Judiciary Chair Asks White House to Reconsider Judicial Nominations

Senate Judiciary Committee Chairman Chuck Grassley is asking the White House to reconsider the nominations of controversial judicial nominees Brett Talley and Jeff Mateer, the ABA Journal reports. Senate Judiciary Committee spokesman Taylor Foy said that Grassley was concerned about statements made by Talley and Mateer, who are nominated to judgeships in the Middle District of Alabama and the Eastern District of Texas, respectively.

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Senate Judiciary Advances 10 Nominees, Including Grasz

The U.S. Senate Judiciary Committee has advanced 10 judicial nominees, including controversial figure Leonard Steven Grasz, who received a “not qualified” rating from the American Bar Association, the ABA Journal reports. Grasz was found to have a “passionately held social agenda” by an ABA committee, which believed Grasz would be unable to respect precedent in the 8th U.S. Circuit Court of Appeals in St. Louis. The Judiciary Committee approved the nominees via an 11-9 party line vote.
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Federal Judge to SCOTUS: Justice Department Left ‘Incorrect Impression’ in Stay Request

U.S. District Judge William Alsup filed a statement with the U.S. Supreme Court that says the Justice Department left an “incorrect impression” in its request for a stay of his order for the disclosure of government records, the ABA Journal reports. The statement was filed in response to the DOJ’s request for the court to block his order to turn over documents regarding the government’s wind-down of the Deferred Actions for Childhood Arrivals program. Alsup said the DOJ failed to include qualifiers when it characterized his remarks on discovery and left the “incorrect impression” that he had “endorsed unfettered discovery.”
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Appellate Retroactivity Rules: The Pipeline Doctrine

It is important to be aware of developing legal issues so that if the Tennessee Supreme Court creates some new right or remedy you can take advantage of the ruling even though your case has already been adjudicated. This is known as the “pipeline doctrine” which grants limited retroactive relief if the litigant has preserved the issue in anticipation of a change in the law. This is a tricky process which requires anticipatory litigation and adequate record preservation for pending cases and appeals.
When the Supreme Court releases an opinion involving an entirely new doctrine of law, the Court frequently articulates how that doctrine will impact pending cases and appeals. For example, in State v. Dyle, 899 S.W.2d 607 (Tenn. 1995), the Supreme Court discussed a new jury instruction on witness identification. At page 612, the Court held that “this ruling is applicable to cases now on appeal and those cases tried after the release of this opinion.” This meant that the opinion was given pipeline application.
In State v. Walker, 905 S.W.2d 554 (Tenn. 1995), the Court held that persons under criminal sentence who present themselves for incarceration but are turned away by the sheriff may consider the sentence satisfied under certain circumstances. The Supreme Court held, at page 557, that “we are also persuaded that the rule announced today should be prospective only and should apply only to cases tried or retried after the date of this opinion and in cases on appeal in which the issue has already been raised.”
In State v. Enochs, 823 S.W.2d 539 (Tenn. 1991), the Court found that the thirteenth juror rule applied to all cases which were pending on direct review at the time the rule was reinstated and became effective. Lawyers who raised the issue prior to the release of Enochs, obtained a new trial for their clients after Enochs was rendered. See e.g., State v. Barone, 852 S.W.2d 216, 218 (Tenn. 1993).
This “pipeline” doctrine is not limited only to criminal cases. In McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), the Supreme Court adopted new rules regarding comparative fault. At page 58, the Court held that the opinion would apply to “all cases tried or retried after the date of this opinion and all cases on appeal in which the comparative fault issue has been raised at an appropriate stage in the litigation.” Identical language can be found in McClung v. Delta Square Partnership, 937 S.W.2d 891, 905 (Tenn. 1996) (landlord liability for crimes committed against innocent third parties by criminals on the premises); Broadwell v. Holmes, 871 S.W.2d 471, 477 (Tenn. 1994) (parental immunity); and Hataway v. McKinley, 830 S.W.2d 53, 60 (Tenn. 1992) (the “lex loci delicti”) choice of law doctrine in a wrongful death action). 
There may be constitutional limitations on the retroactivity doctrine. See, Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932), which that state courts could constitutionally choose to apply a state court decision departing from established precedent in either a retroactive or prospective manner. The United States Supreme Court had adopted “a posture of non-retroactivity” only where three conditions are present: (1) the decision at issue establishes a new principle of law by overruling clear past precedent, (2) retroactive application will retard its prospective application, and (3) retroactive application could produce substantial inequitable results to the instant litigants.
The lesson to be learned here is that attorneys should be aware of pending issues in the Tennessee Supreme Court and preserve the issue in anticipation of a possible change in the law so the client can retroactively take advantage of the new ruling. 
David Raybin is a Middle Tennessee Delegate of the executive council for the Tennessee Bar Association's Appellate Practice Section. Raybin has been named the Best Criminal Lawyer in Nashville in criminal general practice and white collar defense by Best Lawyers in America and listed among the Best Criminal Lawyers in TN by Tennessee Business magazine. Raybin holds degrees from Virginia Commonwealth University and the University of Tennessee College of Law.
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Noel Named Chair of Governor’s Council for Judicial Appointments

