News

Senate to Consider Additional Judicial Nominees

Lawmakers negotiated Tuesday over a final batch of President Barack Obama’s judicial nominees with Democrats hoping to win Senate confirmation for up to a dozen of them, the Associated Press reports. The Senate has approved 76 federal court of appeals and district court judges so far this year. Confirmation of 12 more would bring the total to 88 – the highest annual figure in 20 years. Senate leaders are hoping to end this year’s session as soon as tonight. WRCB-TV has the AP story.

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Justices Scalia, Kagan Visit Ole Miss

Although they are often at odds in written opinions, U.S. Supreme Court Justices Antonin Scalia and Elena Kagan were full of warm praise for each other at an event yesterday at the University of Mississippi School of Law. “We have a really collegial court,” Kagan told the students. And both agreed that common ground often overrides ideological differences on the high court, the Associated Press reports. Kagan and Scalia, for example, have built a relationship in part around hunting. The pair talked about their favorite and least favorite parts of the job but declined to answer a question about what they would consider the court’s biggest mistake. The Commercial Appeal has the AP story.

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Court to Review 5 Cases

The Tennessee Supreme Court has granted review to five cases involving compensation of franchise and excise taxes, tolling agreements, workers’ compensation discrimination, voidability of default judgments and pre-suit notice requirements in healthcare liability actions The Raybin Perky Hot List has a summary and forecast of each case.

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Court Vacates Execution Set for February

Today is the fifth anniversary of the execution of Cecil Johnson, the last inmate to be put to death in Tennessee. And it looks like it might be a while before another execution takes place. Last week, the state Supreme Court vacated the execution date for Stephen Michael West, who was set to die Feb. 10, 2015, the Tennessean reports. The move comes after West and nine other death-row inmates filed suit to challenge the state’s methods of execution. The court indicated it would set a new date after final disposition of the inmates’ suit. In related news, death row inmate Gregory Thompson, 52, died of natural causes last week, the Times News reports. Thompson, who was convicted in 1985, was the subject of a CBS 60 Minutes film about whether a state can medicate a mentally ill person enough to render them sane enough to be executed.

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Court OKs Use of Statement in Child Rape Case

The Tennessee Supreme Court has ruled that the state can use a child victim’s recorded video statement as evidence during prosecution of a defendant indicted on seven counts of rape. Reversing the trial court, the Supreme Court said that as long as the recorded video statement is relevant, meets certain statutory requirements and otherwise is in line with the Tennessee Rules of Evidence, its use would not violate constitutional principles. Use of the video had been challenged by the defendant. Read more from the AOC or download the opinion.

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Bill Young Returning to AG’s Office

Tennessee Attorney General Herbert Slatery announced today that Bill Young will rejoin the office as associate chief deputy. Young, a former solicitor general, will supervise special projects, oversee legislative matters, coordinate multistate initiatives and assist with daily office operations. Young worked in the Attorney General’s office from 1987 to 1995. He left in 1995 to serve as deputy commissioner of the Tennessee Department of Commerce and Insurance, a position he held for four years. Later he was named senior vice president, chief compliance officer and general counsel for Blue Cross Blue Shield of Tennessee. He most recently was working as director of the Administrative Office of the Courts.

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New Sentencing Hearing Ordered Due to Ineffective Counsel

The Tennessee Supreme Court today upheld death row inmate Jerry Ray Davidson’s conviction for first-degree murder, but ordered a new sentencing hearing after finding that Davidson's lawyers did not properly represent him during the sentencing phase of the trial. Davidson was convicted of the 1995 murder of Virginia Jackson in Dickson. At the time of his trial, defense attorneys possessed numerous records documenting his troubled background and history of mental illness. During the sentencing hearing, however, they failed to provide the jury with any of this evidence. In ordering a new sentencing hearing, the court ruled that defense attorneys in death penalty cases have a constitutional duty to collect and present to the jury any “mitigation evidence” that could help the jury assess the defendant’s moral culpability. Download the majority opinion and a separate opinion from Justice Gary Wade concurring in part and dissenting in part.

