News

Court Agrees to Hear 2 New Civil Cases

The Tennessee Supreme Court recently agreed to hear two civil cases. The first addresses business liability when customers injure third parties. The suit will test whether businesses have a duty to take steps to protect customers from reasonably foreseeable risks, which in this case involved an inebriated customer who was expelled from the store and then caused a car accident in the parking lot. The second case concerns surrogacy agreements and the rights of a surrogate who changed her mind about giving up the child. The Raybin Perky Hot List has a summary of each case.

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Frierson Investiture Set for Tuesday Morning

Gov. Bill Haslam will administer the oath of office to Tennessee’s newest Court of Appeals judge, Thomas R. Frierson II, Tuesday at 9:45 a.m. at the Morristown-Hamblen High School West. Dignitaries, including Supreme Court Chief Justice Gary R. Wade, Court of Appeals Presiding Judge Charles Susano Jr., Hamblen County Mayor Bill Brittain and Morristown Mayor Danny Thomas will be on hand to give remarks. A reception will follow the ceremony. Haslam appointed Frierson in February to fill a vacancy created when Judge Herschel P. Franks retired at the end of 2012. Prior to his appointment, Frierson was a chancellor in the Third Judicial District, serving Greene, Hamblen, Hancock and Hawkins counties. The AOC reported the news.

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Court Grants New Trial for Miranda Violations

In a unanimous opinion, the Tennessee Supreme Court Friday ordered a new trial for a Gibson County man after determining that statements he made during a police interrogation should not have been used as evidence at trial. The case involves the 2007 arrest of David H. Climer Jr., during which he asked whether he could “have … an appointed lawyer right now.” The detective questioning him said “not at this time” and proceeded to question him for three hours. The trial and appeals courts found that the statements were properly admitted because Climer never unequivocally invoked his right to counsel. The Supreme Court disagreed, saying the prosecution failed to prove that the defendant understood and waived his constitutional right to appointed counsel. Download the opinion.

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TBA Files Amicus in Tennessee Plan Lawsuit

The TBA today filed a motion and provisional brief to proceed as amicus curie in the case of Hooker v. Haslam -- the latest case to test the constitutionality of the Tennessee Plan for merit selection, performance evaluation and retention elections. The brief was prepared by Pat Moskal and Edmund Sauer of Bradley Arant Boult Cummings LLP serving as special counsel.

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Federalist Society Hosts Forum on Electoral College Proposals

The Memphis Lawyers’ Chapter and University of Memphis Law Students’ Chapter of the Federalist Society will present “Current Proposals to Change the Electoral College System” on April 18 from 11:30 to 1 p.m. at the University of Memphis School of Law. The seminar will feature panelists John L. Ryder with Harris Shelton Hanover Walsh, James Bopp Jr. with The Bopp Law Firm, and associate Memphis law professor Steven J. Mulroy. Jon P. McCalla, chief judge of the U.S. District Court for the Western District of Tennessee, will moderate the program. The event is free to the public and refreshments will be served. To attend, contact Greg Grisham at (901) 462-2616 or gregory.grisham@jacksonlewis.com.

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Obama DOJ Weighs in on Marriage Law

In a preview of a major constitutional showdown at the U.S. Supreme Court over same-sex marriage, the Obama Administration on Friday filed the first in a series of briefs on the issue. The high court will hear oral arguments next month on the Defense of Marriage Act, which for federal purposes, defines marriage as between one man and one woman. The effect, the administration says, is to deny financial benefits to legally wed gay and lesbian couples. WCYB News has more.

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Marsh Named Chief Deputy Clerk for the Appellate Courts

Lisa Marsh, associate chief deputy clerk with the Appellate Court Clerk’s Office has been promoted to chief deputy clerk. She will replace Janice Rawls who is retiring on March 31. Marsh worked for the office from 1976 to 1983 and then returned in 2006. She was promoted to associate chief deputy clerk in 2010. During her hiatus from the office, she worked in the Sumner County General Sessions and Juvenile Court Clerk’s Office and as a legal assistant to Sumner County lawyer Joseph Longmire Jr. Filling Marsh’s position will be Vickie Smith who will serve the criminal division and Christine Vicker who will serve the civil division courts. Both are tenured employees of the clerk’s office. The AOC has the news.

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Frierson to be Sworn in Thursday

Chancellor Thomas R. “Skip” Frierson will be sworn in as the newest judge on the Tennessee Court of Appeals Thursday at 2 p.m. Tennessee Supreme Court Chief Justice Gary Wade will administer the oath of office. Frierson was appointed to the court last week by Gov. Bill Haslam. He replaces Judge Herschel P. Franks, who retired at the end of 2012. The ceremony will take place at the Supreme Court Building in Knoxville. The Administrative Office of the Courts reported the news.

