Seersucker: It's Worth Fighting Over

In his column, Bill Haltom takes a poke at the Tennessee legislature -- Guns in Trunks, Don't Say Gay, livestock cruelty -- but what really riles him up is … seersucker.

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Nominating Commission Expediting 3 Appointments

The Tennessee Judicial Nominating Commission, which will cease to exist at the end of this month, is expediting its action on naming successors to three judges who have announced they will retire. Though the judges won’t step down for more than a year, the commission will hold hearings on their replacements and send recommendations to the governor before June 30. And in case the governor rejects the first list of candidates, the commission plans to submit two lists for each vacancy. Commenting on the situation, TBA Executive Director Allan Ramsaur said, “The failure of the General Assembly to act and create some mechanism leaving nothing in place really is irresponsible.” Despite the situation though, he said it would be preferable for the governor not to act on the new nominees but instead urge the legislature to create a new commission. “That would resolve the uncertainty now surrounding several aspects of the situation,” he said in an interview with Knoxnews. It also would avoid litigation over the appointments. “The worst case is to have the judges appointed and there then to be some decision later that their appointment was irregular…”

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AG: Employees Violating Company Gun Laws May Be Fired

State Attorney General Robert Cooper has said in an advisory opinion that the new “guns-in-trunks” law does not forbid employers from firing employees who bring a gun onto company parking lots in violation of company policy, the Commercial Appeal reports. The law, which goes into affect July 1, “only decriminalizes the carrying and storage of firearms and firearm ammunition in a permit holder’s privately owned motor vehicles in public and private parking areas” under the circumstances defined in the law but it “does not address and thus has no impact on the employment relationship between an employer and an employee,” the opinion says.

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DesJarlais Fined for Inappropriate Interaction with Patients

U.S. Rep. Scott DesJarlais has been fined $500 by the state’s top medical disciplinary panel for sexual relationships with two female patients, the Chattanooga Times Free Press reports. The congressman must pay the $500 fine -- $250 per patient, according to the order -- within 60 days. Documents also show he's responsible for up to $1,000 in costs for the state's investigation. In an interview with the Tennessean, DesJarlais stated, "I take responsibility for past mistakes and am happy to get this resolved."

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Memorial Service Set for Nashville Lawyer

Nashville lawyer Alfred T. Adams Jr. died May 21 at the age of 85. A 1952 graduate of Vanderbilt University Law School, Adams practiced law in Nashville and was elected to the Tennessee General Assembly in 1953. He retired in 2002 and moved to Beersheba Springs where he took up residential construction, surveying, farming and beekeeping. Adams was a charter member of the Nashville City Club, director and general council of the Nashville Union Rescue Mission, and deacon and elder of the Downtown Presbyterian Church. In lieu of flowers, donations may be made to the charity of one's choice. A memorial service honoring his life will be held June 20 at 11 a.m. at the Downtown Presbyterian Church. Visitation will begin at 10 a.m., The Tennessean reports.

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Gov. Haslam Signs Conservatorship Bill

Gov. Bill Haslam has signed into law the first major revisions in more than a decade to the state law that governs the process of placing state residents under the control of a court-appointed conservator. The new statute, which will take effect July 1, was the product of a series of hearings held across the state by the TBA. Speaking about the legislation, House sponsor Andrew Farmer, R-Sevierville, said that the “intent of this law is to clarify the process, to make sure people aren’t being taken advantage of.” The Tennessean has the latest developments. TBA members will be able to learn more during a program at the 2013 TBA Convention in Nashville that focuses on changes in the law that came out of the last General Assembly session.

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Henry Cites Health, Money for Not Seeking Re-Election

After announcing he would not seek re-election to the Senate seat he has held since 1971, Sen. Douglas Henry told the Memphis Daily News that his health and the high cost of campaigning were major factors. Henry, who turns 87 this month, said he had been disregarding his doctor's request that he not run again but finally decided to heed his advice. He also said the amount of money he spent on his 2010 election was "obscene." Henry's first year of the recent 108th Tennessee General Assembly made him the "longest serving member of the General Assembly ever in Tennessee history," according to legislative librarian Eddie Weeks.

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Sen. Henry Says He Will Not Seek Re-Election

State Sen. Doug Henry, D-Nashville, told the Tennessean yesterday that he will not seek re-election for his seat in 2014. The 86-year-old was first elected to a House seat in 1955 and has held his current Senate seat since 1971. “During the last quarter century that I served with Sen. Henry, no one served with more dignity, greater intelligence and greater fidelity than Sen. Henry,” said Tennessee Democratic Party chairman Roy Herron, a former Tennessee state senator. “He is respected by all and loved by so many,” he continued. “The Tennessee Senate will miss his wise leadership and tremendous example.”

