News

Smith to Step Down; Embattled Judges Get Meeting

The Judicial Performance Evaluation Commission on Friday announced that Court of Criminal Appeals Judge Jerry L. Smith has decided not to seek another term, leading the commission to drop plans to recommend he not be retained in next year’s election. For two other appellate judges facing possible negative recommendations, the commission said the judges could file written responses to its reports and appear at a Jan. 17, 2014, meeting where they would be allowed to speak about their performance. Appeals Court Judge Andy Bennett and Criminal Appeals Court Judge Camille R. McMullen appear on track to press forward with their campaigns, the Tennessean reports. Finally, the panel declined to hear from opponents of the retention election system, including Nashville attorney John Jay Hooker, who said afterward that he may sue the commission for not letting him speak.

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Wade: Quality Work Motivated Defense of Judges

Tennessee Supreme Court Chief Justice Gary Wade says he does not believe politics was involved in the Judicial Performance Evaluation Commission’s tentative recommendation against new terms for three appellate court judges and wants to make sure no one thinks he is injecting politics into the mix, Humphrey on the Hill writes in a blog post today. As previously reported, Wade defended three judges set to receive negative recommendations, saying they have done “quality work” and deserve new terms. Since initially making those comments, Wade says he and Charles Susano Jr. -- who spoke out in support of one of the three -- have been accused of “injecting politics” into the situation. “Neither Charlie nor I believe this is a partisan issue,” he said. “We know there was some rational basis for each of the decisions [the members of the commission] made...I have never seen a commission more prepared than this one was for making its recommendations...They have done a very difficult job in a relatively short period of time.”

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Trooper Disciplined After Blocking Judge from Courthouse

A Tennessee Highway Patrol trooper has retired after facing discipline for stopping Court of Criminal Appeals Judge Camille McMullen from entering the state Supreme Court building in June, Knoxnews reports. Trooper Brent Gobbell, who had four prior disciplinary actions on his record, was reprimanded and docked a day’s pay. According to an official discipline memo from Safety Commissioner Bill Gibbons, Gobbell demonstrated “an utter disregard” for proper procedures in rejecting the judge’s identification card.

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Court to Hear 6 New Cases

The Tennessee Supreme Court has granted review to six new cases. Among the civil questions it will consider are those seeking clarification about the pre-suit notice in health care liability cases, jury instruction regarding foreseeability limited to the day of the event, and construction of the Tennessee Human Rights Act. New criminal cases granted review include the standard for ineffective assistance claims, inconsistent/mutually exclusive verdicts regarding merger of offenses, and waiver of lesser-included offense instructions. The new issue of the Raybin-Perky Hotlist reviews the cases and offers predictions as to how each may be decided.

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Court Rules County Not Responsible for Attack on Inmate

The Tennessee Supreme Court has ruled that Anderson County is not liable for damages beyond medical costs for Kenneth E. King, an inmate who sustained injuries from an attack by cellmates, the Administrative Office of the Courts reports. “There is no evidence that Anderson County Detention Facility officials knew or should have known that Mr. King would become the victim of an attack by his cellmates after he was returned to his cell to await pretrial release,” Justice Cornelia A. Clark wrote in the opinion. In a dissenting opinion, Chief Justice Gary R. Wade disagreed, deferring to the trial court’s finding that Anderson County was liable for King’s injuries, which were sustained after officials failed to timely release him from jail.

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GOP Senators Block Nominee for D.C. Appeals Court

GOP senators on Tuesday blocked another of President Obama’s picks to fill a vacancy on the U.S. Court of Appeals for the District of Columbia Circuit. On a vote to end procedural delays, the Democratic leadership fell four votes short of advancing the nomination of Cornelia Pillard, a Georgetown University law professor, the Associated Press reports on WATE.com. Republicans have blocked votes on two other Obama nominees to the same court this year, attorneys Patricia Millett and Caitlin Halligan.

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Supreme Court Declines Review of Mosque Decision

The Tennessee Supreme Court has declined to review the case involving opposition to a Murfreesboro mosque. The mosque opened more than a year ago, but the plaintiffs say the legal questions it spawned remain unresolved. Their concern has been whether the Rutherford County Planning Commission provided adequate notice for the 2010 meeting where commissioners approved the mosque’s construction. The Tennessean reports that opponents are planning an appeal to the U.S. Supreme Court.

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Chief Justice Wade Honors Legal Aid Hall of Famers

Legal Aid of East Tennessee (LAET) held its annual Pro Bono Attorneys Hall of Fame Reception last Thursday, the Hamilton County Herald reports. The event featured remarks by Tennessee Supreme Court Chief Justice Gary Wade, who thanked area lawyers for their consistent support of LAET, and a reading of the names of those inducted into the Hall of Fame. Attendees enjoyed drinks and snacks, and voted on artwork submitted to the “Champions of Justice” elementary and high school student art contest.

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Court Grants Review of New Civil Case

The Tennessee Supreme Court has agreed to hear a civil case regarding an Anderson County employee who was injured at work and raised a claim against the county’s liability coverage provider, Tennessee Risk Management Trust. TRMT filed for summary judgment on the theory that the employee was excluded from uninsured coverage under the coverage agreement with the county. The Raybin Perky Hot List has a summary and forecast of the case.

