Award of Excellence goes to Tennessee Bar Journal

The Tennessee Bar Journal, the monthly magazine of the Tennessee Bar Association, was recognized Friday with a Luminary Award of Excellence by the National Association of Bar Executives' Communications Section at its annual workshop. The magazine, which is edited by Suzanne Craig Robertson, was judged to be the best produced by a medium-sized bar. Other staff members who work on the Journal include Landry Butler, Barry Kolar, Stacey Shrader and Sharon Ballinger. Serving on the Journal's editorial board are Nashville attorney Andree Sophia Blumstein, Knoxville attorney Wade V. Davies, Nashville attorney Paul A. Gontarek, Memphis attorney Suzanne Landers, Kingsport attorney Laura A. Steel, Jackson attorney Jonathan O. Steen, Nashville attorney Mattielyn Williams and Member Emeritus Donald F. Paine of Knoxville. The Luminary Awards, sponsored by Thomson Reuters, recognize the outstanding work among bar communications professionals nationwide.
TODAY'S OPINIONS
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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2010/certlist_101110.pdf


MELVIN HILL v. WHIRLPOOL CORPORATION
This case has been reopened and the previously released opinion from the Special Workers' Compensation Appeals Panel has been removed from the TBA website


Court: TSC

Download the order reopening the case
http://www.tba2.org/tba_files/TSC/2010/hillm_101110.pdf


CHARLES H. BRYSON, ET AL. v. THE CITY OF CHATTANOOGA, ET AL.
CORRECTION: In the second paragraph, the word "did" has been changed to "were"


Court: TCA

Attorneys:

Bryan H. Hoss, C. Leland Davis, and Whitney Durand, Chattanooga, Tennessee, for the Appellants, Charles H. Bryson, Randall Vincent Dean, James Terry Marlin, Paul W. Lee, Jr., Randy W. Dunn, Francene H. Fleming, Anderson G. Hass, Danny B. Hill, Thomas B. Kennedy, Thomas D. McKinney, Sully Batts, Kimberly K. Miller, Kenneth D. Phillips, Kimberly Reavley, and Bryan D. Moody.

Christopher A. Crevasse, Neil A. Brunetz, and Robert F. Parsley, Chattanooga, Tennessee, for the Appellee, Chattanooga Fire and Police Pension Board.

Michael A. McMahan, City Attorney, and Valerie L. Malueg, Assistant City Attorney, for the Appellee, City of Chattanooga.

Judge: SWINEY

Before November 4, 1986, members of the Chattanooga Police and Fire Departments were allowed to buy back retirement credit for time served while employed in other departments within the City of Chattanooga. On November 4, 1986, a city-wide referendum was passed which established a cut-off date of June 1, 1987, in which to buy back these retirement credits. Almost nineteen (19) years later, this lawsuit was brought by fifteen (15) police officers ("Plaintiffs") against the City of Chattanooga (the "City") and the Chattanooga Fire and Police Pension Board (the "Pension Board"). Plaintiffs claimed, among other things, that the 1986 referendum unconstitutionally deprived them of a property right. Plaintiffs sought a declaration that they be allowed to buy back retirement credits for time served in other City departments. The Trial Court concluded that the statutes of limitation had run on all of the claims, with the exception of some of the plaintiffs' equal protection claim. The Trial Court then concluded that Defendants were entitled to summary judgment as a matter of law as to the one timely claim. Plaintiffs appeal, and we affirm.

http://www.tba2.org/tba_files/TCA/2010/brysonc_COR_101110.pdf


BEE DESELM, CARL SEIDER, JAMES GRAY, DONNA BRIAN, MIKE WHALEN, SUSAN JERKINS, GERALD BONE, RICHARD HELD, ALBERT AKERMAN, MARGO AKERMAN, ROBERT CUNNINGHAM, AND MILLIE CUNNINGHAM v. TENNESSEE PEACE OFFICERS STANDARDS AND TRAINING COMMISSION AND TIMOTHY HUTCHISON

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and William R. Lundy, Jr., Assistant Attorney General, for the appellant, Tennessee Peace Officers Standards and Training Commission.

Herbert S. Moncier, Knoxville, Tennessee, for the appellees, Bee DeSelm, Carl Seider, James Gray, Donna Brian, Mike Whalen, Susan Jerkins, Gerald Bone, Richard Held, Albert Akerman, Margo Akerman, Robert Cunningham, and Millie Cunningham.

