Opinion: Judicial Board’s Integrity Unfairly Attacked

In response to a June 7 article, immediate past president of the Tennessee Bar Association Cindy Wyrick denounces state Sen. Janice Bowling’s accusations that the Board of Judicial Conduct is “failing to do its job” and that members of the Judicial Performance Evaluation Commission were “pressured” into changing their votes. Wyrick defends the integrity of the board’s members, stating “In reviewing the performance of judges, the commission makes a preliminary finding. Fairness demands that judges have an opportunity for a hearing to offer an alternate viewpoint. Similarly, judges and lawyers who have experience with the judges being evaluated should, and did, come forward to recommend a different result. The implication that it was unusual or improper for those opinions to be offered to the commission is simply false. The idea that Commission members succumbed to ‘improper influence’ is equally incorrect and untrue.” She goes on to state that the board’s counsel found no misconduct, based on a careful reading of the Code of Judicial Conduct. “Inappropriate and unnecessary distractions that unfairly call into question the integrity of the ethics process should, therefore, be viewed in light of the fact that they conveniently come during an election year,” Wyrick concludes. The Tennessean has the full letter.

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
03 - TN Court of Appeals
06 - TN Court of Criminal Appeals
01 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









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TN Court of Appeals

IN RE AALIYAH R.

Court: TN Court of Appeals

Attorneys:

Mark J. Downton, Nashville, Tennessee, for the appellant, Sharon C.

Robert E. Cooper, Jr. Attorney General and Reporter, Jordan Scott, Assistant Attorney General, and Christine S. Carlton, for the appellee, Tennessee Department of Children’s Services.

Judge: CLEMENT

Mother appeals the termination of her parental rights. The trial court found four grounds for termination of Mother’s parental rights: substantial noncompliance with the requirements of the permanency plan, failure to support financially, failure to provide a suitable home, and persistence of conditions; the court also determined that termination was in the best interest of the child. Mother appeals arguing the evidence is insufficient to establish any of the grounds and that termination was in the child’s best interest. We have determined that the evidence clearly and convincingly supported two of the grounds, that of substantial noncompliance with the requirements of the permanency plan and persistence of conditions. We have also determined that termination was in the child’s best interest. Therefore, we affirm the termination of Mother’s parental rights.


IN RE KASON C. ET AL.

Court: TN Court of Appeals

Attorneys:

Mark J. Downton, Nashville, Tennessee, for the appellant, Glenn C.

Robert E. Cooper, Jr., Attorney General and Reporter, Alexander S. Rieger, Assistant Attorney General, Mary Byrd Ferrara, and Matthew Franciscus Wright, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services.

Judge: CLEMENT

Father appeals the termination of his parental rights to his two children. The juvenile court found the Department of Children’s Services established four grounds for termination of father’s parental rights: 1) parent sentenced to ten or more years for any criminal act and the children are under eight years of age pursuant to Tenn. Code Ann. § 36-1-113(g)(6); 2) parent sentenced to more than two years for conduct against a child or sibling/half-sibling of the child who is the subject of the petition pursuant to Tenn. Code Ann. § 36-1-113(g)(5); 3) abandonment by wanton disregard pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv); and 4) substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2). The juvenile court also found that termination of Father’s rights was in the children’s best interest. Father appealed. We affirm.


JAY WILFONG v. CRK REAL ESTATE, LLC, ET AL.

Court: TN Court of Appeals

Attorneys:

Jay Wilfong, Mt. Juliet, Tennessee, Pro Se.

T. Price Thompson III, Lebanon, Tennessee; Sanford L. Michelman, Todd H. Stitt, Marc R. Jacobs, Encino, California, for the appellee(s), CRK Real Estate, LLC, RM Wilson County Investors, LLC, Hamid Mashhoon, Mondana Mashhoon Gordon, Mahasti Mashhoon, and The Mashhoon Family Inter Vivos Trust Dated May 4, 1997;

W. Andrew Bobo, M. Wyatt Burk, Shelbyville, Tennessee, for the appellee, Traders Bank;

Timothy L. Warnock, Timothy G. Harvey, Nashville, Tennessee, for the appellee, Carol Perrin;

John S. Hicks, Nashville, Tennessee; Sonya Smith Wright, Murfreesboro, Tennessee, for the appellees, Charles R. Kaelin and Marcus French.