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Sen. Kelsey Tops Firearms Group's Target List

John Harris, executive director of the Tennessee Firearms Association, is urging members to “refocus efforts to remove” lawmakers who oppose gun rights, and state Sen. Brian Kelsey, R- Germantown, is at the top of that list, The Tennessean reports. Others targeted for removal by the group are senators Lowe Finney, D-Jackson, Doug Overbey, R-Maryville, Lt. Gov. Ron Ramsey, R-Blountville, and John Stevens, R-Huntingdon; and state representatives Vance Dennis, R-Savannah, and House Speaker Beth Harwell, R-Nashville.

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House Panel Named for Bebb Inquiry

The Tennessee House on Friday voted to form a committee to review the TBI's four-month investigation into 10th Judicial District Attorney Steve Bebb's office. Lawmakers voted 75-10 to name six members – three Republicans and three Democrats -- to a special committee that can meet during the recess. The six were selected from among the members of the Criminal Justice and Civil Justice committees, the Chattanooga Times Free Press reports. The group said it would begin reviewing the files as soon as practical. Also on Friday, the House Judiciary Committee approved a resolution directing the TBI officials to turn over all files, records, back-up materials, notes, interview transcripts and other exhibits. Senators previously had approved a similar resolution.

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Merit Selection Falls to Squabble, Legislature Adjourns for Year

Merit selection, considered by many to be the key feature of the successful Tennessee Plan, was eliminated from the process today when lawmakers could not, at the last minute, reach an accommodation on an unrelated squabble.

Three attempts to pass a bill to extend the life of the Judicial Nominating Commission in the House were stymied during the last day of the session. Since the constitutional power to fill vacancies is vested in the legislature, there will be no mechanism to appoint trial or appellate judges to replace jurists who die, retire or are removed.

Appellate judges will be evaluated by the present Judicial Performance Evaluation Commission before standing for election in August 2014. No changes in the composition or membership of that commission will come as a result of the inaction.

Some observers also saw developments early in the day on judicial redistricting (see related story) as part of the overall spat.

The legislature adjourned for the year this afternoon.

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Conservatorship Overhaul on Way to Governor’s Desk

The state Senate today gave final unanimous approval to the bill (SB 555/HB 692) sponsored by lawyer legislators Sen. Doug Overbey, R-Maryville, and Rep. Andy Farmer, R-Sevierville, making changes to governing conservatorships after hearing a report from the Tennessee Bar Association. Among the proposed changes, the recommendation establishes a uniform emergency placement process, clarifies the role of guardians ad litem, requires court orders to specify rights being taken away, and calls for more frequent financial reports. The recommendations follow a series of hearings held across the state at which members of the TBA Special Committee on Conservatorship Practice and Procedure, chaired by Jackson lawyer Pam Wright, heard from witnesses who lost all of their assets as victims of conservatorships. The legislation will be one of the topics in the Legislative Update CLE at the TBA Convention in Nashville in June. The Tennessean has more.

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House Rejects Judicial Redistricting Plan

The state House today failed to pass a plan pushed by Senate Speaker Ron Ramsey to enact the first judicial redistricting in the state since 1984. Richard Locker, Nashville bureau chief for The Commercial Appeal, writes today that opponents of the bill moved to kill it for the session but House Speaker Beth Harwell ruled that a motion to reject must wait one day. House members whose districts were directly affected by the plan persuasively argued against it and convinced a majority of their colleagues to join them on a 28-66 vote to oppose the bill. One lawmaker also expressed a common sentiment that the bill was "crammed down" their throats by the Senate, which had approved it 27-4 on Tuesday.

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Workers' Comp Overhaul Adopted; McNally Amendment Still Alive

The bill (SB 200) to overhaul the workers’ compensation system, transfer responsibility to an administrative judiciary and narrow the range of discretion in the system received easy final passage in the state House today.

Meanwhile, budget deliberations, which will formally resume on Monday afternoon, continue to include the McNally amendment. With only one week likely left in the session, and most notice and other rules suspended, advocates must now expand their focus to all members of the Senate Finance Committee to try to head off quick adoption of the proposal by the chair.

