Judge: state's lethal injection method unconstitutional

Davidson County Chancellor Claudia Bonnyman ruled Friday that the state's lethal injection method is unconstitutional, paving the way for a delay in the execution of several death row inmates. In her ruling, which came in the case of Stephen Michael West, Bonnyman said the defendant showed that Tennessee's injection procedure "allows for death by suffocation while conscious." She rejected arguments that the U.S. Supreme Court's approval of a similar Kentucky procedure should guide her decision, saying that case did not question the amount of sodium thiopental being used in executions. The state attorney general's office now must decide whether to appeal the decision.

The News Sentinel has more

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_112210.pdf


IN THE MATTER OF: APRIL F. (d.o.b. 11/20/98), DYLAN F. (d.o.b. 3/30/00), and DEVIN F. (d.o.b. 7/24/06) ET AL.

Court: TCA

Attorneys:

Kimberly M. Hinson, Linden, Tennessee, for the appellant, Timothy F.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Ryan L. McGehee, Assistant Attorney General and Mary L. White, Assistant Attorney General, for the appellee, State of Tennessee Department of Children's Services.

Judge: FARMER

This is a termination of parental rights case. The juvenile court terminated the parental rights of the father on the grounds of persistence of conditions, substantial noncompliance with the terms of the permanency plans, and abandonment by willful failure to support. The father appeals, arguing that the Department of Children's Services did not clearly and convincingly show that it made reasonable efforts to help him address his addiction to methamphetamine, clearly and convincingly prove grounds for termination, or clearly and convincingly demonstrate that termination of his parental rights was in the best interests of the children. Because DCS did not clearly and convincingly demonstrate that it made reasonable efforts to reunite the father with his children, we reverse.

http://www.tba2.org/tba_files/TCA/2010/aprilf_112210.pdf


BRENDA CARROL BIVENS v. DONALD EUGENE BIVENS

Court: TCA

Attorneys:

Michelle M. Benjamin, Winchester, Tennessee, for the Appellant, Donald Eugene Bivens.

Katherine H. Lentz, Chattanooga, Tennessee, for the Appellee, Brenda Carrol Bivens.

Judge: SWINEY

Brenda Carrol Bivens ("Wife") filed this divorce action against Donald Eugene Bivens ("Husband") in the Hamilton County Circuit Court in the Eleventh Judicial District. At the time of the parties' separation, they lived in Grundy County in the Twelfth Judicial District. Husband has lived in Grundy County his entire adult life. Husband filed a motion to dismiss for improper venue which he claims was granted orally by the Trial Court. No order dismissing the case ever was entered. The Trial Court later entered a final decree and marital dissolution agreement submitted by Wife and signed by Husband. Husband filed a motion to set aside the final decree. Following a hearing, the Trial Court determined that Husband had waived any objection to venue and refused to set aside the final decree. Husband appeals. We conclude that Husband did not waive his objections to venue and that the proper venue in this case never has been Hamilton County. Accordingly, we vacate entry of the final decree and remand this case to the Circuit Court for Hamilton County with instructions to transfer this case to an appropriate court in Grundy County.

http://www.tba2.org/tba_files/TCA/2010/bivensb_112210.pdf


IN RE KERI C.
STEPHEN AND DUSTIE BELCHER v. CHRISTY C.


Court: TCA

Attorneys:

Scott Justice, Jefferson City, Tennessee, for the Respondent/Appellant, Christy C.

Mitzi L. Sweet, Morristown, Tennessee, for the Petitioners/Appellees, Stephen and Dustie Belcher.

Judge: KIRBY

This is a termination of parental rights and adoption case. The mother of the child tested positive for cocaine when the child was born, and DCS removed the child from the mother's custody and developed a safety plan for the mother. The child was eventually placed in the custody of the petitioners, who are the mother's cousin and her husband. During the time period at issue, the mother's visitation with the child consisted primarily of attending family gatherings and visiting with the child at these gatherings. She paid no child support. After the mother went to the petitioners' home to say that she intended to seek custody of the child, the petitioners filed this petition for termination of the mother's parental rights and for adoption of the child. After a trial, the trial court terminated the mother's parental rights on grounds of abandonment by failure to support and failure to visit. The mother now appeals. We affirm the trial court's finding of abandonment for failure to support and for willful failure to engage in more than token visitation with the child during the four-month time period preceding the filing of the termination petition, and affirm the termination of the mother's parental rights.

