News

Appellate Clerk's Offices to Close for System Upgrade

The Tennessee Appellate Court Clerk’s Office will install a new digital tracking system for the appellate courts later this month, allowing for greater access to information for lawyers, litigants and the general public. The new case management system will provide online and mobile access to digital copies of motions, orders, opinions and judgments at no cost. The installation process will begin at 4:30 p.m. CDT Aug. 21. New filings submitted to any of the appellate courts after that time will be filed on Aug. 26. This will extend by two business days filing deadlines for any matter with the appellate courts. The Tennessee Supreme Court has entered an order declaring the clerk’s office “inaccessible” for purposes of filing documents on Aug. 22 and 23. Exceptions will be made for emergency motions. The AOC reported the news today.

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Ginsburg Claims to be Hardest Working Justice

As Ruth Bader Ginsburg completes her 20th year on the U.S. Supreme Court, she says she is not ready to retire or slow down anytime soon. In an interview with USA Today, the 80 year-old said she was still the hardest-working justice. "As long as I can do the job full-steam, I would like to stay here," she told the newspaper. "Last term was a good example. I didn't write any slower. I didn't think any slower. I have to take it year by year at my age, and who knows what could happen next year? Right now, I know I'm OK. Whether that will be true at the end of next term, I can't say." The ABA Journal has the story.

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D.C. Circuit Blocks Import of Drug Used in Executions

A federal appeals court has upheld a court order that blocks importation of sodium thiopental, a sedative used to anesthetize inmates before they receive drugs that cause death. The decision upheld a trial judge’s order in a suit by a group of death row inmates in California, Arizona and Tennessee. The appeals court said a judge doesn’t have power to require the FDA to order states to return the drug, however, because the states weren’t parties to the suit. The ABA Journal has the story.

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Holder’s Alma Mater Honors Her Work

Tennessee Supreme Court Justice Janice M. Holder recently was honored by her alma mater, the University of Pittsburgh, for her leadership and dedication to the legal needs of Tennesseans throughout her career. The school presented her with its 225th Anniversary Medallion, which recognizes her “longstanding and dedicated leadership and service that has benefitted the people of Tennessee and those who serve Tennessee’s legal community; and for her mentoring of young people and young professionals.”

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Candidates Selected for 2 Appeals Court Vacancies

The Judicial Nominating Commission this weekend selected candidates for Middle and Western division appellate court vacancies, giving the governor two panels of nominees for each. Since the commission was not authorized to operate after June 30, it held hearings in Nashville and Jackson on Friday and Saturday, then named the panels. Learn more about the candidates on the AOC website.

For the Court of Appeals, Western Grand Division, the commission selected Circuit Court Judge Robert Childers of Memphis, Brandon O. Gibson with Pentecost & Glenn in Alamo and Chancellor Arnold B. Goldin of Memphis for the first panel. The second panel consists of Frank S. Cantrell with Memphis Area Legal Services, Dale Conder Jr. with Rainey, Kizer, Reviere & Bell in Jackson and Hubert Bailey Jones of Dyersburg.

For the Court of Appeals, Middle Grand Division, the commission selected Circuit Court Judge Robert L. Holloway Jr. of Columbia, William Neal McBrayer with Butler, Snow, O’Mara, Stevens & Cannada in Nashville and former Cracker Barrel lawyer Forrest Shoaf of Lebanon. The second panel consists of Christina Henley Duncan with Rogers, Duncan & North in Manchester, Linda W. Knight with Gullett, Sanford, Robinson & Martin in Nashville and Kathryn Ann Stephenson with Corrections Corporation of America in Nashville.

The Chattanoooga Times Free Press looks at the uncertain future facing these vacancies and others than might come up in the next year.

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Judge: Convicted Killer Deserves New Trial Due to Lawyer’s Error

Tennessee Court of Appeals Judge Jeffrey Bivins ruled Thursday that Edward Thomas Kendrick II, who was convicted of murdering his wife 19 years ago, deserves a new trial, the Chattanooga Times Free Press reports. Judge Bivins said Kendrick may not have received such a harsh punishment --  first-degree premeditated murder -- if his lawyer had been better. Kendrick said he shot his wife by accident but his lawyer did not call for an expert witness to talk about the type of rifle used, a Remington Model 7400 30.06. Later, during a post-conviction hearing in 1998, a gunsmith named Henry Belk testified that the rifle could have gone off unintentionally. Belk testified that sometimes the gun fires even if the safety is on and no one grazes the trigger. Judge Bivins reversed the judgment of the post-conviction court and remanded the matter for further proceedings.

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NBA Survey: Sweeney Top Choice for Appeals Court

Nashville attorney Matthew J. Sweeney drew the highest marks in a just released survey ranking the 10 candidates seeking to serve on the Tennessee Court of Appeals. Conducted by the Nashville Bar Association (NBA), the survey asked members to rate the candidates as “highly recommend,” “recommend,” “do not recommend” and "no opinion.” Sweeney, who practices with Baker, Donelson, Bearman, Caldwell & Berkowitz, significantly outpolled other members of the group with 47 percent of respondents highly recommending him. The NBA conducts the poll, Executive Director Gigi Woodruff said, to provide the Judicial Selection Commission, the governor and the public with "input from attorneys who are likely to know these candidates, both personally and professionally, and are able to express an opinion on their qualifications to be a judge." See the survey results.