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Susano Elected Appeals Court Presiding Judge

Tennessee Court of Appeals Judge Charles D. Susano Jr. of Knoxville has been elected by his peers to be presiding judge of the court. He succeeds Herschel P. Franks of Chattanooga, who retired at the end of 2012. With Susano’s election, the three Tennessee appellate courts are now headed by Knoxville judges: Chief Justice Gary R. Wade at the Supreme Court and Joseph M. Tipton at the Court of Criminal Appeals. The Administrative Office of the Courts reported the news today.

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Court Clarifies Competency Standards in Reid Opinion

The Tennessee Supreme Court today ruled that advocates for convicted serial killer Paul Dennis Reid may not continue appealing his convictions in state court against his wishes, despite claims he is not competent to abandon his appeals. Despite evidence of Reid’s brain damage and mental health issues, the court agreed with lower courts that his sister and attorneys failed to present clear and convincing evidence that he is incompetent to make his own legal decisions. The court’s opinion also clarifies the standards and procedures to be used to determine mental competency in post-conviction cases.

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Judge Reviews IQ in Death Penalty Case

U.S. District Court Judge Todd Campbell is reviewing the case file of Byron Lewis Black, who was convicted and sentenced to death for the murder of his girlfriend and her two daughters in 1988. Black's federal public defender has argued that he is intellectually disabled and cannot be executed under Tennessee law. Judge Campbell will review interpretations of the state’s three-pronged approach to determining intellectual disability, including the use of IQ test scores. The law maintains that a person must have an IQ score of less than 70 to be deemed “intellectually disabled.” Black’s IQ scores ranged from 57-97 over a period of four decades. Campbell has not issued an opinion in the case. The Nashville City Paper has the story.

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New Court Procedures Raise Privacy Concerns

Audio recordings from cases in Tennessee appellate courts will be available online starting this spring, and some attorneys and judges are upset. They say that easy access to sensitive information from oral arguments could produce privacy issues since there is no exception for juveniles or families going through personal divorce proceedings. Judge Frank Clement of the Court of Appeals wrote a three-page letter to the Supreme Court expressing his concerns. The Court told Nashville’s News 2 that the intent was to continue to promote the transparency and openness of the courts. “We do recognize a concern for possible misuse of the audio files and are developing measures to mitigate possible misuse of the proposed system."

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Supreme Court Clerk to Retire

William K. Suter, the clerk of the U.S. Supreme Court, will retire at the end of August after 22 years of service, the Blog of the Legal Times reports. Suter is the 19th person to serve as clerk. Before taking that position, he was an Army major general and served in numerous positions around the world including appellate judge, deputy staff judge advocate of the U.S. Army in Vietnam, staff judge advocate of the 101st Airborne Division, commandant of the JAG school, and assistant judge advocate general of the Army. He has been awarded the Distinguished Service Medal, the Bronze Star Medal, and the Parachutist Badge. 

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Supreme Court Denies Review of Stem Cell, Abortion Suits

In a wrapup of Supreme Court activity over the past few days, ScotusBlog reports that the court denied review in several notable cases including Sherley v. Sebelius, in which the court said it will not stop the government’s funding of embryonic stem cell research. The court also refused to hear an appeal from anti-abortion group The Real Truth About Abortion, which wanted to stop the Federal Election Commission and the Justice Department from enforcing fundraising and advertising regulations against it.

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State Searches for New Death Penalty Drug

The federal government has confiscated Tennessee’s entire stock of sodium thiopental, a key drug for lethal injection, amid questions of whether it was legally obtained overseas during a 2010 shortage in America. Department of Correction Commissioner Derrick Schofield said the state is pursing alternative drugs in order to maintain its lethal injection protocol. Eighty-four inmates currently sit on Tennessee’s death row, 67 of whom have been there for more than 10 years. While death penalty opponents view the sodium thiopental shortage as a godsend, advocates think the state’s delay in finding an alternative drug is preventing justice from being carried out. The Tennessean has the story.

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Obama Renominates 33 to Federal Bench

President Barack Obama renominated 33 people for federal judgeships today, including seven to the federal appeals courts, 24 to federal district courts, and two to the Court of International Trade. The Legal Times reports that he chastised Congress for failing to act on nominations before they expired at the end of 2012. Obama said in a statement that several candidates had been awaiting a vote for more than six months despite having bipartisan support. View the full list of renominated candidates.