Judge: ASH

This case arose out of a contract for the sale of real estate. The contract included a provision requiring the buyer to make “commercially reasonable efforts” to sell the property, and to split any profits with the seller if the property was resold within 36 months. The buyer did not sell the property, and the seller brought suit, raising numerous claims, including breach of contract, breach of fiduciary duty, violations of the Real Estate Settlement Practices Act (RESPA), the Truth in Lending Act (TILA), the Fair Debt Collection Practice Act, the Consumer Protection Act, RICO, wrongful foreclosure, promissory fraud, civil conspiracy, collusion, intentional infliction of emotional distress, constructive trust, conversion and unjust enrichment. After a hearing, the trial court granted the buyer’s motion to dismiss thirteen of the seller’s claims, denied the motion to dismiss another six of his claims, and certified its order as final for the purposes of appeal under Tenn. R. Civ. P. 54.02. We affirm the trial court.


TN Court of Criminal Appeals

TIMOTHY BARBEE v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Timothy Barbee.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Benjamin J. Ford, III, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Petitioner, Timothy Barbee, pleaded guilty to possession of heroin, a Schedule I controlled substance, with intent to sell, and the trial court sentenced petitioner to the agreed-upon term of eight years at thirty percent release eligibility. In his timely petition for post-conviction relief, petitioner asserts that his guilty plea was not knowingly and voluntarily entered. After an evidentiary hearing, the post-conviction court denied relief. Following our review, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. JONATHAN T. DEAL

Court: TN Court of Criminal Appeals

Attorneys:

Jonathan T. Deal, pro se, as the appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; R. Steven Bebb, District Attorney General; and M. Drew Robinson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Jonathan T. Deal (“the Defendant”) filed a motion to correct an illegal sentence. The trial court summarily denied the Defendant’s motion, and this appeal followed. Upon our thorough review of the record and applicable law, we conclude that the Defendant set forth a colorable claim. Accordingly, we remand this matter to the trial court for further proceedings pursuant to Tennessee Rule of Criminal Procedure 36.1.


CHARLES ORLANDO FIELDS v. DEBRA JOHNSON, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Charles Orlando Fields, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Brent C. Cherry, Senior Counsel, for the appellee, State of Tennessee.

Judge: GLENN

The pro se petitioner, Charles Orlando Fields, appeals the Hickman County Circuit Court’s summary dismissal of his petition for writ of habeas corpus, arguing that the sentence he received for his conviction for the sale of a controlled substance within 1000 feet of a school zone is illegal. Following our review, we affirm the dismissal on the grounds that the petitioner failed to state a cognizable claim for habeas corpus relief.


STATE OF TENNESSEE V. DARREN EUGENE FLESHMAN, ALIAS

Court: TN Court of Criminal Appeals

Attorneys:

Mark E. Stephens (on appeal) and Scott Carpenter, Assistant Public Defender (at trial), Knoxville, Tennessee, for the appellant, Darren Eugene Fleshman.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Randall Nichols, District Attorney General; and Kenneth F. Irvine, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Darren Eugene Fleshman, alias (“the Defendant”), was convicted of theft 1 of property of at least $10,000 but less than $60,000. Following a sentencing hearing, the trial court sentenced the Defendant to four years, suspended to supervised probation, and ordered him to pay restitution in the amount of $42,815.93. On appeal, the Defendant challenges the following: the trial court’s interpretation of the definition of “owner” under Tennessee Code Annotated section 39-11-106(a)(26) (2006); the sufficiency of the evidence at trial; and the amount of restitution imposed by the trial court. After a thorough review of the record and the applicable law, we affirm the Defendant’s conviction. We, however, vacate the trial court’s order of restitution and remand this matter for a new hearing as to the amount and manner of restitution.


