Recording companies are entitled to the $222,000 in damages that they were awarded in a 2007 file-sharing case, but an 8th U.S. Circuit Court of Appeals decision issued today in St. Louis did not decide on whether a federal district court in Minnesota erred by ordering a new trial after that first verdict. Read more in the ABA Journal.
Three of the five justices appointed to a Special Supreme Court have stepped down from the body, following a motion filed by John Jay Hooker questioning their impartiality. William M. Barker, George H. Brown Jr. and Robert L. Echols filed the order of recusal today, the Nashville Post reports. Gov. Bill Haslam appointed the trio, along with Special Justice Andree S. Blumstein and Special Justice W. Morris Kizer, to hear an appeal of Hooker’s suit challenging the constitutionality of Tennessee’s method of selecting and retaining appellate court judges. All five members of the Tennessee Supreme Court had earlier recused themselves from hearing the case.
In an opinion piece in the Tennessean today, former state attorney general Paul Summers writes that those supporting direct election of appellate judges have forgotten the state’s past experience with that system. “Back when we had partisan elections for the judges of the Supreme Court, Court of Criminal Appeals and Court of Appeals, they were in theory elected by hundreds of thousands of Tennesseans. In truth, they were selected by a handful of party officials in Nashville...” Summers writes. He reminds readers that in those days, Democrats were in charge and often Republicans didn’t even put up a slate of judges. Today, under merit selection, he argues, the appellate courts are more evenly balanced.
A select group of Tennessee attorneys will soon experience the honor of being admitted to practice before the U.S. Supreme Court during the 29th Annual TBA Academy Nov. 26-27 in Washington, D.C. This year's program includes a welcome reception with TBA President Jackie Dixon, group lunch and dinner, breakfast and tour of the court and private admission ceremony. The group will stay at the Mayflower Renaissance Hotel and will have the opportunity to network with some of the nation’s leading appellate practitioners. Registration is open through Oct. 15. Get details and directions on how to apply
Defenders of Missouri’s nationally recognized merit selection plan for choosing judges have unveiled a campaign to defeat proposed changes when voters go to the polls this fall. According to critics, the proposed state constitutional amendment would insert politics into choosing appellate judges and give too much influence to the governor. A group of former judges, state bar leaders and community representatives have formed the Missourians for Fair and Impartial Courts Committee to fight the initiative. Among the leaders are six former state Supreme Court judges. Read more from Gavel Grab
The Tennessee Supreme Court will soon address the hazards that the internet age has created in the justice system, specifically concerning a juror who sent a witness a Facebook message during a trial. The juror wrote that the witness "did a great job today” and “really explained things so great!” Another case the court will hear considers a remittitur where the jury awarded $43.8 million in damages and assessed 15 percent fault against Ford Motor Company. But the Court of Appeals remanded with a suggestion of remittitur to a total amount of $12.9 million (of which Ford remains only 15 percent liable). In another case, the court will revisit the corpus delicti rule to determine if this rule survived the new criminal code and how it should be interpreted. Read more about these cases and others coming before the court in the Raybin-Perky Hot List.
John Jay Hooker, known for repeated challenges to the state's judicial retention election system, is pursuing yet another Supreme Court review of the issue. His latest challenge, which will be heard by a special court, questions whether the current system is constitutional but also raises the issue of whether it is constitutional for appellate judges to be elected statewide. Since each judge is assigned to one of the state’s three grand divisions, Hooker claims that voting should be limited to those residing in each division. Davidson County Circuit Court Judge Hamilton Gayden Jr. recently rejected all but this element of Hooker’s suit. Last week, the Court of Appeals overruled him on that point. Writing for the court, Judge Herschel P. Frank said that state laws establishing the Court of Appeals and Court of Criminal Appeals “defined the entire state of Tennessee as the district to which the intermediate court judges are assigned" so "their election by a statewide retention election” is constitutional. Hooker has appealed to the Supreme Court. The Memphis Daily News reports
Tennessee Gov. Bill Haslam today appointed a special Supreme Court to hear a case from which all five Tennessee Supreme Court justices have recused themselves. William M. Barker, Andree Sophia Blumstein, George H. Brown Jr., Robert L. Echols and W. Morris Kizer will hear the case, which is an appeal of Hooker et al. vs. Haslam et al., a lawsuit challenging the constitutionality of a Court of Criminal Appeals appointment by the governor.
