News

Lawyers to Obama: Fill Supreme Court Vacancy

Nearly 250 corporate lawyers sent a letter today to President Barack Obama and U.S. Senators urging the president to fill the U.S. Supreme Court vacancy. “…Nearly one third of all presidents have nominated a justice in an election year who was eventually confirmed,” the letter said. Read more from the ABA Journal.

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Court Reverses Dismissal of Suit, Says Claim Was Timely Filed Under Savings Statute

The Tennessee Supreme Court today reversed a lower court’s dismissal of a professional negligence lawsuit filed by Circle C Construction LLC against the Kentucky firm of Furman, Nilsen & Lomond PLLC. The firm represented Circle C in a case brought by the United States under the False Claims Act. Circle C appealed the federal court’s decision in the case and entered into an agreement with the firm that included a deadline for it to file a lawsuit against the firm that would extend 120 days after the appeal’s court issued a decision. Circle C voluntarily dismissed the negligence suit against the firm in 2012, but later refiled it in 2013 after the the decision was issued by the appeals court. The firm’s attorneys claimed that Circle C’s case was filed too late; the trial court and Court of Appeals agreed, dismissing the suit. Circle C appealed to the state Supreme Court, where justices ruled that the savings statute applies to the claim and it can proceed. Read the majority opinion in Circle C Construction, LLC v. D. Sean Nilsen et al., authored by Chief Justice Sharon G. Lee, and the separate opinion concurring in part and dissenting in part, authored by Justice Holly Kirby.

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Harbison: Remembering Justice Scalia

Justice Antonin Scalia "counted among his close friends fellow Justices Ruth Ginsberg and Elena Kagan, members of the court with whom he often disagreed," TBA President Bill Harbison writes in the new issue of the Tennessee Bar Journal. "The ability to disagree without having the disagreement become personal is of immense importance in our system of justice." Read this and more in the March issue.

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Republican Nevada Governor Emerges as Possible Next Justice

The Washington Post reports President Barack Obama is considering Brian Sandoval, the centrist Republican governor of Nevada, as his pick to replace Supreme Court Justice Antonin Scalia on the nation’s High Court. The review process is in its initial phases and White House press secretary Josh Earnest has not commented on the consideration of Sandoval, a former federal judge.

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The Unlikely Friendship of Ginsburg and Scalia

“We were best buddies,” Justice Ruth Bader Ginsburg wrote in a tribute to her longtime friend, Justice Antonin Scalia. The two shared more than opposite political leanings; they shared international trips, family holidays and a mutual respect for one another, Vox explains. “…When I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation,” she wrote.

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No Home for Justice Scalia's Papers

U.S. Supreme Court Justice Antonin Scalia did not specify a home for his official papers before his death, according to the National Law Journal (sub. req.). Preservation of such documents is not governed by any law, and Scalia’s family and Library of Congress have not commented on the fate of the files. Scalia’s papers could include writings on landmark cases from Bush v. Gore in 2000 to decisions that upheld the Affordable Care Act.

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How the High Court Will Handle 4-4 Ties

How do you break a Supreme Court tie? The Court’s 4-4 rulings will be knocked back down to the lower circuit courts that had previously ruled on the cases, and those prior rulings will stand. But Media General points out that accepted cases often follow opposing rulings from several circuit courts, so a 4-4 scenario could institute conflicting precedents in different regions. Justices may also postpone hearings until the court is back at full capacity.

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Possible Supreme Court Nominees Surface in Wake of Scalia's Death

President Barack Obama said he will attempt to fill the Supreme Court vacancy within the last year of his presidency, despite Senate Republicans saying it is unlikely the nominee will be confirmed. NPR created a shortlist of potential nominees, including: Sri Srinivasan, a D.C. Circuit judge; Paul Watford, who was confirmed to the Ninth Circuit in 2012; and Patricia Ann Millett, who was confirmed to the D.C. Circuit Court in 2013. Presidential-hopeful Donald Trump announced his two potential nominees during the Republican debate Saturday: Judge Diane S. Sykes, a federal judge on the United States Court of Appeals for the Seventh Circuit and Bill Pryor, former Alabama attorney general and a federal judge in the United States Court of Appeals for the Eleventh Circuit, Law Newz reports.

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Scalia Remembered as 'Vigorous Constitutionalist'

"I think his legacy is about originalism," TBA President Bill Harbsion told The Tennessean when describing what he believes U.S. Supreme Court Associate Justice Antonin Scalia will be remembered for. Scalia died suddenly Saturday. He was nominated to the court in 1986 by President Ronald Reagan, was a vehement defender of the Constitution and leader of the court’s conservative bloc. While delivering the Constitution Day lecture at Rhodes College in Memphis last fall, Scalia argued against his fellow court members’ decision to overturn the ban on same-sex marriage. “He was a strong dissenter in our marriage case, but he had been on the court a very long time. I was sad to see that news [of his death],” said Harbison, who was part of the legal team in Obergefell v. Hodges. The Tennessean also talked to U.S. Senators Lamar Alexander and Bob Corker, U.S. Rep. Marsha Blackburn, Vanderbilt law professor Brian Fitzpatrick, Lt. Gov. Ron Ramsey and Attorney General Herbert Slatery.

