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Gay Alumni Raise $300K to Save University of Tennessee Pride Center

A fundraising campaign launched by a gay University of Tennessee graduate, Chad Goldman and his husband, LGBT rights advocate Brian Pendleton, raised more than $300,000 on the Feb. 1 kickoff event for a plan to permanently fund the LGBT Pride Center at the university's campus in Knoxville.
 
The university's LGBTQ Pride Center was threatened with closure in 2016 after state lawmakers passed HB2248, defunding the university's Office for Diversity and Inclusion. Critics of the office accused it of promoting "political correctness" by encouraging the use of gender-neutral pronouns and supporting an annual student-initiated event called Sex Week, which involves panel discussions and forums addressing issues including sexuality, sexual assault prevention and sexually transmitted diseases.
 
"It's unfortunate we are in this place because of the politics of the legislature, but this effort is not at all about politics," Goldman told the Knoxville News Sentinel. "It's just about funding a place for LGBTQ and questioning students to go where they can find fellowship and guidance and support at a time that's very difficult."
 
State Sen. Todd Gardenhire (R-Chattanooga), a lead sponsor of the State Senate version of the defunding bill accused the diversity office of being "very political and polarizing" and giving a "horrible reputation" to the university and the state. "If they clean up their act, then I'll focus my attention on something else," Gardenhire told the Knoxville News Sentinel. "But if that office continues to become very radical and polarizing, then I will, of course, focus my attention back on that to take that money away and apply it to something very useful instead of something very divisive."
 
UT Chancellor Beverly Davenport asked Goldman to raise funds for a separate, privately-funded endowment for the Pride Center, with a goal of $3 million. Goldman is confident the campaign will reach its goal, saying "if we can [raise $300,000] in one single night, I feel very confident that we are going to get there." More information on the Pride Center project can be found here.
 
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Meet Your Section Vice-Chair

Amber Buker is a Director of Client Relations at Bank Director, a privately-held company focusing on educational, informational and fiduciary interests of financial institutions based in Brentwood. Buker coordinates sales initiatives and manages client relationships at law, accounting and consulting firms across the country. 
 
Prior to joining Bank Director, Amber served as the Program Director for the Arts & Business Council of Greater Nashville. She earned her law degree with honors from Lewis and Clark Law School in 2015 and holds a B.A. in Psychology from Northeastern State University, where she graduated summa cum laude. 
 
In her free time, Amber serves as the Managing Director of Distraction Theatre Company, where she runs the day-to-day operations of the nonprofit and takes on numerous creative roles in company productions.
 
Amber Buker can be contacted by email or by phone at (615) 777-8478.

 

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Bill Proposes Amendments Regarding Children's Testimony in Criminal Trials

Proposed amendments to Tennessee Code Annotated, Title 24, Chapter 7, Part 1 aim to permit out-of-court statements made by children from being excluded as hearsay. Under HB1480, an out-of-court statement made by a child who is under 12 years of age at the time of a criminal trial describing any sexual act performed by, with, or on the child or describing any act of physical violence directed against the child will not be excluded from evidence at the criminal trial as hearsay if all of the following apply:
 
The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted under certain rules of the Tennessee Rules of Evidence. This bill lays out in detail the circumstances a court must consider in making a determination of the reliability;
 
1. The child's testimony is not reasonably obtainable by the proponent of the statement. This bill details the circumstances in which a child's testimony is not reasonably obtainable;
 
2. Independent proof exists of the sexual act or act of physical violence;
 
3. At least 10 days before the trial or hearing, a proponent of the statement has notified all other parties in writing of the content of the statement, the time and place at which the statement was made, the identity of the witness who is to testify about the statement, and the circumstances surrounding the statement that are claimed to indicate trustworthiness of the statement.
 
4. The bill will require the court to make the findings based on a hearing conducted outside the presence of the jury and to make findings of fact on the record as to the bases for the court's ruling. 
 
Similar proposed legislation has been met with consternation out of constitutional concerns for defendants. The bill has passed the first reading and has been assigned review by the Criminal Justice Subcommittee. More information is available on the General Assembly website.
 
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Tennessee Department of Revenue Reaches Agreement with Airbnb

Airbnb recently struck a deal with the Tennessee Department of Revenue to collect and remit state and local taxes on behalf of its 7,700 hosts, according to the Nashville Business Journal. This arrangement has been used in other markets to address concerns regarding tax revenue from their short-term rentals not being on par with that of their hotel competitors. Tennessee joins neighboring states of Kentucky, Missouri, Alabama, Mississippi and Arkansas as areas with similar agreements. 
 
