Senate confirms first Hispanic Supreme Court justice

The U.S. Senate today confirmed Sonia Sotomayor as the first Hispanic justice on the Supreme Court by a vote of 68-31. She becomes the 111th justice and just the third woman to serve. Democrats praised the 55-year-old Sotomayor as a mainstream moderate, while most Republicans voted against her, saying she'd bring personal bias and a liberal agenda to the bench. Senators took the rare step of assembling at their desks on the Senate floor for the historic occasion, rising from their seats to cast their votes. Sotomayor replaces retiring Justice David Souter.

Read about the floor debate on Law.com

TODAY'S OPINIONS
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WILLIE JACKSON v. CORPORATE LEASING SYSTEMS, INC.

Court: TWCA

Attorneys:

Vickie L. Moffett, Memphis, Tennessee for the appellant, Corporate Leasing Systems, Inc.

Christopher L. Taylor, Memphis, Tennessee for the appellee, Willie Jackson.

Judge: KURTZ

Employee alleged that he sustained a compensable injury to his wrist. There was conflicting medical evidence concerning causation and impairment. The trial court ruled that Employee had sustained a compensable injury and assigned 10% permanent partial disability to the right arm. On appeal, Employer contends that the trial court erred by admitting the testimony of Employee's medical expert and by finding that Employee sustained a compensable injury and permanent disability. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2009/jacksonw_080609.pdf


THOMAS MICHAEL ROSS v. DELTA INDUSTRIAL COATINGS, INC. ET AL.

Court: TWCA

Attorneys:

Jefferey D. Foster and David E. Goudie, Jackson, Tennessee, for the appellants, Delta Industrial Coatings, Inc. and Bridgefield Insurance Company.

Ronald T. Riggs, Memphis, Tennessee, for the appellee, Thomas Michael Ross.

Judge: KURTZ

Employee was injured when lifting a can of paint at work. Employee's treating physicians recommended surgery, but Employee refused surgical treatment. The trial court found that Employee had sustained a 60% permanent partial disability ("PPD"). The court also found that the date of maximum medical improvement ("MMI") was January 26, 2007, and that Employee was entitled to temporary total disability ("TTD") until that date. Employer appealed, arguing that the trial court erred in its determination of the date of MMI and that the award of PPD is excessive. We conclude that the evidence does not preponderate against the trial court's findings concerning the impairment rating and vocational disability. We reverse the trial court's finding as to the date of maximum medical improvement.

http://www.tba2.org/tba_files/TSC_WCP/2009/rosst_080609.pdf


ALEX FRIEDMANN v. CORRECTIONS CORPORATION OF AMERICA

Court: TCA

Attorneys:

Joseph F. Welborn, III, and Jason W. Callen, Nashville, Tennessee, for the Appellant, Corrections Corporation of America.

Andrew C. Clarke, Memphis, Tennessee, for the Appellee, Alex Friedmann, individually and as Associate Editor of Prison Legal News.

Richard L. Colbert, Franklin, Tennessee, for Amicus Curiae Tennessee Secondary School Athletic Association.

Tricia Herzfeld, Nashville, Tennessee, for Amicus Curiae The American Civil Liberties Union of Tennessee, The Associated Press, The Society of Professional Journalists, The Reporters Committee for Freedom of the Press, The American Society of Newspaper Editors, and The Association of Capitol Reporters and Editors.

Judge: SWINEY

This Public Records Act case was filed by Alex Friedmann ("Plaintiff") against Corrections Corporation of America ("CCA"). Plaintiff seeks various records from CCA. Plaintiff claims that by operating prisons for Tennessee, CCA is the functional equivalent of a state agency and, therefore, subject to the Public Records Act, Tenn. Code Ann. section 10-7-501 et seq. CCA maintains that it is not the functional equivalent of a state agency, that the Public Records Act does not apply to it, and even if it does, many of the records Plaintiff seeks are otherwise protected from disclosure. Following a hearing, the Trial Court determined that CCA was operating as the functional equivalent of a state agency and ordered production of most of the requested documents. CCA appeals. For the reasons discussed below, we find that CCA is operating as the functional equivalent of a state agency. However, we also find that any public records available to Plaintiff are limited to the documents identified in Tenn. Code Ann. section 41-24-117, which is part of the Private Prison Contracting Act of 1986. The judgment of the Trial Court is affirmed in part, reversed in part, and this case is dismissed.

http://www.tba2.org/tba_files/TCA/2009/friedmanna_080609.pdf


REGINALD ALMO v. HENRY STEWARD, WARDEN

Court: TCCA

Attorneys:

