Supreme Court says 'crack tax' is unconstitutional

In a 3-2 decision issued today, the Tennessee Supreme Court upheld rulings by the Loudon County Chancery Court and the Eastern Section of the Court of Appeals, each of which had struck down a statute designed to impose a tax on controlled substances. The so-called "crack tax," the high court said in its opinion, violates the state's constitution. In an opinion concurring in part and dissenting in part, Justices William C. Koch Jr. and Cornelia A. Clark disagreed with the majority opinion that determined the tax exceeded the legislature's power to tax "merchants" or "peddlers." They said they would have upheld the new tax.

Read the court's new release explaining the decision

TODAY'S OPINIONS
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STEVEN WATERS ET AL. v. REAGAN FARR, COMMISSIONER OF REVENUE FOR THE STATE OF TENNESSEE

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Brad H. Buchanan, Assistant Attorney General, for the appellant, Reagan Farr, Commissioner of Revenue for the State of Tennessee.

A. Philip Lomonaco, Knoxville, Tennessee, for the appellee, Steven Waters.

Judge: WADE

Effective January 1, 2005, the Tennessee General Assembly enacted a tax on the possession of unauthorized substances for the purpose of generating revenues to assist state and local law enforcement agencies in their efforts to combat drug crimes. Subsequently, Steven Waters was assessed with taxes, penalty, and interest in the total amount of $55,316.84 by the Tennessee Department of Revenue after purchasing nearly a kilogram of cocaine from a confidential informant. In a declaratory judgment suit in the Chancery Court of Loudon County, Waters challenged the constitutionality of the statute on grounds of self-incrimination, double jeopardy and due process. The chancellor declared the statute unconstitutional and set aside the assessment. On direct appeal, the Court of Appeals affirmed, holding that the enactment exceeded the General Assembly's taxing power under article II, section 28 of the Tennessee Constitution. Initially, we hold that the statute imposing the tax on unauthorized substances does not violate the constitutional protections against self-incrimination and double jeopardy or abridge the guarantee of procedural due process. Because, however, the tax cannot be classified as either a tax on merchants, a tax on peddlers or a tax on privileges, as authorized by our state constitution, the judgment of the Court of Appeals is affirmed.

http://www.tba2.org/tba_files/TSC/2009/waterss_072409.pdf

KOCH concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2009/waterss_DIS_072409.pdf


LARRY LYNN AVERITT, SR. v. LYNN BINKLEY AVERITT

Court: TCA

Attorneys:

W. Timothy Harvey, Clarksville, Tennessee, for the Appellant, Lynn Binkley Averitt.

Michael K. Williamson, Clarksville, Tennessee, for the Appellee, Larry Lynn Averitt, Sr.,

Judge: FARMER

In this divorce dispute, Wife argues that the trial court erred in not awarding her the divorce, by characterizing her condominium as marital property, and in the division of marital assets, including funds that the court found Husband had dissipated from the marital estate. Finding that the Husband did not dissipate marital funds, we reverse. On all other issues, we affirm.

http://www.tba2.org/tba_files/TCA/2009/averittl_072409.pdf


STATE OF TENNESSEE, EX REL., JANICE L. BANE v. WILLIAM E. JARVIS

Court: TCA

Attorneys:

William E. Jarvis, Hendersonville, TN, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Warren A. Jasper, Senior Counsel, Nashville, Tennessee, for the appellee, State of Tennessee ex rel., Janice L. Bane.

Judge: DINKINS

Father appeals order finding him in contempt of court and sentencing him to a total of 180 days incarceration. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2009/banej_072409.pdf


DAWN BROWN, ET AL. v. TENNESSEE TITLE LOANS, INC.

Court: TCA

Attorneys:

James R. Kennamer, Chattanooga, Tennessee, for the appellants, Dawn Brown, Anne Devries, Carly Hahn and Greg Walton.

Charles D. Lawson and J. Barlett Quinn, Chattanooga, Tennessee, for the appellee, Tennessee Title Loans, Inc.

Judge: SUSANO

We accepted this interlocutory appeal to consider "the sole issue of whether the Tennessee Title Pledge Act ["the Act"], Tenn. Code Ann. section 45-15-101, et. seq. [(2007)] provides . . . a private right of action." Defendant is a "title pledge lender" as defined in the Act. Plaintiffs all allegedly obtained loans from the defendant and, again allegedly, were charged interest and fees, including a "redemption premium," not allowed by the Act. The trial court granted defendant's motion to dismiss all claims based on alleged violations of the Act, holding that the Act does not afford a private right of action. The trial court granted plaintiffs' motion for an interlocutory appeal pursuant to Tenn. R. App. P. 9. Plaintiffs then filed a timely application for permission to appeal to this Court, which we granted, limited to the stated issue. We now vacate the order of dismissal and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/brownd_072409.pdf


MEGAN GRISWOLD v. JOSH WILLIAMS, ET AL.