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Supreme Court Denies New Trial for Death Row Inmate

The Tennessee Supreme Court has denied a new murder trial to Clarence Nesbit, who has been on death row since 1995. At trial, the jury found Nesbit guilty of first-degree murder and sentenced him to death. Nesbit’s conviction and sentence both were upheld on appeal. In 1999, Nesbit filed a petition for post-conviction relief, asserting that his trial counsel did not provide effective assistance. In 2009, the post-conviction court ruled that Nesbit was not entitled to post-conviction relief as to his murder conviction, but awarded him a new sentencing hearing based on his attorney’s performance. The Court of Criminal Appeals agreed. On appeal from the Court of Criminal Appeals, the Supreme Court held that Nesbit did not prove that he was prejudiced in the guilt phase of his trial by any deficiency on the part of his attorney. The Administrative Office of the Courts has more.

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New Ad Attacks U.S. Supreme Court

Viewers of Fox and MSNBC in the Washington, D.C., area will soon see a new ad that calls for greater Supreme Court transparency, the ABA Journal reports from various news sources. The six-figure campaign unveiled today by a group called Fix the Court criticizes the U.S. Supreme Court as the “most powerful and least accountable branch of government. The ad campaign has five goals: for the court to report reasons for recusals, to post detailed financial disclosures online, to adhere to the code of ethics governing federal judges, to disclose public appearances and generally allow media coverage, and to broadcast live oral arguments and opinion announcements.

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Supreme Court Allows Kansas Same-Sex Marriage to Proceed

The U.S. Supreme Court has lifted a temporary stay and is allowing same-sex marriages to proceed in Kansas, the ABA Journal reports. The order vacates a stay issued Monday evening by Justice Sonia Sotomayor, who handles emergency appeals from the Denver-based 10th U.S. Circuit Court of Appeals. The Kansas Supreme Court had stayed same-sex marriage in the state pending proceedings before the court, but a federal judge later ordered the state to begin issuing marriage licenses, a decision that was “a de facto circumvention” of the state litigation, the state argued in its emergency stay application. Justices Antonin Scalia and Clarence Thomas would have granted the stay application, according to the order.

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STATE OF TENNESSEE v. HENRY FLOYD SANDERS

This appeal concerns the admissibility of incriminating statements made by a defendant to the mother of a sexually abused child while the mother was secretly cooperating with the police in their investigation of the abuse. After a grand jury indicted him on six counts of aggravated sexual battery and four counts of rape of a child, the defendant moved to suppress his recorded statements. The trial court denied the motion to suppress, and a jury convicted the defendant of five counts of aggravated sexual battery and four counts of rape of a child. The trial court imposed an effective forty-year sentence. The Court of Criminal Appeals affirmed the convictions and sentence. State v. Sanders, No. M2011-00962-CCA-R3-CD, 2012 WL 4841545 (Tenn. Crim. App. Oct. 9, 2012). We granted the defendant’s Tenn. R. App. P. 11 application to address the legal standard courts should use to determine the admissibility of incriminating statements obtained by the parent of a victim of sexual abuse who is secretly cooperating with law enforcement officials investigating the child abuse charges. We find no violation of the defendant’s constitutional right against compelled selfincrimination because the defendant merely misplaced his trust in a confidante to whom he voluntarily confessed. Therefore, we find that the recording of these statements was admissible.

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Attorney 1: 

Dawn Deaner, District Public Defender; Jeffrey A. DeVasher (on appeal); Melissa Harrison (at trial and on appeal); and Jessamine Grice (at trial), Assistant Public Defenders, for the appellant, Henry Floyd Sanders.

Attorney 2: 

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; John H. Bledsoe, Senior Counsel; Victor S. Johnson, III, District Attorney General; Sharon Reddick and Kristen Menke, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: 
KOCH

STATE OF TENNESSEE v. FRED CHAD CLARK, II

This case involves the prosecution of a father in the Criminal Court for Davidson County for the sexual abuse of his children. After a jury found him guilty of seven counts of rape of a child and two counts of aggravated sexual battery, the trial court imposed an effective thirtyfour- year sentence. On appeal, the defendant took issue with (1) the admissibility of recordings of his confession to his wife, (2) the adequacy of the corroboration of his confession, (3) the admissibility of evidence of his predilection for adult pornography, and (4) the propriety of a jury instruction that the mental state of “recklessness” could support a conviction for both rape of a child and aggravated sexual battery. After upholding the admission of the defendant’s confession to his wife and the jury instructions, the Court of Criminal Appeals decided that the admission of the evidence of the defendant’s predilection for adult pornography, while erroneous, was harmless. The Court of Criminal Appeals also determined that the record contained sufficient evidence to uphold three counts of rape of a child and the two counts of aggravated sexual battery. State v. Clark, No. M2010-00570- CCA-R3-CD, 2012 WL 3861242 (Tenn. Crim. App. Sept. 6, 2012). We granted the defendant’s Tenn. R. App. P. 11 application for permission to appeal and now affirm the judgment of the Court of Criminal Appeals.