Reginald Almo, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Lacy Wilber, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Reginald Almo, appeals pro se the dismissal of his petition for habeas corpus relief in the Lauderdale County Circuit Court from his conviction for second degree murder, a Class A felony. The petitioner alleged that: counsel provided ineffective assistance of counsel; his guilty plea was entered unknowingly and unintelligently; and he was sentenced outside of his range. The habeas corpus court determined that his claims of ineffective assistance of counsel were not cognizable claims for relief in a habeas corpus proceeding and that his sentencing issue had previously been determined. After careful review, we affirm the dismissal of the petition for habeas corpus relief.

http://www.tba2.org/tba_files/TCCA/2009/almor_080609.pdf


STATE OF TENNESSEE v. SAMUEL T. ANDERSON

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General; and Glen Baity, Assistant District Attorney General, for the appellant, State of Tennessee.

Marvin Ballin, Memphis, Tennessee, for the appellee, Samuel T. Anderson.

Judge: WILLIAMS

The issue is who has authority and jurisdiction to establish terms and conditions of a defendant's lifetime community supervision imposed pursuant to Tennessee Code Annotated section 39-13-524. We conclude it is the Tennessee Board of Probation and Parole. Therefore, the trial court's order in this case modifying the terms and conditions of the defendant's lifetime community supervision is reversed.

http://www.tba2.org/tba_files/TCCA/2009/andersons_080609.pdf


STATE OF TENNESSEE v. PATRICK DANIELS

Court: TCCA

Attorneys:

Leslie I. Ballin, Memphis, Tennessee, for the appellant, Patrick Daniels.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Michael McCusker, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant was granted this extraordinary appeal, pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure, to challenge the Shelby County Criminal Court's denial of his motion to suppress evidence seized pursuant to a search warrant that was endorsed with the wrong time of issuance. Because the warrant does not comply with Rule 41 of the Tennessee Rules of Criminal Procedure, we reverse the trial court's order denying the motion to suppress and remand the case for proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2009/danielsp_080609.pdf


ELROY GAINES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Juni Ganguli, Memphis, Tennessee, for the appellant, Elroy Gaines.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; William L. Gibbons, District Attorney General; and Greg Gilbert, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Elroy Gaines, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief. Following a jury trial, he was convicted of aggravated sexual battery, a Class B felony, and was subsequently sentenced as a career offender to thirty years in the Department of Correction. On appeal, the petitioner argues that he was denied his right to the effective assistance of counsel based upon counsel's failure to: (1) properly investigate the case and prepare for trial; (2) adequately communicate with the petitioner; and (3) properly preserve appellate issues. Following review of the record, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/gainese_080609.pdf


STATE OF TENNESSEE v. HAZEL GILLENWATER

Court: TCCA

Attorneys:

Martha Yoakum and Larry Bryant, LaFollette, Tennessee, for the appellant, Hazel Gillenwater.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William Paul Phillips, District Attorney General, and Tracy Jenkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant pled guilty in the Union County Criminal Court to theft over ten thousand dollars, a class C felony, and official misconduct, a class E felony. Pursuant to her plea agreement, she received a total effective sentence of three years to be served on probation. The sole issue on appeal is the trial court's denial of her application for judicial diversion. Upon review of the record, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2009/gillenwaterh_080609.pdf


STATE OF TENNESSEE v. STEVEN WATSON

Court: TCCA

Attorneys:

Coleman Garrett and Michael Campbell, Memphis, Tennessee, for the appellant, Steven Watson.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lora Fowler and David Zak, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Steven Watson, was convicted by a Shelby County jury of aggravated assault, a Class C felony, and sentenced to a term of six years. He was ordered to serve six months in the Shelby County Correctional Center, with the balance of his sentence on probation. The defendant was also ordered to pay $8800 in restitution to the victim. On appeal, the defendant has raised five issues for review: (1) whether the evidence is sufficient to support the conviction; (2) whether the trial court erred in allowing the defendant to be questioned regarding a sixteen-year-old prior conviction; (3) whether the court erred in its application and weighing of enhancing and mitigating factors; (4) whether the court erred in denying the defendant's request for full probation; and (5) whether the court erred by ordering restitution in the amount of $8800 be paid to the victim without proof of his medical bills or lost wages. Because of an untimely filed motion for new trial, the defendant has waived review of his evidentiary issue regarding the prior conviction. After review, we conclude that the evidence is sufficient and that the sentence imposed, with regard to length and manner of service, is proper. With regard to the order of restitution, we conclude that, while the amount of restitution ordered was properly established, remand is necessary for a determination of the defendant's ability to pay as required by statute. The judgment of conviction and sentence are affirmed in all other respects.

