Scalia: Constitution shouldn't change with times

U.S. Supreme Court Justice Antonin Scalia told about 1,000 attendees at the Memphis Bar Foundation Annual Ben Hooks Luncheon yesterday that the Constitution is a "legal document whose meaning has not changed since it was ratified more than 200 years ago." Speaking about the confirmation process, Scalia -- who was nominated by President Reagan in 1986 -- said, "I was confirmed 98-0 ... I was known as a conservative then, but I was perceived to be an honest person. I couldn't get 60 votes today. I guess the name of the game's changed. ... The most important thing is to put on the court somebody who will rewrite the Constitution that you like. Once that happens, it's a controversial, bitter confirmation process." Read more about his visit in the Commercial Appeal:

http://www.commercialappeal.com/news/2007/dec/18/scalia-speaks-at-bar-luncheon/

TODAY'S OPINIONS
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BORN AGAIN CHURCH & CHRISTIAN OUTREACH MINISTRIES, INC. v. MYLER CHURCH BUILDING SYSTEMS OF THE MIDSOUTH, INC.

Court: TCA

Attorneys:

Lance B. Mayes, Nashville, Tennessee, for the appellant, Myler Church Building Systems of the Midsouth, Inc.

Kristin Fecteau and John A. Beam, III, Nashville, Tennessee, for the appellee, Born Again Church and Christian Outreach Ministries, Inc.

Judge: KIRBY

This appeal involves subject matter jurisdiction. After a trial, the trial court entered a judgment in favor of the plaintiff church and against the defendant builder on August 10, 2006. The final order was mailed to the attorney for the defendant, but it was mailed to the attorney's former address. The order reached the defendant's counsel's office on August 18, 2006, and it was stamped "received" with this date. Although the deadline for filing an appeal was actually September 11, 2006, the deadline was erroneously noted on the defendant's attorney's calendar for September 15, 2006. The defendant's attorney realized the error on September 12, 2006, and filed a notice of appeal and a motion with the trial court to file the untimely notice of appeal, seeking relief from judgment under Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court denied the relief requested, finding no extraordinary circumstances to justify it. The defendant now appeals. We dismiss the appeal, finding that the trial court did not have jurisdiction to consider the defendant's Rule 60.02 motion once the defendant's notice of appeal was filed.

http://www.tba2.org/tba_files/TCA/2007/bornagain_121807.pdf


DAVID JEFFERY HILL v. TERRI ALLISON HILL (OVERCAST)

Court: TCA

Attorneys:

Jason R. Reeves, Shelbyville, Tennessee, for the appellant, David Jeffery Hill.

Trisha L. Henegar, Shelbyville, Tennessee, for the appellee, Terri Allison Hill (Overcast).

Robert E. Cooper, Jr., Attorney General and Reporter, and Juan G. Villaseñor, Assistant Attorney General, for the Attorney General in support of the constitutionality of Tennessee Child Support Guidelines.

Judge: KIRBY

This appeal involves post-divorce modification of child support. The parties divorced in 2004 and agreed on a parenting plan under which they shared equal custody of their children, and the father paid the mother an agreed amount in child support. In May 2005, after the new income shares child support guidelines went into effect, the father filed a motion to modify or suspend his child support obligation. The new guidelines required the father to establish a significant variance between his gross income at the time of the divorce and his gross income when he filed his motion. The father was self-employed, however, and his income level at the time of his divorce was undetermined. For comparison purposes, the trial court deemed the income on his 2002 income tax return to be his income as of the date of the divorce. Utilizing this income level, the trial court found no significant variance and denied the father's motion to modify. The father now appeals, arguing that his income at the time of the divorce should have been calculated by a reverse application of the flat percentages model of the child support guidelines. We affirm, finding no error in the trial courtís use of the father's 2002 income tax return.

http://www.tba2.org/tba_files/TCA/2007/hilld_121807.pdf


DIANA S. LOWRY v. TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES

Court: TCA

Attorneys:

Mark Allen Mayhew, Nashville, TN, for Appellant.

Robert E. Cooper, Attorney General and Reporter; Eugene B. Whitesell, Senior Counsel, Nashville, TN, for Appellee.

Judge: HIGHERS

This appeal involves the lower court's dismissal of a case with prejudice for failure to prosecute. The Department of Children's Services fired the petitioner, and she requested an administrative hearing. The Administrative Law Judge upheld the termination, and the petitioner appealed to the chancery court in Shelby County. Pursuant to statute, the case was transferred to Davidson County. After one year, the chancellor entered an order that the petitioner schedule the case for a final hearing. The parties set a hearing date, but in violation of local rules the petitioner failed to submit a trial brief. The petitioner's counsel twice requested a continuance, which was denied each time. The petitioner's counsel withdrew, and the petitioner decided to proceed pro se. The petitioner was not on time for the hearing at 9:00 a.m. on October 5, 2006. She called the court, notifying all parties that she would be twenty minutes late. The judge waited until 9:40 and called the case, but the petitioner was not present. The judge then sua sponte dismissed the case with prejudice for failure to prosecute. The petitioner submitted a hand-written letter to the court with an explanation for her tardiness. The court treated the letter as a motion to alter or amend, and denied the motion. The petitioner appeals. We reverse and remand.

http://www.tba2.org/tba_files/TCA/2007/lowryd_121807.pdf


MICHAEL L. STENBERG v. HICKMAN COUNTY, TENNESSEE

Court: TCA

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Michael L. Stenberg.

