Legislative Update: Court reporter licensure deferred

Court Reporter Licensure -- Proponents of efforts to adopt a full-blown licensure regime for court reporters (HB2905/SB2925 as amended), and to restrict recording and transcribing of matters for presentation to courts and other bodies said today the proposal will not see any further consideration this year. A proposal to adopt a statute to further prohibit conflicts of interest by those who do court reporting, however, is under discussion.

House Judiciary Committee -- The House Judiciary Committee today held a protracted meeting, spending more than six hours and acting on more than 70 items on its calendar. Included among the measures recommended for adoption were:

-- Legislation to extend the Committee on the Administration of the Death Penalty (HB2733/SB2718) until October 2009. The panel had been slated for extinction in October of this year. The TBA is among the groups that appointed a member to the committee.

-- A constitutional amendment to replace the $50 cap on fines without a jury trial with a maximum $500 cap (HJR0808). A constitutional amendment to give the General Assembly unlimited power to set the cap was on the ballot last year, but failed to achieve the numbers needed for adoption.
TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
02 - TN Court of Criminal Appeals
01 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

KALA DEAN and LEXIE M. DEAN v. WEAKLEY COUNTY BOARD OF EDUCATION

Court: TCA

Attorneys:

Charles M. Purcell and Andrew V. Sellers, Jackson, Tennessee, for the Defendant/Appellant Weakley County Board of Education.

Mark L. Agee and Jason C. Scott, Trenton, Tennessee, for the Plaintiffs/Appellees Kala Dean and Lexie Dean.

Judge: KIRBY

This is a negligence case. The plaintiff, a female high school student, was being verbally harassed by a male student. The plaintiff complained repeatedly to a school administrator, who assured her that he would take care of the situation. The male student's taunts did not stop and he threatened to beat up the plaintiff. The school administrator was told about the threat and took no action. Subsequently, in the school hallway, a confrontation between the male student and the female plaintiff resulted in the male student punching the plaintiff in the face and causing serious injuries. A lawsuit was filed on behalf of the female student against the high school board of education. The trial court denied the school board's motion for summary judgment, and the case was tried. The trial court found for the plaintiff, awarding damages and medical expenses. The school board argued that the award should be reduced under comparative fault principles, but the trial court declined to do so because it found that the male student was the instigator. The school board appeals, arguing, inter alia, that the trial court erred by denying its motion for summary judgment, by not holding that the school board was immune under the public duty doctrine, by allocating no fault to the plaintiff, by not appropriately weighing judicial admissions of fault by the plaintiff, and by applying the clear and convincing evidence standard to determine whether the school board had established comparative fault. We affirm, finding that the denial of the summary judgment motion is not appealable after a trial on the merits, that the public duty doctrine is not applicable, that the trial court found that the male student was the instigator under the preponderance of the evidence standard, and that the preponderance of the evidence supports the trial court's decision, even considering the plaintiff's judicial admissions.

http://www.tba2.org/tba_files/TCA/2008/deank_040908.pdf


TRINA GREER, ET AL. v. JAMES L. BAKER

Court: TCA

Attorneys:

David W. Camp of Jackson, Tennessee for Appellants, Trina Greer, Anita Macadoo, and the Estate of Georgia Faye Baker.

Douglas Thompson Bates, III of Centerville, Tennessee for Appellee, James L. Baker.

Judge: CRAWFORD

This is a divorce case. Appellee/Husband and Wife were granted a divorce, but the division of marital property was held over. Before the property could be divided, Wife died, and her two daughters, the Appellants herein, were substituted as parties. Subsequently, Wife's estate was opened, and added as a party. Appellants appeal the trial court's valuation and division of certain property, and raise issues concerning the admissibility of certain testimony, and whether Appellants are proper parties to this case. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2008/greert_040908.pdf


IN RE M.C.B., S.J.L.L., & T.J.L.

Court: TCA

Attorneys:

Victoria H. Bowling, Norris, Tennessee, for the appellant, S.J.B.

Robert E. Cooper, Jr., Attorney General and Reporter, and Amy T. McConnell, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.

