News

Commission Sends 3 to Haslam for Appeals Court

The Governor’s Commission on Judicial Appointments, which met in Memphis on Friday, has submitted three candidates to Gov. Bill Haslam to fill a vacancy on the Tennessee Court of Appeals. They are Shelby County Chancellor Kenny W. Armstrong, Memphis lawyer Oscar C. Carr III and Jackson lawyer Steven Wayne Maroney. The vacancy on the court was created by the appointment of Judge Holly Kirby to the Tennessee Supreme Court. Kirby will move into her new role on Sept. 1. Read more about the three candidates from the AOC.

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3 Advance to Governor for Criminal Appeals Court Post

Timothy Lee Easter of Williamson County, James Winn Milam of Robertson County and Roger Eric Neil of Montgomery County have been selected as the top candidates to fill the upcoming vacancy on the Tennessee Criminal Court of Appeals. The Governors Commission on Judicial Appointments interviewed all nine of the candiates for the post today in Nashville before deciding on the three who will go to Gov. Haslam for consideration. The Administrative Office of the Courts has more.

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Some Expect Costly, Divisive Judicial Campaign

Tennessee could be facing the costliest state Supreme Court election in its history now that conservatives have targeted three sitting justices on the state's highest court, Knoxnews reports from the Associated Press. While Senate Speaker Ron Ramsey has been meeting with business leaders, victims' rights groups and others to make the case that all three should go, supporters of the justices are already trying to raise money to counter the outside money they expect to be coming in to influence the race.

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Nashville Lawyers Share Views on Criminal Appeals Candidates

Nashville lawyers gave their opinions of nine candidates seeking to fill the upcoming vacancy on the Tennessee Court of Criminal Appeals in a poll released today by the Nashville Bar Association (NBA). Timothy Lee Easter, a Circuit Court Judge in Williamson County, earned the highest recommendation from the NBA members. The second highest level of support went to Russell Fletcher Thomas, a solo practitioner in Davidson County. The Governor’s Commission for Judicial Appointments will interview all nine applicants on Tuesday in Nashville and recommend three finalists to pass on to Gov. Bill Haslam. Judge Jerry Smith, who currently holds the Middle District position, earlier said he would not seek to retain his seat in the August general election.

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Supreme Court Names New Appellate Courts Clerk

James M. Hivner of Bartlett has been named as the Clerk of the Appellate Court by the Tennessee Supreme Court. Hivner currently serves as the Chief Administrative Officer of the Shelby County Chancery Court. He will replace Mike Catalano, who is retiring in early June after more than 10 years as clerk. In his role as Clerk of the Appellate Courts, Hivner will oversee a staff of 29 at offices in Jackson, Nashville and Knoxville. He will serve the Supreme Court as well as the Court of Appeals, and Court of Criminal Appeals. The Administrative Office of the Courts has more.

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Investiture Set for New Court of Appeals Judge

The investiture of Neal McBrayer as judge for the Tennessee Court of Appeals is set for May 29 at 10:30 a.m. in the Historic Supreme Court Chambers of the state Capitol. A reception will follow and the public is invited to attend. McBrayer, a Maryville native, most recently served as an attorney in the Nashville office of Butler, Snow, O’Mara, Stevens & Cannada where he handled commercial litigation and bankruptcy law. He was appointed to the court by Gov. Bill Haslam in August 2013 to replace Judge Patricia J. Cottrell, who is stepping down at the end of the current term. The Daily Times has more on McBrayer's background and appointment.

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1 in 25 Sentenced to Death Are Likely Innocent, Study Says

A new study suggests that about one in 25 people who are sentenced to death are likely innocent, the ABA Journal reports. The study, published in the Proceedings of the National Academy of Sciences, says that while only 1.6 percent of those on death-row are exonerated and released, the actual figure is likely a minimum of 4.1 percent when statistical assumptions are applied to the cases of people who are removed from death row and given life sentences.The new study also refutes a statement made by Justice Antonin Scalia in a concurring opinion in 2007 in which he wrote that American criminal convictions have an error rate of 0.027 percent “or, to put it another way, a success rate of 99.973 percent.”

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Sotomayor’s Opinion Her First on Race Issue

In a dissent this week to a U.S. Supreme Court opinion on affirmative action, Justice Sonia Sotomayor -- the first Hispanic justice on the court -- addressed race in American for the first time since going on the bench, Gavel Grab reports. While the six-member majority upheld a voter-approved Michigan ban on affirmative action in university admissions, Justice Sotomayor parted ways, writing: “The Constitution does not protect racial minorities from political defeat.” She added, “But neither does it give the majority free rein to erect selective barriers against racial minorities.” Attorney General Eric Holder today applauded Justice Sotomayor’s dissent and called it “courageous and very personal,” the Wall Street Journal Law Blog reports.