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Supreme Court Temporarily Blocks Clean Power Plan

The U.S. Supreme Court on Tuesday temporarily blocked President Barack Obama’s rules to limit greenhouse gas emissions from power plants, CNN reports. The regulations are on hold while the rules are challenged in court by a mostly Republican-led lawsuit from 29 states along with suits from organizations and industry groups. The states question the legality of the regulations. The four liberal justices on the court dissented from the order.

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Justice Thomas Silent During Oral Arguments for 10 Years

It’s been nearly 10 years since U.S. Supreme Court Justice Clarence Thomas asked a question during oral arguments, the ABA Journal reports. His last question was on Feb. 22, 2006, in a death penalty case. His reason: “I think we should listen to lawyers who are arguing their cases, and I think we should allow the advocates to advocate,” he said in 2013 at a Harvard Law School appearance.

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Delaware Judge Puts Death Penalty Decisions on Hold

Delaware Superior Court President Judge Jan Jurden announced Monday that all capital cases will be put on hold while the state supreme court discusses if the state’s capital punishment structure is constitutional. The decision follows a U.S. Supreme Court decision in January that struck down a Florida death-penalty sentencing law similar to Delaware’s. Read more from the ABA Journal.

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Court Rules on Parents' Constitutional Rights in Termination Proceedings

The Tennessee Supreme today held that a parent's constitutional right to fundamental fairness in termination proceedings does not require adoption of a separate procedure that allows parents to further appeal termination orders based on ineffective representation by appointed counsel. The Court argued that adding a separate procedure could result in years of litigation that “could cause immeasurable damage to children.” The Court imposed an additional safeguard that says in an appeal from an order terminating parental rights, the Court of Appeals must consider whether the evidence supports the trial court’s findings as to all the grounds for termination alleged and as to the best interests of the child, even if the parent fails to challenge these findings on appeal. Read the majority opinion in In Re Carrington H., authored by Justice Cornelia A. Clark, and the separate concurring and dissenting opinion, authored by Chief Justice Lee.

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Court Rules on Generic Evidence in Child Molestation Cases

The Tennessee Supreme Court today said that in generic evidence cases, where the child victim testifies about repeated incidents of sexual abuse but cannot provide details about the acts, the prosecution is not obligated to choose a specific instance of abuse. The announcement comes as the Court upheld the conviction of Jimmy Dale Qualls, of Hornsby, for 37 counts of sexual battery by an authority figure. The state asked the high Court to review the case after Qualls appealed to the Court of Appeals; Qualls claimed prosecution’s method of election was not sufficiently specific to guarantee the defendant his state constitutional right to a unanimous verdict on each charged offense. The Court, analyzing decisions from courts in other states, encouraged prosecutors to always attempt to gather details about specific incidents of sexual abuse. Read the unanimous opinion in State of Tennessee v. Jimmy Dale Qualls, authored by Justice Cornelia A. Clark.

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Court Considers 'Good Faith Exception' in Davidson Appeal

The Tennessee Supreme Court today heard the appeal of of Lemaricus Davidson, who was sentenced to die for his role in the January 2007 slayings of Knoxville couple Channon Christian and Christopher Newsom. The justices said they are interested in crafting a “good faith exception” to apply to a search warrant mistake brought by attorneys for Davidson in the appeal. “This court has the authority to adopt that, and we want to know if we should adopt that," Justice Jeffrey Bivins said during oral arguments. Read more from the Knoxville News Sentinel

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Court Will Hear Appeal Tomorrow in Christian-Newson Case

The Tennessee Supreme Court will hear oral arguments tomorrow in Knoxville in the direct appeal of Lemaricus Davidson, the man sentenced to death for his role in the 2007 murders of Channon Christian and Christopher Newsom. Davidson was sentenced to death by a Knox County jury after he was convicted of of multiple charges in 2009, including two counts of first degree murder and three counts of aggravated rape. The Court will also hear an appeal from Thomas William Whited, who contends he should have not have received a 22-year sentence after he was charged for secretly recording videos of his 12-year-old daughter and her minor friends as they got undressed. The oral arguments are open to the public and will begin at 10 a.m. EST at the Supreme Court building, 505 W Main St.

