News

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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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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