Judge: KIRBY

This is an appeal of a lawsuit by Knox County citizens to have a former county sheriff decertified as a peace officer. The plaintiffs' first lawsuit was dismissed for failure to exhaust administrative remedies. The plaintiffs then pursued administrative remedies but were denied administrative relief based in part on an administrative finding that they did not have standing to seek the relief requested. After that, the plaintiffs filed this lawsuit, seeking judicial review of the denial of their request for administrative relief. The trial court held that the plaintiffs did not have standing to sue for declaratory relief, but did have standing under Tennessee Code Annotated section 4-5-322 to obtain judicial review of the administrative decision not to investigate the decertification of the former sheriff. Subsequently, the trial court entered a judgment in favor of the plaintiffs on this claim, remanding the case to the administrative body with instructions to hold a contested case hearing on the decertification of the former sheriff. The plaintiffs and the administrative body both appeal. We affirm in part and reverse in part, concluding that the plaintiffs do not have standing to pursue any of the relief they seek, and dismiss the case.

http://www.tba2.org/tba_files/TCA/2010/deselmb_101110.pdf


STATE OF TENNESSEE v. TONY RAY ANDERSON

Court: TCCA

Attorneys:

Tony Ray Anderson, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Tony Ray Anderson, pleaded guilty to two counts of attempted rape, a Class C felony. See Tenn. Code Ann. section 39-12-107(a), -13-503(b). Pursuant to a plea agreement, he was sentenced as a Range I, standard offender to ten years in the Department of Correction for each count, with the two sentences running concurrently. Almost three years after he pleaded guilty, the Defendant petitioned the trial court and requested to serve the remainder of his sentence on probation. The trial court denied the Defendant's motion. After reviewing the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/andersont_101110.pdf


STATE OF TENNESSEE v. JON MICHAEL ANSEMAN

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee (on appeal); and Mack Garner, District Public Defender (at trial), for the appellant, Jon Michael Anseman.

Robert E. Cooper, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Tammy Harrington, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Jon Michael Anseman, appeals the Blount Court Circuit Court's order revoking his probation, and the State has moved this court to summarily affirm the circuit court's order pursuant to Rule 20 of the rules of this court. The motion is well taken, and the order of the circuit court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/ansemanj_101110.pdf


CLIFTON HARRISON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Clifton Harrison, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; and H. Greeley Wells, Jr., District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Clifton Harrison, appeals the dismissal of his pro se petition for post-conviction relief by the Criminal Court for Sullivan County. He pled guilty and was convicted of seven offenses of selling cocaine, and he received an effective sentence of twenty years in the Department of Correction. In this appeal, the Petitioner contends that the trial court erred in dismissing his petition without allowing the Petitioner an opportunity to amend the petition with the assistance of counsel. We hold that the trial court should have appointed counsel under the circumstances in this case, and we reverse the judgment of the trial court and remand the case for further proceedings.

http://www.tba2.org/tba_files/TCCA/2010/harrisonc_101110.pdf


DAVID LYNN HARRISON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Albert J. Newman, Jr., Knoxville, Tennessee, attorney for appellant, David Lynn Harrison.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Philip Morton, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, David Lynn Harrison, appeals as of right from the Knox County Criminal Court's denial of his petition for post-conviction relief challenging his guilty plea convictions for attempted first degree murder, aggravated burglary, and reckless endangerment for which he received an effective sentence of 16 years. The Petitioner challenged the voluntariness of his guilty pleas and the performance of counsel. Following an evidentiary hearing, the post-conviction court denied relief. We remand the Petitioner's case because the trial court failed to enter findings of fact as to the Petitioner's contention that he did not voluntarily plead guilty. The trial court is instructed to issue findings of fact and conclusions of law on that issue. We affirm the judgment of the trial court in all other respects.

http://www.tba2.org/tba_files/TCCA/2010/harrisond_101110.pdf


STATE OF TENNESSEE v. BOBBY DALE PARRIS
CORRECTION: This revised opinion, filed on October 8, replaces the version filed on September 23, 2010


Court: TCCA

Attorneys:

James F. Logan, Jr., Cleveland, Tennessee, for the appellant, Bobby Dale Parris.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Kristie Luffman, Drew Robinson, and John Williams, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