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Bebb Probe May Last Past Session

With state lawmakers hoping to adjourn next week or soon after, House Speaker Beth Harwell said Wednesday that House members might not have time to consider a review of 10th Judicial District Attorney Steve Bebb even if they decide it's needed. While efforts to access files from the Tennessee Bureau of Investigation’s four-month probe of Bebb have been blocked in the House, the state Senate Judiciary Committee earlier this week directed the TBI to let members examine the files. Lawmakers say their investigation is necessary given the public nature of the allegations and a report by Attorney General Robert Cooper that Bebb’s office exhibited poor judgment, mismanagement and deficient record keeping. The Times Free Press and Cleveland Banner have the news.

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Amendment to Cut Legal Funds Still on Agenda

The budget amendment (#271) that strips all of the state funding -- $3.3 million -- from legal aid, transfers responsibility for administration of all appointed counsel and guardians ad litem to the state public defenders conference, and eliminates funds included in the Governor’s budget amendment to make up for chronic underfunding of the Davidson and Shelby county public defenders’ offices remains on the committee's active agenda. 

At the Senate Budget subcommittee meeting last night, amendment sponsor Sen. Randy McNally, R-Oak Ridge, indicated that he wants to continue discussion of the matter, but emphasized concern about the money for Nashville and Memphis. The subcommittee is expected to again take up consideration of amendments at 9:30 a.m. on Wednesday.

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Complaints Continue About Legislative Session’s Pace

The fast pace of this year’s legislative session has sparked bipartisan criticism that some proposed laws are not getting properly vetted, while debate on others is at times short-lived. Lawmakers are set to adjourn by April 18, the earliest date for concluding business since 1990, the Chattanooga Times Free Press reports. Among others, Transportation Committee chairman Vince Dean, R-East Ridge, and Calendar and Rules Chair Bill Dunn, R-Knoxville, have raised concerns as GOP leaders drive lawmakers to complete business quickly.

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Proposal Would Move Civil Indigent Counsel Funding to PDs

Senate Finance Committee Chair Randy McNally, R-Oak Ridge, has proposed to roll civil legal representation funding in with the indigent counsel programs, strip Tennessee courts of funding for indigent representation and place the administration of both the civil and criminal indigent representation in the state district public defender’s office. The programs would then be funded with $3.3 million less for next year. The proposal comes by the way of a budget amendment that just surfaced. The proposal has already drawn wide interest. Advocates have already identified a number of "weaknesses" in the proposal:

Administration of the civil indigents representation fund, which provides $3.3 million to the state's four legal aid offices, would be transferred as part of the plan. Funding for the civil fund would be optional after the constitutionally mandated counsel for indigents, guardians ad litem and experts had been paid.

• Statutes and court rules, which are not amended by the proposal, place responsibility for administering these programs and allocations in the courts and the Administrative Office of the Courts.

• The state public defenders office has no expertise in several of the appointed matters which are civil - mental health commitments, appointments of guardians ad litem and counsel in parental termination cases and child support contempt matter or counsel in dependency and neglect and unruly matters.

• Counsel for criminally accused indigents are often appointed because of conflicts with public defenders, creating a dilemma when paired with public defender administration.

• The proposal transfers the responsibility for paying appointed counsel, but makes no provision for transferring the administrative costs associated with administering the funds, perhaps meaning program funds would be further eaten up by administrative costs.

The proposal could first be heard by the Senate Finance Committee Budget Subcommittee as early as Monday afternoon. The subcommittee members are senators "Bo” Watson, Chair; Mark Norris, R-Germantown; and Jim Kyle, D- Memphis.

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Judicial Selection, Evaluation Votes Deferred

Consideration of the bills extending sunset dates for the Judicial Nominating Commission and Judicial Performance Evaluation Commission today were deferred to next week in the Senate Government Operations Committee.

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Important Issues Still at Play in Legislature

A number of bills of interest to lawyers may see action before the end of the session. They include:

Lawyer Regulation -- A bill (SB 779/HB 635) to impose criminal sanctions on Board of Professional Responsibility panel members, staff, lawyers subject to discipline, and their counsel for certain procedural violations could see action in committees in both chambers. The TBA has resisted this unwelcome intrusion in the Supreme Court’s disciplinary process.

Tort -- Codification of comparative fault with limitations of joint and several liability in several types of cases that the courts have carved out by common law -- including products liability and cases with combined intentional and negligent actors -- still awaits House committee action (SB 56/HB 1099).

Collateral Source Rule -- The effort to limit the effect of the collateral source rule (SB 1184/HB 978) will be studied for now but could return next year.

Workers Compensation Overhaul -- The Workers Compensation overhaul (SB 200/HB 194) continues its march towards expected passage. According to the Associated Press, the plan is scheduled for a full Senate vote on Monday night with the House Finance Committee taking it up on Tuesday.

