writ. State v. McConnell, 71 Tenn. (3 Lea) 332, 337 (1879). As a result, the law
permits only “a suit by the State to subserve the public interests,” in which “the State [must be]
represented by its proper officer[s].” Id. at 339.

It follows that the District and State Attorneys General must litigate every quo warranto
action. Although the statute contemplates suits “at the relation of a private individual,” Tenn. Code
Ann. § 29-35-110(b), this does not mean a private person can litigate the State’s right of action.
Instead, it means only that a private person can prompt a quo warranto suit by providing
“information” to an attorney for the State and “giv[ing] security for costs.” State ex rel. Johnson
v. Campbell, 76 Tenn. (8 Lea) 74, 76 (1881). In the alternative, a quo warranto suit can be “brought
by the attorney general for the district or county, when directed so to do by the general assembly,
or by the governor and attorney general of the state concurring.” Tenn. Code Ann. § 29-35-109.
Once the suit has started, the State’s “consent is necessary to [its] continuation.” State ex rel.
Warner v. Agee, 59 S.W. 340, 340 (Tenn. 1900). This means that if at any time State’s counsel
deems the suit contrary to the State’s “best interest[,] . . . it is his right to move, and the duty of the
court to order, . . . dismissal.” Id. In other words, the action is in “[no] sense a private suit. It is
not so in the beginning, nor in the process of the case does it ever become such.” State v. Red
River Turnpike Co., 79 S.W. 798, 799 (Tenn. 1904).

This also assures the State Attorney General’s proper oversight role. Indeed, Tennessee
law makes clear that the State Attorney General and Reporter serves “as the State’s principal civil
litigator.” Medicine Bird, 63 S.W.3d at 772. “By statute, [he] is responsible for ‘[t]he trial and
direction of all civil litigat[ion] . . . in which the state of Tennessee . . . may be interested.’” Id.
(quoting Tenn. Code Ann. § 8-6-109(b)(1) (1993)); see Tenn. Code Ann. § 8-6-109(b)(1)
(current). And this includes quo warranto proceedings, which have always been civil in nature,
see Wright, 57 Tenn. (10 Heisk.) at 243, and almost always require the State Attorney General to
litigate an appeal, see, e.g., Red River, 79 S.W. at 798; see also State v. Simmons, 610 S.W.2d 141,
142 (Tenn. Crim. App. 1980) (explaining the State Attorney General’s power to control all appeals
on the State’s behalf).

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 The upshot is that the “general public” may seek to have an unqualified Commissioner of
Education removed through quo warranto proceedings, but it must do so through the personage of
the State, represented by the State’s designated Attorneys General. Indeed, “[i]n the absence of
constitutional or statutory regulations providing otherwise, quo warranto proceedings are the only
proper remedy in cases in which they are available.” State ex rel. Wallen v. Miller, 304 S.W.2d
654, 658 (Tenn. 1957) (quotation omitted). We are unaware of any constitutional or statutory
provision that specifically displaces quo warranto proceedings as the exclusive remedy to initiate
removal—through declaratory relief or otherwise. See Snow, 436 S.W.2d at 462; Cole v. Langford,
427 S.W.2d 562, 563–66 (Tenn. 1968); Jones v. Talley, 230 S.W.2d 968, 970–71 (Tenn. 1950);
Weaver v. Maxwell, 224 S.W.2d 832, 832–33 (Tenn. 1949). This absence of positive law
“providing otherwise,” Miller, 304 S.W.2d at 658 (quotation omitted), likely means that to obtain
judicial relief “a proceeding in the nature of quo warranto must be resorted to,” Snow, 436 S.W.2d
at 863 (emphasis added).

9. We understand this question as asking who may acquire a right to bring a legal action
seeking removal of an unqualified Commissioner of Education. As we have explained in Response
to Question 8, that right can only vest in the State.

JONATHAN SKRMETTI
Attorney General and Reporter

J. MATTHEW RICE
Solicitor General

GABRIEL KRIMM
Assistant Solicitor General

Requested by:

The Honorable Caleb Hemmer

State Representative
Suite 412 Cordell Hull Building
Nashville, Tennessee 37243

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