Legislature wrapping up, bills of interest still pending

Several issues of interest to the bar are scheduled for final consideration next week as the Tennessee General Assembly enters what are expected to be its final hectic days:

Tennessee Plan -- The bill (SB970) to extend the Tennessee Judicial Selection Commission for one year is set for the Senate Government Operations Committee on Wednesday morning. The House has already adopted the bill extending the sunset of the body until June 30, 2008. Both houses have already extended the evaluation commission, the other entity that is critical to the merit selection, evaluation and retention system.

Presumption of Joint Custody -- Legislation (SB725/HB2227) creating a presumption of joint custody, and requiring a finding that any other arrangement is detrimental to override that presumption is set for Senate floor action on Thursday. The House bill failed in a House subcommittee.

Givens -- Bills permitting access to medical records by health care providers (HB301/SB309) are set for floor action in the House on Tuesday evening and in the Senate on Thursday morning.

Appropriations -- The fate of several improvement requests for more judges, prosecutors and public defenders, along with resources for other Judicial Branch programs, depends on budget action by both houses throughout the week.
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


Court: TSC


Charles M. Purcell and Matt S. Shepherd, Jackson, Tennessee, for appellants, Richard Schneider, Tajuana Cheshier, Jamie Page, and The Gannett Satellite Information Network, d/b/a The Jackson Sun

Lewis L. Cobb and Sara E. Barnett, Jackson, Tennessee, for appellee, City of Jackson

Douglas R. Pierce, Nashville, Tennessee, for amicus curiae, Tennessee Association of Broadcasters

Alfred H. Knight and Alan D. Johnson, Nashville, Tennessee, for amicus curiae, The Tennessean

Richard L. Hollow, Knoxville, Tennessee, for amicus curiae, The Tennessee Press Association


We granted this appeal primarily to determine whether Tennessee common law includes a law enforcement investigative privilege ("law enforcement privilege") which operates to exempt from disclosure governmental records that would otherwise be accessible via the Tennessee Public Records Act ("Public Records Act"). See Tenn. Code Ann. section 10-7-503 (Supp. 2006). We hold that Tennessee common law does not include the law enforcement privilege and that it should not be adopted herein. Accordingly, we reverse the judgment of the Court of Appeals, which adopted the law enforcement privilege and applied it as an exception to the Public Records Act. However, we remand this case to the trial court to determine whether any of the police department records at issue are part of a pending, open, or ongoing criminal investigation and thus exempt from disclosure. We also reverse the Court of Appeals' judgment and reinstate the judgment of the trial court permitting Petitioners to recover their attorneys' fees pursuant to Tennessee Code Annotated section 10-7-505(g) (1999). On remand, the trial court shall calculate and award Petitioners the attorneys' fees they have incurred on appeal. Finally, we reverse the judgment of the Court of Appeals and reinstate the permanent injunction issued by the trial court requiring the City of Jackson ("City") to respond in writing to future Public Records Act requests of The Jackson Sun or its agents.



Court: TCA


Martha Haren McCampbell, Knoxville, Tennessee, for the Appellants, Knox County Board of Education and Dr. Charles Lindsey, Superintendent

Dean Hill Rivkin and Brenda McGee, Knoxville, Tennessee, for the Appellees, C.S.C., a minor, by his next friend and mother, L.C., on behalf of C.S.C. and all others similarly situated, and M.A.M., a minor, by his next friend and mother, B.M., on behalf of M.A.M. and all others similarly situated

Judge: LEE

In this class action lawsuit filed against the Knox County Board of Education and its superintendent, the trial court awarded the Plaintiffs a portion of their attorney's fees pursuant to 42 U.S.C. section 1988. The Defendants argue on appeal that the trial court erred in finding the Plaintiffs to be "prevailing parties" in the litigation and that the trial court's award of attorney's fees was unwarranted and erroneous. We hold that although the Plaintiffs were not successful on all of their claims, they achieved enough success in their lawsuit to be "prevailing parties." We find no abuse of the trial court's discretion in awarding Plaintiffs $45,000 in attorney's fees, and consequently affirm.



Court: TCA


Daryl A. Colson, Livingston, Tennessee, for the appellant, D. H.

Robert E. Cooper, Jr., Attorney General and Reporter, Douglas Earl Dimond, Senior Counsel, for the appellee, Tennessee Department of Children's Services


The termination of father's parental rights for abandonment under Tenn. Code Ann. section 36-1-102(1)(A)(iv) and for incarceration for more than ten years under section 36-1-113(g)(6) is affirmed.