http://www.tba2.org/tba_files/TCA/2010/keric_112210.pdf


TODAY'S NEWS

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Legal News
Haslam names legal counsel
Republican Gov.-elect Bill Haslam has named Knoxville attorney Herbert Slatery as his legal counsel. Slatery, 58, is chairman of Egerton, McAfee, Armistead & Davis, where he has worked for 30 years in private business transactions and local government organizations. He also has served as counsel for the grocery company H.T. Hackney Co., as chairman of the Public Building Authority in Knox County and as a lawyer for the county's Industrial Development Board. Slatery also was Haslam's campaign treasurer and a member of the transition team. He is the first cabinet member named.
Read more from the Associated Press in the News Sentinel
Levy charged with misconduct
Former state and Davidson County chief medical examiner Dr. Bruce Levy, arrested in Mississippi on a marijuana possession charges earlier this year, now is facing charges in Tennessee. This afternoon, court records showed that Levy had been charged with official misconduct and is scheduled to be in court on Tuesday. Last week, the state Board of Medical Examiners found Levy violated the law but instead of suspending him, chose to impose a five-year probation, mandatory drug treatment and fines -- allowing him to keep his license for now.
Read about today's charges in the Tennessean
New FTC rule preserves exemption for lawyers
The final "Mortgage Assistance Relief Services" (MARS) Rule issued by the Federal Trade Commission last Friday includes a broad exemption for lawyers engaged in the practice of law. In formal comments made last March, the American Bar Association had urged the FTC to broaden the attorney exemption in its original proposal, citing how it could undermine both the confidential attorney-client relationship and the ability of state courts to supervise and discipline lawyers effectively. ABA President Steven Zack applauded final FTC Rule, saying it "will allow lawyers to continue to provide the critical legal services and expertise homeowners in crisis need."
Read the FTC news release
Court clerk's office under investigation
The Commercial Appeal reports that the Shelby County General Sessions Court clerk's office is under investigation by the county district attorney, though the reason is not clear. Multiple sources confirmed that the allegations are not connected to an FBI probe earlier this year into spending by the office. Court Clerk Otis Jackson Jr., who maintains he has done nothing wrong, said he was told the investigation is based on an ethics complaint from within the office.
Learn more from the paper
Audit finds lax security at courthouses
A U.S. Justice Department review of federal courthouse security has found that training is so lax in some places that security officers don't know how to use basic equipment, including X-ray machines and metal detectors. The audit, released Friday, also notes that court security officers missed several mock explosives hidden in screened packages and let a lawyer pass through a security checkpoint with a gun. In addition, the review criticized the Marshals Service for not collecting and analyzing data about arrests and other security breaches at the nation's courthouses.
Read more in the Jackson Sun
Judges question eminent domain assignments
Since 1978, all of Nashville's eminent domain cases have been handled by the Third Circuit Court. But former Judge Walter Kurtz says that concentration is no longer needed as all judges are capable of hearing these cases. Judge Joe Binkley, presiding judge for Davidson County Circuit Court, agreed, saying the practice should be re-examined. Barbara Haynes, who has held the Third Circuit seat since 1990, indicated her willingness to randomly assign the cases but pointed out the vast majority are settled and never go to trial.
The Tennessean looks at the issue
Coffee County jail decertified
The Tennessee Correctional Institute decertified the Coffee County jail this month for overcrowding and physical plant issues. While the jail is designed for 196 prisoners, the daily population had fluctuated between 225 and 270 with as many as 300 housed at one time. The county took the first step toward construction of a new facility by announcing a bidding process last week. Officials predict the construction process could take up to 40 months.
The Tullahoma News reports
TennBarU CLE
Media frenzy: Maintaining ethics in a high-profile case
Maintaining professional ethics and conduct is important in any case, but when you add in pressure from the national media covering a celebrity family in a high profile case, any violation can make you an internet sensation ... and not in a good way. Join Knoxville attorney Wade Davies in a one-hour webcast as he reviews ethical issues he dealt with in handling the recent United States vs. David Kernell case.
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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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