Election Puts Fewer Lawyers In Senate, More In House

When the Tennessee General Assembly convenes in January, the State Senate will have eight lawyers, five fewer than the last session. The only lawyer winning in a seriously contested general election race was John Stevens (R - Huntingdon) who will take over the District 24 seat vacated by lawyer Roy Herron (D - Dresden). The 33-member body numbered 13 lawyers among its membership when the session opened in 2010. Following the early-session resignation of Jamie Woodson (R - Knoxville) and the retirement of Andy Berke (D - Chattanooga), Mike Faulk (R - Church Hill) and Joe Haynes (D - Goodlettsville), only two incumbent lawyers faced election during this cycle. Jim Kyle (D - Memphis) was unopposed in the general election, and Tim Barnes (D - Clarksville) was defeated by physician Mark Green (R - Clarksville). Nashville lawyer Phillip North made a bid for Haynes' substantially-redrawn seat, but was defeated by physician Steve Dickerson (R - Nashville).

In the State House, wins by Andrew Farmer (R - Sevierville) , Mike Carter (R - Chattanooga), William Lamberth (R - Portland) and Jeremy Durham (R - Franklin) mean that the House will have a net gain of three lawyers. Along with Vance Dennis, lawyers in the Republican Caucus will increase from two to five. Three Democrats, Craig Fitzhugh (D - Ripley), Mike Stewart (D - Nashville) and John Mark Windle (D - Livingston), round out the eight lawyers who will service in the House this session. Get full election results from the Tennessee Secretary of State.

Today's Opinions

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00 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
05 - TN Court of Criminal Appeals
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00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders

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TN Court of Appeals

With concurring opinion

Court: TN Court of Appeals


Peter M. Napolitano, Clarksville, Tennessee, for the Appellant, Jimmy Dill.

W. Timothy Harvey, Clarksville, Tennessee, for the Appellee, City of Clarksville, Tennessee.


Former police officer sought certiorari review of the City of Clarksville’s decision to terminate his employment, contending that the City failed to follow the disciplinary procedure set forth in the City Code and that, as a consequence, his termination deprived him of due process of law. The trial court held that there was material evidence to support the decision to terminate petitioner and returned the case to the City to have the head of the human resources department conduct a review of the investigation and appropriateness of the penalty; following a report from the head of the human resources department, the court entered a final order granting judgment to the City. Concluding that the failure of the City to follow its disciplinary procedure deprived petitioner of his due process right, we reverse the judgment, vacate the termination and remand the case for further proceedings.


Court: TN Court of Appeals


David L. Raybin and Sarah Richter Perky, Nashville, Tennessee; and Eric John Burch, Manchester, Tennessee, for the appellants, Tyler Mook, Jim Mook, and Kim Mook.

Donald Capparella, Nashville, Tennessee, and Ray Fraley, Fayetteville, Tennessee, for the appellee, Debra Sikora on behalf of Shelley Mook.


This is a custody action in which the father and paternal grandparents appeal the trial court’s designation of the maternal grandmother as the primary residential parent of the father’s seven-year-old daughter following the disappearance of the mother of the child, who was the primary residential parent. The trial court found that the father was unfit to parent the child and that he posed a substantial risk of harm to the child due to his history of domestic violence and the danger from exposure to the father’s drug activities and father’s associates. On appeal, the father and the paternal grandparents raise numerous issues relating to the trial court’s decision. They argue, inter alia, that the trial court erred in considering evidence of the father’s conduct that occurred prior to the entry of the Final Divorce Decree, that the evidence presented at trial was insufficient to overcome the father’s superior parental rights, that the decision to award custody to the maternal grandmother was not in the best interest of the child, that the trial court erred in awarding custody to the maternal grandmother, and that the trial court erred in allowing the maternal grandmother to relocate to Pennsylvania. We have concluded that the evidence does not preponderate against the trial court’s factual findings and that the evidence clearly and convincingly established that designation of the father as the primary residential parent would expose the child to the risk of substantial harm. Accordingly, we affirm the trial court’s designation of the maternal grandmother as the primary residential parent of the father’s seven-year-old child.

