Federal Courts Cut Pay for Private Defenders

The federal courts say that private lawyers paid to act as federal public defenders will have their salaries cut as part of an attempt to survive government cost-cutting measures, the Associated Press reports. The Judicial Conference of the United States announced Monday it would reduce by $15 an hour the pay of "panel attorneys." The pay for non-capital cases will drop from $125 per hour to $110. The pay for capital cases will drop from a maximum of $179 per hour to $164. The cuts are scheduled to start in September and be in place for the next year. More than 10,000 lawyers serve as panel attorneys, representing defendants financially unable to retain counsel in federal criminal proceedings. WRCB-TV has the story.

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.

02 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
04 - 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









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TN Supreme Court

WILLIAM H. MANSELL v. BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC ET AL.

Court: TN Supreme Court

Attorneys:

Daniel C. Todd, Nashville, Tennessee, for the appellant, Bridgestone Firestone North American Tire, LLC.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Alexander S. Reiger, Assistant Attorney General, for the appellant, State of Tennessee.

William J. Butler and E. Guy Holliman, Lafayette, Tennessee; and Debbie C. Holliman, Carthage, Tennessee, for the appellee, William H. Mansell.

Judge: WADE

After a benefit review conference in the Department of Labor and Workforce Development failed to produce a settlement, the employee filed suit for workers’ compensation benefits. Because the suit had already been filed, the trial court denied a request by the employer for an independent medical examination pursuant to the medical impairment rating (“MIR”) process in Tennessee Code Annotated section 50-6-204(d)(5) (2008 & Supp. 2012). After hearing all other proof relating to the claim, the trial court awarded compensation to the employee and questioned the constitutionality of the MIR process. The employer appealed; the Attorney General filed a brief as amicus curiae; and this Court vacated the judgment and remanded the cause for additional proceedings. On remand, the Attorney General was added as a defendant to address the constitutional issue. The trial court considered additional evidence, which included an MIR report by an independent medical examiner, and ruled that section 50-6-204(d)(5), which requires our courts to consider the opinion of an independent medical examiner appointed under that section as presumptively accurate, is an unconstitutional infringement upon the powers of the judiciary. In the alternative, the trial court held that the statutory presumption of the accuracy of the report, if compliant with constitutional principles, was overcome by the other medical evidence, and that the employee was entitled to a 10% permanent impairment rating rather than the 7% rating in the MIR report. In this appeal, the employer and the Attorney General argue that the statute meets constitutional standards. We hold that the MIR process does not violate constitutional principles, and we further find that the evidence did not clearly and convincingly rebut the statutory presumption. The judgment of the trial court is, therefore, reversed in part, and affirmed and modified in part. The cause is remanded for additional proceedings consistent with this opinion.


VELDA J. SHORE v. MAPLE LANE FARMS, LLC ET AL.

Court: TN Supreme Court

Attorneys:

Michael H. Meares, Maryville, Tennessee, for the appellant, Velda J. Shore.

John T. Johnson, Jr., Knoxville, Tennessee, for the appellees, Maple Lane Farms, LLC, Robert A. Schmidt d/b/a Maple Lane Farms, and Al Schmidt d/b/a Maple Lane Farms.

Julie P. Bowling and Edward K. Lancaster, Columbia, Tennessee, for the amicus curiae, Tennessee Farm Bureau Federation, Tennessee Agritourism Association, Tennessee Fruit and Vegetable Association, Tennessee Soybean Association, Tennessee Farm Winegrowers Alliance, and Tennessee Cattlemen’s Association.

Judge: KOCH

This appeal involves a dispute over the noise from amplified music concerts being conducted on farm land in rural Blount County. After the business owners who hosted the concerts defied the county zoning authority’s order limiting the concerts to one per year, a neighboring property owner filed suit in the Chancery Court for Blount County seeking to abate the concerts as a common-law nuisance and to enforce the decision of the county board of zoning appeals. The trial court granted the defendants’ motion for an involuntary dismissal at the close of the plaintiff’s proof, finding that the Tennessee Right to Farm Act, Tenn. Code Ann. §§ 43-26-101 to -104 (2007), precluded nuisance liability and that the concerts were exempted from the local land use regulations because they qualified as “agriculture.” The Court of Appeals affirmed. Shore v. Maple Lane Farms, LLC, No. E2011-00158-COA-R3- CV, 2012 WL 1245606 (Tenn. Ct. App. Apr. 11, 2012). We granted the plaintiff homeowner permission to appeal. We hold that the trial court erred by granting the motion to dismiss because the plaintiff homeowner presented a prima facie case of common-law nuisance and because the concerts are not “agriculture” for the purpose of the zoning laws.


TN Court of Appeals

FIRST COMMUNITY BANK, N.A. V. FIRST TENNESSEE BANK, N.A., ET. AL.