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State Supreme Court Added to Historic Register

Six Tennessee sites, including the state Supreme Court Building in Nashville, have been added to the National Register of Historic Places, a list of cultural resources worthy of preservation. The court was nominated for the recognition in January by the Tennessee Historical Commission. The other sites are the Grand Guitar in Bristol, Mead and Ross Marble Quarries in Knox County, the Martin-Dobyns House in Kingsport and the Blountville Historic District. WDEF News 12 has the news from the Associated Press.

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Memphis Judges Host Supreme Court Reception

The judges of the 30th Judicial District, in cooperation with the University of Memphis Cecil C. Humphreys School of Law, will host a reception for members of the Tennessee Supreme Court on Friday. The event will begin at 7:30 a.m. in the 4th Floor Gordon Ball Reading Room of the law school. RSVP to Judge Robert “Butch” Childers at robert.childers@shelbycountytn.gov.

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State Challenges Ruling on Same-Sex Marriages

Tennessee Attorney General Robert Cooper is asking the Sixth Circuit Court of Appeals to reverse a decision granting recognition to three same-sex married couples, the Tennessean reports. The action follows Friday’s preliminary injunction issued by U.S. District Judge Aleta Trauger allowing the marriage of three same-sex couples -- plaintiffs in a federal lawsuit -- to be recognized as their lawsuit against Gov. Bill Haslam and others progressed. The AG’s argument points to a stay issued in a similar ruling in Utah, and says it won’t irreparably harm the couples not to be recognized.

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Court to Review Whistleblowing and Contiguous State Cases

The Tennessee Supreme Court has agreed to hear two cases regarding a charge of whistleblower retaliation and the contiguous state requirements for a testifying expert witness. The Raybin Perky Hot List has a summary and forecast of each case.

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3 Recommended for Supreme Court Vacancy

The Governor's Commission for Judicial Appointments today recommended Jeffrey S. Bivins, Linda W. Knight and Larry K. Scroggs as candidates to fill the Tennessee Supreme Court position being vacated this summer by Justice William C. Koch Jr. The three now go to Gov. Bill Haslam for consideration. View each candidate’s application at the Administrative Office of the Courts.

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Bivins Gets Highest Marks in NBA Supreme Court Poll

Judge Jeffrey S. Bivins of Franklin received the highest marks in a poll released today by the Nashville Bar Association in which its members rated candidates seeking appointment to the Tennessee Supreme Court. Five lawyers are seeking to fill a vacancy that will be created when Justice William C. Koch Jr. retires in July to become dean of the Nashville School of Law. The survey asked lawyers to register a vote of highly recommend, recommend, do not recommend or no opinion. Paul C. Ney Jr. of Nashville received the second highest rank, followed by Nashville lawyer Linda W. Knight. See the full poll results.

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Supreme Court Seeks Appellate Courts Clerk

The Tennessee Supreme Court is seeking applications for the Clerk of the Appellate Courts position based in Nashville. The vacancy is being created by the retirement Mike Catalano. Qualified applicants must be licensed Tennessee attorneys, have extensive managerial experience and be knowledgeable about implementation and use of current technologies. The deadline to apply is March 14. Visit the Administrative Office of the Courts for more information. 

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If You Did It, Flaunt It With a TBJ Announcement

The Tennessee Bar Journal has a new opportunity for lawyers and firms to promote outstanding achievements, new associates, new partners, mergers, awards and any changes within the firm. Now, Professional Announcements are available at special, lower-rate pricing. You can tell more than 12,000 of your peers about your accomplishments by placing an announcement in the Journal. For information or to place an announcement, contact Debbie Taylor at 503-445-2231 or Debbie@llm.com. To have an announcement placed in the April issue, please contact her before Feb. 18.

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6th Circuit Offers Appellate Advocacy Training

The U.S. Court of Appeals for the Sixth Circuit now features a series of video clips providing training on appellate advocacy on its website. In one of the videos, Judge Jeffrey Sutton provides an in-depth discussion on effective appellate advocacy before the court, but many of his comments have equal application to practice in Tennessee appellate courts, according to the TBA’s Appellate Practice Section. Other video resources on the site provide tips for electronic filing, avoiding common billing mistakes and handling Criminal Justice Act cases. Read more in this blog posting from the appellate group at Squire Sanders.

