Judicial impeachment threats on the rise

The last decade has seen a dramatic increase not only in the threats of impeaching state court judges because of their decisions, but the actual drafting of legislation to that effect. A special edition of Gavel to Gavel -- a blog from the National Center for State Courts that tracks legislative activity affecting state courts -- looks back at past efforts to impeach or remove judges based on their decisions. Download the report

Learn more about Gavel to Gavel

TODAY'S OPINIONS
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01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
07 - TN Court of Criminal Appeals
02 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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BOARD OF PROFESSIONAL RESPONSIBILITY OF THE TENNESSEE SUPREME COURT v. F. CHRIS CAWOOD
CORRECTION in the fourth paragraph on page 2. The sentence "Tennessee Supreme Court Rule 9 section 1.3 of Rule 9 provides that..." has been changed to "Tennessee Supreme Court Rule 9 section 1.3 provides that..."


Court: TSC

Attorneys:

Sandy Garrett for the appellant, Board of Professional Responsibility.

F. Chris Cawood, Kingston, Tennessee, pro se.

Allan F. Ramsaur, Gail Vaughn Ashworth, and William L. Harbison, Nashville, Tennessee, and Brian S. Faughnan, Memphis, Tennessee, for the amicus curiae, Tennessee Bar Association.

Judge: HOLDER

Disciplinary Counsel of the Board of Professional Responsibility filed a petition for discipline against attorney F. Chris Cawood for alleged violations of Rules of Professional Conduct. After Disciplinary Counsel's presentation of evidence, the Hearing Panel dismissed the petition. The Board of Professional Responsibility appealed to the chancery court, which affirmed the Hearing Panel's dismissal. The Board appealed the decision of the chancery court to this Court. We hold that the Board of Professional Responsibility's petition for certiorari failed to meet the requirements of Tennessee Code Annotated section 27-8-106 and that the chancery court therefore lacked jurisdiction to hear the appeal.

http://www.tba2.org/tba_files/TSC/2010/cawoodc_COR_122210.pdf


MARK COOPER, INDIVIDUALLY AND ON BEHALF OF THE HEIRS AT LAW OF LESLIE PHILLIPSEN v. THOMAS N. TABB, M.D., INDIVIDUALLY, THOMAS N. TABB, P.C., AND PERINATAL ASSOCIATES, P.C.

Court: TCA

Attorneys:

Thomas J. Long and Cheryl P. Long, Collierville, Tennessee, and Michael L. Weinman, Jackson, Tennessee, for the appellant, Mark Cooper.

William D. Domico, W. Bradley Gilmer, and Jessica M. Hackett, Memphis, Tennessee, for the appellee, Thomas N. Tabb, M.D., Individually, and Thomas N. Tabb, M.D., P.C., and Perinatal Associates, P.C.

Judge: KIRBY

This medical malpractice case involves the reconsideration of an order granting a new trial. The patient, in her second trimester of pregnancy, presented at the hospital with abdominal pain and bleeding. Her treating physician consulted with a maternal-fetal specialist physician. The patient suffered a placental abruption, and the fetus died in utero. Later that day, the patient developed a blood-clotting disorder. She died that evening. The patient's husband filed this lawsuit against the treating physician, the hospital and its employees, and the maternal-fetal specialist physician. A settlement was reached with all of the defendants except for the maternal-fetal specialist, and a jury trial was held as to only the specialist. The jury returned a verdict in favor of the defendant specialist. The trial court granted the plaintiff husband's motion for a new trial. Three years later, the defendant specialist filed a motion asking the trial court to reconsider its order granting a new trial. Upon reconsideration, the trial court granted the motion and reinstated the jury verdict. The plaintiff husband now appeals. We reverse, concluding that the trial court had jurisdiction to reconsider its initial order, and that the trial judge's remarks, taken as a whole, indicate he was not satisfied with the jury verdict. Accordingly, we remand for a new trial.

http://www.tba2.org/tba_files/TCA/2010/cooperm_122210.pdf


TENNESSEE INDEPENDENT COLLEGES AND UNIVERSITIES ASSOCIATION BENEFIT CONSORTIUM, INC. v. TENNESSEE DEPARTMENT OF COMMERCE AND INSURANCE, ET AL.