Court: TCA


John Thomas Feeney, Nashville, Tennessee, for the appellant, Specialty Risk Insurance Company

W. Gary Blackburn, Nashville, Tennessee, for the appellee, James W. Hindman, III

Judge: KOCH

This appeal involves a dispute regarding the availability of uninsured motorist coverage for a motorist who was seriously injured after striking a large rock in the roadway. The motorist filed suit in the Circuit Court for Davidson County against the unknown owner and operator of the dump truck whom he believed were responsible for the rock being in the roadway. He also made an uninsured motorist claim against his own insurance company. A jury apportioned fault between the motorist and the unknown owner or operator and assessed the motorist's damages. The trial court entered a $143,925 judgment for the motorist against his insurance carrier. Thereafter, the trial court determined that the jury's award for medical expenses exceeded the motorist's proof and suggested a $10,135.55 remittitur. The motorist accepted the remittitur under protest, and the trial court entered a $134,296.23 judgment for the motorist. On this appeal, the insurance carrier asserts that the motorist failed to prove that an unknown, uninsured motorist caused the rock to be in the roadway and that he had not been negligent in his efforts to locate the owner or operator of the dump truck. The motorist takes issue with the trial court's decision to suggest a remittitur. We have determined that the record contains sufficient evidence to support a judgment against the insurance carrier and that the trial court did not err by suggesting a remittitur.


With Concurring Opinion

Court: TCA


James Y. (Bo) Reed, Knoxville, Tennessee, for the Appellant, Brandon O. Canada

Billy J. Stokes, Knoxville, Tennessee, for the Appellee, John Wayne Webb Linda J. Hamilton Mowles, Knoxville, Tennessee, for the Appellee, Douglas P. Townsend

Judge: LEE

John Wayne Webb was injured in a car wreck and filed suit against two other drivers. A jury found defendant Brandon O. Canada to be solely at fault and awarded Mr. Webb $723,426.27 in compensatory damages against Mr. Canada. An order was entered awarding Mr. Webb judgment against Mr. Canada in the amount of $723,426.27 and dismissing the case as to the other driver, Douglas P. Townsend. Mr. Canada filed a motion seeking a new trial or in the alternative, a remittitur. Following a hearing, the trial court suggested a remittitur in the amount of $125,000. Final judgment was entered on July 24, 2006, referencing the remittitur and reducing the amount of the judgment to $598,426.27. On appeal, Mr. Canada argues that he is entitled to a new trial because Mr. Webb never accepted the remittitur, the verdict was excessive, and the remittitur was inadequate. After review, we find no error and affirm.


Franks Concurring


Court: TCCA


Paul E. Lewis, Millington, Tennessee, for the Appellant, Kim McGill

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee V. Coffee, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: HAYES

The Appellant, Kim McGill, appeals the Shelby County Criminal Court's denial of her petition for post-conviction relief. McGill pled guilty to aggravated robbery and received a sentence of 7.2 years, as a mitigated offender, to be served in the Department of Correction. On appeal, she asserts that trial counsel was ineffective for failing to advise her of the right to request recusal of the trial judge based upon the judge's comments to the Appellant following her request to obtain private counsel. Following review, we affirm the denial of the petition.



Court: TCCA


Charles F. Fleet, Bolivar, Tennessee, for the appellant, Savalas O. McNeal

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James G. Woodall, District Attorney General; and Rolf Hazlehurst, Assistant District Attorney General, for the appellee, State of Tennessee


The defendant, Savalas O. McNeal, was convicted by a Madison County jury of possession of cocaine with the intent to sell and deliver and received a ten-year sentence to the Department of Correction as a Range II, multiple offender. On appeal, the defendant contends that the evidence was insufficient to support his conviction. We conclude that the evidence was sufficient, and we affirm the judgment of the trial court.



Court: TCCA


Thomas M. Powell, pro se

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Rachel E. Willis, Assistant Attorney General, for the appellee, State of Tennessee

Judge: GLENN

The Petitioner, Thomas M. Powell, appeals the lower court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to assert a ground that would entitle him to habeas corpus relief. Accordingly, we affirm the trial court's dismissal.



Court: TCCA


Brett B Stein, Memphis, Tennessee, for the appellant, Ulysses Richardson

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: MCLIN

The Petitioner, Ulysses Richardson, appeals the trial court's denial of his petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition for post-conviction relief fails as it is a second such petition and as it is barred by the statute of limitations. The petition similarly fails if considered as a petition for habeas corpus relief, a motion to reopen a petition for post-conviction relief or a petition for writ of error coram nobis. Accordingly, we grant the State's motion and affirm the judgment of the lower court.