This news comes as Metro Council was scheduled to vote on BL-937, an ordinance amending Title 6 and sections 17.04.060, 17.08.030, 17.16.250 and 17.16.070 of the Metropolitan Code of Laws to add a new Chapter 6.83 pertaining to a short-term rental properties advisory committee and to establish regulations regarding short-term rental properties and distinct land uses for "Short-term rental property - Owner-Occupied" and "Short-term rental property - Not Owner-Occupied." The vote, however, was commuted to Jan. 23 because of inclement weather.
 
The company has long been a source of controversy in the area because of various concerns of taxation, noise complaints, even sparking First Amendment debates regarding anatomically correct sex dolls. In fact, problems with Airbnb rentals have become so numerous, Nashville Mayor Megan Barry established a devoted hotline tasked with aggregating and addressing these concerns.
 
The new statewide tax agreement, which will take effect March 1, is the second such deal Airbnb has struck in Tennessee, following an earlier agreement with Memphis. Airbnb has touted the agreements as a revenue generator and a reason for governments to work with — not against — the company.
 
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Charles Manson’s Grandson Ramps Up Fight for Serial Killer’s Remains, Estate

Almost two months after his death, the legal battle for the estate of Charles Manson continues. Manson, who died from acute cardiac arrest complicated by a battle with colon cancer on Nov. 29, 2017, allegedly has two wills, each leaving his estate to a different person. Jason Freeman, the son of the late Charles Manson Jr. and the grandson of Manson and his first wife, Rosalie Willis, filed documents with the Los Angeles County probate court on Jan. 12, seeking control of his grandfather’s estate, further complicating the dispute.
 
While the value of Manson’s estate is unknown, he has written songs recorded by big-name musicians such as the Beach Boys and Guns N’ Roses. Manson also received royalties from a clothing company for a t-shirt bearing his likeness. It might take a few weeks for a judge to decide who will control Manson’s estate, as a venue for the case has yet to be determined. On Jan. 26, a judge will decide on the proper venue for the next court hearing.
 
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Legal Practice Tip: Amicus Briefs

Rule 31 of the Tennessee Rules of Appellate Procedure relates to the subject of amicus curiae briefs. Amicus briefs may only be filed with leave of court or at the request of the appellate court. One practice tip is that it is generally advisable to file the actual brief conditionally with the motion for leave. In other words, a motion for leave may be filed and Exhibit A to the motion would be the brief. This allows the appellate court to actually see the brief before entering an order for leave to file. Once the order granting leave to file is entered by the appellate court, the brief should then be formally filed as a stand-alone pleading.
 
As the rule says, amicus briefs should only be filed when the amicus curiae actually has something useful to say from a perspective which is different from that of the parties. One common example of an entity that would file an amicus brief is a bar association. State and national bar associations often file amicus curiae briefs on issues that affect legal procedures or the profession. Another example would be a brief filed by an industry association. Industry associations often file briefs in order to argue the effects of the decision on the industry as a whole, not just the individual party.
 
As with the briefing, amicus curiae may only participate in oral argument by leave of court or at the request of the appellate court. The question is often asked how the appellate court will allocate oral argument time when an amicus curiae is going to argue. Generally speaking, any argument made by counsel for an amicus curiae will be taken off the time of the party whose position the amicus curiae is supporting. So, for example, if counsel for an industry association is granted leave to participate in oral argument, their time will be taken off the time of the party whose position the industry association supports. Of course, time allocation generally involves an agreement among counsel as to how the time will be allocated on that side of the case. If counsel for the parties is not willing to yield any of its time to the amicus curiae and the amicus curiae is keen on participating in oral argument, it is possible for the amicus curiae to file a motion to ask the court to allow it to participate even though counsel for the party has not yielded any of their time. It is unusual for the lawyers involved not to reach an agreement but the appellate court, of course, retains the discretion to organize oral argument as it sees fit.
 
As the advisory commission comment points out, the Tennessee rule is slightly different from the federal rule of appellate procedure in that the Tennessee rule does not permit the filing of an amicus brief by consent of all of the parties. Also as the comment notes, most amicus briefs are actually a type of adversary intervention rather than truly objective assistance to the court. Accordingly, subdivision (a) of the Tennessee Rule requires an amicus to identify its interest and to state how the amicus brief will assist the appellate court.
 
Under Rule 32 of the Tennessee Rules of Appellate Procedure, the attorney general of the State of Tennessee is entitled to file a brief whenever the validity of a statute or administrative rule is at issue and the state is not a party. Rule 32 also allows the attorney general to participate in an oral argument even if that attorney general decides not to file a brief. Subdivision (d) of Rule 32 strictly prohibits the appellate court of disposing of an appeal until notice has been given to the attorney general and the attorney general has been given an opportunity to respond.
 
George "Buck" Lewis is a shareholder at Baker Donelson, former TBA president and chairs the Appellate Practice Law Section. 
 
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