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Judge Denies Hooker’s Request for Injunction

Nashville Circuit Court Judge Hamilton Gayden today denied an injunction request filed by John Jay Hooker against the Judicial Nominating Commission, The Tennessean reports. Hooker had sought to stop the commission from sending the governor candidates to fill two appellate court seats that will become vacant after the commission ceases to exist. The suit is the eighth time Hooker has gone to the courts to try to change the way Tennessee selects appellate judges. “I admire your tenacity and perseverance,” Gayden said. But “you’re asking me to do things I’m not authorized to do.” Gayden said that because the state Supreme Court is expected to hear arguments on a related Hooker case in July, he must defer to the high court’s judgment.

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A Round-Up of the Supreme Court Opinions

Although the Supreme Court did not issue opinions on hot button topics such as same sex marriage, affirmative action or Voting Rights Act cases, SCOTUSblog reports that the court did issue rulings in three other argued cases. The decision in Descamps v. United States will make it more difficult for the federal government to use the details of a prior conviction to strengthen criminal sentences. In American Express Co. v. Italian Colors Restaurant, the court ruled that retailers would need to work through arbitration individually, rather than through class action, to resolve claims with American Express. In the final opinion of the day, Agency for International Development v. Alliance for Open Society, the court held that the government could not require aid organizations to explicitly oppose prostitution and sex trafficking to receive federal funding for HIV/AIDS programs overseas.

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Court: Juries Must Find Factors for Mandatory Minimums

The high court on Monday ruled that juries, not judges, have the final say on facts that can trigger mandatory minimum sentences in criminal trials, WRCB-TV reports. The court overturned the sentencing of a Richmond man who was convicted of robbery and firearm possession. During the sentencing phase of the trial, the jury said his accomplice did not brandish a weapon but the judge found that he did. The judge’s finding raised the minimum sentence from five to seven years. Lawyers for the defendant argued that the decision should have been left to the jury. The court agreed and sent the case back for resentencing.

Other actions from the court today included rulings in favor of generic drug availability, allowing police to use suspects' silence against them at trial if they do not claim their Fifth Amendment right, and prohibiting lawyers from using state drivers' license records to recruit new clients. SCOTUSBlog has more on these decisions.

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25 Apply for Court of Appeals, Court of Criminal Appeals

Three judges, one magistrate and 21 attorneys have applied to fill the 2014 vacancies on the Court of Appeals Middle Tennessee Division and Court of Criminal Appeals Eastern Tennessee Division, the Administrative Office of the Courts announced today. The openings are the result of announcements by Court of Appeals Judge Patricia Cottrell and Court of Criminal Appeals Judge Joseph Tipton that they will not seek re-election in August 2014, creating vacancies effective Sept. 1, 2014. Because statutory provisions for the Judicial Nominating Commission expire June 30, 2013, the commission will meet June 27 in Chattanooga and June 28 in Nashville to select a slate of candidates from which Gov. Bill Haslam will choose.

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Court to Decide 23 Cases Before Summer Break

Following today's decisions from the U.S. Supreme Court, 23 cases from the October 2012 term remain to be decided. The court is expected to release the rest of its rulings between Thursday and the end of the month, when it traditionally breaks for a summer recess. Read about the pending cases on SCOTUSblog.com.

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Ruling Extends Ineffective Assistance of Counsel Claims

A recent 5-4 decision by the U.S. Supreme Court extends a ruling it made last year that allowed prisoners to challenge their state convictions in federal court based on the claim that their attorneys were ineffective. The court considered the case Trevina v. Thaler challenging Arizona state law saying that claims of ineffective assistance of counsel had to be raised in a separate post-conviction motion and not in a direct appeal of the original conviction. According to attorney Lee Davis writing in the Chattanoogan, the problem with this approach is that there is no right to an attorney in the post-conviction motion phase, though there is in the direct appeal phase.

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Court of Appeals Judge Highers to Retire

Tennessee Court of Appeals Judge Alan E. Highers has notified Gov. Bill Haslam that he will not seek re-election when his term expires Aug. 31, 2014. The decision creates a vacancy in Western Section of the court. Because statutory authority for the Judicial Nominating Commission expires June 30, the commission will meet June 29 in Jackson to interview and select nominees for the seat. Qualified applicants should submit an application by noon Central on June 19. Highers is the third appellate judge to announce retirement plans, joining Court of Appeals Judge Patricia J. Cottrell and Court of Criminal Appeals Judge Joseph M. Tipton. The commission will meet June 27 in East Tennessee and June 28 in Nashville to interview candidates for those seats.

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Judicial Evaluation Process Announced

The Tennessee Judicial Performance Evaluation Commission today announced the survey process to obtain input from attorneys on their experiences with appellate judges in the state. Over the next six weeks, lawyers who have participated in the appellate process, trial judges who have had cases appealed and reviewed in the appellate process, appellate court judges who have participated alongside other appellate judges in the appellate process, and court personnel who interact with appellate judges on a daily basis will be asked to evaluate that specific judge. The commission says that each survey should take no longer than 10 minutes to complete. Surveys will be distributed beginning June 3 and will continue through July 16. Each survey will be anonymous and will remain open for 14 days. Read the notice from the commission.

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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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