News

Rule Change Package Released for Review, Comment

The Tennessee Supreme Court has published the annual package of recommendations from the Advisory Commission on Rules of Procedure and Evidence. Proposals include new authority for appellate courts to dismiss appeals; provisions permitting electronic signatures in courts employing electronic filing; clarification of the effect of service of process on commencement of actions; adoption of the term preliminary hearing in lieu of preliminary examination in criminal procedure; and, refinement of procedure for correction of illegal sentences in criminal cases. The are no evidence rules changes proposed this year. A 90-page comprehensive restructuring and revision of the Rules of Juvenile Procedure is also included.

Six TBA sections -- Appellate Practice, Litigation, Tort and Insurance Law , Family Law, Juvenile and Children’s Law and Criminal Justice -- will be asked to review the proposed amendments and recommend comments on behalf of the association. Comments on the proposals are due to the Court by November 25, 2015.

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Lee Re-elected to 2nd Year as Chief Justice

Justice Sharon Lee was today unanimously re-elected as chief justice of the Tennessee Supreme Court. Lee has been a member of the Tennessee Supreme Court since 2008, and recently led the launch of the state’s first business court. She also recently spoke at a White House forum on Tennessee’s nationally-recognized Access to Justice program. “I look forward to continuing the work we have begun,” Lee said. “I am thankful for the support of my colleagues on the court. I will continue to work hard to ensure that courts in Tennessee are on a continuous path of making things better in our communities and across the state.”

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AG Possible Candidate for Supreme Court Seat?

Gov. Bill Haslam said he has not had any communication with his close friend Attorney General Herbert Slatery about an upcoming vacancy on the Tennessee Supreme Court, the Associated Press reports. Haslam acknowledged that “there has been a lot of speculation” on whether Slatery will seek to move into the seat, which will be vacant as of Sept. 8 due to Justice Gary Wade’s retirement. Because the attorney general is so close with the governor, other potential candidates may want to wait and see what Slatery decides before submitting an application, the AP suggests. WATE News 6 has more.

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Court of Appeals Overturns 4 Nashville Criminal Cases

Prosecutorial misconduct and errors are behind three of the four recent cases overturned by The Tennessee Supreme Court of Appeals, The Tennessean reports. Legal analysts cited by the newspaper said it was also a large number of cases to be overturned in roughly one month. The cases were State of Tennessee v. Adam Wayne Robinson, State of Tennessee v. Deandre D. Rucker, State of Tennessee v. James Thomas Jr, and State of Tennessee v. Donald W. Higgins, III. The court ordered new trials in three of the cases and threw out the conviction in a child neglect case.  

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TBA: Only Minor Changes Needed in Code of Judicial Conduct

In a comment filed today, the Tennessee Bar Association gave support to four proposed changes to Supreme Court Rule 10 involving judicial conduct, but recommended against a number of other proposals put forth in a report from the Joint Committee of the Tennessee Judicial Conference and the Tennessee Trial Judges Association. In its comment, the TBA said that the court “has adopted some of the most workable, fair and comprehensive set of standards for judicial candidates and judges in the country and should affirm that good work,” rather than adopting many of the proposed changes.

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Comments Sought on Appellate E-Filing Rule

The Tennessee Supreme Court today released proposed changes to Rule 46, which governs e-filing. The court is considering the establishment of a new voluntary e-filing system in the appellate courts. Comments on the proposal are due by Sept. 28.

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Supreme Court Admissions Ceremony Set for December

Tennessee attorneys interested in being admitted to practice before the U.S. Supreme Court can sign up now for the annual TBA Academy this December. Now in its 32 year, the Academy offers an exciting opportunity to take part in a private swearing in ceremony before the court, along with a reception, Supreme Court tour and celebration dinner. A special block of hotel rooms has been reserved at The Hay Adams Hotel for the Dec. 1-2 event.

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ABA Asks Court to Clarify Right to Ineffective Counsel Claims

The American Bar Association has filed an amicus brief with the U.S. Supreme Court urging the high court to take up the case of Loden v. Mississippi to clarify an earlier ruling affecting a defendant’s ability to raise claims of ineffective counsel. The court ruled in 2007 that a defendant who actively prevented counsel from investigating mitigating evidence was precluded from later raising claims of ineffective counsel. The brief argues that lower courts should not interpret the 2007 opinion as a bright line waiver rule but rather should consider the role played by counsel in a defendant’s decision to waive the right to present mitigating evidence.

