27 appellate judges face yes/no vote today

Today Tennessee voters go to the polls to wade through the longest ballot in the state's history, which includes entries for 27 appellate judges who are up for retention. In a report that aired today on "Morning Edition," Nashville Public Radio's Christine Buttorf explains judicial retention -- part of the Tennessee Plan -- by talking to former Supreme Court Justice Penny White, Tennessee's only justice to lose a seat on the court through the yes/no vote. The report also includes discussions with Judge James Bond, political scientist John Vile and former state Sen. David Fowler. Read the transcript or download the audio at

http://www.wpln.org/

TODAY'S OPINIONS
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Editor-in-Chief, TBALink

CYNTHIA DIANE CHURCH v. CHARLES MICHAEL CHURCH

Court: TCA

Attorneys:

Robert L. Jackson and Larry Hayes, Jr., Nashville, Tennessee, for the appellant, Charles Michael Church.

Andrew M. Cate, Nashville, Tennessee, for the appellee, Cynthia Diane Church.

Judge: WILLIAM C. KOCH, JR.

This appeal involves a dispute regarding the classification of property in a divorce proceeding filed in the Circuit Court for Williamson County. The parties stipulated that grounds for divorce existed and that neither party would seek spousal support. They also agreed on the division of the marital estate except for the wife's interests in her family's automobile dealerships and real estate holdings. The wife asserted that these interests were gifts and, therefore, her separate property. The husband insisted that the wife's interests were not gifts and that they should be treated as marital property. The trial court, sitting without a jury, found that the wife's interests in her family's automobile dealerships and real estate holdings were gifts to the wife alone. Accordingly, the court classified the interests as the wife's separate property and declined to include them in the marital estate. Thereafter, the trial court entered an order declaring the parties divorced and awarding each party approximately equal shares of the marital estate. The husband has appealed. We have concluded that the trial court did not err in classifying the original transfer of the wife's interests in the family dealerships and real estate holdings as gifts within the meaning of the equitable distribution statute.

http://www.tba2.org/tba_files/TCA/2006/churchc080306.pdf


IN RE: E.M.P.

Court: TCA

Attorneys:

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the Appellant, C.M.P.

Sherry L. Mahar, Knoxville, Tennessee, for the Appellees, P.B.L. and C.J.L.

Judge: D. MICHAEL SWINEY

P.B.L. and C.J.L. (Petitioners) filed a petition to terminate the parental rights of C.M.P. (Mother) to her daughter, E.M.P. (the child). Petitioners also sought to adopt the child. Petitioners alleged that Mother had abandoned the child by willfully failing to support and visit the child for the four month period immediately preceding Mother's incarceration. As further grounds to terminate Mother's parental rights, Petitioners alleged that Mother was serving a prison sentence of over ten (10) years, and that the child was under eight (8) years of age when the sentence was imposed. Following a trial, the Trial Court determined there was clear and convincing evidence to terminate Mother's parental rights on the basis of abandonment and because Mother was serving a prison sentence of ten (10) or more years and the child was under the age of eight (8) when the sentence was imposed. The Trial Court also concluded that there was clear and convincing evidence that it was in the child's best interests for Mother's parental rights to be terminated. Although we reverse the Trial Court's judgment that Mother had abandoned the child, we affirm the Trial Court's judgment that grounds existed to terminate Mother's parental rights because Mother was serving a prison sentence of ten (10) or more years and the child was under the age of eight (8) when the sentence was imposed. As we also affirm the Trial Court's decision that there was clear and convincing evidence that it was in the child's best interests for Mother's parental rights to be terminated, we affirm the Trial Court's judgment terminating Mother's parental rights.

http://www.tba2.org/tba_files/TCA/2006/emp080306.pdf


STATE OF TENNESSEE v. CORY LYN CLARK

Court: TCCA

Attorneys:

D. Nathaniel Spencer, Brownsville, Tennessee (on appeal), and Ramsdale O’Deneal, Jackson, Tennessee (at trial), for the appellant, Cory Lyn Clark.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Garry G. Brown, District Attorney General; and Elaine G. Todd and Edward L. Hardister, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: JOHN EVERETT WILLIAMS

The defendant, Cory Lyn Clark, was convicted of second degree murder (Class A Felony) and sentenced to twenty years in the Tennessee Department of Correction as a violent offender. The defendant contends on appeal that: 1) the evidence was insufficient to support his conviction because he claimed self-defense; 2) the trial court improperly admitted his second statement to police because a tape recording of the statement was no longer available; and 3) the sentence was improper. We conclude that the evidence was sufficient to support his conviction, that the defendant failed to preserve his appeal of the lost evidence by failing to object at trial, and that the sentence was proper. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/clarkc080306.pdf