A confirmation vote scheduled for Monday could be a pivotal moment for how many appellate court bench spots the Senate will fill during the rest of this year, the Blog of Legal Times reports. Majority Leader Sen. Harry Reid, D-Nev., is forcing a vote Monday afternoon on Robert Bacharach of Oklahoma for the U.S. Court of Appeals for the Tenth Circuit, a nominee considered to be highly qualified and noncontroversial. The move is a direct challenge to Republicans who have leaked plans that they will block all circuit court judges for the rest of the presidential election year.
If Reid succeeds in getting enough Republican votes to overcome the filibuster, it could pave the way for other noncontroversial circuit court nominees awaiting confirmation this year, including William Kayatta Jr., of Maine for the U.S. Court of Appeals for the First Circuit, and Richard Taranto, nominated to the Federal Circuit. If Reid does not succeed, it would suggest Minority Leader Mitch McConnell, R-Ky., has party members in line to solidify a freeze on any circuit court confirmations until next Congress, nomination watchers say.
A news item in yesterday's issue of TBA Today mistakenly identified the Mississippi lawyer who petitioned a federal appeals court this week to vacate his guilty plea in a judicial bribery case. It was Zach Scruggs, son of Richard "Dickie" Scruggs, who filed the motion. The younger Scruggs pleaded guilty to failure to report a crime in the same case involving his father. He served a 14-month prison sentence, paid a $250,000 fine and lost his law license. The Commercial Appeal has the story.
Mississippi attorney Zach Scruggs asked a federal appeals court Monday to vacate his 2008 guilty plea in a judicial bribery case that also resulted in a prison sentence for his once-powerful father and law partner. Scruggs argued that his guilty plea should be thrown out because his conduct didn't constitute a crime in light of the U.S. Supreme Court's 2010 ruling that an anti-fraud law was improperly used to help convict former Enron chief executive Jeffrey Skilling. A three-judge panel from the 5th U.S. Circuit Court of Appeals in New Orleans did not immediately rule on the case, according to the Commercial Appeal.
The Tennessee Supreme Court has granted review in five new cases, the most recent Raybin-Perkey Hot List reports. The two civil cases concern modification of grandparent visitation and an interpretation of the teachers’ tenure act. The criminal appeals address the consequences of the state’s failure to preserve evidence, a potential violation of the Interstate Agreement on Detainers and a sufficiency of evidence review of a conviction for tampering with evidence.
Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations. CBS's Face the Nation looks into the process and possibilities of why Roberts changed course.
In the aftermath of U.S. Supreme Court Chief Justice John Roberts' surprising take on the Affordable Care Act as well as his role in Arizona v. U.S., the National Law Journal looks at "how he managed to stay true to his conservative roots while upholding the health care law." And on this day after the historic -- and anger-inducing in some camps -- health care decision, Roberts told the Judicial Conference of the District of Columbia Circuit that he was headed for his summer break to Malta, "an impregnable island fortress. It seemed like a good idea." News 2 has that AP story
The high court today let stand, in a 5-4 decision, the centerpiece of President Obama's health care legislation, with Chief Justice John Roberts surprising many by casting the deciding vote and writing the majority opinion. His rationale is that Congress under the Commerce Clause does not have the authority to require people to buy insurance — but it does have the authority to tax people who do not have coverage. The so-called individual mandate embedded in the health care legislation, Roberts wrote, "must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable." Read more from NPR and the National Law Journal. Relive the action as it unfolded, from the Blog of Legal Times or read what Tennessee business, health care and political leaders had to say in the Nashville Post.
The Tennessee Bar Association will explore what the next steps will be for the legislation in a July 12 webcast featuring John Voigt of Sherrard & Roe. Learn more or register now.
Potentially lost in the flurry of news coverage about the Supreme Court's upcoming health care decision was the court's action on Monday granting certiorarii in 11 cases. Among those to be considered during the next term is one that could make it more difficult for plaintiffs to bring class actions in federal courts, according to the ABA Journal. "The issue here," according to one observer, "is whether the plaintiffs have to show at the class-certification stage that they have a method of proving damages that is admissible at trial and common for all plaintiffs." Antitrust lawyer Ankur Kapoor says this could “be the big one” and "whatever the [court] says about this, the legal journals will be writing about it for years." SCOTUSBlog has the list of all petitions granted.