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Cruz Pushes Retention Elections for Supreme Court Justices

Sen. Ted Cruz today told a Senate committee he wants to amend the Constitution to subject Supreme Court justices to periodic, public retention elections. The Presidential hopeful from Texas has been an outspoken opponent of the high court rulings that upheld federal subsidies under Obamacare and legalized gay marriage in all 50 states. Cruz called the hearing of the Judiciary subcommittee he chairs on oversight, agency action, federal rights and federal courts to discuss what options the American people have to “rein in judicial tyranny.” The Hill has more.

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Court Affirms Kidnapping Convictions in Two Cases, Hold Specific Jury Instruction Not Required

The Tennessee Supreme Court has affirmed convictions in two separate cases in which the defendants were charged with the kidnapping and robbery of different victims. In an opinion authored by Chief Justice Sharon G. Lee, the Supreme Court affirmed the Court of Criminal Appeals, holding that a State v. White jury instruction is not required when a defendant is charged with the offenses of kidnapping and robbery of different victims. Justice Gary R. Wade filed dissenting opinions in both cases, maintaining that the White jury instruction was required by long-standing principles of due process. The AOC has more.

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Order Blocks Executioner's Testimony

Tennessee's executioner will not testify in a trial challenging the constitutionality of lethal injection, at least for the time being, the New York Times reports. The state Court of Appeals issued the order Wednesday afternoon in response to an emergency request filed earlier in the day by Tennessee Attorney General Herbert Slatery. In his motion, Slatery echoed an earlier ruling by the state's Supreme Court that the executioner's testimony is irrelevant because the case challenges the written lethal injection protocols, not how they are carried out by a specific person.

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Court Determines Assignment of Insurance Proceeds Wasn’t Effective

The Tennessee Supreme Court has determined that a Nashville chiropractic clinic’s patient did not effectively assign his rights to insurance proceeds received from a third party’s insurance company. In an opinion written by Justice Jeffrey S. Bivins, the Court pointed out that the agreement’s language implies that the patient intended to assign proceeds from his own insurance policies, not proceeds from another person’s insurance. The AOC has the full opinion.

New Study Finds Court Leaning Left

The U.S. Supreme Court may finish this term with a greater percentage of liberal decisions than any since 1969, according to an article in The New York Times. Using data from The Supreme Court Database, which codes decisions on “widely-accepted” standards, the authors found that the court issued liberal decisions in 56 percent of the cases this term. “If that trend holds, the final percentage could rival the highest since the era of the notably liberal court of the 1950s and 1960s led by Chief Justice Earl Warren,” the authors write.

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Court Affirms Dual Convictions

The Tennessee Supreme Court has affirmed multiple convictions stemming from a domestic incident in which Terrence Feaster inflicted serious injuries upon his then-girlfriend, Molly Kate McWhirter, at her Knox County residence. On appeal, Feaster argued that his dual convictions for attempted voluntary manslaughter and aggravated assault arising out of the same incident constituted double jeopardy, or being sentenced twice for substantially the same offense. The Supreme Court rejected Feaster’s claim, concluding that the dual convictions could stand because the offenses are composed of different elements. The AOC has more.

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Vanderbilt to Host Twitter Q&A on Gay Marriage Case

Vanderbilt law professor Brian Fitzpatrik will host a live Twitter question-and-answer session Tuesday at 2 p.m. about the U.S. Supreme Court’s upcoming decision on same-sex marriage. Questions can be tweeted in advance or during the event by using the hash tag #AskVU. Fitzpatrick is an expert on constitutional law, judicial politics and federal courts. He was in the courtroom April 28 when the court heard arguments on several same-sex marriage cases.

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State Agency Withdraws from Execution Lawsuit

Facing objections from legislators and a Senate Government Operations Committee hearing set for August, the Office of Post-Conviction Defender has decided to abandon its role in a lawsuit seeking information about executions, Knoxnews reports. The office, which is tasked with representing death row inmates in appeals, was representing a group of inmates suing the state for information about the people and drugs involved in executions. Nashville attorney Kathleen G. Morris now will provide pro bono representation to the death row inmates.

