Legislative Wrap-up

Change in Store for Litigators, Transaction Lawyers, All Lawyers

Several pieces of new law fostered or influenced by the Tennessee Bar Association were enacted by the recently adjourned 125th General Assembly.

Litigation

For litigators, the TBA initiated legislation extending the statute of limitations in disasters (P.C. 725) and expenses in shareholder derivative actions (P.C. 726) were adopted. In addition, the TBA closely monitored changes in the medical malpractice statute requiring a certificate of good faith to be filed in the new medical malpractice actions. This legislation became Public Chapter 919. Legislation to cap nursing home liability was converted into study legislation with reports due Feb. 1, 2009.

Business Law

Two pieces of significant business legislation were enacted through TBA initiatives. The first is the new Tennessee Condominium Act of 2008. This bill, which rewrote the Horizontal Property Law first enacted in 1963, sets forth default provisions to deal with powers of condominium associations, separate titles, owners associations and transfers (P.C. 766). This act has a delayed effective date of Jan. 1, 2009. The TBA will have an extensive and intensive set of seminars on the new act beginning this summer and through the fall.

The second major piece of business was the TBA-sponsored corrections to the Mechanics and Materialmen's Liens Law adopted last year. Those changes were enacted as Public Chapter 811.

Family Law

Family law practitioners will find several new provisions clarifying child support if the child is severely disabled, addressing notice to potentially uninsured spouses, and extending a court's right to grant a divorce based on irreconcilable differences in Public Chapter 868 as drafted by the TBA Family Law Section.

Legislative action on guardians ad litem in divorce and custody situations was deferred pending adoption of a new Tennessee Supreme Court rule. The Tennessee Supreme Court has proposed a draft rule on the subject with a comment period that ended June 30, 2008.

Jury Service

Lawyers involved in jury trials will see substantial changes in jury administration as a result of a Tennessee Judicial Council proposal, backed by the TBA to update and reform jury administration (SB 3839/HB 3638).

Juvenile Law

In the juvenile law arena, the general assembly enacted an expansion of the right to counsel for those who are allegedly unruly if the child is in jeopardy of being removed from the home and provisions giving parents the right to counsel in such cases (SB 3539/HB 3147).

Criminal Law

The legislature turned back an effort to adopt a statutory good faith exception to the Exclusionary Rule. The TBA opposes adoption of the bill. The other major criminal law development, in which the TBA was not involved, was a late session withdrawal of a proposal for a whole new administrative license revocation scheme for driving under the influence. The proposal was withdrawn for fiscal reasons.

Tennessee Plan

The Tennessee Plan did not expire with the failure to act by the Tennessee General Assembly. Under Tennessee's Governmental Entity Review Law, also known as the Sunset Law, the Tennessee Judicial Selection and Evaluation Commissions were set to expire on June 30. They now go into a one-year wind down, but continue to exist and operate until June 30, 2009. Opponents of the merit selection, evaluation and retention system repeatedly cited this one-year hiatus as a reason that the General Assembly did not need to act this year.

Two justices of the Tennessee Supreme Court, two judges of the Court of Appeals, and a judge on the Court of Criminal Appeals have been appointed under the Tennessee Plan in the last two years. Their performance has been evaluated by the Evaluation Commission. Since the Commission recommends their retention they will stand for election by the qualified voters at the Aug. 7 election.

In addition, the two recent vacancies on the intermediate appellate courts have now been filled (see below) so those names will also be added to the ballot in the August general election.

Finally, Chief Justice Mickey Barker has given word that he will retire on Aug. 31, making a seat on the Tennessee Supreme Court available. The Judicial Selection Commission will recommend three names for a justice to be appointed by the governor to fill the term until the next election in 2010.

" Allan F. Ramsaur, TBA executive director

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On June 9, Chancellor Steve Stafford of Dyersburg was appointed to the Tennessee Court of Appeals, Western Section, and Camille R. McMullen of Millington was appointed to the Court of Criminal Appeals, Western Section. Stafford fills the vacancy created by the death of Judge W. Frank Crawford in April. McMullen's appointment fills the vacancy created by Judge David G. Hayes' retirement from the appellate bench at the end of June to become a senior judge.