Judge: LEE

In this parental termination case, the trial court, upon petition of the Department of Children's Services ("DCS"), terminated Mother's rights to her three children upon a determination that Mother had failed to substantially comply with requirements of her permanency plans, that conditions that led to the children's removal from the home still persisted, and that termination was in the best interest of the children. On appeal, Mother argues that the proof was insufficient to support the juvenile court's decision and that DCS did not make reasonable efforts to reunite Mother and the children. We hold that the evidence does not preponderate against the juvenile court's finding that there was clear and convincing evidence of at least one statutory ground for termination of Mother's parental rights, that termination of Mother's parental rights was in the children's best interest, and that DCS made reasonable efforts to reunite Mother and the children. Accordingly, we affirm the judgment of the juvenile court.

http://www.tba2.org/tba_files/TCA/2008/mcb_040908.pdf


STEPHANIE JAN CLIFTON SOLIMA v. DAVID JOHN SOLIMA

Court: TCA

Attorneys:

Rebecca E. Byrd, Franklin, Tennessee, for appellant, David John Solima.

John J. Hollins Jr, and Vincent P. Wyatt, Nashville, Tennessee for appellee, Stephanie Jan Clifton Solima.

Judge: BLACKWOOD

After a lengthy and acrimonious divorce proceeding, the trial court awarded the wife a divorce on the grounds of inappropriate marital conduct. The court divided the marital estate, awarded transitional and alimony in solido to the wife, and designated the wife as the primary residential party with the primary decision making responsibilities. The trial court further awarded wife attorney fees of $75,000 "in the nature of alimony and also to some extent in the nature of child support." The husband appeals, raising 12 issues.

http://www.tba2.org/tba_files/TCA/2008/solimas_040908.pdf


STATE OF TENNESSEE v. MATTHEW JOSEPH CARTER

Court: TCCA

Attorneys:

Bruce E. Poston, Knoxville, Tennessee, for the Appellant, Matthew Joseph Carter.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Randall E. Nichols, District Attorney General; William Crabtree and Jo Helm, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Matthew Joseph Carter, was convicted by a Knox County jury of one count of second degree murder, two counts of attempted second degree murder, and one count of aggravated assault. Carter was sentenced to twenty-three years for second degree murder, eleven years for each conviction of attempted second degree murder, and six years for aggravated assault. Based upon the imposition of partial consecutive sentencing, Carter received an effective sentence of forty years in confinement. On appeal, Carter challenges both his convictions and his resulting sentences upon the following grounds: (1) his convictions for second degree murder and two counts of attempted second degree murder are void because they were obtained as lesser-included offenses of the greater charged offense of "first degree murder by destructive device or bomb," which is an "invalid" charge under the facts; (2) "the jury panel's prior knowledge of the case" resulted in the denial of a fair trial and a violation of due process; (3) the trial court erroneously instructed the jury with regard to the requisite mental state of "knowingly"; (4) the evidence is insufficient to support each of the convictions; (5) the length of the respective sentences is excessive, and the trial court erred in imposing consecutive sentences. After review, we conclude that Carter's challenges to his convictions are without merit. Accordingly, each of the convictions is affirmed. We conclude, however, with regard to sentencing, that because Carter was sentenced under the June 7, 2005 sentencing amendments for crimes committed under the pre-2005 sentencing provisions, without a proper execution of a waiver of his ex post facto protections, remand for a sentencing hearing is required. Moreover, because the sentencing record fails to demonstrate the requisite considerations for the imposition of consecutive sentencing, this issue is also remanded for reconsideration.

http://www.tba2.org/tba_files/TCCA/2008/carterm_040908.pdf


STATE OF TENNESSEE v. RICHARD ALLAN COX, II

Court: TCCA

Attorneys:

J. Liddell Kirk (on appeal) and Bruce E. Poston (at trial) Knoxville, Tennessee, for the appellant, Richard Alan Cox, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Ta Kisha Fitzgerald and Steven W. Sword, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Richard Allan Cox, II, along with his co-defendants, was indicted on charges of first degree murder, attempted first degree murder and conspiracy to commit first degree murder. The defendant was convicted of attempted first degree murder, a Class A felony, and voluntary manslaughter, a Class C felony. The conspiracy charge against the defendant was dismissed. For his attempted first degree murder conviction, the defendant was sentenced as a Range I, standard offender to twenty-two years in confinement, and for his voluntary manslaughter conviction, he was sentenced as a Range I, standard offender to six years. The trial court ordered that his two sentences run concurrently. On appeal, the defendant argues that insufficient evidence was presented at trial to sustain his convictions. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/coxr_040908.pdf


Constitutionality of House Bill 66/Senate Bill 252 - Forfeiture of Property of Individuals Who Have Illegally Entered the Country