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Court Upholds Arbitration Deal with Foreclosure Exception

The Tennessee Supreme Court has reversed trial and appellate court findings that an arbitration agreement between a purchaser and homebuilder was unfair and unenforceable. The purchaser had argued that the agreement was unfairly one-sided in favor of the homebuilder because it required both parties to arbitrate disputes but allowed the homebuilder to file foreclosure proceedings in court. The Supreme Court disagreed, finding that the agreement applied equally to both parties and the exception for foreclosures was a narrow and reasonable one. The court also found there was a reasonable business justification for the exception, and the circumstances surrounding the contract were not overly one-sided or unfair. Read the full opinion on the AOC website.

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Supreme Court Denies New Trial After Witness’ Memory Loss During Testimony

The Tennessee Supreme Court rejected a Memphis defendant’s argument that he was entitled to a new trial because a witness on the stand said he was unable to recall his earlier statements about the murder. Marlo Davis was convicted of second degree murder and reckless homicide in the 2006 death of a man working on a rental property. During the investigation, one witness gave a sworn statement to police and then later testified at a preliminary hearing that he saw Davis shoot the victim. At trial, that same witness said he could not recall what happened that day and did not recall what he had said to police or at the hearing. On appeal to the Supreme Court, the court rejected the argument regarding feigned memory loss, saying that the trial court had no way of definitively determining if a witness was being truthful about their lack of memory. The AOC has more.

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Initiative Asks Justices to Adopt Voluntary Term Limits

A new effort to limit the tenure of future U.S. Supreme Court justices launched Wednesday, with the aim of urging any would-be nominee to pledge to serve a single 18-year term. The initiative, called Come to Terms, asserts that term limits are needed to increase accountability and reduce the politicization of the court. It is being pushed by Fix the Court, a group formed last year to “promote transparency and accountability on the high court.” The Blog of Legal Times has more on the effort.

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Court to Review New Civil, Criminal Cases

The Tennessee Supreme Court has granted review to several new cases. Civil issues to be decided include corporate shareholder standing and challenges to charges by utilities. Criminal issue include traffic stop suppression, expired sentences, defective indictments and lesser-included offenses. The Raybin-Perky Hotlist reviews each and offers a prediction on how the cases may be decided.

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Batey Seeks Mistrial in Vanderbilt Rape Conviction

Cory Batey is asking for a mistrial as well as a new one in the Vanderbilt University rape case almost a week after his former co-defendant Brandon Vandenburg’s attorneys motioned for the same thing. With less than a month before his sentencing, Batey’s lawyer said the Jan. 27 guilty verdict should be set aside due to questions on whether the jury foreman misrepresented himself by not disclosing that he was a victim of sexual abuse. News 2 has more.

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Defense Seeks Mistrial in Vanderbilt Rape Case

Attorneys for a former football player convicted of raping an unconscious Vanderbilt University student in 2013 have asked the judge to declare a mistrial, the Tennessean reports. The motion claims that a juror who heard Brandon Vandenburg's trial in January had intentionally withheld information during the jury selection process. The attorneys say the juror is a victim of statutory rape and could not have been an unbiased juror.

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6th Circuit Clears Oak Ridge Protestors of Sabotage

An 85-year-old nun and two Army veterans sent to prison after breaking into the Y-12 National Security Complex in Oak Ridge did not commit sabotage and should be re-sentenced, the Sixth Circuit Court of Appeals ruled Friday. The decision overturns the sabotage convictions but upholds convictions for damaging government property. The appeals court directed the trial court to re-sentence the three in light of the reduced charges and the time they have already served. All three have been jailed since May 2013, Reuters reports.

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Lawyers Urge Court to Consider Electric Chair Claim

Lawyers at some of the state's most prominent law firms are urging the state Supreme Court to allow inmates to move forward with a claim the electric chair is an unconstitutional method of execution, the Tennessean reports. Twenty-two attorneys filed a brief with the Tennessee Supreme Court last week citing "a common calling to promote justice and public good." The court heard oral arguments in the case Wednesday in Knoxville.

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6th Circuit OKs Sanctions for Frivolous Suit

The Sixth U.S. Circuit Court of Appeals has upheld sanctions imposed by a trial court on a plaintiff and his lawyer for filing a frivolous False Claims Act lawsuit, the Sixth Circuit Appellate Blog reports. But the court went even further and took aim at the appellate lawyer, giving him 14 days to show why he should not be sanctioned. “The Sixth Circuit in recent years has not hesitated to sanction attorneys for frivolous and unwarranted appeals,” the blog notes.

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