Gov. Bill Haslam has named Randall D. Noel as the new chair of the Governor’s Council for Judicial Appointments. The Council for Judicial Appointments interviews applicants and makes recommendations to the governor when there are vacancies on the appellate courts. Noel is a partner at Butler Snow LLP in Memphis engaged in civil practice, with a focus on commercial, banking, antitrust, data security and products liability matters. He is a former president of the TBA.

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Gorsuch Appears to Side with Liberal Justices Over Cellphone Warrant

As the U.S. Supreme Court considered whether police need a warrant supported by probable cause to obtain cellphone location data, Justice Neil M. Gorsuch yesterday appeared to have sided with liberal justices, the ABA Journal reports. Justices Samuel A. Alito Jr. and Anthony M. Kennedy appeared to lean most towards agreeing with the government that a warrant wasn’t needed in the case Carpenter v. United States, while Justice Sonia Sotomayor appeared to most favor protections on cellphone data.

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Tennessee Supreme Court Rules on Required Notice for Enhanced Sentence

The Tennessee Supreme Court reinstated a life sentence without the possibility of parole that defendant Kevin Patterson received under Tennessee’s three strikes law. The defendant argued the state did not provide him with the required pre-trial notice that it planned to use his prior convictions to obtain an enhanced sentence. The Supreme Court held that while the notice was imperfect, the defendant was not prejudiced by the errors. The unanimous opinion was authored by Justice Cornelia A. Clark.

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Supreme Court Affirms Conviction in Theft of House Case

In State of Tennessee v. Tabitha Gentry (AKA Abka Re Bay), the Tennessee Supreme Court ruled the state’s theft statute applies to real property. In the case, the defendant challenged whether Tennessee Code Annotated section 39-14-103 encompassed theft of a house. The Supreme Court affirmed the defendant’s convictions of Class A felony theft and aggravated burglary. Justice Cornelia A. Clark authored the opinion.

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Criminal Law Forum 2017

The Tennessee Bar Association will host the 2017 Criminal Law Forum in Nashville on Dec. 8. This one-day event is a staple for Tennessee attorneys, offering timely analysis of important issues to educate and enrich your practice.
Do not miss this opportunity to fulfill CLE requirements while networking with attorneys who share your focus and cultivating relationships with fellow practitioners. Section members receive a discounted rate for the program. Here's the key info: 
When: Dec. 8, registration begins at 8 a.m., CDT
Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219
Topics include:
  • Sentencing issues and case law statutory updates 
  • The Indigent Representation Task Force recommendations and the Supreme Court's response
  • Post-conviction relief
  • Voire dire
  • Ethical considerations for criminal law attorneys
Speakers/Producers include:
  • David Veile, Schell & Oglesby, LLC, Franklin 
  • Joseph Fuson, Freeman & Fuson, Nashville 
  • William Koch Jr., Nashville School of Law, Nashville 
  • William Lamberth II, William Lamberth Attorney at Law, Portland
  • Roger Nell, District Public Defender, Clarksville
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Court Holds Personal Signature of Party Appealing in Parental Termination Case Not Required

In the parental termination case In re Bentley D., the Tennessee Supreme Court concluded that a father’s notice of appeal, signed by his attorney but not the father personally, satisfies the statutory signature requirement for appeals in parental termination cases. The court remanded the case to the Court of Appeals for consideration of the father’s appeal on the merits. Chief Justice Jeffrey S. Bivins authored the unanimous opinion.

