TBA Votes to Support Constitutional Amendment on Judicial Selection; Merit Selection to Be Made Part of the Process by Executive Order

Following a complete review of the TBA policy on judicial selection, the TBA Board of Governors on Oct. 12 reaffirmed its commitment to merit selection to fill judicial vacancies and voted to support the Constitutional amendment, which provides for gubernatorial appointment, legislative confirmation and retention elections for judges. The Board did so because of assurances that Governor Bill Haslam would include merit in the process via an Executive Order, if the amendment is adopted. The amendment will be on the ballot in the state’s November 2014 general election.

The TBA leadership has worked closely with Governor Haslam’s Administration in the weeks prior to the release of the Governor’s executive order of Oct. 17, which, when viewed in conjunction with the notice and application instructions, sets in place a commission and protocol for judicial appointments very much like the former Judicial Nominating Commission.

TBA President Cindy Wyrick, in announcing the TBA’s support for the constitutional amendment, said “the TBA will support the constitutional amendment because we have been assured that the Governor will implement a merit selection process to appoint qualified judges. We applaud Governor Haslam for his recent executive order, which demonstrates his continuing commitment to filling vacancies with qualified judges through use of a merit selection process.”

TBA support for merit selection and retention elections goes back almost 50 years. This year’s policy review began with discussions and votes in the association's Governmental Affairs committee and its policy making House of Delegates. Final approval came as the Board met for its quarterly meeting.

“The advantage to the constitutional amendment, from our perspective, is that it puts retention elections squarely in the constitution,“ said Wyrick. The TBA maintains that retention elections, under current law, are constitutional as decided by three separate courts. “The combination of merit selection and retention elections is the best way to bring fairness, impartiality, stability, consistency, and clarity to our legal system. These are the values we believe in,” said Wyrick.

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
01 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
00 - TN Court of Criminal Appeals
03 - 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

CORRECTION: Page seven (7). The Appellate Court Judge has been corrected to Witt, Jr. J. in the following case: State of Tennessee v. Edy Chavez Pantaleon - M2012-00575-SC-R11-CD.

Court: TN Supreme Court

TN Workers Comp Appeals


Court: TN Workers Comp Appeals


David T. Hooper, Brentwood, Tennessee, for the appellants, Liberty Mutual Insurance Company and United Parcel Service, Inc.

William Joseph Butler, Lafayette, Tennessee, for the appellee, Michael Anthony Brim.


In this workers’ compensation case, the employee alleged that he injured his right shoulder and left hip when he fell while entering a vehicle. His employer accepted the shoulder injury as compensable, but denied the hip claim. The employee had surgery on both the shoulder and hip and eventually returned to his pre-injury job. The trial court found that the hip injury was compensable and awarded permanent disability benefits for both injuries. The employer has appealed, contending that the evidence preponderates against the trial court’s finding regarding the hip injury. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.

TN Court of Appeals


Court: TN Court of Appeals


Bruce Rishton, pro se appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; William Young, Solicitor General; and, Lee Pope, Assistant Attorney General, for the appellees, Jim Morrow, Warden; Andrew Lewis, Deputy Warden; and, C. Owens, Associate Warden of Operations.


Bruce Rishton (“Rishton”), formerly an inmate in the custody of the Tennessee Department of Correction (“TDOC”), filed a petition for writ of certiorari in the Circuit Court for Bledsoe County (“the Trial Court”) against officials Warden Jim Morrow, Deputy Warden Andrew Lewis, and, Associate Warden of Operations C. Owens (collectively “the Respondents”). Rishton alleged that the warden acted illegally and arbitrarily in denying him his musical instrument. The Respondents filed a motion to dismiss. The Trial Court dismissed the case, holding, inter alia, that the warden’s decision was administrative in nature and not subject to review by writ of certiorari. Rishton appeals. We hold that, as Rishton has since been released from TDOC custody, this case has become moot on appeal. We affirm the Trial Court.

TN Attorney General Opinions

Authority of Humane Society Under Tenn. Code Ann. §§ 39-14-207 and -210

Court: TN Attorney General Opinions

Date: 2013-10-23

Opinion Number: 79

County Zoning of Residential Structures on Land Used for Agricultural Purposes

Court: TN Attorney General Opinions

Date: 2013-10-23

Opinion Number: 80

Solid Waste Management Fees

Court: TN Attorney General Opinions

Date: 2013-10-23

Opinion Number: 81

TLAP Withdraws Petition for Fee Hike

The Tennessee Lawyers Assistance Program (TLAP) is withdrawing its request for a $5 fee increase. TLAP yesterday issued a motion to withdrawal its petition to amend Rule 33 of the Supreme Court. Since Rules 9, 21, 25, 33 and 43 were amended by Orders of the Court on Aug. 30, TLAP said it is requesting to withdraw the petition to amend Rule 33, without prejudice as to the filing of a similar petition to amend Rule 9, Section 10.2, at a later date.

