Sixth Circuit upholds state's lethal injection process

The 6th U.S. Circuit Court of Appeals today vacated a lower court's ruling that Tennessee's lethal injection process is unconstitutional. In 2007, the U.S. District Court for the Middle District of Tennessee supported a claim by death row inmate Edward Jerome Harbison that the state's lethal injection process violated his Eighth Amendment right. In overturning the decision, the appeals court also vacated an injunction against Harbison's execution. One judge departed from the majority's opinion arguing that the court relied on a recent Supreme Court decision upholding Kentucky's lethal injection process without investigating what differences might exist between Kentucky and Tennessee procedures.

Download the opinion or read more from the News Sentinel
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.

03 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
03 - TN Court of Criminal Appeals
00 - 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.

LEE HAYES v. GIBSON COUNTY, TENNESSEE

Court: TSC

Attorneys:

J. Mark Johnson, Trenton, Tennessee, for the appellant, Lee Hayes.

Floyd S. Flippin and Terri Smith Crider, Humboldt, Tennessee, for the appellee, Gibson County, Tennessee.

Judge: LEE

The issue presented in this declaratory judgment action brought by Lee Hayes, the Gibson County juvenile court clerk, is whether he should be compensated pursuant to Tennessee Code Annotated section 8-24-102, as amended in 2001, which sets the Gibson County juvenile court clerk's salary at a minimum of $50,805 per year, or pursuant to a 2000 private act that sets the salary at $32,000 per year. Gibson County argues, and the Court of Appeals agreed, that the private act of 2000 creating the office of Gibson County Juvenile Court Clerk and establishing his salary at $32,000 per year, controls. Mr. Hayes argues that the General Assembly's 2001 amendment to Tennessee Code Annotated section 8-24-102, establishing statewide salaries for county officers, including juvenile court clerks, supersedes the 2000 private act and that his annual salary should be $50,805 in accordance with Tennessee Code Annotated section 8-24-102, as amended. We hold that there is an irreconcilable conflict between the 2000 private act and the 2001 public act, and that the 2001 public act, a general statutory scheme of statewide application, supersedes and repeals by implication the earlier private act. Accordingly, the judgment of the Court of Appeals is reversed and the case remanded to the trial court.

http://www.tba2.org/tba_files/TSC/2009/hayesl_070209.pdf


IN RE: MILBURN HOGUE and MELANIE HOGUE

Court: TSC

Attorneys:

Tracy L. Schweitzer, Nashville, Tennessee, for the movant, Henry E. Hildebrand III, Trustee.

Steven L. Lefkovitz, Nashville, Tennessee, for the respondents, Milburn LaFayette Hogue and Melanie Starr Hogue.

Judge: LEE

The certified question from the United States Bankruptcy Court for the Middle District of Tennessee that we address in this case is: what amount may each member of a married couple with custody of a minor child claim as a homestead exemption, pursuant to Tennessee Code Annotated section 26-2- 301(f), in a joint petition for bankruptcy? We hold that the statute allows each individual debtor spouse with custody of a minor child to claim a $25,000 exemption for a combined exemption of $50,000, based upon the plain and ordinary meaning of the statutory language.

http://www.tba2.org/tba_files/TSC/2009/hoguem_070209.pdf


H. OWEN MADDUX v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Court: TSC

Attorneys:

H. Owen Maddux (pro se) and Mike A. Little, Chattanooga, Tennessee, for the appellant, Hudson Owen Maddux.

Krisann Hodges, Nashville, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

Judge: LEE

This is a direct appeal of a trial court judgment affirming a hearing panel's order which found that an attorney had violated the Rules of Professional Conduct and suspended him from the practice of law for five months. The attorney argues on appeal that the suspension should be reduced to a public censure or a suspension of lesser duration. After careful review of the record, we find no error in the ruling of the hearing panel and, accordingly, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC/2009/madduxh_070209.OPN.pdf


IN THE MATTER OF: J.R.L.-D (d.o.b. 9/1/06), A Child Under Eighteen Years of Age

Court: TCA

Attorneys:

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

No attorney on record for appellee.

