News

TBA Convention in Kingsport is Just Around the Corner

Registration is open for the 2017 TBA Annual Convention. This years programming offers plenty of opportunities to make new friends and renew acquaintances with colleagues from across the state. The highlight comes Thursday night with the Kingsport Karnival at the downtown Farmers Market. Along with fabulous food and drink, there will be live music from two bands, an aerialist, juggler, magician, body and face painters, caricaturist and more. Plus, you'll have access to the fabulous Kingsport Carousel, the delightful project of community artisans. Special thanks to Eastman for support of this event! 

This years convention also offers 12 hours of CLE programming, highlighted by sessions on the Hatfields and McCoys, The Neuroscience of Decision-Making, and the popular Better Right Now wellness program. It is all set at the beautiful MeadowView Marriott Conference Resort & Convention Center. To receive the TBA $129 room rate, you must book your reservation by May 23. Book your room online now or call 423-578-6600.

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Call For Submissions — Law Practice Pointers

One of the benefits of being a TBA Section Member is having access to information from experienced practitioners to assist in your day-to-day practice. The sharing of this information amongst colleagues is one of the best traits of the profession. It is also a way of helping each other to maneuver the evolving legal market and strengthen your legal practice.

How can you help your fellow Section Members?  If you have some Law Practice Pointers you would like to share with your fellow section members, write an article between 300-500 words and submit it to the Section Coordinator for review and approval. These Law Practice Pointers can be related to a court opinion, piece of legislation, or current event or industry trend that affects the practice of law as it relates to the specific Section. The main requirement is to make sure the article gives lawyers practical tips, based on experience, to include in their day-to-day practice.

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Trump Names Nominees to Lower Courts

President Donald Trump nominated 10 lawyers to federal courts today, including two which were on his list of potential Supreme Court justices prior to his selection of Justice Neil Gorsuch, USA Today reports. Those two are Joan Larsen, a Michigan Supreme Court justice, who was nominated to serve on the U.S. Court of Appeals for the 6th Circuit, and David Stras, a Minnesota Supreme Court justice, who was nominated to the 8th Circuit. Three judges were named to other federal appeals courts, four were named to district courts and one to the U.S. Court of Federal Claims. The nominees were praised by conservative legal activists.
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Gorsuch Forgoes SCOTUS Law Clerk Pool

One month into his service on the U.S. Supreme Court, Justice Neil Gorsuch has decided not to join the labor pool in which justices share their law clerks, the New York Times reports. The only other member of the court who is not part of the arrangement is Justice Samuel Alito. The pool is designed to streamline decisions about which cases to hear, but has been criticized for giving too much power to law clerks and for contributing to the court’s shrinking docket.
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Tennessee Supreme Court Affirms Death Sentence for Premeditated Murder Conviction

The Tennessee Supreme Court has affirmed James Hawkins’ premeditated murder conviction and sentence of death for the 2008 murder of Charlene Gaither, Hawkins’s long-term girlfriend and the mother of his children. Proof at trial showed that Hawkins had murdered Gaither because she threatened to expose his sexual abuse of their daughter. The Court of Criminal Appeals upheld his convictions and the jury's death sentence. Upon its automatic review of the case, the Supreme Court ruled that, although Hawkins was illegally seized without a warrant, the admission into evidence of the statement he gave while illegally held was harmless error beyond a reasonable doubt, and any impropriety had not deprived Hawkins of a fair trial. Justice Cornelia Clark wrote the majority opinion, while Justice Sharon Lee authored a concurring opinion.

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Appeals Court Denies AG Request for Rehearing Death Row Case

The U.S. 6th Circuit Court of Appeals has declined to reconsider a decision that found the state had violated the due process rights of a death row inmate, the Commercial Appeal reports. In February, a panel of judges found that in the case of death row inmate Andrew Thomas, who was previously found guilty in the 1997 shooting of armored truck guard James Day, the prosecution failed to disclose to him that a witness had received $750 from the federal government before the trial.
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Sessions ‘Amazed’ that Hawaii Judge Blocked Travel Ban

U.S. Attorney General Jeff Sessions said he was “amazed” that a judge “sitting on an island in the Pacific” could halt President Donald Trump’s travel ban executive order. Sessions' comment drew criticism from Hawaiian elected officials, the Hill reports. A federal judge in the 9th Circuit Court of Appeals in Hawaii put a temporary suspension on Trump’s second travel ban in March. Sen. Brian Schatz, D-Hawaii, pointed out in a statement against Sessions’ comments that the AG voted to confirm the judge in question while he was still representing Alabama in the Senate.
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Nashville Schools See Decisions in 2 Cases