The Tennessee Chapter of the American Board of Trial Advocates (ABOTA) recently recognized Judge Frank Clement as Appellate Judge of the Year. Clement currently serves on the Tennessee Court of Appeals. Learn more from the Administrative Office of the Courts
The U.S. Supreme Court today rejected key provisions in Arizona's tough anti-immigration law, but let stand controversial police checks of immigration status. In Arizona v. U.S., a 5-3 majority, led by Justice Anthony Kennedy, held that three of four provisions in the law challenged by the Obama Administration were preempted by federal immigration law. Kennedy said the three provisions were preempted because they either conflicted with federal law or because Congress has "occupied the field" with federal regulation, and "even complementary state regulation" is impermissible.
But the majority held that Section 2(B) was not preempted -- at least not until there has been experience with its application. Under that section, state officers are to make a "reasonable attempt" to determine the immigration status of any person they stop, detain or arrest on some other legitimate basis if reasonable suspicion exists that the person is unlawfully in the country. Anyone who is arrested also must have his or her immigration status determined before being released. In light of this decision, the American Bar Association called on authorities "to avoid unnecessary, prolonged detention of individuals who are lawfully present in the United States." The National Asian Pacific American Bar Association also weighed in with its reaction, saying it is concerned that "communities of color throughout our nation will be negatively targeted as a result, and that community policing efforts on the part of law enforcement will also suffer."
With decisions ranging from broadcast indecency to union fees and corporate fines, the U.S. Supreme Court on Thursday cleared the way for the term's biggest and likely most controversial rulings to come next week. After these four rulings, five cases remain, including health care and life without parole for juvenile murders. The court will return on Monday and may schedule an additional decision day later in the week. Learn more from the National Law Journal
A coalition of news organizations is asking the Supreme Court to permit live broadcast coverage of the upcoming announcement of its historic health care decisions. In a letter to Chief Justice John Roberts Jr., the group wrote, "There is a strong interest nationwide in the Court’s opinion and any comments by a member of the Court that may accompany its announcement. Such access would allow the public to be informed of the Court’s ruling in a timely manner." The Court announced today it would be sitting on Monday and Thursday of next week to issue decisions, and several sittings are also expected the following week, at the end of which the Court is likely to adjourn for the summer. But the Court never lets it be known in advance which decisions will be issued on which days. The Court's current practice is to release the audio of oral arguments at the end of the week in which they occur, thereby limiting their news value. The Blog of Legal Times reports
News from the Appellate Practice, Criminal Justice and Health Care Law Sections
Recipients of the 2012 Section Cup were announced recently at the Section Chairs Roundtable, kicking off the TBA Convention in Memphis. TBA President Danny Van Horn created the Section Cup to encourage service to section members. Over the past year, sections accumulated points for holding meetings and CLEs or providing new services to members. Sections of like size competed against each other for the honor.
President Barack Obama has named two prominent appellate attorneys to fill long-standing vacancies on the U.S. Court of Appeals for the District of Columbia Circuit, the White House announced today. Obama chose Srikanth Srinivasan, principal deputy solicitor general of the United States, and Caitlin Halligan, general counsel for the New York County District Attorney’s office. The Blog of Legal Times reports
TBA President Danny Van Horn today recognized the work of three TBA sections by presenting them with Section Cup awards during the Section Chairs Roundtable at the TBA Annual Convention in Memphis. Over the past year, sections accumulated points for holding meetings and CLEs or providing new services to members. Sections of like size competed against each other for the honor. The TBA Appellate Practice Section was named the Section Cup recipient for smaller TBA sections, with Executive Council member Buck Lewis accepting the award on behalf of the section.
The United States Court of Appeals for the Sixth Circuit is soliciting applications from persons interested in appointment as federal public defender for the Western District of Tennessee at Memphis. This is a vacancy created by the retirement of the previous incumbent. Applications are due by June 15. Download information from the court
Construction of a controversial mosque in Murfreesboro can continue according to a ruling out today. Earlier this week, Chancellor Robert Corlew III found that county commissioners did not give proper notice before approving the new Islamic center, but a footnote in the order issued today said that does not mean work has to stop on the mosque, and that such a matter would have to be taken up separately. WPLN reports
