The High Price of Judicial Vacancies

Brennon Center for Justice Fellow Andrew Cohen discusses the high price of judicial vacancies in an article published this week. Cohen writes that there are dozens of jurisdictions all across the nation that now operate under what are known as “judicial emergencies” because of a lack of confirmed judges. By delaying the administration of justice, by thwarting the principles of finality and certainty, judicial vacancies cause real harm both to the American people and to the free market, he writes. Cohen cites Alicia Bannon’s report “Federal Judicial Vacancies: The Trial Courts” as doing a better job than most of trying to bridge the gulf between the raw statistics of judicial vacancies and what those statistics mean for real people.

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.

00 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
02 - TN Court of Criminal Appeals
05 - 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 Court of Appeals

DAVID SCOTT BLACKWELL v. BILL HASLAM, GOVERNOR OF THE STATE OF TENNESSEE, IN HIS OFFICIAL CAPACITY ONLY; ROBERT E. COOPER, JR., TENNESSEE ATTORNEY GENERAL; VICTOR S. (TORRY) JOHNSON, III, DISTRICT ATTORNEY GENERAL FOR THE 20TH JUDICIAL DISTRICT, IN HIS OF
CORRECTION: On first page, last sentence which reads: "We hold that Tennessee's public policy on the restoration of firearm rights for a convicted non-violent drug . . . ." That sentence has been corrected to read: "We hold that Tennessee's public policy on the restoration of firearm rights for a convicted violent drug . . . . "

Court: TN Court of Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General & Reporter; William E. Young, Solicitor General; and Frank Borger-Gilligan, Assistant Attorney General, for the Respondents/Appellees, Bill Haslam, Governor of the State of Tennessee; Robert E. Cooper, Jr., Tennessee Attorney General; Victor S. (Torry) Johnson, III, District Attorney for the 20 th Judicial District; Kim R. Helper, District Attorney for the 21st Judicial District; and the State of Tennessee

David L. Raybin and Benjamin K. Raybin, Nashville, Tennessee, for the Petitioner/Appellee, David Scott Blackwell

Judge: KIRBY

This appeal involves the Full Faith and Credit Clause and firearm rights. The petitioner was convicted of felony drug offenses in Georgia. The State of Georgia granted the petitioner a full pardon for his crimes; his Georgia pardon expressly restored his right to possess a firearm. The petitioner now resides in Tennessee. A Tennessee statute provides that it is a felony for a person who has been convicted of a felony drug offense to possess a firearm, and it does not make an exception for persons who have been pardoned for their crime. The petitioner filed this declaratory judgment action against the State of Tennessee, seeking a declaration that, because he received a pardon for his drug offenses in Georgia, he can purchase or possess a firearm in Tennessee without violating the Tennessee statute. The trial court held in favor of the petitioner, concluding that the Full Faith and Credit Clause of the United States Constitution requires Tennessee to recognize Georgia’s pardon in full and to permit the petitioner to carry a firearm in Tennessee. The State of Tennessee now appeals. On appeal, we consider the public-policy exception to the Full Faith and Credit Clause. We hold that Tennessee’s public policy on the restoration of firearm rights for a convicted violent drug felon is not entirely inconsistent with Georgia’s public policy, so the public-policy exception to full faith and credit is not applicable in that situation. However, Tennessee public policy proscribes the restoration of firearm rights for a convicted violent drug felon, contrary to Georgia’s public policy allowing the restoration of firearm rights for all felons, violent or not. This Tennessee policy implicates public safety so as to warrant application of the public-policy exception to the Full Faith and Credit Clause under the appropriate circumstances. Therefore, we vacate the trial court’s grant of judgment on the pleadings and remand for further proceedings consistent with this opinion.


COPPER BASIN FEDERAL CREDIT UNION ET AL. v. FISERV SOLUTIONS, INC., d/b/a INTEGRASYS

Court: TN Court of Appeals

Attorneys:

James R. McKoon and John R. Hegeman, Chattanooga, Tennessee, for the appellants, Copper Basin Federal Credit Union and Cumis Insurance Society, Inc.

John A. Lucas, Knoxville, Tennessee, for the appellee, Fiserv Solutions, Inc., d/b/a Integrasys.

