News

Arkansas Supreme Court Justices Challenge Ethics Charges Against Them

Five Arkansas Supreme Court justices are challenging efforts to sanction them over the court’s decision to prohibit a judge who participated in an anti-death penalty demonstration from hearing any execution-related cases, The Associated Press reports. The justices filed a lawsuit with their court challenging the charges related to the decision to disqualify a circuit judge from handling any death penalty cases. Justices disqualified Judge Wendell Griffen last year, days after he was photographed on a cot outside the governor’s mansion last year wearing an anti-death penalty button and surrounded by people holding signs opposing executions. An attorney for the justices said all seven members of the court would recuse from hearing the lawsuit. Gov. Asa Hutchinson will have to name special justices to hear the case.

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BPR Seeking Disciplinary Counsel

The Tennessee Board of Professional Responsibility is seeking an attorney for the position of Disciplinary Counsel - Litigation Section, Appeals. The duties and responsibilities include: investigate and conduct discovery related to complaints of attorney misconduct; prepare pleadings and appear in disciplinary hearings before hearing panels; represent the board in appellate proceedings before special judges in trial courts and before the Tennessee Supreme Court; prepare and present continuing legal education; and other duties as assigned. Applicants must be licensed in Tennessee and have a minimum of seven years experience in the practice of law and practice before the Tennessee Supreme Court is preferred. Read more about the position on TBA's JobLink portal.
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'Legal Whiplash' Marks Zagorski's Execution Week

The Tennessean and The Nashville Scene follow the "legal whiplash" of this week when Edmund Zagorski was set to be executed. Gov. Haslam's reprieve, giving executioners time to prepare to use the electric chair, expires Oct. 21, at which point the state Supreme Court will have to set a new execution date. Shortly after the reprieve was announced Thursday evening, the U.S. Supreme Court rejected all of Zagorski's requests. The court declined to hear the case over Tennessee's lethal injection protocol, and vacated the Sixth Circuit's stay. Zagorski's lawyer, Kelley Henry, who is a supervising assistant federal public defender, told the Scene that the earliest Zagorski could be executed is likely Oct. 29.

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Tennessee Supreme Court Launches Oral Argument Video Initiative

The Tennessee Supreme Court began last week videotaping oral arguments taking place in Nashville and making them available to the public. The video will give lawyers, students and others a more realistic feel of the interaction between the court and attorneys during oral argument, which often includes unscripted questioning and debate. The video system includes three separate cameras, allowing the view to toggle between the attorney at the podium and the individual justices on the bench during the oral argument. 
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New Supreme Court Justice to Begin Hearing Cases

What will be the first cases newly sworn in Supreme Justice Brett Kavanaugh hears? Bloomberg News looks at cases coming before the court this week involving penalties for gun crimes and more. Kavanaugh took the oath of office last weekend.

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Deadline Near for TBA Supreme Court Admissions Event

The U.S. Supreme Court is back in session, so act now to take part in the 35th Annual TBA Academy and Admissions Ceremony, Nov. 26-27. A select group of Tennessee attorneys will be able to take part in this private ceremony before the court and enjoy other events at the court and the capitol. A reception and celebration dinner kick off the program, which also includes the opportunity to earn three hours of CLE credit. The group will stay at the Hay Adams Hotel, where the TBA has obtained a special rate for participants. The deadline to submit applications is Oct. 22 and space is limited.
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Appeals Court Reverses Gallatin Fossil Plant Coal Ash Cleanup Order

A federal appellate panel last Monday overturned an order that would have required the Tennessee Valley Authority to unearth and remove a massive amount of coal ash at the Gallatin Fossil Plant, The Washington Post reports. In a 2-1 decision, the 6th U.S. Circuit Court of Appeals maintained that leaks from unlined coal ash pits through groundwater into the Cumberland River are a “major environmental problem” but the Clean Water Act isn’t the “proper legal tool of correction” to address it. A district judge in 2017 ordered the coal ash to be excavated and removed, citing Clean Water Act violations regarding pollutants leaking into the Cumberland River. You can read the opinion here.