STATE OF TENNESSEE v. RANDALL GRAINGER

Court: TN Court of Criminal Appeals

Attorneys:

Brent Horst, Nashville, Tennessee, for the appellant, Randall Grainger.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Megan King, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a bench trial Defendant, Randall Grainger, was convicted of three counts of knowingly violating a condition of community supervision for life, with each condition violated not in itself constituting a criminal offense, in violation of Tennessee Code Annotated section 39-13-526 (a),(b)(1). Each conviction is a Class A misdemeanor. The trial court imposed a sentence of eleven (11) months and twenty-nine (29) days for each conviction and ordered the sentences to be served concurrently with each other. The trial court suspended all of the effective sentence of eleven (11) months and twenty-nine (29) days except for ten (10) days’ incarceration, followed by eleven (11) months and nineteen (19) days of probation. In his appeal Defendant presents two issues for this Court’s review. First, Defendant asserts that the convictions should be reversed and the charges dismissed because Tennessee Code Annotated section 39-13-524(d)(1) violates Article II, section 3 of the Tennessee Constitution. Second, Defendant argues that the conviction based upon his failure to successfully complete sex offender treatment violates his right to due process guaranteed by both the United States Constitution and the Tennessee Constitution. After a thorough review of the record, the parties’ briefs, and the applicable law, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. WILLIAM CREGGAR SNODGRASS

Court: TN Court of Criminal Appeals

Attorneys:

Jonathan D. Cooper, Knoxville, Tennessee, for the appellant, William Creggar Snodgrass.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Randall Eugene Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, William Creggar Snodgrass, was convicted of attempted rape, a Class C felony. The trial court sentenced appellant to eight years to be served in the Tennessee Department of Correction. On appeal, appellant argues that: (1) the trial court erroneously instructed the jury regarding flight; (2) the trial court erred in allowing testimony from an unsequestered witness; and (3) the evidence at trial was insufficient to support his conviction. Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the trial court.


TN Attorney General Opinions

Constitutionality of Payment Requirement for Liquor-by-the-Drink Licensees

Court: TN Attorney General Opinions

Date: 2014-06-17

Opinion Number: 61


Six Nominated for Workers' Comp Board

After interviewing candidates, the Governor’s Commission for Judicial Appointments has submitted the following six nominees to Gov. Bill Haslam for the three openings on the Workers’ Compensation Appeals Board: Catherine Bulle Clayton of Madison County, Aaron James Conklin of Rutherford County, Timothy Wade Conner of Knox County, Marshall L. Davidson III of Sumner County, David F. Hensley of Hamilton County and Dale A. Tipps of Rutherford County. The Administrative Office of the Courts has more.


Deadline for TBA Mentoring Program July 1

The Tennessee Bar Association will be accepting applications for the next mentoring class through July 1. TBA members in their first three years of law practice may apply to be matched with a mentor. Those participating in the program will commit to a formal mentoring relationship for one year -- beginning in August -- with a requirement that mentors and mentees meet face-to-face at least once a month. Participants will choose from a variety of curriculum topics, materials for which will be available on the TBA website. In addition to seeking mentees, the TBA is recruiting attorneys with at least eight years of legal practice experience to serve as mentors. For more information, visit the TBA Mentoring Program webpage


President Steen Lays Out Plans for Coming Year

Newly sworn in TBA President Jonathan Steen outlined initiatives for the upcoming TBA membership year during his Lawyers Luncheon speech at the TBA Annual Convention in Gatlinburg (June 13). The Jackson attorney plans to carry on the association's work in responding to unjust criticism of our judges and provide educational materials on how to be informed voters. In addition, he wants the association to build on the mentoring and Solo-in-a-Box programs to help lawyers to succeed in the practice of law and deliver first-rate services to their clients. Steen also outlined plans for expanding civics education in schools and developing medical/legal partnerships across the state. Watch his presentation to learn more.


Court to Consider 5 Gay Marriage Cases at Once

The 6th U.S. Circuit Court of Appeals will hear five arguments in gay marriage fights in Ohio, Michigan, Kentucky and Tennessee in a single session on Aug. 6, setting the stage for historic rulings in each state. Though the cases are unique, each deals with whether statewide gay marriage bans violate the Constitution. WKRN News 2 has more from the Associated Press.


Senate Confirms 3 Diverse Federal Judges

The Senate yesterday confirmed the first openly gay black man to a top-level federal judgeship, voting 98-0 to make Darrin Gayles a district court judge in Florida. Senators also confirmed Staci Yandle, an openly gay black woman, for a federal district judgeship in Illinois and Salvador Mendoza, a Hispanic man, for federal district judge in Washington state. President Obama has appointed more female and Hispanic federal judges than any previous president, WKRN News 2 reports. "These milestones are important not because these judges will consider cases differently, but because a judiciary that better resembles our nation instills even greater confidence in our justice system" and can serve as a future role model, presidential counsel Neil Eggleston wrote in a blog post. 


