News

Trump’s Supreme Court List Reflects ‘Revolt against Elites’

When Donald J. Trump issued his list of 21 potential nominees to the Supreme Court in September, he made a vow. “This list is definitive,” he said, “and I will choose only from it in picking future justices of the Supreme Court.” According to the New York Times, the list manages “to reassure the conservative legal establishment and to represent a rebellion against it.” But the major theme, the paper argues, is that Trump’s picks primarily went to law schools other than Harvard or Yale and reside in the country’s heartland rather than the coasts. The list, like his campaign, is a “revolt against the elites,” the paper concludes.

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Did Appeals Court Call for Reconsideration of Cowan Rule?

Since the Tennessee Supreme Court found that a final will cannot be contested by an individual who was left out of a previous will, the so called 1906 “Cowan Rule” has been creating heartburn for judges, the Times Free Press reports. The most recent test came in the case of J. Don Brock. At the trial court level, the judge “reluctantly dismissed” the claims of Brock’s children because they were cut out of a previous version. The appeals court upheld the decision but in a rare move, may have encouraged the state Supreme Court to re-examine the ruling and its practical application. Attorneys for the estate, however, say the appeals court did not ask for reconsideration but merely pointed out that the rule could be used to hide fraud. Read it here.

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Court Issues Order Amending TCCA Rule 7

The Tennessee Court of Criminal Appeals issued an order today amending Rule 7 of its rules. The order deletes Rule 7 in its entirety and substitutes the following language: “Motions in this Court shall be in conformity with Rule 22, Tennessee Rules of Appellate Procedure. The proponent of a motion is not required to submit a proposed order.” Get the order here.

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AG's Office Clarifies Testimony to 6th Circuit Court of Appeals

Tennessee Attorney General Herbert H. Slatery III released a statement about a letter his office sent to the U.S. Sixth Circuit Court of Appeals in the matter of Andrew Thomas v. Bruce Westbrooks, a death penalty case. The letter from Assistant Attorney General Michael M. Stall seeks to clarify his testimony before the court this month about a $750 payment made to a witness in a federal case involving Andrew Thomas, which occured three years prior to the state case. The letter and today's statement emphasizes that “the payment … was made by the federal government without the knowledge of or involvement by District Attorney General Amy Weirich” and “there has been no finding whatsoever that state prosecutors in this case had actual knowledge of the payment at the time of the state trial.” Read the letter or this explanation from the AG's office.

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Courts Decline to Pre-emptively Act on Intimidation Claims

The U.S. Supreme Court and federal judges in three states turned down requests yesterday by Democrats trying to head off what they say were plans by Donald Trump’s supporters and a group known as Stop the Steal to harass and intimidate voters on Election Day. The Supreme Court issued a one-page denial in a case out of Ohio, while federal courts in Pennsylvania, North Carolina and Nevada also refused to act. Most of the judges said voter intimidation is already illegal and that the group did not present evidence of actual intimidation. They however pledged to monitor the day's activities closely. WRCB-TV has more from the Associated Press.

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Court: Videos Do Not Meet Statutory Standard for Exploitation Conviction

The Tennessee Supreme Court today reversed and dismissed the conviction of a Knoxville-area man for “especially aggravated sexual exploitation of a minor” saying the videos he took of his 12-year-old daughter showed nudity but not sexual activity, both of which are needed to meet the requirements of the statute. The decision sends the exploitation convictions back to the lower court for a new trial on different charges with the justices suggesting the state might want to consider a charge of "attempt to commit especially aggravated sexual exploitation of a minor." The justices let other convictions related to the case stand. Read the decision

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Appeals Court Upholds City’s Right to Cut COLAs

The U.S. Sixth Circuit Court of Appeals yesterday affirmed a district court ruling dismissing a lawsuit filed against the city of Chattanooga by retired firefighters and police officers over reforms to their pension plans, the Times Free Press reports. U.S. District Court Judge Curtis Collier had granted the city’s motion for summary judgment agreeing that cost-of-living adjustments did not constitute a vested right or contract between the city and its employees. The appellate panel found that, “The retirees do not have a contractual right to a fixed three-percent COLA, because the City Code does not bind the fund to the fixed COLA.”

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Court’s First Live Webcast Honors Scalia

The U.S. Supreme Court today live-streamed a memorial honoring the late Justice Antonin Scalia. It was the court’s first-ever live video webcast, the ABA Journal reports. Former Scalia law clerk Paul Cappucio, executive vice president and general counsel of Time Warner, led the event. Gabe Roth with Fix the Court, which has called for greater court transparency, said the decision to webcast the event was “a shock, though a much appreciated one.” A replay is available on the court’s website.