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West Tennessee Legal Services Seeking Volunteers for Obion County Clinic

The Pro Bono Project at West Tennessee Legal Services has scheduled a Free Legal Clinic on Oct. 5 from 10 a.m. to 2 p.m. at the Troy United Methodist Church. The clinic will be held in the church’s Activities Building located at 226 W. Westbrook St., Troy, Tennessee, 38260. All lawyers are invited to help at this counsel and advice-only clinic. To volunteer or for more information contact Ginny Brimm, 731-426-1308, or go online here.
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Tennessee Supreme Court to Hear 2 New Cases

The Raybin Hotlist details two new cases that will be heard before the Tennessee Supreme Court. One concerns polygraph exam evidence: are statements made after a polygraph test admissible? The other covers judicial estoppel: is a former client judicially estopped from claiming her attorney gave her negligent representation after the client swore in the underlying legal proceeding that she was satisfied by the result of the case? Read more here.
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Arizona Sex Crimes Prosecutor Will Question Kavanaugh, Accuser

Rachel Mitchell, an Arizona sex crimes prosecutor, has been chosen to lead questioning during a hearing involving U.S. Supreme Court nominee Brett Kavanaugh and a woman who accused him of sexually assaulting her when they were teenagers, The Arizona Republic reports. "The goal is to de-politicize the process and get to the truth,” Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, said of the choice.
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Supreme Court Determines Search Warrant Signed By Judge For Property Outside of District Invalid

The Tennessee Supreme Court today held that a Circuit Court judge in Tennessee lacks jurisdiction to issue search warrants for property located outside the judge’s statutorily defined judicial district unless the judge has obtained expanded geographical jurisdiction by interchange, designation, appointment, or another lawful means. Justice Cornelia A. Clark authored the unanimous opinion in State of Tennessee v. Charlotte Lynn Frazier and Andrea Parks.

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Coffee County Taxpayers on Hook for $1 Million in Employment Case

The Tennessee Court of Appeals ruled in favor last week of a former Coffee County employee who claimed she was dismissed inappropriately by the county, and now residents are on the hook for more than $1 million in damages and attorney fees, The Manchester Times reports. County litigation insurance doesn’t cover this type of claim, so the money to pay Melinda Keeling’s damages and her attorney fees will come from the county’s general fund. Nonetheless, Coffee County Attorney Robert Huskey said the case would likely continue, as he would recommend the county file an appeal to the Tennessee Supreme Court. 
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Legal Practice Tip: Appellate Issues and the Armed Career Criminal Act

Criminal appellate attorneys should be aware of litigation currently working its way through the federal appellate system that may have substantial repercussions on how federal courts treat certain firearm offenses, violent crimes and drug offenses. 
 
Federal law prohibits certain classes of people from possessing firearms. 18 U.S.C. § 922(g). In general, violations of this ban can result in prison sentences of up to 10 years’ imprisonment. 18 U.S.C. § 924(a)(2). The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), provides that, for offenders with particularly notable criminal histories, this punishment is markedly increased. Specifically, if an offender has sustained three or more earlier convictions – state or federal – for a “serious drug offense” or “violent felony,” he or she will face a minimum prison term of 15 years and a maximum of life. 
 
Originally, the ACCA defined a “violent felony” as: any crime punishable by imprisonment for a term exceeding one year. . . that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
 
18 U.S.C. § 924(e)(2)(B) (2014) (emphasis added). In 2015, the Supreme Court addressed the italicized portion of the ACCA — colloquially known as the “residual clause” due to its general scope — on a challenge claiming that it was unconstitutionally vague. See Johnson v. United States, 135 S.Ct. 2551 (2015). The Court decided the residual clause was unconstitutionally vague and, consequently, unenforceable.
 
Accordingly, courts now consider whether a prior conviction qualifies as a predicate offense under the remainder of the ACCA, i.e., whether the offense of conviction (1) has an element the use or the attempted/threatened use of force (the so-called “use of force clause”); or (2) whether the offense is otherwise specifically listed in the statute (the “enumerated offense” clause). Appellate cases (and by extension, years of custody for a federal appellant) can – and often do – turn on this complex and nuanced analysis.   
 
Appellate advocates may be required to address in federal court whether a decades-old state conviction has “the use of force” as an element. This can present complicated questions. For example, what if a criminal statute sets out alternative elements by which a person may commit a crime, some of which contemplate the use of force, some of which do not? See Mathis v. United States, 136 S.Ct. 2243 (2016). Assuming a defendant is convicted under such a “divisible” statute, how can an attorney show which elements relate to her client’s past conviction? See id.; Shepard v. United States, 544 U.S. 13 (2005). What if a state statute criminalizes the reckless use of force – could this count as a “violent” predicate offense? See United States v. Verweibe, 874 F.3d 258 (6th Cir.  2017).  
 
Alternatively, appellate attorneys should be prepared to argue whether a prior conviction constitutes one of the four remaining enumerated offenses under the ACCA.  Although this seems like a straightforward task, it is anything but. Only those convictions with elements that are identical to, or narrower than, the “generic” crimes in the enumerated offense clause will qualify.
 