Court: TCCA


Michael J. Flanagan, Nashville, Tennessee, for the appellant, Jimmie C. Scott

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; and Joseph D. Baugh, Special Prosecutor, for the appellee, State of Tennessee


The defendant, Jimmie C. Scott, appeals, contending that the trial court erred in denying his motion to suppress evidence. After review, we conclude the record on appeal is inadequate for proper appellate review because it fails to include the transcript of the suppression hearing which also includes the trial court's reasoning for denial of the defendant's motion to suppress. We affirm the judgment from the trial court.



Court: TCCA


Brett B. Stein, Memphis, Tennessee, for the Appellant, William T. Utley

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: HAYES

The Appellant, William T. Utley, was convicted by a Chester County jury of the Class D felonies of burglary and theft of property over $1000. Following a sentencing hearing, the trial court imposed concurrent four-year sentences of incarceration for each conviction. On appeal, Utley has raised three issues for our review: (1) whether the evidence is sufficient to support the convictions; (2) whether the trial court erred by failing to instruct the jury on voluntary intoxication; and (3) whether the court erred in denying alternative sentencing. Following review of the record, we find no error and affirm the judgments of conviction and resulting sentences.


Jurisdiction to Impose Fines

TN Attorney General Opinions

Date: 2007-05-23

Opinion Number: 07-78


Whether the Criminal or Civil Penalties Set Forth in Tenn. Code Ann. Section 50-1-103 are Preempted by 8 U.S.C. Section 1324a(h)(2)

TN Attorney General Opinions

Date: 2007-05-23

Opinion Number: 07-79


Constitutionality of 1000 Foot Buffer for Adult-Oriented Establishments

TN Attorney General Opinions

Date: 2007-05-24

Opinion Number: 07-80



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TBA Member Services

Legal News
Gonzales no-confidence vote set for June
The U.S. Senate will consider a resolution expressing no confidence in Attorney General Alberto Gonzales in mid-June. Introduced by Senators Chuck Schumer, D-NY, and Dianne Feinstein, D-CA, the resolution states in part that Gonzales "no longer holds the confidence of the Senate and of the American people."
Read more from WMC-TV Memphis
Bush: wrongdoing in firings will be 'taken care of'
At a White House news conference yesterday, President Bush said any wrongdoing uncovered in the firings of eight federal prosecutors will be "taken care of." He also reiterated his support for Attorney General Alberto Gonzales. WMC-TV Memphis based its report on an AP story.

Paper: healthy debate needed on electing officers
In an editorial today the Knoxville News Sentinel raises questions about the wisdom of electing the state's constitutional officers and encourages the legislature and the public to engage in a healthy dialogue about the proposal.
Read the opinion piece
Baker Donelson jump-started law school fundraising
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Read more about the school's plans in the Commercial Appeal
Assistant DA to deploy to Iraq
Wilson County Assistant District Attorney Robert Hibbett will spend the next few weeks training at Fort Bliss, Texas and then be deployed with his Army National Guard unit to Iraq for a year. Hibbett has worked as a prosecutor with the 15th Judicial District Attorney's Office for many years. He will deploy with another Wilson County resident, Lebanon Police Department detective Nester Irizarry.
The Lebanon Democrat has more
Bledsoe County jail closed by state for safety reasons
The state shut down the Bledsoe County jail over safety concerns and gave officials just hours to remove prisoners. The 22 inmates were taken to the Sequatchie County Jail in Dunlap, about 20 miles away. The county announced that it will "immediately move forward" with plans for a new jail.
The News Sentinel reports
State murder rate drops in latest crime report
The Tennessee Bureau of Investigation this week released its annual "Crime in Tennessee" report, which showed a drop in the percentage of murders, rapes and kidnappings in the state.
Learn more from WATE Newschannel 6
Corporate Counsel Pro Bono Initiative: Plan now to attend
The Corporate Counsel Pro Bono Initiative Reception and Dinner on June 12 in Nashville is an opportunity to celebrate the contribution to access to justice being made by many of Tennessee's leading corporate citizens. Speakers include Tennessee Supreme Court Chief Justice William Barker; state Attorney General Bob Cooper; International Paper's General Counsel, Maura Smith; Nashville Mayor Bill Purcell; and Shelby County Mayor A C Wharton. Sponsorships are available for $3000 and individual tickets for $200 are on sale through June 6. The TBA Access to Justice Committee, in cooperation with the TBA Corporate Counsel Section and the Association of Corporate Counsel (ACC) are hosting the event at the Music City Sheraton in conjunction with the TBA Annual Convention. Proceeds will go to efforts to enhance corporate counsel pro bono representation.
Learn more about the initiative
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