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Court OKs Good-Faith Exception to Exclusionary Rule

The Tennessee Supreme Court today by a vote of 4-1 approved a limited good-faith exception to the exclusionary rule only when law enforcement acts in objectively reasonable good-faith reliance on “binding appellate precedent” that “specifically authorizes a particular police practice” that is later overruled. The decision came in a vehicle accident case from October 2011 in which law enforcement obtained a blood sample from the driver without a warrant because the U.S. Supreme Court had ruled that warrants were not required to obtain blood from DUI suspects. That decision was later overruled. Justice Sharon G. Lee was the lone dissent.

TBA Board Member and Franklin criminal defense lawyer David Veile said, “It would seem that the citizen, and not the police, will now literally be penalized for previous appellate judge error. The court cited with approval authority indicating that law enforcement officers are the vanguard of our legal system. As a former police officer, I would respectfully submit that the Tennessee Constitution, and its checks and balances on the prosecution of its citizens, should be the vanguard of our legal system.”

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All Charges against Judge Sammons Dismissed

Senior Judge Paul Summers today threw out all charges against Campbell County General Sessions Court Judge Amanda Sammons, who was in court this week for a trial on two counts of official misconduct. After a day of testimony, Summers ruled that the state had failed to present enough proof of official misconduct for the jury to consider the case, Knoxnews reports. Special prosecutor Dan Armstrong said he will consult with the state attorney general’s office about an appeal of today’s decision as well as an earlier ruling by Summers in which he dismissed two unrelated charges. The Board of Judicial Conduct also said today it would lift its suspension of Sammons, clearing the way for her return to the bench.

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Court to Hear Transgender Bathroom Appeal

The U.S. Supreme Court agreed today to take up the case of Gavin Grimm, a transgender boy who challenged a Virginia school district policy that prevented him from using the boys’ restroom at his high school. The case will test the Obama administration’s directive that schools must let transgender students use bathrooms that align with their gender identity, the Washington Post reports. In August, the justices put on hold a lower court ruling that had sided with Grimm, while they decided whether to hear the case. The stay will remain in effect until the court rules on the merits.

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Democrats Blast Calls to Block Clinton Court Picks

Three U.S. senators have mentioned the possibility of blocking any Supreme Court candidate nominated by Hillary Clinton if she were to become president. The comments from Sens. John McCain, R-Arizona, Ted Cruz, R-Texas, and Mike Lee, R-Utah, have angered the White House and Senate Democrats, Roll Call reports. Senate Judiciary ranking Democrat Patrick J. Leahy of Vermont said such a move would amount to a “piecemeal evisceration of the Constitution.” White House Press Secretary Josh Earnest said such calls threaten “the same kind of dysfunction that has infected Washington for the last six years.”

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6th Circuit to Hold Session at Memphis Law

The U.S. Sixth Circuit Court of Appeals will hold oral arguments in the historic courtroom at the University of Memphis School of Law Wednesday at 2:30 p.m. The panel, consisting of Senior Judge Gilbert S. Merritt, Senior Judge Eugene E. Siler Jr. and Memphis Law alumna Judge Bernice B. Donald, will hear arguments in the death penalty case of Andrew Thomas Jr. v. Bruce Westbrooks. Following oral arguments, attorneys in the case will conduct a post-argument debriefing and the judges have agreed to stay for a reception in the school’s Scenic Reading Room.

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NSL Names New Communications Director

The Nashville School of Law has hired alumna Michele Wojciechowski as its first director of communications and engagement. She will start her new post on Nov. 1. Wojciechowski has served as the communications director for the Tennessee judiciary since 2012. At the Administrative Office of the Courts she was responsible for the communications and outreach efforts of the state appellate and trial courts, including the Supreme Court. Prior to joining the AOC, she spent more than 20 years in a variety of newspaper industry roles. Wojciechowski earned her law degree from the school in 2012.

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Court May be Delaying Action on ‘Big’ Cases

The short-handed Supreme Court may be showing signs it is having trouble getting its work done, the Associated Press reports. The justices have yet to schedule three cases for arguments that were granted full review in January – an indication they may think the issues involved (separation of church and state, class-action lawsuits and property rights) will lead to a 4-4 split. "It’s much more difficult for us to do our job if we are not what we’re intended to be – a court of nine,” Justice Sonia Sotomayor said Monday. The justices have divided evenly in four cases since Antonin Scalia’s death last term. WRCB-TV has the story.

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Grassley: GOP Has Responsibility to Consider Court Nominees

Republicans “can’t just simply stonewall” nominees to the U.S. Supreme Court even if the president making that choice is Democrat Hillary Clinton, Iowa Sen. Chuck Grassley said Tuesday. The senator, who is chair of the Judiciary Committee, was responding to comments from fellow Republican Sen. John McCain that Republicans would unite against any nominee Clinton puts forward if she becomes president. “I think we have a responsibility to very definitely vet…whoever nominee that person puts forward. We have the same responsibility for [Donald] Trump,” Grassley said. WRCB-TV has the Associated Press story.