Report: Rape Kit Backlog Not Malicious

A report compiled by former U.S. Attorney Veronica Coleman-Davis says no one maliciously or wantonly allowed for the backlog of 12,000 rape kits that sat untested for years in Memphis. Instead of placing the blame on a single individual, the report, which was released yesterday, attributed the problem to “a general and collective failure to understand the importance of DNA testing as was reflected in common practices in place locally and nationwide,” Knoxnews reports.


Past TBA President Appointed to National Pro Bono Committee

George “Buck” Lewis, a shareholder in the Memphis office of Baker Donelson and a past TBA president, has been appointed by the American Bar Association to the ABA Standing Committee on Pro Bono and Public Service. The committee's mission is to ensure access to justice through the expansion and enhancement of the delivery of legal services to the underserved through volunteer efforts of legal professionals nationwide, the Memphis Business Journal reports.


Why the Justice System Loses in Costly Judicial Elections

The partisan campaign to oust three Democrat-appointed Tennessee Supreme Court justices in the upcoming retention election has received national attention, GavelGrab reports. A Slate article profiles the Tennessee contest and its players, and voices alarm about another big-spending race that could threaten fair and impartial courts. “When judicial races turn into spending races, what suffers most is not Democrats or Republicans, but judicial independence and integrity,” Dahlia Lithwick writes in the article, "How to Take Out a Supreme Court Justice."


5 Years Later, 'Caperton' Message Stronger

On the five year anniversary of the landmark Caperton v. Massey decision, Justice at Stake Executive Director Bert Brandenburg spoke out about the threat to the judiciary caused by runaway judicial election spending. “The threat to impartial courts has grown since Citizens United in 2010," he wrote in a statement. "Special interest money has flooded into judicial elections through outside channels. Now, almost nine of 10 Americans believe that campaign cash is affecting courtroom decisions. Caperton’s message has only grown stronger: Every state that elects its judges needs to take steps to ensure that justice is not for sale. These measures could include a range of steps, including stronger recusal and disclosure rules, and providing public financing for judicial elections — or adopting a merit selection system as an alternative to contested elections.​"


NALS After Hours Silent Auction to Benefit Legal Aid

The National Association of Legal Professionals (NALS) Nashville Chapter will host its annual After Hours Silent Auction on July 10, from 6 to 8 p.m. at Baker Donelson. One hundred percent of the proceeds will be donated to the Legal Aid Society of Middle Tennessee and the Cumberlands. To volunteer or for more information, visit www.nalsnashville.com. To donate an item, please mail it to Tiffany Burford Taylor, Silent Auction Chairman, at Waller, 511 Union St. Nashville, TN 37219.


Memphis Lawyer Dies

Memphis lawyer William Clary Lunsford died Sunday (June 8). Born in 1939, Lunsford received his law degree from Vanderbilt University and worked at Pete Marrick in Little Rock, Arkansas, before practicing Tax and Estate Law in Memphis at the old Montidonico Firm. Later he was a partner at Laughlin Halle Law Firm. Funeral services were held Monday. In lieu of flowers, memorials may be sent to Grace-St. Luke's Church in Memphis, Grace Episcopal Church, P.O. Box 1791 in Anniston, Alabama, or to the charity of one's choice.


Knox County Lawyer Placed on Disability Inactive Status

The law license of K. Karl Spalvins was transferred to disability inactive status on June 16. Spalvins cannot practice law while on disability inactive status, and may return after reinstatement by the Tennessee Supreme Court upon showing of clear and convincing evidence that the disability has been removed and he is fit to resume. View the BPR notice.


Rutherford County Lawyer Placed in Disability Inactive Status

Venus Michelle Stanek’s law license was transferred to disability inactive status on June 16. Stanek cannot practice law while on disability inactive status, and may return after reinstatement by the Tennessee Supreme Court upon showing of clear and convincing evidence that the disability has been removed and she is fit to resume. View the BPR notice.


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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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