The Metro Nashville School District won one case and lost another before the Tennessee Court of Appeals, the Tennessean reports. Both cases affirmed rulings by Nashville Chancellor Ellen Hobbs Lyle. One upheld the ruling that the judiciary system can’t demand the state to provide the full amount of money for schools in its education funding formula. The court also affirmed a ruling that the right to a public education does not extend to the specifics of that education.
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Tennessee AG Joins States Supporting Trump Travel Ban

Tennessee Attorney General Herbert Slatery filed an amicus brief with the 9th U.S. Circuit Court of Appeals in favor of President Donald Trump’s updated travel ban, the Tennessean reports. That adds Slatery to a list of officials in 15 states who believe the decision from the U.S. District Court in Hawaii should be reversed. That decision halted the president’s second version of the travel ban.
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Newspaper Looks at Changes in Court During Haslam Term

Gov. Bill Haslam has appointed three justices to the Tennessee Supreme Court since 2014, and the Nashville Scene this week looks at what impact those appointments have had on the court and its decisions. Several criminal defense attorneys tell the Scene they are concerned with their perception of change in the ideology of the court, while others praise its recent decisions.

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Federal Judge Strikes Down Voter ID Law

A federal judge ruled today that a voter ID law passed in Texas in 2011 was enacted with the intent to discriminate against black and Hispanic voters, the New York Times reports. The judge had previously made a similar ruling, but the state of Texas appealed her decision and a federal appellate court instructed her to review the issue again.
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Gorsuch Sworn In as Supreme Court Justice

Neil Gorsuch was sworn in today as the newest justice of the U.S. Supreme Court, NBC News reports. Justice Anthony Kennedy, who Gorsuch once clerked for, administered the judicial oath. In another ceremony, Gorsuch took an oath administered by Chief Justice John Roberts, with the late Justice Antonin Scalia’s family in attendance. 
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Court Holds Death Not Compensable in Workers' Comp Case

The Tennessee Supreme Court has held that based on the testimony regarding Charles Kilburn’s death, his death is not compensable as a direct and natural consequence of his original compensable injury from a motor vehicle accident. Kilburn died from oxycodone toxicity a little over a year after an on-the-job accident. His surviving spouse sought workers’ compensation death benefits, and the trial court concluded that the death was compensable. The Supreme Court unanimously opined, however, that a subsequent injury is not compensable if it is the result of an independent intervening cause, such as the employee’s own conduct.
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Lewis Elected Fellow at Academy of Appellate Lawyers

Memphis attorney Buck Lewis of Baker Donelson has been elected a Fellow of the American Academy of Appellate Lawyers. A former TBA President, Lewis is a shareholder and chair of the firm’s Appellate Practice Litigation Group. He is one of just three Tennessee attorneys who have been inducted as a fellow of the AAAL.

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Tennessee Supreme Court Upholds Warrantless Entry

The Tennessee Supreme Court has ruled that police officers’ warrantless entry onto a defendant’s property, despite “no trespassing” signs, was constitutionally permissible. In the majority opinion, Chief Justice Jeffrey Bivins opined, the Court determined that the defendant “failed to demonstrate that he had a reasonable expectation that ordinary citizens would not occasionally enter his property by walking or driving up his driveway and approaching his front door to talk with him ‘for all the many reasons that people knock on front doors.’” Justice Sharon Lee dissented, concluding police had no right to ignore the signs without a warrant.
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Court Overrules State v. Jacumin on Sufficiency of Affidavit to Issue Search Warrant

The Tennessee Supreme Court upheld the constitutionality of a 2012 search warrant in the case of Jerry Lewis Tuttle, overruling State v. Jacumin and adopting the totality-of-the-circumstances approach for determining whether an affidavit sufficiently establishes probable cause for issuance of a search warrant. Tuttle had moved to suppress evidence seized from the search, but the trial court denied the motion and admitted the evidence at trial. The Court of Criminal Appeals reversed the decision, leading to the state's appeal to the Supreme Court. Nashville defense attorney David Raybin was critical of the ruling, saying "This decision is another instance where the Court is eliminating independent Tennessee Constitutional oversight over police searches."
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Democrats Have Votes to Filibuster Gorsuch