Court: TCA

Attorneys:

Josh Williams and Richard Williams, Dowelltown, Tennessee, Pro Se.

Benjamin D. Groce, Murfreesboro, Tennessee, for the appellee, Megan Griswold.

Judge: DINKINS

Sellers of truck appeal award of damages and attorneys fees awarded to purchaser based on finding that sellers violated the Tennessee Consumer Protection Act. Finding no error, we affirm the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2009/griswoldm_072409.pdf


RACHEL (DIXON) LEE, BY HER MOTHER AND NEXT FRIEND, REBECCA LEE v. TENNESSEE DEPARTMENT OF FINANCE AND ADMINISTRATION, ET AL.

Court: TCA

Attorneys:

David Kozlowski, Columbia, Tennessee, for the appellant Rachel (Dixon) Lee.

Robert E. Cooper, Attorney and General Reporter, Shayna Abrams, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Finance and Administration.

Judge: DINKINS

Appellant sought review of the Bureau of TennCare's denial of her request for orthodontic services. An administrative judge ("AJ") issued an initial order upholding the denial. Appellant filed a Motion for Reconsideration of the initial order with the AJ, which was denied. The initial order became final and Appellant filed a petition for judicial review with the chancery court. The court dismissed the petition as untimely, finding that it was not filed within sixty days of entry of the agency's final order. Appellant challenges the trial court's determination of the date at which the order became final. Finding that Appellant's petition was timely filed, the judgment is reversed and the case remanded for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/leer_072409.pdf


IN RE N.J.S. AND M.A.S.

Court: TCA

Attorneys:

Thomas H. Miller, Nashville, Tennessee, for the appellant, V.L.S.

Robert E. Cooper, 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: DINKINS

Mother appeals the termination of her parental rights to two children, asserting that the Department of Children's Services failed to exercise reasonable efforts to reunite her with the children and that the trial court erred in finding that she abandoned the children. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2009/njs_072409.pdf


FRANCIS OSCAR ROY, M.D. v. TENNESSEE BOARD OF MEDICAL EXAMINERS

Court: TCA

Attorneys:

Robert L. Huskey, Manchester, Tennessee, for the appellant, Francis Oscar Roy, M.D.

Robert E. Cooper, Jr., Attorney General and Reporter, and Sue A. Sheldon, Senior Counsel, for the appellee, Tennessee Board of Medical Examiners.

Judge: CLEMENT

A physician appeals the decision of the Board of Medical Examiners to revoke his medical license based upon findings that he prescribed narcotics or controlled drugs without proper documentation and without appropriate clinical indications. In his petition for judicial review, the physician contends the Board violated his due process rights by admitting into evidence the deposition of the Department of Health's only expert witness, whose testimony was obtained pursuant to a deficient notice of deposition. The Chancery Court found that the physician waived any errors and irregularities in the notice for taking the deposition because he failed to promptly object in writing as required by Tenn. R. Civ. P. 32.04(1) and that the admission of the deposition of the Department's expert witness into evidence did not violate the physician's due process rights. We affirm.

http://www.tba2.org/tba_files/TCA/2009/royf_072409.pdf


ANNAMARIE STURGEON v. ROBERT STURGEON

Court: TCA

Attorneys:

Robert S. Sturgeon, Sevierville, Tennessee, pro se.

Melissa Moore, Sevierville, Tennessee, for appellee, AnnaMarie Sturgeon.

Judge: FRANKS

In this divorce action the Trial Court granted the wife a divorce, granted the mother custody of the daughter, and ordered child support. The husband has perfected his appeal pro se, but failed to file a transcript of the evidence admitted before the Trial Court. Essentially, all the issues raised on appeal by the husband are factual in nature, and in the absence of a transcript of evidence we must conclusively presume that the Trial Court's findings of fact are correct and we therefore affirm the Judgment of the Trial Court and remand.

http://www.tba2.org/tba_files/TCA/2009/sturgeona_072409.pdf


STATE OF TENNESSEE v. CHRISTOPHER ANDERSON

Court: TCCA

Attorneys:

Randall B. Tolley (on appeal) and Cornelius Bostick (at trial) for the appellant, Christopher Anderson.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William L. Gibbons, District Attorney General; and Kevin Rardin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Christopher Anderson, was convicted by a Shelby County jury on one count of aggravated burglary, a Class C felony, and two counts of aggravated robbery, Class B felonies. The defendant received sentences of three years for aggravated burglary and eight years for each count of aggravated robbery to be served concurrently in the Tennessee Department of Correction. On appeal, the defendant raises the following issues: (1) whether the trial court erred in denying the defendant's motion to sever his cases from the cases of his co-defendant; (2) whether the trial court erred in denying the defendant's motion for judgment of acquittal as to Count III, charging aggravated robbery; (3) whether the evidence presented at the trial was sufficient to support the defendant's convictions; and (4) whether the trial court erred in excluding defense counsel's inquiry on cross-examination of the co-defendant regarding bias. 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/andersonc_072409.pdf


STATE OF TENNESSEE v. JECORY J. LEONARD

Court: TCCA

Attorneys:

Mart G. Fendley, Clarksville, Tennessee, for the appellant, Jecory J. Leonard.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; John Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Jecory J. Leonard, pled guilty in the Montgomery County Circuit Court to facilitation of second degree murder and facilitation of attempted first degree murder, Class B felonies. The plea agreement provided that the length and manner of service of the sentences would be determined by the trial court. Following a sentencing hearing, the appellant was sentenced to concurrent sentences of ten years in the Tennessee Department of Correction. On appeal, the appellant challenges the length of the sentences imposed and the denial of alternative sentencing. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/leonardj_072409.pdf


BRYANT D. MILLEN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert Brooks, Memphis, Tennessee, for the appellant, Bryant D. Millen.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and P.T. Hoover, Dennis Johnson, and David Zak, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Bryant D. Millen, appeals the post-conviction court's denial of his petition for post-conviction relief. On appeal, he asserts that he received the ineffective assistance of counsel. Specifically, he argues that his trial counsel was ineffective in failing to interview and investigate witnesses. He further asserts that trial counsel failed to impeach the testimony of a witness with a prior inconsistent statement. After a thorough review of the record and the parties' briefs, the judgment of the post-conviction court denying post-conviction relief is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/millenb_072409 .pdf


STATE OF TENNESSEE v. MARCIE LYNN PURSELL

Court: TCCA

Attorneys:

Ronald Pursell and Jodie A. Bell, Nashville, Tennessee, for the appellant, Marcie Lynn Pursell.

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

Judge: WELLES

The Defendant, Marcie Lynn Pursell, aka Marcie Pursell Frazier, was indicted in the Davidson County Criminal Court for three counts of aggravated child abuse. Thereafter, the Davidson County Juvenile Court concluded that the State had not proved allegations, in a dependent and neglect petition, that the Defendant had injured her child or allowed the child to be injured. The Defendant sought to dismiss the felony child abuse charges in criminal court on collateral estoppel grounds. The trial court denied her motion. The trial court and this Court granted her Rule 9 application for an interlocutory appeal. Following our review of the record, the judgment of the Davidson County Criminal Court finding that the State was not collaterally estopped from pursuing criminal prosecution against the Defendant is affirmed. This case is remanded to the trial court for further proceedings.

http://www.tba2.org/tba_files/TCCA/2009/pursellm_072409.pdf


STATE OF TENNESSEE v. MICHAEL VINCENT RICCO

Court: TCCA

Attorneys:

Hewitt Chatman, Assistant Public Defender, Jackson, Tennessee, for the appellant, Michael Vincent Ricco.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Jerry Woodall, District Attorney General; and Bill R. Martin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant was convicted by jury of rape of a child and aggravated sexual battery. He was subsequently sentenced to 18 years for rape of a child and 10 years for aggravated sexual battery. His sentences were ordered to run consecutively for a total effective sentence of 28 years. On appeal, the defendant presents the following issues for review: (1) whether the evidence was sufficient to sustain his convictions, and (2) whether the trial court erred in ordering the defendant to serve his sentences consecutively rather than concurrently. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/riccom_072409.pdf


STATE OF TENNESSEE v. SAM AVERY WILHOITE

Court: TCCA

Attorneys:

Michael J. Collins, Assistant Public Defender, for the appellant, Sam Avery Wilhoite.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Michael D. Randles and William B. Bottoms, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Sam Avery Wilhoite, was indicted on ten counts of forgery involving five forged checks. A Bedford County Circuit Court jury convicted him of eight counts of forgery and lesser- included charges on two of the counts. The trial court merged five of the counts, including the lesser-included convictions, with the five other counts and sentenced the defendant to an effective term of eight years in the Department of Correction. On appeal, he challenges the sufficiency of the evidence and the sentence imposed by the trial court. After review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/wilhoites_072409.pdf


