Gov. signs judicial election plan, panel recruitment begins

Gov. Phil Bredesen today signed into law the new judicial election plan for merit selection of all judges, and performance evaluation and retention election of appellate judges.

The first step in implementing the plan will be appointment of the new Judicial Nominating Commission, the 17-member body that will nominate candidates to the governor for appointment to fill judicial vacancies. The new statute provides for an open process in which applicants fill out an application to be provided by the Administrative Office of the Courts. The deadline for applications will be 30 days from posting, which could come as early as tomorrow. At the close of the application period, the AOC will post identifying information on each applicant. A 14-day comment period then will begin.

"It is important that many of our best and brightest lawyers offer themselves for appointment," TBA president Gail Vaughn Ashworth said. "Lt. Gov. [Ron] Ramsey and [House] Speaker [Kent] Williams are committed to appointing a high quality, diverse group to vet judicial candidates."

The TBA Board of Governors will make recommendations for candidates to fill a minimum of 10 and maximum of 14 seats for lawyers in the new body. The TBA process for recommending lawyers for the Judicial Nominating Commission is detailed here. The TBA process for recommending lawyers for the Judicial Performance Evaluation Commission is detailed here.
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.

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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.

ANA MATILDE CALIXTO v. FERNANDO J. CALIXTO

Court: TCA

Attorneys:

Benjamin S. Pressnell, Tazewell, Tennessee, and Mike Whalen, Knoxville, Tennessee, for the appellant, Ana Matilde Calixto.

No appearance by or on behalf of the appellee, Fernando J. Calixto.

Judge: SUSANO

Ana Matilde Calixto filed a petition for an order of protection against her husband, the respondent Fernando J. Calixto. Based upon the petition, an ex parte order of protection was issued and served on the respondent. The trial court subsequently dismissed the petition and the ex parte order. The petitioner appeals. We vacate the trial court's judgment of dismissal and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/calixtoa_062509.pdf


IN RE: JOEDA J.

Court: TCA

Attorneys:

Mark S. Dugger, Elizabethton, Tennessee, for the Appellant, Joseph J.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Elizabeth C. Driver, Senior Counsel, for the Appellee, State of Tennessee, Department of Children's Services.

Judge: SWINEY

This is the second appeal in this parental rights termination case. Following a trial, the Trial Court entered a final judgment on February 25, 2008, terminating the parental rights of Joseph J. ("Father") to his son, Joeda J. ("the Child"). Although the final judgment was entered on February 25, 2008, Father's lawyer states he was incorrectly told by the trial court deputy clerk that the final judgment was entered on February 28, 2008. Father's notice of appeal was untimely filed on March 28, 2008. We dismissed the first appeal after finding that the final judgment had been entered on February 25, 2008, that the judgment was entered in compliance with Tenn. R. Civ. P. 58, and that the notice of appeal was not timely. The Tennessee Supreme Court denied Father's application for permission to appeal. Thereafter, Father filed with the Trial Court a Rule 60 motion for relief from the final judgment. The Trial Court denied the Rule 60 motion, and Father again appeals. We find that the Trial Court did not abuse its discretion when it denied Father's Rule 60 motion and, therefore, affirm the judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2009/joedaj_062509.pdf


DUE HUE NGUYEN v. RASHIDA A. WATSON

Court: TCA

Attorneys:

Andrew J. Evans, Jr., Knoxville, Tennessee, for the appellant, Due Hue Nguyen.

Ursula Bailey, Knoxville, Tennessee, for the appellee, Rashida A. Watson.

Judge: SUSANO

In general sessions court, the plaintiff Due Hue Nguyen was awarded a judgment in 1998 for $6,881.84 against Rashida A. Watson. The defendant appealed to the trial court. The plaintiff moved to dismiss the appeal. The trial court declined to do so. The court ultimately dismissed the plaintiff's civil warrant "for failure to prosecute." The plaintiff appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2009/nguyend_062509.pdf


STATE OF TENNESSEE v. GARY V. BULLARD

Court: TCCA

Attorneys:

Jerry E. Farmer, Murfreesboro, Tennessee, for the appellant, Gary V. Bullard.

Robert E. Cooper, Jr., Attorney General; Elizabeth B. Marney, Assistant Attorney General; William Whitesell, District Attorney General; and Trevor Lynch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Gary V. Bullard, was charged with one count of aggravated assault and one count of attempted aggravated rape. Following a jury trial, he was found guilty of both counts. In this direct appeal, he argues that (1) the State presented evidence sufficient to convict him of simple assault, but not aggravated assault; and (2) the State presented evidence insufficient to convict him of attempted aggravated rape. After our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/bullardg_062509.pdf


STATE OF TENNESSEE v. JEREMY PAUL DUFFER

Court: TCCA

Attorneys:

Cynthia Fort and Matthew Mayo, Nashville, Tennessee, for the appellant, Jeremy Paul Duffer.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Davidson County Criminal Court jury convicted the appellant, Jeremy Paul Duffer, of the following indicted offenses: Seven counts of rape of a child, four counts of aggravated sexual battery, two counts of especially aggravated sexual exploitation of a minor, and two counts of failure to appear. After a sentencing hearing, the appellant received an effective sentence of one hundred thirty-seven years in confinement. On appeal, the appellant contends that the evidence is insufficient to support the convictions and that his effective sentence is excessive. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/dufferj_062509.pdf


STATE OF TENNESSEE v. JOHNNY LYNN, aka JEROME ALVIN BUSS

Court: TCCA

Attorneys:

Trudy L. Bloodworth, Franklin, Tennessee, (at trial and on appeal) and Mark C. Scruggs, Nashville, Tennessee, (at trial) for the appellant, Johnny Lynn, aka Jerome Alvin Buss.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Jeffery L. Long, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Johnny Lynn, aka Jerome Alvin Buss, was convicted upon a Perry County jury verdict of two counts of rape of a child and two counts of aggravated sexual battery. For these convictions, the Defendant received an effective fifty-four-year sentence in the Department of Correction with 100% service required. In this direct appeal, the Defendant raises four issues for our review: (1) whether the trial court erred in allowing expert witness testimony from the nurse practitioner who examined the victim speculating about what children in general understand about their bodies and sex; (2) whether the trial court gave erroneous jury instructions when it stated the elements of child rape could be satisfied by a mental state of recklessness; (3) whether the evidence was insufficient to support the jury's verdict of guilty beyond a reasonable doubt on the charge of rape of a child; and (4) whether the trial court committed sentencing errors. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/lynnj_062509.pdf


THOMAS REED v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Kenneth R. McKnight, Assistant Public Defender, Murfreesboro, Tennessee, for the appellant, Thomas Reed.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William Whitesell, District Attorney General; and David L. Puckett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Thomas Reed, appeals the Cannon County Circuit Court's summary dismissal of his petition for habeas corpus relief. The habeas corpus court dismissed the petition because it was filed in the convicting court rather than in a court in the county of his incarceration. In his petition, he argued that he was unlawfully restrained of his liberty because he had not been furloughed as ordered by the trial court. On appeal, the Petitioner argues that the dismissal is erroneous because he stated a sufficient reason for filing in the convicting court. We conclude that the habeas corpus court did have the authority to consider the petition. Nonetheless, the dismissal is affirmed because the Petitioner has failed to state a cognizable claim for habeas corpus relief.

http://www.tba2.org/tba_files/TCCA/2009/reedt_062509.pdf


TODAY'S NEWS

Legal News
Politics
Disciplinary Actions
TBA Member Services

Legal News
Legal fight brewing over guns in restaurants law
Responding to a new law that allows guns in restaurants that serve alcohol, a coalition of restaurant owners, attorneys and civic leaders plan to sue state lawmakers to stop it from going into effect. The group argues that lawmakers were duped into passing the bill based on inaccurate information from bill supporters.
News Channel 5 has the story
DOJ seeks to join lawsuit against Jackson buses
The U.S. Justice Department is seeking to join a federal disabilities lawsuit filed by local residents and advocates against the city of Jackson's transit buses. The suit alleges that passengers who use wheelchairs are often stranded because wheelchair lifts in the buses are poorly maintained. Federal officials say the city has failed to repair broken lifts or train workers to assist passengers with disabilities, as required by law.
The Commercial Appeal has more
Civil suit filed against slain lawyer's wife
Guardians for the children of Kelley Cannon, the Nashville woman awaiting trial in the murder of her lawyer husband, have filed a $40 million lawsuit saying her erratic and criminal behavior entitle the children to monetary damages. Cannon was arrested last July and charged with murdering James Cannon, her estranged husband and Nashville businessman. WKRN-News Channel 2 reported the story.

AG, Justice Breyer address cocaine sentencing policy
U.S. Attorney General Eric Holder and Supreme Court Justice Stephen Breyer spoke at a meeting sponsored by the Congressional Black Caucus yesterday on the future of cocaine policy and mandatory minimum sentences. Breyer, who helped craft the current cocaine sentencing guidelines, called on Congress to focus on laws creating mandatory minimums before addressing the disparity issue. Holder reiterated the administration's position that the sentencing for crack and powder cocaine should be equalized.
WTVC News 9 has this AP report
Court grants provide law-related assistance
The Administrative Office of the Courts (AOC) has awarded nearly $220,000 in grants from the Parent Education and Mediation Fund (PEMF) to organizations that provide court-related assistance to low-income parties. The 16 organizations that received funding for the 2009-2010 fiscal year provide services such as mediation and interpreter services for low-income parties, courses to improve dispute resolution skills among families, and offering a safe atmosphere for children when exchanged between parents.
Learn more about the grants and who received them
Wade to serve as grand marshal of midnight parade
Tennessee Supreme Court Justice Gary Wade will join local leaders as an honorary grand marshal for what is believed to be the nation's first Independence Day parade of 2009. The parade in Gatlinburg kicks off the city's July 4th celebration at midnight. To honor the 75th anniversary of the Smoky Mountains National Park, the parade also will feature a reenactment of the Sept. 2, 1940, presidential motorcade that transported Franklin D. Roosevelt to Newfound Gap for dedication of the park.
Learn more from Sevier County News
Politics
Herenton resigns to focus on congressional race
Memphis Mayor Willie W. Herenton announced today he will resign on July 10 to run for the 9th Congressional District seat next year. Herenton told supporters that running for Congress while acting as mayor would create a "conflict of interest." He will join his son Rodney at Herenton Capital Management while organizing his campaign.
The Memphis Business Journal reports
Disciplinary Actions
Knoxville lawyer completes CLE but remains suspended
On June 15, the Supreme Court lifted a suspension for noncompliance with CLE requirements that had been in effect since 2000 against Knoxville lawyer Charles Philip Carter. However, Carter remains suspended for failure to respond to a complaint of ethical misconduct. That suspension was imposed on March 30.

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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