Democrats in the U.S. Senate secured enough votes today to block U.S. Supreme Court nominee Neil Gorsuch, setting the stage for Republicans to enact the “nuclear option” and change the rules regarding the filibuster, the Washington Post reports. Four Democrats joined the effort to block Gorsuch today. That followed Gorsuch’s confirmation hearings, which Sen. Patrick Leahy (D-Vt.) characterized as “excruciatingly evasive.” Republicans could confirm Gorsuch by voting to eliminating the filibuster for Supreme Court nominees.
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GOP Could Consider Alternative Strategies to Confirm Gorsuch

Other than taking the “nuclear option” — which would change the rules regarding filibusters — Senate Republicans have other options to confirm U.S. Supreme Court nominee Neil Gorsuch, the ABA Journal reports. One option is the “two-speech rule,” in which senators could only give two speeches in a legislative day, and if the Senate doesn’t adjourn for the night, one “legislative day” could go on for weeks. It would limit each Democrat to two speeches and after they are finished, only a simple majority vote would be needed for confirmation. The second option is a recess appointment, in which the president could put Gorsuch on the bench during a recess, but the appointment would only last until the next session of Congress, which would end in late 2018 or 2019.
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Slatery Adds Support to Gorsuch Nomination

Tennessee Attorney General Herbert Slatery added his support to the nomination of Neil Gorsuch to the U.S. Supreme Court, Humphrey on the Hill reports. In a letter to the chair of the Senate Judiciary Committee and Tennessee’s two U.S. senators, Slatery wrote, “In short, Judge Gorsuch is a champion of the structural safeguards that protect state sovereignty and individual liberty, a committed textualist and originalist, and a brilliant jurist.”

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Supreme Court: Indigent Prisoner’s Case Properly Dismissed

The Tennessee Supreme Court has held that an indigent prisoner’s petition for parole was properly dismissed when the court found he had outstanding unpaid court costs. Reginald Dion Hughes is serving a 60-year sentence for two 1987 murder convictions, and appealed to the Chancery Court after being denied parole for the third time. In Justice Sharon Lee’s dissenting opinion on the decision, she noted that Hughes’ petition was denied based on only $49.50 in unpaid court costs that a clerk had not attempted to collect.
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Gorsuch Faces First Day of Confirmation Hearings

Hearings to confirm U.S. Supreme Court nominee Neil Gorsuch began in Washington today, the ABA Journal reports. Up for discussion was Gorsuch’s questioning of Chevron deference, as well as Gorsuch’s views on the separation of powers. Many Democrats applauded Gorsuch’s qualifications, while voicing their discontent of the Senate’s refusal last year to allow Judge Merrick Garland a similar hearing. When Gorsuch himself gave his statement, he noted that he does not believe that judges are merely “politicians in robes.”
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Gorsuch Former Colleagues Unite in Support of Nomination

Dozens of former law clerks of federal appeals judge David Sentelle have written to the Senate calling for quick confirmation of their one-time colleague Judge Neil Gorsuch to the U.S. Supreme Court, Roll Call reports. The clerks said they hailed from different points on the political spectrum but all endorsed Gorsuch, who clerked for Sentelle on the U.S. Court of Appeals for the D.C. Circuit from 1991 to 1992.

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Check Out New 1-Click CLE Offerings

Gain fast and easy access to annual updates with TBA's 1-Click CLE options. New packages offer recent programming in real estate, administrative law, and appellate practice.  
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Bivins Sees Both Sides of Death Penalty Legislation

Tennessee Supreme Court Chief Justice Jeff Bivins told WCYB that there are pros and cons to the legislation that has been proposed that would take death penalty appeals directly to the Supreme Court, bypassing the court of appeals. "It would probably speed up the process by six months or so," Bivins said. "But it also is helpful to have the court of criminal appeals review it because they are able to narrow down the issues and it's another set of eyes on that." Shortening the time spent on the process is one goal, but Bivins points out that something may be overlooked in the rush. "It's an incredibly important decision. It's a critical decision," he said. "It's a life or death decision, literally."

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Federal Appeals Court Rules in Death Penalty Case

The U.S. Court of Appeals for the 6th Circuit ruled in favor of Andrew Thomas in his death penalty appeal for the 1997 killing of an armored truck guard, the Commercial Appeal reports. The court agreed with Thomas’s claim that the state of Maryland violated his rights and suppressed evidence in his case. Thomas is currently incarcerated at Riverbend Maximum Security Institution in Nashville, where he still maintains his innocence in the crime.
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