Judge: FRIERSON

This action sounding in negligence and breach of contract was dismissed by the trial court pursuant to Rule 12 of the Tennessee Rules of Civil Procedure. Plaintiffs alleged in their complaint that Defendant negligently performed professional services concerning the provision and maintenance of web defense software and that Defendant breached its contractual duty to protect the computer system of Copper Basin Federal Credit Union from computer incursion. For the reasons stated herein, we hold that the complaint alleges sufficient facts to allow the case to proceed, and, therefore, dismissal was in error. The decision below is reversed, and the case is remanded for further proceedings.


JAMES EBERLE ET AL. v. LISA PARROTT ELLIOTT, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JERRY WAYNE PARROTT, DECEASED
CORRECTION: Page 1 "Tenn. R. App. 3 Appeal as of Right" to "Tenn. R. App. P. 3 Appeal as of Right"

Court: TN Court of Appeals

Attorneys:

John W. Cleveland, Sr., Sweetwater, Tennessee, for the appellants, James and Edna Eberle.

John Carson, III, Madisonville, Tennessee, for the appellee, Lisa Parrott Elliott.

Judge: FRIERSON

This is a contested easement action regarding wooded mountain property in Monroe County. The Plaintiffs/Appellants, James and Edna Eberle, filed a complaint requesting that the Defendant/Appellee, Lisa Parrott Elliott, be enjoined from crossing the Eberles’ property from her adjoining thirty-acre tract without benefit of an easement. Following a bench trial, the Monroe County Chancery Court dismissed the Eberles’ complaint for injunctive relief and ruled that an easement exists for ingress and egress over the Eberles’ property, appurtenant to and serving Ms. Elliott’s property. The Eberles have appealed. At issue is whether the trial court erred by finding the existence of an easement, either express, prescriptive, or implied. The Eberles also assert that the trial court erred by failing to limit the easement to a use no greater than the use previously made over the servient property. Discerning no error, we affirm the trial court’s ruling that an easement exists for ingress and egress and the court’s dismissal of the complaint for injunctive relief.


JOHN H. PATTY V. RAY LANE, ET. AL.

Court: TN Court of Appeals

Attorneys:

Darren V. Berg and Brett D. Stokes, Knoxville, Tennessee, for the appellants, Ray Lane and Rob Gregory.

Daniel V. Parish, Knoxville, Tennessee, for the appellee, John H. Patty.

Judge: MCCLARTY

This appeal involves the breach of an oral contract. Defendants approached Plaintiff about utilizing fill dirt on Plaintiff’s property. Plaintiff agreed. Defendants subsequently executed a plan to control the sediment as they excavated the property. Over the course of the next three years, the City of Knoxville sent Plaintiff two notices of violation, one of which carried a fine, for improper sediment control, illegal dumping and discharge, and failure to obtain a city permit. Defendants paid the fine, applied for a city permit as required, and attempted to stabilize the property. Two years later, Plaintiff received two more notices of violation, one of which carried a fine. Plaintiff paid the fine and hired an engineer to properly stabilize the property after Defendants refused to respond to his request for assistance. Plaintiff then filed suit for breach of contract, seeking reimbursement for his payment of the second fine and for the cost of professionally stabilizing the property. Defendants denied liability and asserted that a contract had never been formed. The trial court found that a contract existed, that Defendants breached the contract, and that Plaintiff was entitled to damages in the amount of $29,249.02. Defendants appeal. We affirm the decision of the trial court.


LISA WOMBLE v. STATE OF TENNESSEE

Court: TN Court of Appeals

Attorneys:

George T. Underwood, Jr., Knoxville, Tennessee, for the appellant, Lisa Womble.

Brian A. Lapps, Jr., Deputy General Counsel, The University of Tennessee; Michael D. Fitzgerald, Assistant General Counsel, The University of Tennessee; and Robert E. Cooper, Jr., Attorney General and Reporter, for the appellee, State of Tennessee.