Conservatorship -- The work of the TBA’s Special Committee on Conservatorship Practice and Procedure has been adopted by the Senate (SB 555/HB 692) and should see action in the House Civil Justice Committee this week.

Trust Law -- A bill (SB 713/HB 873) to rewrite Tennessee trust law and a 52-page amendment debuted 10 days ago will see action in the House Civil Justice Committee.

Criminal -- The Senate Judiciary Committee will hear about legislation (SB 1362/HB 1293) permitting prosecution of an alleged repeat child abuser in any county where an act of of abuse allegedly occurred, and permitting evidence of all prior child abuse by declaring past offenses to be a "continuing offense.”

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Legislature Racing Toward Early Finish

With the General Assembly racing towards its earliest finish in more than a decade, several legislative issues affecting lawyers -- including the fate of the Judicial Nominating Commision and the Judicial Performance Evaluation Commission -- still remain to be resolved before the expected April 19 adjournment. The sunset extension of the Judicial Nominating Commission, which is in wind down mode and will go totally out of existence on June 30, has passed the House but still awaits Senate committee action. There will be no authority to fill vacancies on any trial or appellate bench after June 30 without legislative action. The Judicial Performance Evaluation Commission, which must make recommendations regarding retention of appellate judges in the run up to the August 2014 election, also faces sunset on June 30. It will then have a year to wind down its business before going out of existence in June 2014. See a roundup of other legislative issues under the General Assembly category at right.

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Judicial Evaluation Bill Suffers Setback

Legislation to scramble the Judicial Performance Evaluation Commission (JPEC) and the current performance evaluation process suffered a huge setback today when the House sponsor withdrew the bill from consideration and the subcommittee with jurisdiction closed for the year. The bill (SB 1058/HB 1227), as amended by the Senate Judiciary Committee two weeks ago, would have removed all of the present JPEC members, reconstituted the body without any judges as members, allowed the commission to rewrite evaluation criteria, and provided that if an incumbent appellate level judge was evaluated as “for replacement,” that judge could not stand for retention election. The resulting judicial vacancy would then be filled by gubernatorial appointment after a nominating commission recommendation. The TBA fought the measure with TBA President Jackie Dixon saying that action on the bill would amount to “changing the rules, the referees and the scorekeeping after the two-minute warning.” Retention elections are set for August 2014 for all current Supreme Court, Court of Appeals and Court of Criminal Appeals judges.

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Watson Appointed to Criminal Justice Committee

Tennessee House of Representatives Speaker Beth Harwell has appointed Rep. Eric Watson, R-Cleveland, to the Tennessee Criminal Justice Coordinating Committee. The purpose of the committee, according to, is to identify issues in the criminal justice system that are harmful to public safety and recommend changes. Rep. Watson’s appointment commences immediately and will run until Nov. 2, 2014.

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Lawyers Overwhelmingly Support Tennessee Plan

Lawyers across the state overwhelmingly support maintaining the current plan for merit selection, performance evaluation and retention election of appellate judges according to a TBA survey of Tennessee lawyers. The survey found that TBA members support The Tennessee Plan by 83 percent while non-member lawyers support it by a slightly smaller margin of 72.3 percent. Lawyers also were asked to express their opinion about a new plan that would eliminate merit-based review of potential judges by an independent panel, and instead provide for nomination by the governor, confirmation by both houses of the General Assembly, and yes/no retention votes in subsequent years. According to the study, 73.9 percent of association members oppose that plan, while 50.2 percent “strongly oppose” it. The study, conducted by Yacoubian Research of Memphis, had a very high response rate. According to Berje Yacoubian, chief statistician at the survey research firm, the “statistically significant” response rate reflects the full demographics of the Tennessee legal community and is highly reliable.

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Judicial Evaluation Bill Set for House Consideration

Legislation to significantly revamp the Judicial Performance Evaluation Commission could be heard as early as tomorrow in a House Judiciary subcommittee. The bill (SB 1058/HB 1227), as amended last week in the Senate Judiciary Committee, removes all of the present Judicial Performance Evaluation Commission members, reconstitutes the body without any judges as members, allows the commission to rewrite evaluation criteria, and provides that if an incumbent appellate level judge is evaluated as “for replacement,” that judge may not stand for retention election. The resulting judicial vacancy would then be filled by gubernatorial appointment after a nominating commission recommendation. TBA President Jackie Dixon said action on this bill right now amounts to “changing the rules, the referees and the scorekeeping after the two minute warning.” Retention elections are set for August 2014 for all current Supreme Court, Court of Appeals and Court of Criminal Appeals judges.

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