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Recent Vandy Law Grad to Clerk for SCOTUS Justice Sotomayor

2016 Vanderbilt Law graduate Samiyyah Ali has been chosen to clerk for U.S. Supreme Court Justice Sonia Sotomayor, the Nashville Post reports. Ali will begin working for Sotomayor in October. She is currently the clerk to Judge Sri Srinivasan of the U.S. Court of Appeals for the D.C. Circuit in Washington. Ali, a Georgia native, was executive editor of the Vanderbilt Law Review and vice president of the Black Law Students Association while at Vanderbilt.
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Supreme Court Clarifies Self-Defense When Engaged in Unlawful Activity

The Tennessee Supreme Court has clarified when self-defense can be claimed, when the person making the claim is engaged in unlawful activity at the time of the incident. In the case of State of Tennessee v. Antoine Perrier, the Supreme Court held that the defendant, who admitted to being a felon in possession of a handgun, was engaged in unlawful activity, and concluded that there was a sufficiency of proof to support the defendant’s conviction.
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Supreme Court Upholds Death Sentences for Murder of Memphis Family

The Tennessee Supreme Court has affirmed the convictions and death sentences for Sedrick Clayton in the murders of Arithio, Patricia, and Pashea Fisher, and the conviction for attempted murder of A’Reco Fisher in Memphis. The court found the sentences were not arbitrary nor were they disproportionate to sentences imposed in similar cases. Justice Roger A. Page wrote the majority opinion, with Justice Sharon G. Lee authoring a concurring opinion.

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Court Rules Sevier Jailers Not Liable for Inmate's Death

A federal appeals court has ruled that Sevier County jailers shouldn’t be held liable for an inmate's death because they were following a nurse’s advice, Knoxnews reports. The family of Samuel M. McGaw IV filed a suit after he fell into a coma in a Sevier County Jail cell in 2014, 24 hours after he was booked into the facility high on alcohol and pills. The jailers knew McGaw was in danger, but trusted a nurse’s trained assessment that he go untreated. The ruling means the case now returns to U.S. District Court Judge Pamela Reeves’ court for a trial with Sevier County leaders as the sole defendants.
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Sessions Criticizes Federal Judges Who Block Trump Administration Policies

Attorney General Jeff Sessions today had harsh words for judges who have issued nationwide injunctions that blocked Trump administration policies, the ABA Journal reports. Sessions said in a speech to the Heritage Foundation that the judges are failing to respect the legislative and executive branches, and emphasized that "the judiciary is not a superior or policy-setting branch." American Bar Association President Hilarie Bass issued a statement saying that the ABA is “alarmed” in response to the remarks. “Judges should not be attacked or diminished by another branch of government just because they do not rule in its favor,” Bass said. “Judicial independence is critical to maintaining the rule of law in our nation.”
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New Appellate Advocacy Guide Available from NBA

The Nashville Bar Association recently completed updates to Appellate Advocacy: A Handbook on Appellate Practice in Tennessee. This handbook is intended to aid practitioners in preparing their cases so that the merits are the focus of their appeal. Don Caparella, TBA Appellate Practice Executive Council member, served as editor over these revisions.

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Appellate Practice Tip #3: Interlocutory Appeals and Rule 54

There is always a certain amount of confusion about the fact that the Tennessee Rules of Civil Procedure contain a rule, Rule 54.02, which seems to provide for an interlocutory form of relief while the Tennessee Rules of Civil Procedure, contains Rules 9 and 10, which specifically provide for interlocutory relief. While there are some similarities, the factors to be considered with respect to the appropriateness of these types of appeals are different. Technically, under Rule 54.02, the Tennessee Rules of Civil Procedure, when more than one (1) claim for relief is present in an action, whether as a claim, counterclaim, cross-claim or third-party claim, or when multiple parties are involved, the Court may direct an entry of final judgment as to one or more, but fewer than all the claims or parties.

However, and this is extremely important, the trial court must make an express determination that there is “no just reason for delay” and must expressly direct the entry of a judgment on specified claims and/or as to specified parties. The Rule is clear and our courts of appeals have been steadfast in enforcing the requirement that in the absence of this determination and direction, any order or other forms of decision, however, designated, that adjudicates fewer than all the claims or rights and liabilities or fewer than all the parties, shall not terminate the action as to any of the claims or parties and the order or another form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. The requirements of Tennessee Rules of Appellate Procedure 9 and 10 are different and savvy practitioners should review TRCP 54 and TRAP Rules 9 and 10 to determine which is the most tactically advantageous in their situation.  