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Appellate Court Clerk to Retire, Become Ordained Deacon

Clerk of the Appellate Courts Mike Catalano announced today he will retire in June to become an ordained deacon in the Roman Catholic Church, pursuing his ministry on a full-time basis. Catalano has served the state of Tennessee for more than 35 years in a variety of roles. He was appointed by the Tennessee Supreme Court to be the appellate court clerk for a six-year term starting in January 2004 and was reappointed for a second term starting in January 2010. “Mike Catalano is the consummate professional -- a public servant of the first order. As a valued leader within the office of the attorney general and as clerk of all of our appellate courts, he has performed his duties in an exemplary fashion -- with class, dignity, and courtesy," Chief Justice Gary R. Wade said in a press release. “That he has chosen to spend the balance of his career in service to the highest authority is the best reflection of his true character. Our courts will sincerely miss this good man.”

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Process Underway to Fill Supreme Court Vacancy

The Governor’s Commission for Judicial Appointments is now accepting applications for a vacancy on the Tennessee Supreme Court that will be created by the retirement of Justice William C. Koch Jr. on July 15. Interested applicants must be licensed attorneys who are at least 35, have been a resident of the state for five years and have been a resident of the Middle or Western grand divisions of the state. Applicants must complete the designated application and submit it to the Administrative Office of the Courts by Feb. 21 at 5 p.m. Central time. The commission will interview all qualified applicants on March 5 in Nashville.

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Case of 6th Circuit Judge Referred to DOJ

This past summer, federal Judge Boyce Martin Jr. of Kentucky announced he would retire from the 6th Circuit Court of Appeals and repay nearly $140,000 in travel expenses to avoid an ethics investigation. But documents just released reveal that his case will be referred to the U.S. Justice Department by the Committee on Judicial Conduct and Disability of the U.S. Judicial Conference, the ABA Journal reports. In making the referral, the committee also refused a request that Martin’s name not be disclosed. Commenting on the case, University of Pittsburgh law professor Arthur Hellman said the referral to the Justice Department was “quite unusual” and "stunning." Others, including Judge Martha Craig Daughtrey, praised Martin's legacy. A senior member of the court, Daughtrey said Martin had a “stellar legacy” and that “his character and integrity are beyond question.”

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Senate Confirms Wilkins to D.C. Circuit

The U.S. Senate today confirmed Robert Wilkins to the U.S. Court of Appeals for the D.C. Circuit, marking the final step in an aggressive push from the White House and Senate Democrats to leave a mark on a key federal appeals court, the Blog of Legal Times reports. With Monday’s confirmation vote, Wilkins became the fourth Obama pick since May to take a seat on the D.C. Circuit. The appointment of Wilkins creates a vacancy on the federal trial bench in Washington.

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Jackson Lawyer Appointed to Court of Appeals

Jackson lawyer and Alamo native Brandon O. Gibson has been appointed to the Tennessee Court of Appeals by Gov. Bill Haslam. She will replace Judge David R. Farmer when his term expires in August 2014. Gibson, 38, has been in private practice at the Pentecost & Glenn law firm in Jackson since 2003. “Brandon Gibson will be an excellent judge on the Court of Appeals,” Haslam said. “She has vast experience in private practice, and I know she will serve the citizens of the Western Section well in this role.”

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Court Adopts New Standard for Concurrent Sentences

The Tennessee Supreme Court on Friday adopted a new standard to guide appellate court review of decisions that impose consecutive sentences for multiple convictions. The decision came in the case of James Allen Pollard, who was found guilty of first-degree murder and aggravated robbery. The trial court imposed consecutive sentences of life in prison for the murder and 18 years for the robbery. The appellate court affirmed the conviction but instructed the trial court to identify the factors that supported imposition of consecutive sentences. The Supreme Court upheld that approach, directing trial courts to identify a specific evidentiary basis for “stacking” sentences. It also ruled that if a lower court finds an appropriate basis for consecutive sentences, appellate courts must find an abuse of discretion to justify overturning the decision.

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Court to Review Five End-of-Year Cases

The Tennessee Supreme Court has granted review of five end-of-year cases. The four civil cases involve a child custody issue, a real estate contract dispute, independent contractor premises liability question, and a forfeiture of real property in a child pornography matter. The criminal case is regarding the waiver of a jury instruction on lesser included offenses. The Raybin Perky Hot List has a summary and forecast of each case.

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2014 Rules Package Published

The Tennessee Supreme Court today published its 2014 package of amendments to the Rules of Procedure and Evidence, including changes to the Rules of Civil Procedure, Rules of Criminal Procedure and Rules of Appellate Procedure. The amendments, which would be effective July 1, 2014, if approved by the General Assembly, include new authority for appellate courts to suspend rules; requirements for electronic copies of transcripts; specification of the color of applications, responses and amici in TRAP 9 and 11 matters; and refinement of criminal contempt provisions. The court adopted the single recommendation from the TBA and Public Defenders Conference that trial court discretion to substitute a statement of evidence for a verbatim transcript on appeal not apply to criminal cases.

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