TODAY'S NEWS

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Legal News
Analysis shows demographic breakdown of commission candidates
More than 120 people now make up the pool of candidates seeking to serve on the new Judicial Nominating Commission (JNC), which will submit candidates to the governor to fill vacancies on Tennessee's trial and appellate bench. Of that total, 90 are lawyers, who are broken down as follows:

-- 24 identify themselves as from West Tennessee, 37 from Middle Tennessee and 27 from East Tennessee.
-- 71 are male, 19 are female.
-- 9 identify themselves as African Americans, 75 as Caucasian, 1 as Hispanic, 1 as Korean/German, 1 as multiracial and 3 with no information.

Interested applicants have until July 31 file for consideration with the Administrative Office of the Courts. The TBA Board of Governors will hold a special meeting on Aug. 13 to make its recommendations on filling the commission seats designated for lawyers.
Details on how to apply are on the AOC web site
Cohen vindicated in Mardis case
U.S. Rep. Steve Cohen did not act improperly two years ago when he lobbied for federal prosecution of a gun dealer in the death of Code Enforcement Officer Mickey Wright, U.S. Magistrate Judge Tu Pham ruled this week. Attorneys for Dale Mardis said Cohen violated the separation of powers doctrine of the three branches of government and asked that the civil rights murder charges against Mardis be dismissed.
Read more in the Commercial Appeal
Admitting mistakes reduces suits at Michigan hospital
At the University of Michigan Health System, doctors and lawyers say admitting mistakes up front and offering compensation before being sued have brought about remarkable savings in money, time and feelings. "What we are doing is common decency," said Richard Boothman, a veteran malpractice defense lawyer and chief risk officer for a health system with 18,000 employees and a $1.5 billion annual budget.
NorthWest Tennessee Today has this AP story
Attorney to be sentenced today for faking own death
Nashville attorney Bill Grothe, 62, pleaded guilty in May to one count of attempting to defraud his insurance company and another of creating the false impression of his own death. Last year he faked his own death and then later turned up in Montana. Today Criminal Court Judge Mark Fishburn will decide his sentence, which could be up to three years.
The City Paper reports
Alamo found guilty
"Evangelist" Tony Alamo was found guilty today of taking girls as young as 9 across state lines for sex, in violation of a nearly century-old federal law. Alamo was accused in a 10-count indictment that said the abuse started in 1994. Sentencing will be in six to eight weeks.
The Tennessean carried this AP story
How honest are law schools in the U.S. News poll?
U.S. News & World Report asked itself about its own law school rankings: Just how honest are law schools when they report their data for the 2010 Best Law Schools rankings? Chapman University School of Law Professor Tom Bell scrutinized and double-checked the rankings -- and found it "gratifyingly close."
U.S. News reports on itself
FBI was ambush target during Nashville Hoffa trial, transcripts say
Associates of the late Teamsters union boss Jimmy Hoffa plotted to ambush a group of FBI agents during his 1962 trial in Nashville, newly released transcripts of federal grand jury testimony indicate. The plan was not carried out. The trial, on charges that Hoffa took payoffs from trucking companies, ended in a hung jury. But Hoffa was convicted two years later of jury tampering during the Nashville trial.
The Chattanooga Times Free Press has more
Politics
Gibbons pushes anti-crime message
Shelby County District Attorney General and GOP gubernatorial candidate Bill Gibbons argued today that improving Tennessee's economic outlook should be as much about reducing the state's crime rate as job growth and education. He was on the campaign trail outside of Knoxville with Knox County District Attorney General Randy Nichols, a Democrat who has crossed party lines to serve Gibbons' campaign as one of 12 vice chairmen, nine of whom are fellow DAs.
The News Sentinel reports
TennBarU CLE
Upcoming webcasts focus on business valuation
If you deal with family law, business, estate or tax cases, you need to know something about business valuations. Back-to-back webcasts this coming week from Memphis attorney Miles Mason and Knoxville CPA Robert Vance will give you the information you need. Both will be aired on Wednesday, July 29. The first -- beginning at noon central time -- describes best practices in finding the right valuation expert, engagement planning, and the discovery process. The second one-hour session -- beginning at 1:30 p.m.-- will look at the specific definitions, requirements, and limitations for business valuations in Tennessee. Understanding the specific nuances in Tennessee can make the difference between success and failure.
Learn more about these and other upcoming webcasts
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The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
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