JESSE ANDREW WILLIAMS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jesse Andrew Williams, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; and Blind Akrawi, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: JOSEPH M. TIPTON

The petitioner, Jesse Andrew Williams, appeals pro se from the Johnson County Criminal Court's denial of his petition for the writ of habeas corpus. The petitioner is presently serving a sentence of life plus five years for his conviction for first degree murder committed with a firearm. He claims he is entitled to the writ of habeas corpus because (1) the indictment underlying his conviction is void because it charges two offenses in a single count, and (2) the trial court was without jurisdiction to impose a sentence of life plus five years for a single conviction. Because the lower court properly denied relief, we affirm.

http://www.tba2.org/tba_files/TCCA/2006/williamsj080306.pdf


TODAY'S NEWS

Legal News
Election 2006
Passages

Legal News
ABA report: Women of color leaving profession
Women of color are leaving the legal profession at "an alarming rate," according to a report released today by the American Bar Association Commission on Women in the Profession. The report says 44 percent of women lawyers of color working in a large law firm reported that they had been passed over for desirable assignments, compared to 39 percent of white women, 25 percent of men of color and only two percent of white men. ABA President Michael S. Greco will discuss the report at a news conference Friday morning at the association's annual meeting in Honolulu.

Greco also will address a range of policy issues coming before the ABA House of Delegates next week including: support for a limited right to free legal representation in certain civil cases for indigent Americans; opposition to the use of presidential signing statements to avoid enforcement of laws; and opposition to efforts to establish an inspector general's office that would investigate allegations of judicial branch wrongdoing.

On Saturday, U.S. Supreme Court Justice Anthony M. Kennedy will speak at two convention events.
Read more news from the ABA convention.
Audio available of Judge Grimes' comments
An audio file is now available of disputed comments made from the bench by General Sessions Judge Ray Grimes. Clarksville Police Sgt. Mark Wojnarek has filed a complaint with a state judicial disciplinary counsel against Grimes regarding the alleged remarks. Read the full story and download the audio from
The Leaf-Chronicle.
March seeks 50-plus subpoenas
A lawyer for Perry March has asked that more than 50 former and current Metro police officers be subpoenaed on behalf of the defense for next week's second-degree murder trial of the former Nashville lawyer. Included in the list are some of the top investigators within the department, many of whom worked on the case of March's missing wife, Janet Levine March. Read the story in the
Tennesseean.
Judge Bennett to retire
A long-standing judge is stepping down from Bradley County Sessions Court at the end of the month. Read this tribute to Judge Andrew F. Bennett Jr., who has served on the bench for 24 years.
Read it in the Cleveland Daily Banner.
Anti-Predatory Lending Coalition considers next step
The Memphis-Shelby County Anti-Predatory Lending Coalition is debating what issues to tackle next, since last year's work to pass a comprehensive law regulating mortgage lending and outlawing predatory practices for loans with relatively high interest rates and fees is done. That law takes effect Jan. 1. The group met earlier this week and considered pursuing issues such as required counseling for high-cost loan prospects, financial education and restrictions on auto title lending.
Read more in the Commercial Appeal.
Election 2006
Agents probe election wrinkle
Hours before polls were set to open to decide the largest ballot in Shelby County's history, agents with the Tennessee Bureau of Investigation opened a late-night criminal probe at the elections operation center, the Commercial Appeal reports. Elections officials called in the TBI after someone impersonating a precinct official picked up ballot supplies, including a list of registered voters.
Read the story.
Haven't voted yet? Go now before line gets longer
State Election Coordinator Brook Thompson has two urgent messages for Tennesseans about today's election: If you can, don't wait to the last minute to vote. And don't be surprised Thursday night if the results are late coming: it's the longest ballot in Tennessee history and most counties are using voting machines they've never used before. "I expect it is really going to be a late night," Thompson said.
Read more in the Commercial Appeal.
Passages
Long-time lawyer loses cancer battle
Knoxville lawyer Zane Daniel, 66, died Tuesday in Seattle, where he had been undergoing treatment for cancer. A native of Rutledge, Daniel earned his law degree at the University of Tennessee in 1965. He served as an assistant district attorney from 1967-72, when he went into private practice. His firm evolved over the next 34 years to become Daniel & Oberman, and it included sons Jeff Daniel and Todd Daniel. Read more about him in the
Knoxville News Sentinel.

 
 
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