In 2006, the defendant, Bobby Dale Parris, pled guilty to the second degree murder of his wife, who died on September 16, 2004. The trial court sentenced him, under the 2005 amendments to the 1989 Sentencing Act, as a violent offender to twenty years at 100% in the Tennessee Department of Correction. On direct appeal, this court vacated the defendant's sentence and remanded for resentencing under the 1989 Sentencing Act after concluding that the trial court erred in sentencing the defendant under the 2005 amendments because the defendant had not waived his ex post facto rights. Upon remand, the trial court again sentenced him to twenty years, opining that the defendant's sentence was the same under either the pre-2005 or post-2005 sentencing statutes. The defendant appeals his sentence, arguing that the trial court did not consider mitigating factors as required by Tennessee Code Annotated section 40-35-210. Following our review of the parties' briefs, the record on appeal, and the applicable law, we vacate the trial court's sentencing order and remand for a new sentencing hearing in accordance with the 2005 Sentencing Act.

http://www.tba2.org/tba_files/TCCA/2010/parrisb_CORR_101110.pdf


TONY A. PHIPPS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jason R. McClellan, Kingsport, Tennessee, for the appellant, Tony A. Phipps.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Tony A. Phipps, appeals from the denial of his petition for post-conviction relief. The Petitioner claims (1) that he was denied the effective assistance of counsel at trial because his trial counsel failed to present exculpatory evidence and explore certain theories of defense; (2) that misconduct by the prosecutor denied him the right to a fair trial; and (3) that he is entitled to a new trial based upon newly discovered evidence. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/phippst_101110.pdf


STATE OF TENNESSEE v. LATOYA T. WALLER

Court: TCCA

Attorneys:

Emma Rae Tennent, Assistant Public Defender, Nashville, Tennessee, for the appellant, Latoya T. Waller.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Ben Ford, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Appellant, Latoya T. Waller, was charged in a two-count indictment with possession with intent to sell or deliver .5 grams or more of a substance containing cocaine, a Class B felony, and simple possession of marijuana, a Class A misdemeanor. See Tenn. Code Ann. sections 39-17-417(c)(1), -418(c). Pursuant to a plea agreement, she pleaded guilty to simple possession of marijuana, and the State dismissed the felony cocaine charge. She subsequently filed a Motion for Expungement and requested that the trial court expunge the felony cocaine charge from her record. The trial court denied her motion. In this appeal by writ of certiorari, the Appellant contends that the trial court erred by denying her Motion for Expungement of count one of the indictment. After reviewing the record, we reverse the denial of the Appellant's motion and remand to the trial court for entry of an order requiring expungement of all records relating to the felony cocaine charge, count one of the indictment.