With concurring opinion

Court: TN Court of Appeals


Iyona Hilliard Houston, Assistant City Attorney, Memphis, Tennessee, for the appellant, City of Memphis Civil Service Commission

Darrell J. O’Neal, Memphis, Tennessee, for the appellee, Steven Payton


A City of Memphis firefighter who participated in the City’s employee assistance program was terminated after his second positive drug screen. The firefighter appealed his termination to the Civil Service Commission. He argued that his drug screen results were confidential under federal law and that he had not executed a consent form to authorize the disclosure of the results to the City. The Commission overruled the firefighter’s motion to exclude the test results and upheld his termination. The chancery court reversed, finding that the drug screen results were inadmissible because the City had failed to comply with federal law. We find substantial and material evidence to support the decision of the Commission, and therefore reverse the decision of the chancery court.

TN Court of Criminal Appeals


Court: TN Court of Criminal Appeals


John T. Maher (at sentencing and appeal), Clarksville, Tennessee; Collier Goodlett, Assistant Public Defender (at trial), for the appellant, Donald E. Fentress.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; John Wesley Carney, Jr., District Attorney General; and John Finklea, Assistant District Attorney, for the appellee, State of Tennessee.


The defendant, Donald E. Fentress, appeals the sentencing decision of the Montgomery County Circuit Court. The defendant was convicted of aggravated burglary, a Class C felony, and aggravated rape, a Class A felony. He was sentenced to an effective sentence of twenty-four years in the Department of Correction. On appeal, he contends that his sentence for rape is excessive under the facts and circumstances of his case. Specifically, he faults the trial court for failing to apply mitigating factor (8), that the defendant was suffering from a mental condition which significantly reduced his culpability for the offense. See T.C.A. § 40-35-113(8) (2010). Following review of the record before us, we affirm the decision of the trial court.


Court: TN Court of Criminal Appeals


Mike Mosier, Jackson, Tennessee, for the appellant, Montorius G. Herron.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; James G. Woodall, District Attorney General; and Rolf Hazelhurst, Assistant District Attorney General, for the appellee, the State of Tennessee.


Petitioner, Motorius G. Herron, appeals from the post-conviction court’s dismissal of his post-conviction petition following an evidentiary hearing. In his post-conviction proceeding, Petitioner challenged his conviction following a jury trial for identity theft. The sole issue for appeal is whether Petitioner’s trial counsel rendered ineffective assistance of counsel by failing to make a written request for the inclusion of the crime of fraudulent use of a credit or debit card as a lesser included offense of identity theft. Since the crime of fraudulent use of a credit or debit card is not a lesser included offense of identity theft, trial counsel did not render ineffective assistance of counsel. We accordingly affirm the judgment of the postconviction trial court.


Court: TN Court of Criminal Appeals


B. Jeffery Harmon, District Public Defender, for the appellant, James D. Ledford, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; James Michael Taylor, District Attorney General; and Steve Strain, Assistant District Attorney General, for the appellee, State of Tennessee.


The defendant, James D. Ledford, II, appeals the Seqautchie County Circuit Court’s denial of his request for alternative sentencing. The defendant pled guilty to one count of vehicular homicide by reckless conduct, a Class C felony, and received a sentence of nine years, as a Range II offender, with the manner of service to be determined by the trial court. At the same time, the defendant also pled guilty to a violation of probation in a separate case with a sentence of two years, which the trial court revoked and ordered to be served concurrently with the homicide sentence. On appeal, the defendant contends that the trial court erred by denying him an alternative sentence. Following review of the record, we affirm the sentence as imposed.


Court: TN Court of Criminal Appeals


James E. Thomas, Memphis, Tennessee, for the appellant, Willie Thomas.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Ann Schiller, Assistant District Attorney General, for the appellee, the State of Tennessee.


Petitioner, Willie Thomas, appeals the dismissal of his petition for post-conviction relief in which he alleged that his guilty plea was unknowingly and involuntarily entered due to the ineffective assistance of trial counsel. More specifically he contends that (1) trial counsel “scared” him into pleading guilty; and (2) he was not fully informed regarding the plea. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel, and we accordingly affirm the judgment of the post-conviction court.


Court: TN Court of Criminal Appeals


John S. Anderson, Rogersville, Tennessee, for the appellant, Richard Tipton.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and David Baker, Assistant District Attorney General, for the appellee, State of Tennessee.


