Press Reports 'Robocalls' on Judicial Selection

The Tennessee Journal and other sources this afternoon reported that supporters of a constitutional amendment to end merit selection and institute legislative confirmation for Tennessee judges (SJR 710) are using an "artificial turf" campaign technique to try to generate the appearance of popular support for their viewpoint. The technique involves calls to voters who, if they agree with the position of the group making the calls, are then connected with their senator or representative's office to express their views. The campaign technique is referred to as artificial turf or Astroturf because it can give the appearance of real grassroots support.

TBA president Danny Van Horn said that personal calls from trusted Tennessee lawyers to lawmakers would go a long way to blunt the effect of these artificially generated calls. The latest scientific survey conducted by the TBA shows that 83 percent of Tennessee lawyers back the Tennessee Plan.

Today's Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

01 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
01 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer.


TN Supreme Court

CYRUS DEVILLE WILSON v. STATE OF TENNESSEE

Court: TN Supreme Court

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Mark A. Fulks, Senior Counsel, Nashville, Tennessee for the appellant, State of Tennessee.

Patrick Timothy McNally, Nashville, Tennessee, for the appellee, Cyrus Deville Wilson.

Judge: LEE

The primary issue presented in this appeal is whether a notation in the prosecutor’s file written by an assistant prosecutor expressing her opinion as to the lack of credibility of two of the State’s witnesses is newly discovered evidence on which the defendant may base a petition for writ of error coram nobis. Over fifteen years after the defendant’s conviction for first degree murder became final, he filed a petition for writ of error coram nobis alleging that he had recently discovered a note written by the assistant prosecutor before his murder trial in which she expressed her opinion that it was a “good case but for most of Ws are juveniles who have already lied repeatedly.” The petition alleged that the note was exculpatory, newly discovered evidence and that the State’s failure to produce it before trial affected the outcome of the trial and undermined the reliability of the verdict. The trial court tolled the one-year statute of limitations on due process grounds, but summarily dismissed the petition. On appeal, the Court of Criminal Appeals reversed the trial court’s dismissal of the defendant’s petition, concluding that the State had waived the statute of limitations defense by failing to raise it as an affirmative defense, and remanded the case for an evidentiary hearing. We hold that the State did not waive the statute of limitations defense and that the trial court did not err in tolling the statute of limitations. We further hold that the handwritten note expressing the assistant prosecutor’s opinion as to the witnesses’ credibility was attorney work product. As such, it was neither discoverable nor admissible. Accordingly, the note was not newly discovered evidence on which a petition for writ of error coram nobis could be based. The judgment of the Court of Criminal Appeals is reversed, and the judgment of the trial court dismissing the petition is reinstated.


TN Court of Appeals

MICHAEL H. GAW, ET AL. v. THE VANDERBILT UNIVERSITY, ET AL.

Court: TN Court of Appeals

Attorneys:

Steven E. Anderson and Sara F. Reynolds, Nashville, Tennessee, for the appellants, The Vanderbilt University d/b/a Vanderbilt University Medical Center d/b/a Vanderbilt Children’s Hospital.

Todd A. Rose, Paris, Tennessee, and Les Jones, Memphis, Tennessee, for the appellees, Michael H. Gaw, a Minor, By Next Friends and Parents, Howard Gaw and Beth Gaw.

Judge: MCCLARTY

This is an appeal from a jury verdict in a medical malpractice case. A surgeon performed a procedure on an infant to repair a birth defect at the defendant hospital. The infant sustained permanent injuries after the surgery. The parents filed suit on the infant’s behalf against the hospital for failing to adhere to the expected standard of care. At the conclusion of trial, the hospital moved for a directed verdict on all claims, with only the claims for informed consent and post-operative negligence being denied. The jury entered a judgment in favor of the infant. The hospital has appealed. We affirm the trial court’s judgment.


JOHN DURLING KEMPER v. JOE C. BAKER, INDIVIDUALLY AND IN HIS CAPACITY AS CITY MANAGER OF BERRY HILL, TENNESSEE ET AL.

Court: TN Court of Appeals

Attorneys:

Larry D. Ashworth, Nashville, Tennessee, for the appellants, John Durling Kemper and Richard Whiteshield.

Mary Byrd Ferrara, Nashville, Tennessee, for the appellees, Joe C. Baker, Individually and in his capacity as City Manager of Berry Hill, Tennessee; Charles McKelvey, Individually and in his capacity as Building Inspector for the City of Berry Hill, Tennessee; and the City of Berry Hill, Tennessee, a government entity.