Judge: FRIERSON

A nurse whose employment at the University of Tennessee Regional Memorial Medical Center was terminated by the hospital brought a complaint against the State, alleging, inter alia, breach of contract and negligent deprivation of her property right to her position as a career state employee. The Claims Commission, William O. Shults, Commissioner, dismissed the claims, concluding that the Commission was without subject matter jurisdiction. The nurse appealed. We affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. RAINA FISHER

Court: TN Court of Criminal Appeals

Attorneys:

William C. Barnes, Jr. (on appeal) and Larry Samuel Patterson, Jr. (at trial), Columbia, Tennessee, for the appellant, Raina Fisher.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Mike Bottoms, District Attorney General; and Kyle Dodd, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Maury County Criminal Court Jury convicted the appellant, Raina Fisher, of three counts of theft of property valued $1,000 or more but less than $10,000, a Class D felony; one count of theft of property valued more than $500 but less than $1,000, a Class E felony; and one count of attempted theft of property valued $1,000 or more but less than $10,000, a Class E felony. The trial court sentenced her as a Range II, multiple offender to an effective sentence of seven years. On appeal, the appellant contends that the evidence is insufficient to support the convictions. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. PHILIP TREVOR LENOIR

Court: TN Court of Criminal Appeals

Attorneys:

Charles G. Currier, Knoxville, Tennessee, for the appellant, Phillip Trevor Lenoir.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Steven Bebb, District Attorney General; and Krista Oswalt, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Monroe County jury found the Defendant, Phillip Trevor Lenoir, guilty of aggravated child neglect. Thereafter, the trial court judge recused herself and a successor judge was appointed. The successor judge sentenced the Defendant as a Range I offender to serve twenty-five years in the Department of Correction. The Defendant appeals claiming: (1) the successor judge failed to engage in the proper analysis as the thirteenth juror; (2) the trial court erred when it denied the Defendant’s motion for a continuance; (3) the State was statutorily required to make an election between aggravated child abuse and aggravated child neglect; (4) the evidence is insufficient to support his convictions; (5) the trial court failed to require the jury to announce the fines imposed; (6) the trial court failed to instruct the jury on “third-party culpability;” and (7) the trial court erred when it did not allow the Defendant to offer “reliable hearsay” in his defense. After a thorough review of the record and relevant law, we conclude that because the successor judge was unable to properly approve the verdict as “thirteenth juror,” a new trial must be granted. Accordingly, the judgment of the trial court is reversed and this case is remanded for a new trial.


TN Attorney General Opinions

County Public Records Commission

Court: TN Attorney General Opinions

Date: 2013-07-01

Opinion Number: 48


Term of Shelby County General Sessions Court Clerk

Court: TN Attorney General Opinions

Date: 2013-07-01

Opinion Number: 49


Motor Vehicle Emissions Testing Fees

Court: TN Attorney General Opinions

Date: 2013-07-01

Opinion Number: 50


Donations of Electronic Health Records Software

Court: TN Attorney General Opinions

Date: 2013-07-02

Opinion Number: 51


Authority of Law Enforcement Officers and Funeral Escort Services

Court: TN Attorney General Opinions

Date: 2013-07-02

Opinion Number: 52


Judge to Decide on Release of Baumgartner Files

Judge Walter Kurtz will decide by the end of next week whether to release confidential portions of state files connected to the investigation into former Knox County Judge Richard Baumgartner, WBIR reports. Herbert Moncier, who represents the families of murder victims Channon Christian and Chris Newsom, asked Judge Kurtz to release up to 2,000 additional pages of information contained in the files put together by the Tennessee Bureau of Investigation in order to find out how the judge got away with his prescription drug abuse for so long.


Judge Blocks Cracker Barrel’s Grocery Plans

A U.S. District Court judge granted a preliminary injunction to block Tennessee-based restaurant chain Cracker Barrel Old County Store from selling branded meat products in grocery stores. The Memphis Daily News reports that food giant Kraft Foods argued that the line would infringe on its own Cracker Barrel-trademarked cheese products, which registered the Cracker Barrel trademark more than a decade before Cracker Barrel Old Country Store used the name.