The Defendant, Richard Tipton, was convicted of driving under the influence (DUI), fourth offense, a Class E felony; driving on a revoked license, third offense, a Class A misdemeanor; violation of the seatbelt law, a Class C misdemeanor; and failure to provide evidence of financial responsibility, a Class C misdemeanor. See Tenn. Code Ann. §§ 55-10- 401(a)(2), 55-50-504, 55-9-603(a)(1), and 55-12-139. The trial court sentenced the Defendant to serve one year and six months in the county jail. In this appeal as of right, the Defendant contends (1) that the evidence is insufficient to support his convictions and (2) that the trial court failed to consider the eight-year span of time in which the Defendant committed no crimes when determining his sentence, showing a lack of consideration of other sentencing factors. Following our review, we remand this case to the trial court for correction of the judgments because the Defendant was sentenced to the county jail instead of the Department of Corrections (DOC), as required by statute. In all other respects, we affirm the judgments of the trial court.

Today's News

Voters Affirm Merit Selection in High-Dollar Contests

Voters across the country rejected changes to judicial merit selection plans and gave their support to sitting justices who faced expensive ouster attempts. Ballot measures in Florida, New Hampshire, Missouri and Arizona that would have changed judicial selection procedures all went down in defeat, the Wall Street Journal reports in its Law Blog. And in Florida and Iowa, where well financed campaigns were launched to defeat sitting justices in retention elections, all survived, the Pew Center reports on its Stateline website.  In both states, lawyers and legal groups were actively involved in the campaigns.

Two other states had closely watched judicial elections. In Michigan, the GOP held on to control of the state’s Supreme Court, with Republican candidates holding on to two contested seats in partisan elections, Michigan Live reports. And in Alabama, the state’s former chief justice – Roy Moore – was returned to office, Alabama.com reports. He had been ousted from the position in 2003 after refusing to remove a monument of the 10 commandments from the state judicial building in Montgomery. You can find additional judicial election results from the National Center for State Courts.

Even Dead Candidate Wins in Alabama GOP Landslide

Republican nominee Charles Beasley, who died on Oct. 12, beat out Democratic incumbent Walter Sansing for a seat on the Bibb County Commission in Alabama, the Chattanooga Times Free Press reports. Probate Judge Jerry Pow said voters probably didn’t know Beasley had died before the election and since the ballots were printed before his death, they couldn’t be changed before the vote. Beasley carried 52 percent of the vote.

Charter School Funding, Vouchers Hot Topic for Upcoming Legislative Session

Two moths before the legislative session begins, Tennessee lawmakers are preparing for a battle over education in the upcoming season, the Tennessean reports. Republican leaders support stripping local school boards of their authority to approve charter schools and granting private-school vouchers to families who couldn’t otherwise afford to pay tuition. Democrats oppose both ideas, but the GOP heavily dominates both the state House and Senate.

Lawmakers Issue Subpoena for Meningitis-linked Pharmacy Director

Congressional lawmakers have issued a subpoena for the director of the Massachusetts pharmacy linked to the deadly meningitis outbreak, the Elizabethton Star reports. The subpoena came after a lawyer for Barry Cadden, co-founder of New England Compounding Center --  where the contaminated steroid shots were distributed from -- told lawmakers he would not voluntarily attend a congressional hearing.

EPA Approves TVA’s Plan for Coal Ash Cleanup

The Environmental Protection Agency (EPA) has approved a Tennessee Valley Authority (TVA) plan for the final cleanup phase of the 2008 Kingston Fossil Plant ash spill. According to Knoxnews, officials from the TVA, EPA, and Tennessee Department of Environment and Conservation will make a presentation and answer questions at a public meeting next Thursday in Kingston.

Suspension Lifted for Texas Judge Filmed Beating Daughter

The Texas Supreme Court has lifted the suspension of Aransas County Court-at-Law Judge William Adams, who was shown on video beating his then-16-year-old daughter with a belt for illegally downloading music. Adam’s older daughter uploaded the video to Youtube last year, but since the video was from 2004, the Aransas County district attorney said too much time has passed to bring criminal charges. News Channel 9 has the story.


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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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