Court Grants Review of New Civil Case

The Tennessee Supreme Court has agreed to hear a civil case regarding an Anderson County employee who was injured at work and raised a claim against the county’s liability coverage provider, Tennessee Risk Management Trust. TRMT filed for summary judgment on the theory that the employee was excluded from uninsured coverage under the coverage agreement with the county. The Raybin Perky Hot List has a summary and forecast of the case.

Law Prof Says Low LSAT Could Mean Bar Exam Trouble in 2016

LSAT scores of this year’s entering law school class are the lowest of any class since 2002, University of St. Thomas law professor Jerry Organ says, and that may impact bar exam passage when the class graduates in 2016. He also looked at LSAT scores and found that, from 2010 to 2013, the number of applicants with a highest LSAT of 165 or more declined by 38 percent, while the number of applicants with a lower score -- below 150 -- declined by only 22.5 percent. “The pool of applicants is not only smaller in the 2012-13 admissions cycle as compared to 2009-10, but it is ‘weaker’ in terms of the LSAT profile,” he writes. The ABA Journal has the story.

Knox County Court Clerk Readies Defense Against Critics

Knox County Criminal Court clerk Joy McCroskey said yesterday she is preparing to fire back at critics and spend the week getting to the bottom of the myriad problems raised by Knox judges, Knoxnews reports. “If we made mistakes, we’re going to admit that,” McCroskey said in a News Sentinel interview. “If someone else made the mistakes, I’m going to show that too. I’ll have an answer for (critics) and will prepare a statement.” McCroskey has declined to discuss specifics of the internal goings on in her office in the wake of the controversy surrounding her staff’s work.

Drug Court Honors Rep. Sargent for his Support

State Rep. Charles Sargent, R-Franklin, was honored by the 21st Drug Court organization for his support of the Drug Court program over the last several years. “Providing treatment alternatives for non-violent drug and alcohol offenders saves space in Tennessee jails and money for Tennessee taxpayers," Sargent said. "It’s a win-win situation for our state, and I am happy to support the mission of the 21st Drug Court on a daily basis.” The Tennessean has more.

DCS Gets Leeway with Federal Funds

The Department of Children’s Services is receiving leeway from U.S. officials in spending money intended for foster children, with the goal of keeping children out of foster care, the Tennessean reports. Until now, DCS has had to spend approximately $40 million in annual federal dollars, known as federal title IV-E funds, to pay foster parents and provide services to kids who have already been taken from their families and placed into state custody. Beginning next October, the agency will be able to use "waivers" to spend grants on a wider variety of interventions designed to keep kids safely out of the foster care system. 

Legal Sector Adds Jobs for Third Consecutive Month

The legal sector added 1,100 jobs in September, its third straight month of gains, the ABA Journal reports. The legal sector now employs 1.13 million people, a gain of 6,600 since September 2012. The number is still 50,000 less than the all-time high set in May 2007.

Haslam Tapped to Lead National Health Care Committee

Gov. Bill Haslam has been chosen to chair the National Governors Association Health and Human Services Committee, the Nashville Business Journal reports. The committee is one of five standing committees, and handles issues related to Medicaid, federal-state safety net programs such as TANF, Supplemental Nutrition Assistance and other social services.

Medicare Terms Still Make a Difference After 'Bagnall' Ruling

In her recent "Senior Moments" column, Knoxville lawyer Monica Franklin details the differences in the Medicare world between the terms "observation" and "admission." The use of one or other of the words can make a huge difference in whether your client will incur extra costs for the hospitalization and whether your client will receive the Medicare benefit to pay for skilled care in a rehabilitation facility. In the column, Franklin references Bagnall v. Sebelius, which at the Journal's press time was pending. Late last month, Judge Michael P. Shea ruled against the plaintiffs and granted the government's motion to dismiss the action.

The plaintiffs' main substantive claim was that observation status violates the Medicare statute because it deprives them of coverage they are entitled to by law. The judge dismissed this claim by relying on a federal appeals court case that held that it is permissible for Medicare to consider someone an inpatient only if she has been formally admitted by a hospital. Franklin notes that the Improving Access to Medicare Coverage Act of 2013 (H.R. 1179), currently in the Subcommittee on Health, provides that a three-day stay in the hospital, regardless of observation or admission status, would allow a Medicare beneficiary to receive benefits to pay for skilled care in a rehabilitation facility.


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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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