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LAET Inducts 2 into Pro Bono Hall of Fame

The Legal Aid of East Tennessee (LAET) has inducted two longtime members of the judiciary into its Chattanooga Pro Bono Hall of Fame. Former Tennessee Supreme Court Chief Justice William M. Barker and retired Hamilton County Chancellor Howell N. Peoples were recognized at a reception and ceremony this week at the group’s Chattanooga office. The pair was selected for the honor because of their early work in the access to justice movement. According to LAET, Barker was the first chief justice of the state Supreme Court to make access to justice a priority for the court, while Peoples was the first legal aid attorney in Chattanooga to be funded through the federal legal aid program.

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Prosecutors Need Not Link Firearms Charges to Specific Felonies

In two unanimous opinions issued today, the Tennessee Supreme Court has determined that an indictment that includes a charge for employment of a firearm during the commission of a dangerous felony does not have to specifically state which underlying felony is tied to the firearms charge. The cases – State of Tennessee v. Rhakim Martin and State of Tennessee v. Willie Duncan – address a Tennessee law that created an additional crime if certain “dangerous” felonies are committed with a firearm. Read more about the cases from the AOC.

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Court Upholds Method of Charging Lesser Offenses

The Tennessee Supreme Court has determined that the state legislature did not nullify a practice long used in state courts when it enacted a statute that outlines methods for determining lesser-included offenses for which a defendant can be convicted. The court’s decision means that a defendant can continue to be convicted of a lesser offense if it contains the same elements, but requires a lesser mental state or less risk of harm to others, than the offense being charged. Read more from the court.

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Death Row Inmate Gets New Hearing

Nashville Criminal Court Judge Monte Watkins has ordered a new hearing to determine if prosecutors discriminated against potential jurors based solely on race in the case of Abu-Ali Abdur'Rahman, who has been on death row since 1987. Abdur'Rahman was convicted of first-degree murder and other counts in the robbery, attack and stabbing of Patrick Daniels and Norma Jean Norman. Watkins cited a recent U.S. Supreme Court case, which potentially created a new precedent that warrants an evidentiary hearing. A date for the hearing has not yet been set, the Tennessean reports.

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Reminder: Supreme Court Society Event Thursday

The Tennessee Supreme Court Historical Society, in cooperation with the Knoxville Bar Association, will hold its annual cocktail reception and “Night with the Chiefs” on Thursday. The reception will begin at 5:30 p.m. with a program following at 6:30 p.m. The event, held each year to honor the members of state Supreme Court, will take place at the East Tennessee Historical Center in Knoxville. RSVP to Amanda Messer.

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4 Vying to Redevelop Former Supreme Court Building

Four companies have submitted bids to redevelop the former Tennessee Supreme Court building in downtown Knoxville, Knoxnews reports. The building has been empty since 2003 when the state moved the court to its current site on Main Street. Plans for redevelopment call for an “exciting urban lifestyle” where residents will want to live, shop and play. The request for proposals also asks the bid winner to preserve portions of the original Supreme Court courtroom and reuse materials found in the courthouse.

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Walker Sworn In to U.S. Bankruptcy Court

Hon. Charles M. Walker was sworn in to the United States Bankruptcy Court for the Middle District of Tennessee today. Chief Bankruptcy Judge Marian F. Harrison administered the oath in a courtroom at the U.S. Customs House in Nashville, and Chief District Judge Kevin H. Sharp of the U.S. District Court gave remarks welcoming Walker to the court.

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Deadline Nearing for Supreme Court Admissions Event

The deadline to take part in the TBA Academy and be admitted to practice before the U.S. Supreme Court is just weeks away. The 2016 TBA Academy will take place Nov. 28-30 in Washington, D.C., at The Hay Adams Hotel. Participating attorneys will be sworn in before the court in a private ceremony on Nov. 29. Registration forms and required materials must be submitted by Oct. 19. Learn more online or contact TBA Meetings Coordinator Therese Byrne, 615-277-3208, with any questions.

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Court Corrects Order Dealing with Chief Justice’s Term

The Tennessee Supreme Court issued a correction this week to an order originally filed on Aug. 30 to note that Justice Sharon Lee dissented to adoption of an order that amended Supreme Court Rule 32, which made several changes to the way the court’s chief justice is selected. Specifically, the order (1) removed the deadline of Sept. 1 for selecting a new chief justice, (2) extended the initial term of the chief justice from one to four years, (3) allowed the chief justice to serve additional unlimited consecutive two-year terms, and (4) allowed three justices to remove the chief justice for cause (down from the previous requirement of four).

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