The most recent example involves Tennessee aggravated burglary, Tenn. Code Ann. § 39-14-403.  Despite being a “burglary” statute, the United States Court of Appeals for the Sixth Circuit has held that, because the elements listed in the Tennessee Code are broader than those of generic burglary, Tennessee aggravated burglary is not a “violent felony” within the meaning of the ACCA.  See United States v. Stitt, 860 F.3d 854 (6th Cir. 2017). Conversely, a prior conviction for “burglary,” Tenn. Code Ann. § 39-14-402, as a Class D felony, will qualify as a violent felony under the ACCA. United States v. Ferguson, 868 F.3d 514 (6th Cir. 2017). Put another way, the current status of federal law is: in Tennessee, aggravated burglary is not a violent felony, but Class D burglary is. 
 
The ACCA presents some of the most rapidly changing and nuanced criminal appellate issues, and appellate attorneys must be prepared to address them thoroughly. Trial attorneys should keep abreast of them, as well, so that they may appropriately advise their clients about potential significant future consequences. One tip to help stay on top of the developing law: sign up for the 6th Circuit’s free listserv, which will push daily opinions to your e-mail inbox as soon as they are released: http://www.ca6.uscourts.gov/opinions. The TBAToday newsletter also includes all published 6th Circuit opinions the day they are released.
 
The Armed Career Criminal Act is a substantial facet of federal criminal litigation. Despite the shifting legal landscape, one thing is certain: more guidance is coming. The Supreme Court has granted certiorari in Stitt, supra, and it will no doubt weigh in on these and other issues in the months to come. It’s anyone’s guess as to how profoundly the law may change, if at all, as a result. The only thing a skilled appellate advocate can do is be prepared.

— Kyle J. Wilson is the Section Chair for the TBA Appellate Practice Section.
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Kavanaugh Accuser Invited to Testify Next Week

U.S. Supreme Court nominee Brett Kavanaugh and the woman who accused him of attempting to rape her when they were both high school students have been asked to testify at a hearing next Monday, The Hill reports. The hearing will give lawmakers a chance to “give these recent allegations a full airing,” said Senate Judiciary Committee Chair Chuck Grassley, R-Iowa. Christine Blasey Ford, Kavanaugh’s accuser, has not yet confirmed she will testify.
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Be Sworn In at the U.S. Supreme Court in November

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 35th Annual TBA Academy, Nov. 26-27. A select group of Tennessee attorneys will be able to take part in this private ceremony before the court and enjoy other events at the court and the capitol. A reception and celebration dinner kick off the program, which also includes the opportunity to earn three hours of CLE credit. The group will stay at the Hay Adams Hotel, where the TBA has obtained a special rate for participants. The deadline to submit applications is Oct. 22.
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Tullahoma Tax Dispute Headed to Supreme Court

An ongoing lawsuit between the City of Tullahoma and the Coffee County Board of Education (CCBOE) is headed to the Tennessee Supreme Court, the Tullahoma News reports. The suit stems from the county’s interpretation of two different state statutes regarding collection and distribution of liquor-by-the-drink taxes. The city won the case in the Coffee County Chancery Court but lost when CCBOE appealed the decision. The case is scheduled to be heard by the Tennessee Supreme Court on Oct. 4.

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6 Cases Granted Review by Supreme Court

The Tennessee Supreme Court granted review in six cases during the month of August, including two civil cases: one asking if a cycler is at least 50 percent at fault for the accident that killed him, and another involving whether an architect agreement survived a subsequent purchase agreement. Criminal cases include warrantless searches of probationers, abatement of conviction by death, retroactive grading of theft offenses and indictment amendments. The Raybin Supreme Court Hot List reviews the cases and offers predictions.
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Nashville Lawyer John Tarpley Testifies in Kavanaugh Hearings on Behalf of ABA, Explains ‘Well Qualified’ Rating

Former TBA president John Tarpley gave testimony today in the confirmation hearing of U.S. Supreme Court nominee Brett Kavanaugh. Speaking on behalf of the American Bar Association, Tarpley explained how the judge earned a unanimous “well-qualified rating,” The ABA Journal reports. Tarpley is the lead evaluator on the Standing Committee on the Federal Judiciary. He said the panel found that Kavanaugh “enjoys an excellent reputation for integrity and is a person of outstanding character. It was clear from all or our interviews and all of the other evidence that he learned the importance of integrity from a very early age.”
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Medical Expert Says Irick Was Tortured During Execution