George "Buck" Lewis is a shareholder at Baker Donelson, former TBA president and chairs the Appellate Practice Law Section. 

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10 Sworn-in to U.S. Supreme Court at TBA Academy

Ten Tennessee attorneys were admitted to the U.S. Supreme Court today as part of the TBA's 34th Annual Academy in Washington, D.C. The event, which offered three hours of CLE credit, kicked off Tuesday with a reception and celebration dinner, continuing today with breakfast at the Supreme Court, being sworn-in, and watching two oral arguments. After hearing a lecture on the history of the court the group had lunch at the U.S. Capitol, followed by a tour conducted by a staff member from Sen. Bob Corker's office. Those admitted today are Deborah Murphy Dickson, Michael Patrick Dolan, Floyd Senter Flippin, Thomas H. Forrester, Mark N. Foster, Zachary D. Jones, TBA President-elect Jason Pannu, Donna Simpson, TBA Executive Director Joycelyn Stevenson and Scott David Weiss. See a picture of the group.

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DOJ Tells Supreme Court to Drop 'Moot' Travel Ban

The U.S. Department of Justice told the Supreme Court yesterday it should drop a pending challenge to President Donald Trump’s travel ban because the ban has been replaced with a new version, the ABA Journal reports. The third and newest version of the ban removed Sudan and adds Chad, North Korea, and certain citizens of Venezuela. The DOJ said that due to the changes, the case is moot. It also asked the Supreme Court to vacate lower court rulings in the case.
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Court Affirms Especially Aggravated Robbery Conviction

In an opinion filed today, the Supreme Court of Tennessee clarified when a serious bodily injury must occur during a robbery to elevate the crime to especially aggravated robbery. In State of Tennessee v. Antonio Henderson, the Supreme Court determined a serious bodily injury suffered by a victim of a robbery must be sustained during the robbery in order for the enhanced charge and punishment to apply. In deciding when a robbery is over, the Court concluded a theft is completed when a defendant has taken all of the property he intended to steal.
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8 Cases Granted Review by Supreme Court

The Tennessee Supreme Court has recently granted review in eight cases, including civil cases that involve wrongful death plaintiffs, health care liability pre-suit notices, and accrual of civil actions. Criminal cases include sex offender probation, error coram nobis, warrantless searches, retroactivity of constitutional challenges, and creation of child pornography. The Raybin Supreme Court Hot List reviews the cases and offers predictions.

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Court Issues Proposed Rules Amendments, Asks for Comment

The Tennessee Supreme Court has published the annual package of recommendations from the Advisory Commission on Rules of Procedure and Evidence, the 2018 Proposed Rules Amendments. Several TBA sections are reviewing the recommendations for possible comment. Comments are due to the court no later than Nov. 22.

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SCOTUS Kicks Off Term Today

The U.S. Supreme Court took the bench today to kick off what Justice Ruth Bader Ginsburg is calling a “momentous” term, CNN reports. This year’s big issues include gerrymandering, voting rights, religious liberty, privacy and immigration issues. Cases up for the Court include that of a Colorado baker who refused to bake a cake for a same-sex wedding, a case of whether investigators need to obtain a warrant for cell tower data and the case of the Trump Administration’s travel ban, which might have to be sent back down to a lower court due to the recent changes made to the order.
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SCOTUS to Hear Case of Death Row Inmate Unable to Stop Lawyer from Conceding Guilt

The U.S. Supreme Court today announced it will consider whether it is unconstitutional for defense counsel to concede a defendant’s guilt over his express objection, the ABA Journal reports. The question centers around the case of Robert Leroy McCoy, a Louisiana death row inmate who objected to his lawyer’s suggestion to admit guilt and accept a plea deal. His lawyer, Larry English, argued that it was his ethical duty to save McCoy’s life, and therefore admitted McCoy’s guilt with the goal of sparing him from the death penalty.
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Court Square Series Coming to Dyersburg on Friday

On Sept. 22, TBA CLE will bring the Court Square Series to the Farms Golf Club in Dyersburg. Public Defender Sean Day will provide case law updates and review statutory law governing criminal cases. Bankruptcy Trustee Molly Williams will provide guidance on real property issues in bankruptcy cases. The final session will be a presentation on appellate practice with attorneys Jennifer Vallor Ivy and Samuel Ivy.

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