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Attorney 1: 

Peter J. Strianse, Nashville, Tennessee, for the appellant, Fred Chad Clark, II.

Attorney 2: 

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Brent C. Cherry, Assistant Attorney General; John H. Bledsoe, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; and Sharon Reddick, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: 
KOCH

Gay Marriage Bans in 4 States Upheld on Appeal

The U.S. Court of Appeals for the 6th Circuit today reversed district court rulings that had struck down gay marriage bans in Michigan, Ohio, Kentucky and Tennessee. The six cases before the three-judge panel involved not only whether gays and lesbians should be able to marry, but whether marriages performed elsewhere should be recognized, whether same-sex couples should be able to adopt children, and whether their names should be placed on partners' death certificates. The ruling gives the same-sex marriage movement its first major setback after a lengthy string of victories, creating a split among the nation's circuit courts that virtually guarantees Supreme Court review, USA Today reports. The ruling also gives Supreme Court justices an appellate ruling that runs counter to four others from the 4th, 7th, 9th and 10th circuits. Those rulings struck down same-sex marriage bans in Virginia, Indiana, Wisconsin, Oklahoma, Utah, Idaho and Nevada and led to similar action in neighboring states.

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Court Grants Review of 7 Cases

The Tennessee Supreme Court recently granted review of seven new cases. Civil issues to be considered include standing, pre-suit notice, the Tennessee Governmental Tort Liability Act, the Public Records Act and the Administrative Procedures Act. Criminal issues include merger of offenses, confrontation and inevitable discovery. The Raybin-Perky Hotlist reviews the cases and offers a prediction as to how each may be decided.

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Lipscomb Preview Day Spotlights Master’s Programs

Lipscomb University in Nashville will hold an Institutes Preview Day this Saturday from 9 to 11 a.m. at the Ezell Center. The event will feature opportunities to learn more about master’s programs offered through the school’s three institutes: the Institute for Conflict Management, the Nelson & Sue Andrews Institute for Civil Leadership and the Institute for Sustainable Practice. Current students and faculty will be on hand to interact with attendees. Register online or contact Danielle Nichols, (615) 966-7226 with any questions about the event.

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Court Weighs Whether to Hear Health Care Subsidy Case

Supreme Court justices will consider this week whether they have the appetite for another major fight over President Barack Obama’s health care law, the Associated Press reports. Some of the same players who mounted a failed effort to kill the law outright now want the justices to rule that financial subsidies under the law are illegal. The group is challenging a federal appeals court ruling that IRS regulations allow subsidies in all 50 states. They argue that financial aid can be provided only in states that have set up their own insurance markets, not in states where the federal government runs the exchanges. The justices will decide whether to hear the case at their private conference Friday. The Memphis Daily News has more.

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Comments Sought on Proposal Regarding Unpublished Opinions

A proposed rule by the Tennessee Supreme Court would acknowledge the availability of unpublished opinions on the Internet by ending the requirement that copies of unpublished cases be attached when cited to an electronic database. Dec. 31 is the deadline for submitting comments.

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MTSU Employee Awarded Damages in Retaliation Lawsuit

The Tennessee Supreme Court unanimously reinstated a jury verdict, finding that a former maintenance employee of Middle Tennessee State University (MTSU) suffered unlawful retaliation through the actions of his supervisor. Jim Ferguson, a Japanese-American, argued that shortly after he filed a discrimination lawsuit against MTSU, his supervisor retaliated against him by requiring him to perform tasks outside his medical restrictions, increasing his work assignments and engaging in other retaliatory conduct. A jury rejected Ferguson’s discrimination and malicious harassment claims, but found MTSU had retaliated against him and awarded him damages. The Tennessee Court of Appeals reversed the jury award, but on appeal the Tennessee Supreme Court disagreed. Chief Justice Sharon G. Lee authored the opinion for the court. The Administrative Office of the Courts has more.