Court: TN Court of Appeals

Attorneys:

Lawrence F. Giordano and Linda J. Hamilton Mowles, Knoxville, Tennessee, and Daniel P. Lynch and William J. Wyrick, Cranberry Township, Pennsylvania, for the appellant, First Community Bank f/k/a First Community Bank, N.A.

Mark D. Griffin, Lori H. Patterson, and Kristine L. Roberts, Memphis, Tennessee, for the appellees, First Tennessee Bank, N.A. d/b/a FTN Capital Markets and FTN Financial Securities Corporation.

Judge: MCCLARTY

Plaintiff brought this action against Defendants for fraud, constructive fraud, negligent misrepresentation, civil conspiracy, unjust enrichment, and violation of the Tennessee Securities Act, codified at Tennessee Code Annotated section 48-1-101, et seq. The claims arose out of the purchase of asset-backed securities. Defendants filed motions to dismiss for failure to state a claim, while Nonresident Defendants also objected to the court’s personal jurisdiction. The court dismissed the complaint as requested for failure to state a claim and for lack of personal jurisdiction. Plaintiff appeals. We affirm the dismissal of the complaint for lack of personal jurisdiction as to Nonresident Defendants but reverse the dismissal of the complaint for failure to state a claim as to the remaining defendants. We remand for proceedings consistent with this opinion.


IN RE J.R.P.

Court: TN Court of Appeals

Attorneys:

Mark J. Downton, Nashville, Tennessee, for Respondent/Appellant S.T.P.

Robert E. Cooper, Jr. and Alexander S. Rieger, Nashville, Tennessee, for Petitioner/Appellee State of Tennessee Department of Children’s Services.

Judge: KIRBY

This is a parental termination case. The appellant mother bore the child at issue when she was only 13 years old. After the mother turned 18, she was turned out of her mother’s home and moved often. At that point, the Tennessee Department of Children’s Services intervened and the child was eventually placed in foster care. Months later, DCS filed the instant petition to terminate the mother’s parental rights. In the ensuing bench trial, the proof showed that, during an interim between non-concurrent trial days, the child was removed from his long-term foster placement and placed with a new foster family. The trial court found several grounds for termination and that termination of the mother’s parental rights was in the child’s best interest. The mother now appeals only the best interest determination. We reverse, on the basis that the record does not contain clear and convincing evidence that termination of the mother’s parental rights is in the child’s best interest.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. BILLY LEBRON BURSON

Court: TN Court of Criminal Appeals

Attorneys:

Hannah C. Stokes, Chattanooga, Tennessee, for the appellant, Billy Lebron Burson.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; William H. Cox, III, District Attorney General; and Bates Bryan, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Hamilton County Criminal Court Jury convicted the appellant, Billy Lebron Burson, of three counts of misdemeanor reckless endangerment, three counts of aggravated assault, and felony reckless endangerment. The trial court merged the misdemeanor reckless endangerment convictions into the aggravated assault convictions and imposed a total effective sentence of six years in the Tennessee Department of Correction, which was to be served consecutively to a federal sentence. On appeal, the appellant challenges the sufficiency of the evidence sustaining his aggravated assault convictions, the sentences imposed, and the trial court’s admission of testimony from the State’s “firearms expert.” Upon review, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. DARIUS F.L. DIX

Court: TN Court of Criminal Appeals

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Darius F.L. Dix.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; John W. Carney, Jr., District Attorney General, and Kimberly Lund, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Darius F. L. Dix, was indicted in a multi-defendant, multi-count indictment by the Montgomery County Grand Jury for simple possession of marijuana and possession of twenty-six grams or more of cocaine with intent to sell or deliver. After a jury trial, Appellant was convicted of both offenses. As a result, the trial court sentenced Appellant to ten years for the cocaine conviction and eleven months and twenty-nine days for the marijuana conviction, to be served concurrently with each other but consecutively to a sentence in another case for which Appellant was on probation/community corrections at the time of his arrest. Appellant’s ten-year sentence was ordered to be served on probation. Subsequently, Appellant filed a pro se “appeal of verdict” in which he challenged the sufficiency of the evidence. Counsel later filed an untimely motion for new trial. The trial court denied the motion, and Appellant appealed to this Court arguing that the evidence was insufficient to support his conviction for possession of cocaine. After a review of the record and applicable authorities, we determine that there was sufficient evidence presented at trial for the jury to determine that Appellant possessed more than twenty-six grams of cocaine for resale. Accordingly, the judgments of the trial court are affirmed.


DAMON HOUSTON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Randall B. Tolley, Memphis, Tennessee, for the appellant, Damon Houston.

