Bills to continue merit selection and retention elections advance in both houses

In the House, a bill sponsored by Rep. Joe McCord (R-Maryville) is set for floor action on Thursday. As amended, HB1448/SB1573 establishes a new judicial nominating commission appointed by the speakers, requires the commission to submit to the governor three names for appointment, and allows the governor to request an additional three names, for a total of six. The bill also continues and reconstitutes the judicial evaluation commission and continues retention elections until 2014, the new sunset date for the commissions. The TBA has worked closely with House leaders in fashioning common sense changes to the current system embodied in the bill. Members may wish to contact their local lawmaker urging adoption of the McCord bill.

In the Senate, the Judiciary and Government Operations committees both voted out three different versions of judicial election legislation. The Senate companion to the McCord bill, SB1573, was amended to maintain judicial selection in a modified form, hold retention elections and have a two-year sunset. Also reported out was a bill -- SB1715/HB1892 -- sponsored by Sen. Doug Overeby (R- Maryville) and Rep. Kent Coleman (D-Murfreesboro) that has stronger merit selection, retention elections, and a 2015 sunset. Finally, legislation to grant the Governor unlimited power to appoint, retention elections for intermediate appeals judges only, contested elections for Supreme Court justices, and a call for a constitutional convention on judicial elections was added to a bill -- SB2114 -- sponsored by Sen. Mark Norris (R- Germantown). All three bills will be on the Senate Finance committee calendar tomorrow.
TODAY'S OPINIONS
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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.

SAM McCORMICK v. ILLINOIS CENTRAL RAILROAD COMPANY

Court: TCA

Attorneys:

Thomas R. Peters, Michael C. Hermann, Bellevue, IL; M. Beth Rainwater, Memphis, TN, for Appellant

R. Christopher Gilreath, Memphis, TN, for Appellee

Judge: HIGHERS

In this interlocutory appeal, we are asked to determine whether the trial court erred in allowing the executor of the plaintiff's estate to be substituted as the party plaintiff where the party plaintiff died before suit was filed in his individual capacity. We are also asked to determine whether the defendant waived the issue of plaintiff's capacity by first raising the issue in a post-answer motion to dismiss. We find that a suit brought in the name of a deceased person amounts to a nullity, and thus, is not amenable to substitution. We further find that an objection based on the fact that the plaintiff was deceased when the complaint was filed can be made at any time during the proceedings, in any appropriate manner, and such objection stops the cause at whatever stage it may be, whenever made known to the court.

http://www.tba2.org/tba_files/TCA/2009/mccormicks_051909.pdf


JOHNNY R. OWNBY ET AL. v. TENNESSEE FARMERS COOPERATIVE CORPORATION, U.S.A.

Court: TCA

Attorneys:

Van French, Murfreesboro, Tennessee, for the appellant, Tennessee Farmers Cooperative, Corporation, U.S.A.

J. Stanley Rogers and Christina Henley Duncan, Manchester, Tennessee, for the appellees, Johnny Ownby and wife, Robin L. Ownby, individually and as next of kin and natural parents of Michael Paul Ownby, deceased.

Judge: BENNETT

This wrongful death action arises out of an accident at an agricultural facility: a worker fell through a skylight on the roof while employed by a company hired by the agricultural facility owner to do work on the roof. The trial court denied the owner's motion for a directed verdict on the question of whether the owner owed a duty of care to the injured worker. We reverse the decision of the trial court because we have concluded that this case falls within an exception to the general duty of a landowner to provide a reasonably safe workplace.

http://www.tba2.org/tba_files/TCA/2009/ownbyj_051909.pdf


STATE OF TENNESSEE v. RICHARD CLEVELAND MARTIN

Court: TCCA

Attorneys:

Dawn Deaner, District Public Defender; and Jeffrey A. DeVasher (on appeal) and J. Michael Engle (at trial), Assistant Public Defenders, for the appellant, Richard Cleveland Martin.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Katrin Novak Miller and Bret Thomas Gunn, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Richard Cleveland Martin, was convicted by a jury in the Criminal Court for Davidson County of first degree premeditated murder and first degree felony murder. The trial court merged the convictions and imposed a life sentence for first degree premeditated murder. On appeal, the defendant contends that (1) the evidence is insufficient to convict the defendant of first degree murder, (2) the trial court erred in admitting two prior violent incidents between the defendant and the victim, and (3) the trial court erred in denying the defendant's motion for mistrial or, in the alternative, a continuance when the testimony of the State's DNA expert differed qualitatively from the report provided during discovery. We affirm the judgments.

http://www.tba2.org/tba_files/TCCA/2009/martinr_051909.pdf


Crediting Credit Card Payments under Senate Bill 2084/House Bill 2120

TN Attorney General Opinions

Date: 2009-05-19

Opinion Number: 09-86

http://www.tba2.org/tba_files/AG/2009/ag_09_86.pdf

Allocation of Emergency Communications Fund; "SafeLink" Program

TN Attorney General Opinions

Date: 2009-05-19

Opinion Number: 09-87

http://www.tba2.org/tba_files/AG/2009/ag_09_87.pdf

Constitutionality of "Exclusionary Rule Reform Act"