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Former Solicitor General Shares Insights with UT Law Students

Former U.S. Solicitor General Paul Clement, who argued many notable cases in front of the Supreme Court, spoke Friday to law students at the University of Tennessee. Clement talked about the challenges faced during his legal career and admitted that regardless of experience he "absolutely" gets nervous every time he goes before the Supreme Court. But nerves, he said, keep him from becoming complacent and force him to continue preparing right up until the day he appears before the justices. Wayne Dillingham, a 1983 graduate of the College of Law and former lawyer for the FBI, who also was at the lecture, said he hopes students came away with a more human perspective of what it is like to practice law at the highest level. The UT Daily Beacon has more.

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Miller & Martin Adds Crisis Management Practice

Miller & Martin last week announced the formation of a crisis management practice at the firm to serve the needs of businesses and organizations throughout all of its markets, the Hamilton County Herald reports. The new practice will involve 13 Miller & Martin attorneys, and will focus on crisis management from preventative planning to management of actual crises. In creating this new practice, Miller & Martin is including Atlanta-based Jackson Spalding, a marketing communications firm with a specialty in crisis management, to add public relations and media relations resources for its clients’ crisis management needs.

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Study: Judges with Daughters Rule More Liberally

Having at least one daughter affects how liberal a judge rules on gender issues, says a Harvard/Emory study. To see how children affect judicial rulings, researchers examined about 1,000 U.S. Court of Appeals cases from 1996 to 2002. The cases were gender-based and dealt with employment discrimination, reproductive rights and Title IX. Then they dug up personal data on the 224 ruling judges to find out about their families. The researchers determined that having at least one girl influenced the male judges and most of the shift was seen among the conservative ones. Knoxnews has more.

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Blumstein Named Solicitor General

Tennessee Attorney General Herbert Slatery today named Andrée Sophia Blumstein as the state’s new solicitor general. She succeeds Acting Solicitor General Joe Whalen, who will return to his previous position in the office. In the new role, Blumstein will oversee appellate litigation in state and federal courts, review written opinions and advise the attorney general. “I could not be more pleased that Andrée has accepted this important appointment,” Slatery said. “Her extensive trial and appellate experience and her academic credentials are surpassed only by the type of person she is and the respect she already enjoys in the legal community.” For the past 21 years, Blumstein has been a partner at the Nashville firm of Sherrard & Roe where she focused on appellate litigation, health law, taxation and antitrust matters.

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Special Opportunity for Supreme Court Admission

If admission to practice before the U.S. Supreme Court is one of your career goals, don’t miss the opportunity to make it a reality during the 31st Annual TBA Academy, Dec. 2-3, in Washington, D.C. A select group of Tennessee attorneys will be able to take part in a private ceremony before the court and enjoy other events in the nation's capital. A reception and celebration dinner kick off the Academy, which also includes the opportunity to earn three hours of CLE credit. The group will stay at the Hay Adams Hotel, located across from the White House. Interested candidates should complete the required forms by Oct. 27. For information and a step-by-step guide on how to sign up, visit the TBA website.

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Court Declines to Hear ‘Acquitted Conduct’ Case

The U.S. Supreme Court today declined to take up a case involving so-called acquitted conduct, in which defendants are sentenced based on charges they are acquitted of in trial. In the case before the court, three defendants had been convicted of distributing crack cocaine, but acquitted of more serious charges of being part of a drug conspiracy. When it came time for sentencing, however, the trial judge added at least 15 years to each man’s prison term based on the conspiracy charges. Lawyers for the defendants called the practice “Kafkaesque.” Three of the justices voted to hear the case to decide whether judges have discretion to lengthen prison terms in such circumstances. WRCB-TV has more from the Associated Press.

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Reminder: Supreme Court Historical Society Event Friday

The Tennessee Supreme Court Historical Society will hold a cocktail reception this Friday at The Cordelle in Nashville. The event will honor retired Justice William Koch and welcome the newest members of the court. Tickets are $100 and can be purchased on the society’s website or through Linda Knight, (615) 244-4994. The Cordelle is located at 45 Lindsley Ave., Nashville 37210. Download the invitation.

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