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Applications Available for Appeals, Supreme Court Seats

The AOC late yesterday announced the application process to fill the Tennessee Supreme Court seat currently held by Justice Janice M. Holder and the Court of Appeals seat held by Judge David R. Farmer. Both Holder and Farmer announced earlier this year they would not seek retention in the August 2014 general election. The Governor’s Commission on Judicial Appointments, announced yesterday, will accept applications for both positions through Oct. 31. The commission will hold a public hearing Nov. 12 in Jackson for the Court of Appeals seat and on Nov. 13 in Nashville for the Supreme Court position.

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Court Accepts 8 Cases; Likely Will Work During Shutdown

The U.S. Supreme Court today granted review of eight new cases, including one from Tennessee seeking to clarify when an individual commits a crime for having a gun after being convicted of domestic violence. Other cases involve questions about the award of attorneys' fees in patent cases; whether it is unconstitutional for a state to require home-care providers to pay a union to represent them before state agencies; whether the federal government has a right to reclaim lands abandoned by a railroad; whether shuttered businesses must pay Social Security and Medicare tax on severance checks; and whether police, after receiving an anonymous tip, must observe drunken or reckless driving before stopping a vehicle. The final case seeks to resolve a long-running copyright dispute in Hollywood over the screenplay for the 1980 movie Raging Bull. Although much of the government is closed because of the budget impasse, the Supreme Court is going ahead with its work, SCOTUSblog reports.

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New Date Set for Judiciary Museum Unveiling

The Tennessee Supreme Court Historical Society has rescheduled the unveiling of Phase II of the Tennessee Judiciary Museum. The event now will take place on the evening of Dec. 4. It will feature a short program honoring Supreme Court Justice Janice Holder for her service on the court, as well as cocktails and heavy hors d’oeuvres. The event was moved back one day so as to not conflict with the Nashville Bar Association’s Annual Meeting set for the evening of Dec. 5. To purchase tickets for the museum event contact Linda Knight at lknight@gsrm.com or (615) 244-4994. Download a flyer with more details.

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2014 Rules Package Published for Comment

The Tennessee Supreme Court today published the annual package of recommendations from the Advisory Commission on Rules of Procedure and Evidence. Proposals 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. Four TBA sections -- Appellate Practice, Litigation, Tort and Insurance Law and Criminal Justice -- will be asked to review the recommendations and propose comments on behalf of the association. Comments on the proposals are due Nov. 27. 

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Decision Overturned Due to Juror-Witness Communication

The Tennessee Supreme Court today overturned trial and appellate court rulings in a murder case, finding that the lower court failed to follow appropriate procedures after a juror contacted a witness during the trial. Though the witness informed the judge of the contact, the judge allowed the proceedings to continue and sentenced the defendant after the jury found him guilty. The judge also denied requests by the defendant to question the juror and order a new trial. The Court of Criminal Appeals upheld those decisions. In a unanimous opinion, the Supreme Court reversed, ruling that when communication between a juror and a third party is brought to a trial court’s attention, the court must immediately inform the parties and conduct a hearing to determine the nature and extent of the communication and whether it affected the trial's outcome. Under the ruling, the trial court must now conduct such a hearing.

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Chancellor Goldin Named to Court of Appeals

Shelby County Chancery Court Judge Arnold B. Goldin has been selected by Gov. Bill Haslam to fill a vacancy on the Tennessee Court of Appeals’ Western Section. He will replace Alan E. Highers, who is retiring. Goldin, a graduate of the University of Memphis law school, was appointed chancellor in 2002 by then-governor Don Sundquist, was elected in 2004 and was re-elected to a full eight-year term in 2008. "Chancellor Goldin has done an outstanding job and will be an excellent judge on the Court of Appeals,” Haslam said. “His experience on the bench and in private practice will serve the people of West Tennessee well.” The Commercial Appeal has more.

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Butler Snow Attorney Picked for Appeals Court Seat

Neal McBrayer of Butler Snow O’Mara Stevens & Cannada has been chosen by Gov. Bill Haslam to fill the Tennessee Court of Appeals seat that will be vacated a year from now by Patricia Cottrell, the Nashville Post reports. “Neal McBrayer has a strong background as an attorney, and I am pleased to make this appointment,” Haslam said. “We are fortunate to have someone on the bench with his experience and expertise.”

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Court Grants Review of 6 Cases

The Tennessee Supreme Court ends the summer with review grants in six cases. The sixth case – although arising in a criminal matter – has application in civil cases as well, considering when successor judges may serve as 13th juror. The case arose from a trial presided over by Knox County Judge Richard Baumgartner, who later resigned due to misconduct. A successor judge considered and denied the defendant’s motion for a new trial, concluding that he was able to fulfill his role as “13th juror” despite not personally viewing witness testimony because witness credibility was not an “overriding issue” in the case. The Raybin Perky Hot List has a summary and forecast on all six cases.

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Judge McMullen Makes Historic First

Judge Camille R. McMullen became the first African American woman to preside over a panel of an appellate court proceeding in the state of Tennessee this week. McMullen, of Shelby County, presided over the August term of the Court of Appeals, Western Section in Jackson on Tuesday. “Judge McMullen has proven herself to be a respected colleague and it was time that this barrier was broken,” Judge Thomas Woodall of Dixon said in a press release. “Today is a good day for the state of Tennessee and the judicial system.” Judge McMullen first made history in 2008 becoming the first African American woman to serve on a state appellate court. The AOC announced the news today.

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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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