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Court's Ruling on Autopsy Report Sets Legal Precedent

The Knoxville News Sentinel reports an opinion issued last week by the Tennessee Supreme Court set legal precedent in the state when the court ruled that an autopsy report can serve as evidence in a murder trial – even when the medical examiner who wrote it is no longer available to testify. Dr. Sandra Elkins, formerly Knox County’s chief medical examiner, was forced to step down after authorities say she suffered a drug relapse. Bob Jolley, defense attorney for Thomas Lee Hutchison in the case, argued that Hutchison had the right to confront Elkins if the autopsy were to be admitted. Justice Holly Kirby said that the justices agreed an autopsy report does not itself accuse a particular defendant of murder but only documents that a killing took place. Read the full opinion authored by Justice Kirby.

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Court Upholds Conviction in Knox County Murder Case

The Tennessee Supreme Court today upheld the conviction of a man for facilitation of aggravated robbery and facilitation of the first degree murder of a Knox County man. Thomas Hutchinson appealed his convictions, arguing that his constitutional rights were violated in two ways: (1) The medical examiner who testified at Hutchinson’s trial was not the examiner who performed the autopsy report on the victim; (2) Police officers who entered Hutchison’s home seized evidence without first obtaining a warrant. The Court of Criminal Appeals found no violations of Hutchinson’s constitutional rights. The Supreme Court unanimously upheld that ruling. Read the opinion in State of Tennessee v. Thomas Lee Hutchison, authored by Justice Holly Kirby.

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Attorneys for Ex-Vols Appeal Social Media Ruling

Attorneys for A.J. Johnson and Michael Wiliams, ex-Vol football players accused of rape, are asking the Tennessee Court of Criminal Appeals to rule on a legal issue over access to social media accounts of witnesses. Knox County Criminal Court Judge Bob McGee in November denied a request for a social media subpoena, but later authorized the appeal, known as an interlocutory appeal because it is filed pretrial, in hopes of getting legal guidance on both the defense's right to such information and the method in which it should be obtained. McGee has repeatedly said the case is plowing new legal ground at a time when communication via social media, Internet messaging services and text messages is now the norm. Read more from the Knoxville News Sentinel.

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Court Adopts Proposed Rule Amendments; Packages Await Legislative OK

The Tennessee Supreme Court has adopted proposed amendments to the Tennessee Rules of Appellate Procedure, Rules of Civil Procedure, Rules of Criminal Procedure and Rules of Juvenile Practice. The amendments are set to become effective July 1, 2016, but must first win approval by resolutions of the General Assembly.

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Lawmakers Urge Scalia to Recuse Himself from Case

House Minority Leader Nancy Pelosi, D-Calif., and Rep. Alan Grayson, D-Fla., are calling for U.S. Supreme Court Justice Antonin Scalia to recuse himself from Abigail Noel Fisher v. University of Texas at Austin, an affirmative action case. Justice Scalia was accused of being racist after comments he made during oral arguments. "I think he should be held accountable," Grayson said. "We have to understand that this is a government of laws, not of men, and we need to have unbiased justice." Read more from KUTV.

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U.S. Supreme Court Review, 4 Hours of CLE

Need 4 hours of CLE credit? The United State Supreme Court Review program will offer 4 hours of CLE on Dec. 28, 10:15 a.m. to 2:30 p.m., at the Tennessee Bar Center. More CLE hours are available on the same day at the TBA’s CLE Blast.

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Two New CLE Challenges Available

Two new programs have been added to the Tennessee Supreme Court Fantasy Challenge, which allows you to predict the outcome of cases while earning CLE credit. Each program provides access to lower court decisions, briefs and case summaries. Start playing now!

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Justice Breyer Discusses Oral Arguments, Ted Kennedy

Who would Justice Stephen Breyer like to have dinner with? The U.S. Supreme Court member sat down with NPR for a chat (the answer in Alexander Hamilton) while promoting his new book, “The Court and the World.” Justice Breyer discusses what he learned from working with Sen. Ted Kennedy and how the justices approach questions in oral arguments. “It's horrible for the poor lawyers! Because we do not think that that half hour, each side, is for them to make their argument,” Justice Breyer said. “We think we know the argument.”

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9 Sworn In at TBA Supreme Court Admission Ceremony

Nine Tennessee attorneys were admitted to practice today before the U.S. Supreme Court at the 32nd Annual TBA Academy and Admission Ceremony in Washington, D.C. TBA President Bill Harbison led the activities leading up to admission of: Rebecca Wells Demaree of Cornelius & Collins in Nashville; Calvin Craig Fitzhugh of Ripley; incoming TBA president Jason H. Long of Lowe, Yeager and Brown in Knoxville; Shane Kelvin McNeill of Tellus Law in Thompson’s Station; C. Creed McGinley of Savannah; Charles McIver Molder of Mounger and Molder in Columbia; J. Britt Phillips of Sutter O’Connell in Franklin; Steven Wilson of The Steve Wilson Firm in Memphis; and Rachel Lea Zamata of Nashville. See more photos.

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