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Federal Courts Hold Line on Spending

Chief Justice John G. Roberts is defending the federal courts’ cost-containment strategy, stating in his year-end report that the Supreme Court will seek $75 million in the upcoming fiscal year, a 3.7 percent decrease from three years ago. Nationwide, federal courts spent about $6.9 billion last fiscal year, a “miniscule portion” of the overall federal budget Roberts said. In the report, Roberts also urged executive and legislative branches to fill open seats on the U.S. District and appellate courts which he said constitute “judicial emergencies.”

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Court Asks Law Professor to Argue DOMA Procedural Issues

The U.S. Supreme Court on Tuesday chose Harvard constitutional law professor Vicki C. Jackson to argue that it does not have the authority to rule on the constitutionality of the federal Defense of Marriage Act (DOMA). Jackson will file a brief and appear to argue two procedural issues that the court itself raised in agreeing to consider the law’s validity. Those issues are whether the court has jurisdiction to rule on the law and whether Republican members of the House of Representatives have a right to appear in the case. SCOTUSblog explores the issues.

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Summers Appointed Senior Judge

Former Attorney General Paul G. Summers, a partner in the Waller law firm in Nashville, has been appointed by the Tennessee Supreme Court to a four-year term as a senior judge. He will depart the firm to replace Walter C. Kurtz on Jan. 1, 2013. Four senior judges serve the state at any one time and are assigned on a temporary basis to state courts as needed. Summers said serving as a senior judge will be the “ultimate professional challenge” and that while “working at Waller has been an absolute pleasure… I couldn’t resist the urge to return to public service and complete the circle of my legal career.” The Nashville Post reports

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Supreme Court OKs Library Cards for Voter ID

The Tennessee Supreme Court ruled today that photo ID cards issued by the Memphis public library qualify as a valid and acceptable form of identification required to vote, the Tennessean reports. State election officials announced that only residents of Shelby County will be allowed to use library-issued IDs in next week’s Presidential election, after which the court will take up the question of whether the state’s new voter ID law is constitutional.

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Court Hears Arguments Over Police Dog Use

The Supreme Court heard arguments Wednesday about the use of drug-sniffing dogs in investigations following complaints of illegal searches and insufficient proof of the dogs’ reliability, the Times News reports. The arguments revolved around cases involving two Florida police dogs. Confiscation of 179 marijuana plants came after one dog sniffed the odor from outside the front door, but a trial judge threw out the evidence claiming the dog’s sniff was an unconstitutional intrusion into the defendant’s home. Another dog alerted his officer to the scent of drugs during a traffic stop which resulted in an arrest, but the dog’s training and certification to detect narcotics did not hold up in court. The state of Florida appealed both cases to the Supreme Court which will rule in the cases sometime next year.

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Former MTSU Student Denied New Murder Trial

Former MTSU student Shanterrica Madden, who was convicted in May of second-degree murder and tampering with evidence in the killing of her college roommate, will ask a higher court for a new trial after Circuit Court Judge Don Ash denied her request Monday afternoon. Madden’s attorney Joe Brandon argued that the first trial was unfair, her 25 year sentence was too harsh, and her rights were infringed upon when the judge allowed jurors to ask witnesses questions. Brandon says they will be filing a brief with the appeals court within 30 days and plans to take the case to the Supreme Court if necessary. Read more at the Tennessean.

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Court Seeks Comments on Federal PD Performance

The U.S. Court of Appeals for the Sixth Circuit is seeking comments on the performance of Henry A. Martin, Federal Public Defender for the Middle District of Tennessee. All comments must be received by Nov. 16.

Louisiana Appoints First Black Chief Justice

After a racially tinged battle over the rightful successor to Chief Justice Catherine Kimball, the Louisiana Supreme Court ruled in favor of Bernadette Johnson, making her the first African American Chief Justice in the state News Channel 5 reports. Justice Jeffrey Victory contested that Johnson’s years of appointed service shouldn’t count and he should succeed Kimball. Johnson filed suit in federal court in July after her colleagues said they would debate the matter. The court ultimately ruled that Johnson’s appointed service was legitimate according to the constitution and that she was the rightful successor.

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Blount County Officer to Face Trial in Wrongful Death Suit

Blount County Sheriff’s Office Lt. Doug Moore will stand trial in a wrongful death lawsuit in the 2008 shooting death of Leeroy Hickman Jr. and an alleged cover-up, Knoxnews reports. The 6th Circuit U.S. Court of Appeals supported an earlier ruling by U.S District Judge Tom Varlan who opined there were too many questions left unanswered not to bring the case before a jury. A date has not been set. 

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