Judge: FARMER

This appeal arises from an action to terminate Mother's parental rights. The sole issue on appeal is whether the trial court erred in awarding fees to Mother's attorney and the guardian ad litem. We reverse.

http://www.tba2.org/tba_files/TCA/2009/jrl_070209.pdf


IN THE MATTER OF M.C.

Court: TCA

Attorneys:

Eric J. Yow, Clarksville, TN, for the Appellant, L.B.

Robert E. Cooper, Jr., Attorney General and Reporter, and Michael E. Moore, Solicitor General, Lindsey O. Appiah, Nashville, Tennessee, for Appellee, State of Tennessee, Department of Children's Services.

Judge: STAFFORD

This is a termination of parental rights case. Mother appeals the trial court's termination of her parental rights on grounds of abandonment for willful failure to visit and failure to provide suitable housing, failure to substantially comply with the requirements of the permanency plans, and persistence of conditions. Finding that the grounds for termination of Mothers's parental rights are established by clear and convincing evidence, and that termination is in the best interest of the minor child, we affirm.

http://www.tba2.org/tba_files/TCA/2009/mc_070209.pdf


IN RE Z.V.S.P. AND F.A.P.

Court: TCA

Attorneys:

Carl R. Moore, Murfreesboro, Tennessee, for the appellant, F.F.K.

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

Judge: DINKINS

The trial court terminated Mother's parental rights to her two minor children upon a finding by clear and convincing evidence that grounds for termination existed and that termination was in the best interest of the children. Mother appeals; we modify and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2009/zvsp_070209.pdf


STATE OF TENNESSEE v. DARRIN BONNER

Court: TCCA

Attorneys:

Robert W. Jones, Shelby County Public Defender; Phyllis Aluko, Assistant Public Defender, Memphis, Tennessee (on appeal); Jennifer Johnson and Glenda Adams, Assistant Public Defenders, Memphis, Tennessee (at trial), for the defendant-appellant, Darrin Bonner.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Corliss Shaw, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Darrin Bonner ("Bonner"), was convicted by a Shelby County Criminal Court jury of intentionally evading arrest in a motor vehicle, a Class D felony, and was later sentenced to six years in confinement. On appeal, Bonner argues that: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in admitting hearsay testimony; and (3) the cumulative effect of the errors at trial deprived him of his federal and state constitutional rights. Following our review, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/bonnerd_rev_070209.pdf


PERRY ANTHONY CRIBBS v. STATE OF TENNESSEE
With Concurring and Dissenting Opinion


Court: TCCA

Attorneys:

Paul J. Morrow, Jr., and Sara Willingham, Nashville, Tennessee, for the appellant, Perry Anthony Cribbs.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore Solicitor General; James E. Gaylord, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Perry Anthony Cribbs, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief from his convictions for first degree felony murder, attempted first degree murder, and aggravated burglary, and resulting sentences of death, forty years, and ten years, respectively. On appeal, the petitioner presents a number of claims that can be characterized in the following categories: (1) he is actually innocent of murder; (2) he was denied a fair post-conviction evidentiary hearing; (3) the post-conviction court's failure to conclude that he was mentally retarded was contrary to the proof presented by the psychological experts; (4) he was denied the effective assistance of counsel at trial and on direct appeal; and (5) Tennessee's death penalty statute violates the United States and Tennessee Constitutions. Following a thorough and exhaustive review of the record and the applicable law, we conclude that the petitioner received the ineffective assistance of counsel at sentencing. Therefore, the petitioner's death sentence is reversed, and the case is remanded to the trial court for a new capital sentencing hearing. The judge who presided over this post-conviction proceeding is disqualified from any subsequent proceedings in this case.

http://www.tba2.org/tba_files/TCCA/2009/cribbsp_070209.pdf

WOODALL concurring and dissenting
http://www.tba2.org/tba_files/TCCA/2009/cribbsp_dis_070209.pdf


STATE OF TENNESSEE v. HUBERT RAY

Court: TCCA

Attorneys:

Randy G. Rogers, Athens, Tennessee, for the appellant, Hubert Ray.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Robert Steve Bebb, District Attorney General; and Andrew Freiberg, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Hubert Ray, was convicted of aggravated sexual battery, a Class B felony, and was sentenced as a Range I, standard offender to ten years in the Tennessee Department of Correction. On appeal, he argues that: the evidence was insufficient to establish venue; the trial court did not properly instruct the jury; and he was sentenced improperly. After careful review, we conclude that the evidence was sufficient to establish venue and that the jury was properly instructed. However, the defendant's sentence was enhanced by applying enhancement factors not determined by a jury. In view of Blakely, the defendant's sentence of ten years is reduced to eight years. We affirm the conviction and modify the sentence to eight years.

http://www.tba2.org/tba_files/TCCA/2009/rayh_070209.pdf


TODAY'S NEWS

Politics
Legal News
Supreme Court Report
TBA Member Services

Politics
State senator files for governor's race
State Sen. Jim Kyle of Memphis, Democratic leader in the senate, has filed for the 2010 governor's race. Reached at his law office in Memphis for comment, Kyle said he was working towards an announcement later this month. Former State Sen. Andy Womack of Murfreesboro will serve as Kyle's treasurer. Kyle joins four other declared candidates: State Sen. Roy Herron, D-Dresden, Jackson businessman Mike McWherter, Nashville businessman Ward Cammack, and former state representative Kim McMillan of Clarksville.
The Nashville Post has the story
Legal News
Nashville judge to hear guns-in-bars case
Nashville Chancellor Claudia Bonnyman has agreed to hear the case seeking an injunction to stop the guns-in-bars legislation from taking effect. The lawsuit, which was filed yesterday by 10 Tennessee citizens -- including lead plaintiff and Nashville restaurateur Randy Rayburn -- challenges the legality and the constitutionality of the new legislation. Nashville Attorney David Randolph Smith will appear before Bonnyman on July 7 on behalf of the group, according to the Nashville City Paper.

DA seeking ouster of constable
Roane County attorney Tom McFarland and District Attorney General Russell Johnson are seeking the ouster of a constable they say has been intimidating and harassing law enforcement officers, elected officials and residents. Court testimony is now complete and the fate of the officer rests in the hands of Circuit Court Judge Russell E. Simmons Jr., who says he will rule soon.
Read more in the News Sentinel
Judge hopes to name new court security director soon
Cheatham County courthouse security director Tim Hatter turned in his resignation last week after being offered a new job in Florida. Hatter, whose last day will be July 10, has served in the role since August 2007. He also has worked for the Cheatham County Sheriff's Department, Ashland City Police Department and the 23rd Judicial District Drug Task Force over the past 14 years. General Sessions Judge Phil Maxey, who oversees court security, says he hopes to have a replacement named soon.
The Tennessean reports
TRA elects new agency chair
The Tennessee Regulatory Authority (TRA) board of directors yesterday elected Sara Kyle to serve as chair of the agency, which is responsible for regulating the state's privately owned utilities. Kyle succeeds former chair Eddie Roberson who served as interim chair after Tre Hargett left the position to become secretary of state. Kyle was originally nominated to the board in 1996 by House Speaker Jimmy Naifeh.

Law school debt derails would-be lawyer
Robert Bowman has overcome a number of personal and health challenges to graduate from law school and pass the New York state bar exam, but a group of state appellate judges has decided his student loans are too big, and his efforts to repay them too meager, for him to be a lawyer. Bowman is now suing the loan originator claiming he was overcharged, assessed unjustified fees and unfairly denied deferrals in hopes his debt will be reduced and his application to the bar will be approved.
The New York Times reports
Supreme Court Report
U.S. Supreme Court closes deeply divided term
With the close of the most recent Supreme Court term, analysts are starting to draw conclusions about trends at the court. NPR's Nina Totenberg reports that "a picture is emerging of a conservative court on a slow but steady march to the right," that also might be the most divided court in modern history.
Read her review of the term
TBA Member Services
Save at FedEx Kinkos
Through your membership in the TBA, your business can enjoy FedEx reliability and special savings on a variety of FedEx services, including savings on FedEx Kinkos services. All you have to do is sign up. Opening an account is free and there is no minimum shipping requirement.
Find out 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 2009 Tennessee Bar Association