http://www.tba2.org/tba_files/TCCA/2010/wallerl_101110.pdf


TODAY'S NEWS

Legal News
Celebrate Pro Bono
Election 2010
Passages
TBA Member Services

Legal News
Judicial posts need filling; Nashville lawyer urges votes
Nashville Bar Association President Jonathan Cole used a guest column to urge our representatives in Washington to step up the pace on judicial nominations -- especially for Middle Tennesse's U.S. District Court, which has had a vacancy since March 2007. With the position vacant, Cole writes, "more than 1,400 civil cases and more than 300 criminal cases involving over 550 criminal defendants must now be handled by the remaining three federal judges, taxing the judges and the federal court system."
Read the column in the Tennessean
Kids' crimes are more serious than they used to be
There are opinions all over the map on what to do with juvenile offenders, but one thing is clear: "The younger kids are committing more serious, violent crimes," said Davidson County Juvenile Court Judge Betty Adams Green. "It used to be that the kids charged with murder or aggravated rape were 16, 17. We're seeing more 13-, 14-, 15-year-olds. That's alarming to me." But locking kids up with hardened criminals doesn't help. "They pick up more criminal habits," says a Vanderbilt professor of forensic psychiatry. So what is the answer? Steve Hornsby, the deputy commissioner of juvenile justice for the Department of Children's Services says, "We've gone from a correctional approach to a therapeutic approach."
The Tennessean looks into it
Law professor: help stop childrens' exposure to violence
Richard Janikowski, associate professor of criminology at the University of Memphis, writes in a guest column that research shows that stress and trauma -- such as witnessing or being victims of violence -- can impair children's brain development. Pointing to a recent survey showing that 60 percent of children have been exposed to violence, either directly or indirectly, during the past year, Janikowski says "the findings should shock and galvanize all of us to action." With Shelby County recently being awarded a federal planning grant to address the exposure of our children to violence, he says "we need to develop a comprehensive and coordinated approach to preventing violence against our children and ensuring effective, coordinated interventions to help those children exposed to violence."
Read his column in the Commercial Appeal
U.S. attorney sought alimony relief after diagnosis
At the time that newly appointed U.S. Attorney Bill Killian was applying to become one of the state's top federal prosecutors, he was arguing in court to reduce or end alimony payments to his ex-wife because he said a 2009 diagnosis of Parkinson's disease had and would hurt his ability to work, the Chattanooga Times Free Press reports. The Tennessee Court of Appeals ruled against his request and Killian has since said that later diagnoses suggest he may not have Parkinson's disease.
Read more from the Chattanooga Times Free Press
Memphis and UT law ranked by preLaw Magazine
The University of Memphis and University of Tennessee ranked in the top 20 of preLaw Magazine's 60 best value law schools announced in August. The fall issue of the magazine, published this month, now ranks the 20 top schools. Memphis comes in at ninth place while UT comes in at 11th. Rankings are based on a recent survey by the American Bar Association.
See the full rankings and commentary from the magazine
Interpreter shortage causes backlogs, misunderstanding
There is a shortage of interpreters in Coffee County, as well as money to pay them. According to Coffee County Circuit Court Clerk Heather Duncan, there are two state-certified Hispanic interpreters who appear in Coffee County General Sessions Court. "One is here on Tuesday and the other on Thursday," Duncan said. "If we have someone who speaks a language other than Spanish we have to call the Administrative Office of the Courts and they send us somebody." The shortage is not just in Coffee County either. For example, there is only one state-certified Arabic interpreter in Tennessee. State court officials say there is particularly a shortage in Korean, Vietnamese, Chinese, Arabic and Somali language interpreters.
The Tullahoma News reports
Rebowe gives homecookin' a better connotation
Williamson County lawyer Darlene Rebowe practices criminal defense law for a living, but things really heat up when she practices cooking from her native "N'Awwhlins." She says "as kids, we ate everything without questioning it, from gumbo to alligator to shrimp. We sure didn't grow up to be picky eaters, except we do love spicy, good-tasting food."
Read about her in The Tennessean
Bradley County Juvenile Center gets perfect score
The Bradley County Juvenile Center has received a perfect audit score with the Tennessee Department of Children's Services Licensing Unit for the second year in a row. "To have a perfect score one year is extremely good. To have two is exceptional," said Bradley County Juvenile Court Judge Daniel Swafford.
See a picture in the Cleveland Daily Banner
Know your First Amendment timeline
Refresh your memory on some landmarks in the history of the First Amendment, including national security, political speech, religion and the press. Adopted in 1791, it may be the constitutional provision most widely understood by Americans, the Christian Science Monitor reports.
NewsChannel 5 carried the story
Celebrate Pro Bono
Legal clinic Oct. 12 in Nashville
A legal clinic will be held Oct. 12 at the Legal Aid Society in Nashville, staffed by legal aid, Baker, Donelson, Bearman, Caldwell & Berkowitz, and the Nashville Pro Bono Program. The clinic, part of the Tennessee Bar Association's "Celebrate Pro Bono" month, starts at 4:30 p.m. For more information, contact Lucinda Smith at lsmith@las.org.
Learn more about Celebrate Pro Bono Month
Election 2010
McMillan self reports on accidental email incident
It was late Tuesday when Chancellor Larry McMillan learned that his secretary had sent emails announcing a rally for his wife, Kim McMillan, who is running for Clarksville mayor, using a county e-mail account on a state-owned computer. On Wednesday he reported the incident to the Court of the Judiciary. Laura Click, public information officer for the Administrative Office of the Courts, said the Disciplinary Council will review the situation and determine if an investigation is needed or if it should be dismissed. If a Cannon of Ethics violation is determined, disciplinary action could range from a private or public reprimand to a full-blown hearing.
Read more from the Leaf-Chronicle
Passages
Services pending for Vanderbilt law professor
Services are pending for Vanderbilt University Law School professor Richard Nagareda, who died at his home on Friday. He was 47. The David Daniels Allen Professor of Law and director of the Cecil D. Branstetter Litigation and Dispute Resolution Program, professor Nagareda was a leading civil litigation scholar whose work focused on class actions and aggregate litigation. "The entire Vanderbilt community is deeply saddened by the loss," said Vanderbilt University Chancellor Nicholas Zeppos. "He was an exemplary scholar and brought an unparalleled level of expertise to the law school."
Read more from Vanderbilt University
TBA Member Services
Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at (800) 368-2734
or get an online rate quote

 
 
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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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