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

Judge: SMITH

Petitioner, Damon Houston, was convicted of especially aggravated robbery and sentenced to fifteen years as a Range I, violent offender. He was unsuccessful on direct appeal to this Court. State v. Damon Houston, No. W2010-00399-CCA-R3-CD, 2011 WL 2672015, at *1 (Tenn. Crim. App., at Jackson, Jul. 8, 2011). Petitioner subsequently filed a petition for postconviction relief alleging that he received ineffective assistance of counsel, that there were “unconstitutional errors” in the trial process, that his conviction was based on a coerced confession, that his conviction was based on the use of evidence obtained pursuant to an unlawful arrest, and that there was newly discovered evidence. We have reviewed the record on appeal and conclude that Petitioner has not proven that he was denied effective assistance of counsel. Furthermore, because of his failure to cite authority and put forth arguments to support his assertions, the remaining issues are waived. Therefore, we affirm the postconviction court’s denial of the petition.


LESTER PAGE v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Paul K. Guibao, Memphis, Tennessee, for the appellant, Lester Page.

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

Judge: THOMAS

The Petitioner, Lester Page, contends that his guilty plea to incest, a Class C felony, was not knowingly and intelligently entered because he received the ineffective assistance of counsel and that the post-conviction court erred in denying him post-conviction relief. After a thorough review of the record and the applicable authorities, we affirm the judgment of the post-conviction court.


Carr Switches Races, Will Challenge Alexander

State Rep. Joe Carr, R-Lascassas, has dropped out of the race to challenge U.S. Rep. Scott DesJarlais and refocused his sites on the U.S. Senate and the seat of incumbent Lamar Alexander. Carr announced the move today but the campaign got off to a rocky start, The Tennessean reports. The word “Senate” was misspelled on the campaign website and Carr’s campaign director Chip Saltsman resigned. “I signed up to help you run for Congress, not the Senate,” Saltsman said in a letter announcing his departure. “It is because of Lamar Alexander that people like you have the honor of serving in the majority of the state legislature.” Saltsman went on to say he was supporting Alexander's reelection. Meanwhile, state tea party leaders welcomed Carr to the race but said others will likely step forward as well.


At Least 2 Defendants Free Due to Clerical Error

Two suspected criminals in Williamson County have had their cases dismissed after the courts erred in the issuing of probation violation warrants, WSMV-TV reports. As previously reported, a judge must sign such warrants, but in an unknown number of cases an assistant signed the documents. At least two defendants have had their cases dismissed to date. District Attorney General Kim Helper says the problem is now fixed. "Once it came to the court's attention, both of our general sessions judges took steps immediately to correct the situation that those warrants were not properly signed were dismissed," she said. Helper also said she believes the courts may have been confused by the kind of warrant they were signing. Tennessee law allows standard arrest warrants to be signed by judicial commissioners and clerks, while probation violation warrants must be signed by a judge.


First Wrongful Dismissal Suit Filed Against Vanderbilt

The first of what could be several lawsuits against Vanderbilt University Medical Center in relation to a recent round of job cuts was filed Monday in U.S. District Court in Nashville, The Tennessean reports. The suit alleges the hospital violated the Family and Medical Leave Act by targeting certain employees to cut. “While VUMC has yet to publicly comment on the precise criteria utilized in selecting employees to terminate, some employees were targeted as a direct result of having exercised their rights pursuant to the FMLA,” argues Nashville civil rights attorney George Barrett and former U.S. Attorney Jerry Martin, both with Barrett Johnston LLC, who are representing the plaintiff.


Missouri Begins Using New Execution Drug

The state of Missouri will begin using the drug propofol in its executions, the Associated Press reports. It will be the first state to use the drug, which has been used as a sleep aid. The state Supreme Court approved the use of the drug when it set execution dates for two death-row inmates. Several states are scrambling to find execution drugs, which have been in short supply as a result of drug manufacturers’ decisions and court rulings. Missouri’s solution will be short-lived though. It only has three doses of propofol in its stockpile, and the maker of the drug – like many that make other drugs used in executions – says it will no longer sell to corrections departments. The ABA Journal has links to several sources for the story.


Panel Reportedly Set to Urge Formal Charges Against Bebb

According to published reports, a state House investigative panel will recommend that House Speaker Beth Harwell appoint a committee to detail specific charges against 10th Judicial District Attorney General Steve Bebb when the General Assembly returns in January. Bebb has been under fire since a series of reports in the Chattanooga Times Free Press raised questions about his ethics and competence. Bebb recently said he is ready to take on his accusers. "I am ready for a hearing," he told The Advocate & Democrat. "Bring your witnesses and I will bring mine."


Scalia: Not Court’s Place to ‘Invent New Minorities’

U.S. Supreme Court Justice Antonin Scalia said in a speech before the Federalist Society yesterday that the court is making decisions that should be left to Congress. Citing recent rulings on issues such as wiretapping and gay marriage, he argued it is not the court’s place to “invent new minorities that get special protections." Scalia also addressed what he sees as one of the last remaining issues to be settled with regard to the Second Amendment: determining the scope of armaments that people can keep and bear. Scalia helped launch the Federalist Society more than 30 years ago to fight the perception of liberal bias at the nation's law schools. WDEF has this Associated Press 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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