TN Attorney General Opinions

Date: 2008-04-09

Opinion Number: 08-88

http://www.tba2.org/tba_files/AG/2008/ag_08_88.pdf

TODAY'S NEWS

Legal News
Legislative News
Upcoming
TBA Member Services

Legal News
Paper says judicial selection process should be open
Responding to yesterday's vote in the House Judiciary Civil Practice Subcommittee, which rejected Gov. Phil Bredesen's proposal to bar the Judicial Selection Commission from meeting in private, the Nashville City Paper writes today that the state's process for selecting judges should be more open to the public. It also notes that the "brotherhood of attorneys in the state Legislature runs deeper than party ties," as it was Democrats, primarily, who killed the bill.
Read the editorial
AG: ban on immigrant pay is unconstitutional
The state attorney general said today that making it a crime for illegal immigrants to accept pay for work done in Tennessee is unconstitutional, and such a move would conflict with the Federal Labor Standards Act. The measure, sponsored by Sen. Joe Haynes and Rep. Mike Turner (both Nashville-area Democrats) has been awaiting floor votes in both chambers of the General Assembly.
The News Sentinel has more
Download the opinion
Fairview's Garvey joins 21st District DA race
Fairview resident Dennis Garvey has announced his candidacy for District Attorney General of the 21st Judicial District, which includes Lewis, Hickman, Perry and Williamson counties. Garvey, who has lived in Fairview for 13 years, is one of three prosecuting attorneys interested in becoming the district's top prosecutor. Other possible candidates include Kim Helper and Derek Smith. The position became vacant when former District Attorney General Ron Davis died last month after a long battle with cancer.
Learn more in the Fairview Observer
Justice Birch to receive lifetime award
CommunityNashville will honor its annual Human Relations Award recipients April 21 at Nashville Mayor Karl Dean's home. Among those receiving awards are retired Tennessee Supreme Court Chief Justice Adolpho A. Birch Jr., who will receive a Special Lifetime Achievement Award for Justice and Human Relations. The Tennessean reported the news.

State decertifies Carroll County jail
The Tennessee Corrections Institute has decertified the Carroll County jail based on physical plant deficiencies, the housing of female inmates in male housing, lack of a secure booking area, and lack of outdoor recreation.
Read about the county's options in the McKenzie Banner
Shelby court filings down
Shelby County civil court filings for the first three months of 2008 were down from first quarter 2007 according to a recent study. Read about trends for cases before the chancery, circuit, probate and federal courts, and hear what Circuit Court Judge D'Army Bailey says about public perceptions that cases are not resolved in a timely manner.
The Memphis Daily News has more
Two issues remain in Brentwood Academy suit
The 11-year legal battle between the Tennessee Secondary School Athletic Association and Brentwood Academy continued this week with lawyers on both sides filing motions to resolve issues dealing with antitrust and equal protection. In June 2007, the U.S. Supreme Court ruled in favor of the association on the First Amendment portion of the lawsuit.
Read about the remaining issues in the Tennessean
Legislative News
Secretary of state dropped from election measure
A House subcommittee has stripped the secretary of state out of a proposal to popularly elect constitutional officers in Tennessee. Rep. Ulysses Jones, D-Memphis, successfully amended a resolution sponsored by House Minority Leader Jason Mumpower, R-Bristol, to limit its application to the lieutenant governor. The Senate has already passed legislation that includes both offices.
Read more in the Tennessean
Subcommittee makes changes to open records bill
A proposal to upgrade the state's open records law has undergone several revisions in the House State Government Subcommittee. The changes include: (1) giving cities more time to respond to requests, (2) charging fees for searches that take longer than an hour, (3) allowing only Tennessee residents to make requests and (4) requiring that government officials be notified when records requests about them are made. The bill now goes to the House State and Local Government Committee.
The News Sentinel reports
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
Upcoming
Justice Clark to address crime victims' week gathering
Next week, the country will recognize National Crime Victims Rights Week. In Nashville, victims' groups will host an event at the state capitol on April 16 from 10 a.m. to 12 noon. During a ceremony in the House chamber, Tennessee Supreme Court Justice Cornelia A. Clark will give the keynote address and participants will hear from Sen. Charlotte Burks, D-Monterey, Rep. Sherry Jones, D-Nashville, and Rep. Janis Sontany, D-Nashville. For details contact Rachel Stutts at rstutts@tcadsv.org or (615) 386-9406.
View a copy of the invitation
TBA Member Services
TBA, Bank of America team up for no-fee credit card
The TBA World Points Rewards MasterCard from Bank of America places a new world of rewards, privileges, and service at your command -- with no annual fee.
Click here to learn more

 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

Questions, comments: Email us at TBAToday@tnbar.org

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

© Copyright 2008 Tennessee Bar Association