http://www.tba2.org/tba_files/TCCA/2009/watsons_080609.pdf


TODAY'S NEWS

Legal News
Passages
Disciplinary Actions
Clarification
TBA Member Services

Legal News
Mayor needs approval before firing city attorney
A judge ruled yesterday that Memphis Mayor Pro Tem Myron Lowery must get the city council's approval before firing city attorney Elbert Jefferson. The decision came in a suit brought by Jefferson challenging Lowery's authority to replace him.
The Commercial Appeal reports
Judge gives Jackson more control over schools
U.S. District Judge Samuel H. Mays Jr. yesterday granted partial unitary status to the Jackson-Madison County schools, citing the school system's good faith effort to desegregate the district. The order gives the district greater control over facilities, faculty and staff, pupil transportation and extracurricular activities. When the system earns full unitary status, the school board will be able to make decisions without involving the Department of Justice and the federal courts.
Read more from the Jackson Sun
District 19 public defenders swap assignments
Judicial District 19 public defenders are on the move. Senior assistant public defender Charles Bloodworth has been named public defender in Montgomery County, where he will represent clients before Circuit Court Judge John Gasaway. He previously served as an assistant public defender in Robertson County Circuit Court. Assistant public defender Collier Goodlett, who previously held the position in Montgomery County, has been reassigned to General Sessions Court in Robertson County. He replaces assistant public defender Timothy Richter who has moved to Bloodworth's previous position in Robertson County.
Read more about the changes in the Leaf Chronicle
Lawyer indicted on charges of pilfering funds
Nashville lawyer David Weed was indicted yesterday on charges that he pilfered more than $100,000 from a state program meant to subsidize childcare for needy children. Weed was appointed eight years ago to oversee the assets of Cherokee Child and Family Services, which had a contract with the state to place Memphis children in subsidized childcare. Weed also was to have recovered state money lost due to corruption in the program.
The Tennessean has the story
Anderson Co. to re-launch nonviolent offenders program
Anderson County officials are turning to an old idea in hopes of saving taxpayers money, ridding the streets of crime and easing the burden on the county jail and criminal court, which has seen an 83 percent increase in its case load since 2006. The county sheriff and criminal court judge are leading the effort to reinstate community corrections, which provides nonviolent drug offenders with alcohol and drug education classes and therapy while they continue to work, support their families and remain drug-free.
Learn more about the effort from WATE News 6
Memphis lawyer named to ABA communications committee
Memphis lawyer Lucian Pera has been appointed as a special advisor to the American Bar Association's Standing Committee on Strategic Communications for a one-year term. He previously served for five years on an ABA commission charged with evaluating the Rules of Professional Conduct. Pera is a partner with Adams and Reese LLP in Memphis.

Passages
Knoxville lawyer dies
Mary Lynn Rogers Carl, 52, died Aug. 3 after a battle with cancer. Carl, an assistant district attorney and advocate for child support enforcement, had practiced law with the Oak Ridge firm of Joyce, Meredith, Flitcroft and Norman for 20 years. She was also an accomplished violinist and musician, playing with the Knoxville Symphony Orchestra for 30 years. A memorial service will be held Saturday at 1 p.m. at Cokesbury United Methodist Church in Knoxville. The family requests that in lieu of flowers, memorials be donated to The Wellness Community of East Tennessee, 2230 Sutherland Ave., Knoxville, TN 37919; The Joy of Music Youth Music School, 12909 Euclid Ave., Knoxville, TN 37921; or Cokesbury United Methodist Church, 9908 Kingston Pike, Knoxville, TN 37922.
Read about Carl's life in the News Sentinel
Disciplinary Actions
Knoxville lawyer reinstated
Knoxville attorney Charles P. Carter was reinstated to the practice of law on July 29. He had been suspended in March for failing to respond to a complaint of misconduct.
Read the BPR release
Chattanooga attorney suspended
On July 30, Bruce H. Guthrie of Chattanooga was suspended for 26 months for neglecting the files of four separate clients and failing to communicate with clients. However, the court allowed his suspension to run retroactively from May 18, 2007 -- the date his temporary suspension was imposed. Guthrie also was ordered to pay the costs of the disciplinary proceedings.
View BPR notice
Knoxville lawyer suspended
On July 31, the Tennessee Supreme Court temporarily suspended the law license of Knoxville lawyer Steven Lee Williams after he failed to respond to a complaint of ethical misconduct.
Download the BPR notice
Clarification
Yesterday's story about the Judicial Performance Evaluation Commission incorrectly identified the number of lawyers who have applied for the Judicial Nominating Commission. Of the 237 total applicants, there are 186 attorneys.

TBA Member Services
Free online legal research is hot TBA benefit
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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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