A new court filing shows a medical expert concluded to a “reasonable degree of medical certainty” that recently executed Tennessee inmate Billy Ray Irick experienced “torturous” pain during his lethal injection, The Nashville Scene reports. Dr. David Lubarsky asserted that Irick was “aware and sensate during his execution and would have experience the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride.” Irick was executed with a controversial three-drug cocktail, the same drug the state intends to use to execute Edmund Zagorski on Oct. 11.
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Kavanaugh Hearings Day 2: Questions on Presidential Powers, Guns

The Senate Judiciary Committee confirmation hearing for U.S. Supreme Court nominee Brett Kavanaugh continued today, with the nominee promising independence and “judicial fortitude” if confirmed, Fox News reports. He received questions from senators about previous comments he had made about investigations involving a president. “No one’s about the law,” Kavanaugh said, adding that there’s no constitutional prohibition against pursuing prosecution against a president. He was also asked about a 2011 dissent he wrote in the D.C. vs. Heller case, in which he wrote that gun restrictions should be assessed by “text, history and tradition” rather than by dangers to the public or the government’s interest in regulation. 
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Confirmations Hearings Begin for SCOTUS Nominee Brett Kavanaugh

Judge Brett Kavanaugh faced his first day of questions from U.S. Senators in his confirmation hearings today, Fox News reports. Kavanaugh promised to “keep an open mind in every case” and “strive to preserve the Constitution of the United States and the American rule of law.” Democrats have challenged the speed of Kavanaugh’s nomination and confirmation over concerns with access to his records. Kavanaugh’s hearings today were frequently interrupted by protestors disrupting the proceedings.
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Court Seeks Comment on Proposed Rules Amendments

The Advisory Commission on the Rules of Practice and Procedure annually presents recommendations to the Tennessee Supreme Court to amend the Rules of Appellate, Civil, Criminal, and Juvenile Procedure, and the Tennessee Rules of Evidence. The court is now soliciting written comments from the bench, the bar, and the public concerning the recommendations. The deadline for submitting written comments is Oct. 30. Written comments may be emailed to appellatecourtclerk@tncourts.gov or mailed to James M. Hivner, Clerk, Re: 2019 Rules Package, 100 Supreme Court Building, 401 7th Avenue North, Nashville, TN 37219-1407.

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Justice Lee Denounces Supreme Court Ruling

Tennessee Supreme Court Justice Sharon Lee delivered a rebuke to the court’s recent ruling denying a request by some death row inmates to slow down the appellate schedule, which comes as several death row inmates seek to stop or change their execution method, The Tennessean reports. Lee has been an outspoken critic of the expedited court schedule, recently saying "the Court unwisely put this appeal on a 'rocket docket.' Now, it is “Houston, we have a problem'.”

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TBJ Has it: Banking, Estate Planning ... and John Ward

Laced with SARs, PEPS and OBITs, this month's Tennessee Bar Journal is full of acronyms you need to know (or are now curious about). To help with that, Nashville lawyer Kathryn Reed Edge writes about international intrigue and the importance of financial institutions’ willingness to report suspicious activity. That "OBIT" is not a death notice, but an "Optimal Basis Increase Trust" with which estate planners must be familiar. Knoxville lawyer Dan Holbrook covers it. Tennessee's Solicitor General Andrée Blumstein reviews the book Borrowed Judges: Visitors in the U.S. Court of Appeals, and Jackson lawyer Daniel Taylor reviews former TBA President Sam Elliott's book about John C. Brown. But perhaps the juiciest piece of information in this issue is about a law school graduate who walked out of the bar exam -- that's right, your Voice of the Vols, John Ward, didn't even finish the test -- he hadn't even studied! As you know, he went on to do OK in another career; Memphis lawyer Bill Haltom writes about that. Read the entire issue online.

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Judge Overturns $19 Million Award to Nashville-based Company

A Nashville-based physician services company will not receive $19 million in damages from a rival company after a Tennessee Court of Appeals judge overturned a 2016 ruling, The Nashville Post reports. Nashville's SpecialtyCare sued Pennsylvania-based Medsurant in 2015 over Medsurant's alleged interference in SpecialtyCare's takeover of a smaller company. Davidson County Chancellor Carol McCoy cited Medsurant repeatedly for not cooperating in the discovery process, and eventually ruled against them on the basis of intentionally destroying evidence to avoid liability. Medsurant's attorneys - Brant Phillips, Russell Stair and Matt Sinback of Bass Berry & Sims; Bob Mendes of Waypoint Law and Richard Simins of Montgomery McCracken Walker & Rhoads - appealed, arguing that the chancellor had made numerous mistakes, the punitive damages were excessive and their clients had overall not received a fair hearing. Judge Kenny Armstrong agreed. "From the totality of the circumstances, we conclude that the grant of default judgment as a sanction for discovery abuses was error," Armstrong wrote.

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