Judge: CLEMENT

This is a GTLA action against a city and city official following a construction accident in which an exterior wall of a building collapsed, causing serious injuries to one of the plaintiffs and causing the death of the other plaintiff. The building was being demolished and the plaintiffs were employed by a private company that was to disconnect gas utilities on the privately owned building. The plaintiffs claim the collapse was caused, in part, by the failure of the city and the city manager to enforce certain OSHA regulations and provisions of the municipal building code. The trial court dismissed the plaintiffs’ claims against the city and the city official on the defendants’ motion for summary judgment based on governmental immunity. We affirm.


TN Court of Criminal Appeals

ERSKINE LEROY JOHNSON v. STATE OF TENNESSEE
CORRECTION: On the first page, second sentence, "for error coram nobis" has been changed to read "for a writ of error coram nobis"

Court: TN Court of Criminal Appeals

Attorneys:

Gerald D. Skahan, Memphis, Tennessee, and Jonathan I. Blackman, David E. Brodsky, Carmine D. Boccuzzi, Jr., David H. Herrington, and Elizabeth Vicens, New York, New York, for the appellant, Erskine Leroy Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Glen Baity, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Erskine Leroy Johnson, appeals the Shelby County Criminal Court’s dismissal of his petition for a writ of error coram nobis from his 1985 conviction for felony murder. He contends that newly discovered evidence entitles him to a new trial. He also contends that the trial court improperly weighed the newly discovered evidence and failed to assess that evidence in the context of the evidentiary record as a whole in determining whether the result of the trial may have been different. We reverse the judgment of the trial court, vacate the Petitioner’s felony murder conviction, and remand the case for a new trial.


Soddy Daisy Names Acting Judge

Jerry Summers was chosen to serve as acting judge for Soddy Daisy by commissioners on Thursday, the Chattanoogan reports. Summers, who had served as the city’s first judge, fills a vacancy left by Judge David Norton, who is acting in an interim position as General Sessions Court judge. He took over for the late Judge Bob Moon. Voters will choose replacements for the remaining two years in an August special election.


Crime Down, But Murders Up, Report Says

Overall crime in Tennessee is down, but murders and DUI arrests increased last year, the Tennessee Bureau of Investigation reports. The TBI "Crime in Tennessee" report stated there was a 1.7 percent decrease in reported crimes in 2011 when compared to 2010. Read more from the City Paper


Bankruptcies Up Slightly in West Tennessee

Bankruptcies increased slightly in West Tennessee during the first quarter of 2012, according to The Daily News Online. All chapters combined – Chapters 7, 11 and 13 – amounted to 3,063 Shelby County bankruptcies, up 2.8 percent from 2011.


MBA President: 'Law Rules' Initiative is Vital Civics Lesson

Memphis Bar Association (MBA) President Gary K. Smith writes in the Commercial Appeal this week that too many Americans have lost an appreciation for and proper understanding of the importance of an independent judiciary. He says, "Many seem to think that an independent judiciary means that judges are free to legislate from the bench in accord with their personal whims. But the rule of law does not work that way. All judicial rulings are measured by principles such as adherence to precedent and ultimately by the U.S. Constitution." To improve public understanding of these issues, the MBA is undertaking a major initiative this year called "Law Rules: The Importance of the American Legal System." Read Smith's guest column here


Book Looks at How Judges View Constitution

How should judges approach the Constitution in making decisions? Syndicated columnist George Will looks at a new book from appellate court Judge J. Harvie Wilkinson III, which criticizes the “living Constitution,” ”originalism” and “constitutional pragmatism” jurisprudential theories. Each, he says, abets judicial hubris, leading to judicial “activism.”


TRA Reform Bill Moves Ahead

Despite a plea from the Republican chair of the Tennessee Regulatory Authority and criticism from Democratic legislators, a Senate committee Thursday approved Gov. Bill Haslam's plans for transforming the agency. "Maybe it'll work. Maybe not," TRA Chair Kenneth Hill told the committee. "Why go there and inflict damage to the utilities of Tennessee and to the people of Tennessee … then have to come back and fix it?" he asked. Read more from Knoxnews.com


Gonzales Calls Immigration Discourse 'Mean'

Republicans are hurting their party with their rhetoric on immigration, former U.S. Attorney General Alberto Gonzales told a gathering at an American Bar Association roundtable Thursday. "The dialogue has been mean," said Gonzales, the nation's first Hispanic attorney general. "As a result, we find our presumptive nominee Mitt Romney facing an uphill battle for Hispanic support because of how we talk about this issue..." The National Law Journal has more


 
 

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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.


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