Thomas C. Corts, Nashville, Tennessee, for the appellee, Hickman County.

Judge: KIRBY

This is a negligence case based on actions of county law enforcement officers. After a night of drinking heavily, the plaintiff pointed a gun at his wife and threatened to kill her or himself. The wife called 9-1-1, and two county law enforcement officers were dispatched to the plaintiff's trailer home. Upon the officers' arrival, the plaintiff retreated to his bedroom and refused to surrender his gun. Eventually, the plaintiff agreed to allow the officers to enter his bedroom, and placed the gun near the bed within his reach. In an effort to get the plaintiff under control and away from the gun, the officers made a plan to have one officer spray the plaintiff with pepper spray, with the other officer ready to shoot the plaintiff if he tried to grab his gun. As planned, the first officer sprayed the plaintiff with pepper spray. The plaintiff then lunged in the direction of his gun, and the second officer fired his gun, striking the first officer in the hand and the plaintiff under his arm. The plaintiff filed this lawsuit against the defendant county, alleging that the officers acted unreasonably under the circumstances and arguing that they could have apprehended him without using lethal force. After a bench trial, the trial court held in favor of the county. The plaintiff now appeals. We affirm, finding that the preponderance of the evidence supports the trial court's finding that the officers acted reasonably under the circumstances.

http://www.tba2.org/tba_files/TCA/2007/stenbergm_121807.pdf


TODAY'S NEWS

Legislative News
Legal News
TBA Member Services

Legislative News
Upcoming vote: LSC funding included in catch-all bill
The FY 2008 Consolidated Appropriations Act (H.R. 2764) is scheduled to be voted on tonight by the U.S. House and tomorrow by the U.S. Senate. The Senate is expected to add funding for Iraq, then send it back to the House for final passage. The president is expected to sign the measure, which includes $350.5 million for the Legal Services Corporation. This funding level represents a split of the difference between the Senate-passed $390 million and the president's requested $311 million.

Congress toughens Freedom of Information Act
Congress has passed legislation to toughen the Freedom of Information Act and increase penalties on agencies that don't comply. The legislation unanimously passed the House by voice vote today, a few days after it sailed through the Senate. It would be the first makeover of the FOIA in a decade, among other things bringing nonproprietary information held by government contractors under the law.
The Associated Press has the story
Legal News
Hagler calls for investigation
10th District Judge John Hagler issued a statement today, saying there should be an investigation of the "leak" of an embarrassing tape that caused him to resign. "The real story here," Hagler writes, "so strongly expressed by an alert and outraged public, is not about me or my sins, but about whether one of our essential public institutions, the judiciary, has been the victim of a retaliatory attack."
Read Judge Hagler's statement on Chattanoogan.com
Briley pleads guilty
State Rep. Rob Briley pleaded guilty to drunken driving Monday and was granted a pretrial diversion on a felony charge of leading police on a high speed chase. He was sentenced to 10 days in jail and a $350 fine for the drunken driving charge. Briley, 41, stepped down from his position as chair of the powerful House Judiciary Committee after he was arrested in September, but decided not to resign from his seat in the legislature.
WKRN reported this AP story
Vines wins KBA Governor's Award
William D. Vines III was awarded a Governor's Award for 2007 by the Knoxville Bar Association at its annual meeting Friday. President Ruth Ellis, on behalf of the Board of Governors, honored Vines with the award in "recognition of his significant contributions to the profession and as a measure of the Bar's pride in his accomplishments." It was the first time two Governor's Awards were given in the same year; Howard Vogel was also awarded a Governor's Award. TBA Today reported the meeting and winners yesterday but failed to include Vines' award, and regrets the omission.

Adcock elected in Warren County
Marcy Adcock of McMinnville is the new president of the Warren County Bar Association. Her term is for two years.

Sevier County Bar elects officers
At the Sevier County Bar Association annual meeting, the following officers were elected for 2008: Charles S. Sexton, president; Scott D. Hall, vice president; and Jeffrey L. Stern, secretary-treasurer. All are from Sevierville.

Tennessee case gets dubious honor as year's top 'odd-but-true' story
A legal blog called Blogonaut, with the tagline "We don't make this stuff up -- really," has listed its top stories of the year, highlighting a case close to home: "Brawling Tennessee lawyer entangled in hilarious McDonald's dust-up."
The ABA Journal connects you to Blogonaut
Former court clerk sentenced
The former juvenile court clerk employee who started the ball rolling on the Tennessee Waltz investigation was sentenced to probation this morning in federal court. For his cooperation with the feds, U.S. Dist. Judge Jon McCalla sentenced Darrell Catron to 18 months probation and fined him $20,000.
Read the details in the Commercial Appeal
TBA Member Services
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on the TBA Web site

 
 
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