Knox County Trustee Eligible for Diversion

Former Knox County Trustee John Duncan III, who pled guilty yesterday to a felony charge of official misconduct, will be eligible for diversion despite a law enacted by the General Assembly last year that prohibits the practice in cases where a public official is convicted of a crime related to service while in office. The new law took effect on July 1, 2012. Duncan’s guilty plea to a charge of official misconduct was based on events occurring in late 2010. Thus, the law does not apply in Duncan’s case, according to District Attorney General Randy Nichols and Rep. Ryan Haynes, R-Knoxville, who sponsored the bill in question. Knoxnews has the story.


DOJ Reviewing Airline Merger Antitrust Lawsuit

An antitrust lawyer filed a lawsuit yesterday to block the proposed merger of American Airlines and US Airways on behalf of nearly 40 consumers, claiming the deal would hurt consumers by driving up airfares. The U.S. Department of Justice is reviewing the proposed merger, which would make American the biggest airline in the word. American Airlines and US Airways spokesmen have called the lawsuit “baseless” and lacking merit. WRCB has the story.


Health Care Law’s Employer Mandate Delayed

In a major concession to business groups, the Obama administration Tuesday unexpectedly announced a one-year delay, until 2015, in a central requirement of the new health care law that medium and large companies provide coverage for their workers or face fines, the Tennessean reports. The employer requirements are among the most complex parts of the health care law, which is designed to expand coverage for uninsured Americans. Under the law, companies with 50 or more workers must provide affordable coverage to their full-time employees or risk a series of escalating tax penalties. “We have heard concerns about the complexity of the requirements and the need for more time to implement them effectively,” Treasury Assistant Secretary Mark Mazur said in a blog post. “We have listened to your feedback and we are taking action.”


Longtime Kingsport Lawyer Dies

Kingsport native and attorney Michael La Guardia died yesterday (July 1). A graduate of East Tennessee State University, LaGuardia served as vice-president and secretary of Giant Foods Markets and started multiple computer companies before earning his law degree from the University of Tennessee. LaGuardia served as the first attorney on the Kingsport Drug Court panel and his office served Sullivan, Washington, Hawkins and other surrounding counties.


Lebanon City Judge Dies

Judge Rodney Victor Ahles died from a stroke at his home on Sunday (June 30). He was 82. Ahles was appointed city judge for Lebanon in 1970, serving for almost four decades of unprecedented consecutive terms in office. He received a Bachelor of Arts degree from the University of Arizona, the Bachelor of Law Degree from Cumberland University, and the Doctor of Jurisprudence degree from Samford University. He entered private practice of law in Lebanon in 1967 and, as part of his practice, drafted legislation for the State of Tennessee Legislative Council, in both the House and the Senate, for five sessions of the General Assembly. He retired from the bench in 2005. Because there have been so many beautiful tributes honoring him during the period of his retirement from the bench, Judge Ahles requested that no additional local memorial service or visitation be held at the time of his death. A dedication ceremony will be planned for the near future. In lieu of flowers, memorial contributions may be sent to First Presbyterian Church in Lebanon.


Knox Country Lawyer Censured

Knox County lawyer Vanessa Lynn Lemons received a public censure for not appearing for Court hearings or communicating with her client whom she was appointed to defend in several criminal cases. Lemons was removed from the case. She has failed to respond to this complaint of misconduct, but is currently serving a four year suspension pursuant to Supreme Court Order filed January 25. Download the BPR notice.


Law Firms Invited to Explore China Opportunities

As China seeks to become a center of international business and finance, its need for sophisticated multinational legal and financial services is growing. To help law firms take advantage of these opportunities, the General Counsel of the U.S. Department of Commerce will lead a Legal Services Trade Mission to China, Sept. 16-18, with the support of the American Bar Association. Attached is a mission flyer as well as an application. For more information about this trade mission, contact Frank Spector at (202) 482-2054.


Judicial Election Process Muddied

The failure to renew the state’s Judicial Nominating Commission this year continues to have significant ramifications, according to a Memphis Daily News article. “We think it was really irresponsible for the legislature not to act, to put it into sort of this muddle,” said Allan Ramsaur, executive director of the Tennessee Bar Association. “We have for 50 years favored merit selection and believe it and retention elections meet the constitutional test for election,” Ramsaur added.  Gavel Grab has more on the issue.


 
 

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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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