TN Attorney General Opinions

Date: 2009-05-19

Opinion Number: 09-88

http://www.tba2.org/tba_files/AG/2009/ag_09_88.pdf

"Self-Help" Seizure of Intellectual Property

TN Attorney General Opinions

Date: 2009-05-19

Opinion Number: 09-89

http://www.tba2.org/tba_files/AG/2009/ag_09_89.pdf

Appointment of Temporary Judges

TN Attorney General Opinions

Date: 2009-05-19

Opinion Number: 09-90

http://www.tba2.org/tba_files/AG/2009/ag_09_90.pdf

Renewal of Insurance Producer Licenses

TN Attorney General Opinions

Date: 2009-05-19

Opinion Number: 09-91

http://www.tba2.org/tba_files/AG/2009/ag_09_91.pdf

TODAY'S NEWS

Legal News
Legislative News
TBA Convention 2009
Passages
TBA Member Services

Legal News
Ethics Commission criticizes, then fires its director
The Tennessee Ethics Commission yesterday voted to fire Executive Director Bruce Androphy in a move that may head off efforts to do away with the watchdog agency. The commission voted 5-1 to place Androphy on administrative leave and terminate him entirely on Aug. 10 after criticizing his approach to ethics enforcement and his management of the ethics agency. Rebecca Bradley, the agency's executive assistant, was named interim director.
Read more in the Tennessean
Constable's lawyer jailed after courthouse tussle
An attorney representing controversial Roane County Constable Mark Patton is in jail, charged with three counts of assault and disorderly conduct after engaging in a physical confrontation with three law enforcement officers at the courthouse's front door. The constable is accused of misusing his office, threatening other law enforcement officers and assaulting Roane County residents. The ouster suit seeks his removal from office.
Read more about the incident in the Knoxville News Sentinel
Memphis law student wins TBA environmental law writing competition
A University of Memphis law student took first place in the Jon E. Hastings Memorial Award Writing Competition sponsored by the Environmental Law Section of the Tennessee Bar Association. Shannon Wiley won for her essay "Lurking in the Water: Withholding Attorneys' Fees as a Threat to Effective Enforcement of the Clean Water Act."
Learn more from the law school's web site
Defense lawyers see ruling as heightening pleading standards
On its face, Ashcroft v. Iqbal was a case with national-security implications. But defense lawyers are taking something different away from the Supreme Court's 5-4 ruling on Monday that a Pakistani Muslim arrested after the Sept. 11 attacks may not sue the former attorney general or current FBI director for abuses he says he suffered in a detention center. The Wall Street Journal's Law Blog reports that some say the Court's ruling essentially established heightened pleading standards under Rule 8 of the Federal Rules of Civil Procedure, extending the ruling of a 2007 antitrust case, Bell Atlantic v. Twombly, to other types of cases.
Read more from the Wall Street Journal's Law Blog
Legislative News
Tie vote kills 'Good Faith Exception' bill in House committee
A day after Tennessee senators approved legislation authorizing evidence to be admitted in court if obtained in improper police searches, the bill died in a House committee. The House Judiciary Committee today voted 7-7 on the bill (SB518). Under House rules, that means it failed.
Read more from the Humphrey on the Hill blog in the Knoxville News Sentinel
Saggy slacks slated for summer study
Legislation to make it a misdemeanor to wear pants exposing underwear was today deferred by the House Judiciary Committee.

TBA Convention 2009
Hotel reservation deadline nearing for TBA Convention
Act now to make sure you can get the special TBA rate at the Peabody Hotel during this summer's upcoming TBA Convention, June 18-20. With big-name speakers like Howard Baker and Harold Ford Jr. and big-impact programs, featuring Coach Phil Fulmer and others, rooms at the hotel are filling up fast, and only a limited number remain at the special TBA rate.
Get full hotel and registration information now
Passages
Former MBA president
dies at 93
Memphis attorney and former Memphis Bar Association President Marvin C. Goff Jr. died May 13 in Memphis. He was 93. A 1947 graduate of the Virginia School of Law, Mr. Goff practiced in Memphis until his retirement in 1983, serving as MBA president in 1965. Services were held Friday at Memorial Park Funeral Home.

TBA Member Services
Have you activated your FedEx shipping discounts?
TBA members are entitled to discounts on FedEx shipping. Did you know that TBA members are saving an average of $83 per quarter by utilizing their FedEx Association Advantage program discounts? Here's what some members have to say about their FedEx savings:

"Our firm took advantage of the Tennessee Bar Association FedEx discounts and saved over $200 on FedEx Express shipments last quarter alone. It's the best $200 we've ever saved," says member Bill Cameron of Cameron & Young in Cookeville. Start saving on your shipments today! For more information on how to enroll, call 1-800-923-7089 or
visit the TBA Web site

 
 
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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.

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