Court: TCA

Attorneys:

H. Rowan Leathers and Jeffrey Zager, Nashville, Tennessee, for the appellant, Tennessee Independent Colleges and Universities Association Benefit Consortium, Inc.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Laura T. Kidwell, and Sarah A. Hiestand, Senior Counsels, Financial Division, for the appellee, State of Tennessee.

Judge: DINKINS

In this appeal from the Tennessee Claims Commission, taxpayer, a self-funded multiple employer welfare arrangement, seeks a refund of taxes paid under protest, asserting that the tax was preempted by the Employee Retirement Income Security Act and that the tax is uncertain and ambiguous. We affirm.

http://www.tba2.org/tba_files/TCA/2010/tncolleges_122210.pdf


STATE OF TENNESSEE v. ARTURO JAIMES-GARCIA

Court: TCCA

Attorneys:

Chance Deason, Henderson, Tennessee (at trial) and Peter D. Heil (on appeal), Nashville, Tennessee, for the Appellant, Arturo Jaimes-Garcia a/k/a Antonio James.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; John Zimmerman and Kristen Menke, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Defendant, Arturo Jaimes-Garcia, of multiple drug offenses relating to three different drug sales, and the trial court imposed an effective sentence of eighteen years in the Tennessee Department of Correction. On appeal, the Defendant contends: (1) the evidence is insufficient to sustain his convictions; (2) the Drug- Free School Zone statute is unconstitutionally vague and unconstitutional as applied to the facts of this case; (3) the trial court improperly enhanced his punishment because the State did not give him adequate notice of its intent to seek an enhanced sentence; (4) the State committed prosecutorial misconduct during its closing argument; and (5) three of the Judgment of Conviction forms contain errors. The State contends that this appeal should be dismissed because the Defendant's amended motion for new trial was not timely filed, and he failed to file a timely notice of appeal. After a thorough review of the record and applicable authorities, we conclude that the trial court improperly permitted the Defendant to file an amended motion for new trial.Therefore, we review the issue properly preserved by his original motion for new trial, the sufficiency of the evidence, and conclude that the evidence is sufficient to sustain all of his convictions. We conclude, however, that two of those convictions violate his double jeopardy protections. Those convictions are, therefore, merged or dismissed in accordance with the reasoning below. Further, we have reviewed for plain error the issues the Defendant failed to properly preserve but hold that the Defendant is not entitled to relief on any of those issues. This case is remanded for the entry of corrected judgments in accordance with this opinion.

http://www.tba2.org/tba_files/TCCA/2010/jaimes-garciaa_122210.pdf


TIMOTHEUS LAMAR JOHNSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ashley Preston, Nashville, Tennessee, for the appellant, Timotheus Lamar Johnson.

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

Judge: OGLE

The Petitioner, Timotheus Lamar Johnson, pled guilty to second degree murder and especially aggravated robbery in exchange for a total effective sentence of thirty-five years in the Tennessee Department of Correction. Subsequently, the Petitioner filed for postconviction relief, alleging his trial counsel was ineffective and that his pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/johnsont_122210.pdf


ANTHONY DEWAYNE JORDAN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Anthony Dewayne Jordan.

Robert E. Cooper, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Rachel M. Sobrero, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Anthony D. Jordan, appeals the denial of his petition for post-conviction relief. On appeal, he argues that he received ineffective assistance of counsel and that he did not enter his guilty plea knowingly and voluntarily. After careful review, we affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2010/jordana_122210.pdf


STATE OF TENNESSEE v. MARK ANTHONY McNACK

Court: TCCA

Attorneys:

George Morton, District Public Defender, and Gregory D. Gookin, Assistant Public Defender, attorneys for appellant, Mark Anthony McNack.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun Alan Brown, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Mark Anthony McNack, appeals as of right from the Madison County Circuit Court's revocation of his community correction sentence and order of incarceration. The Defendant contends that the trial court erred in calculating his credit for time served. Following our review, we affirm the trial court's revocation of the Defendant's community corrections sentence but conclude that the Defendant is entitled to credit for time served until the violation warrant was issued. Accordingly, the judgment of the trial court is reversed in part and affirmed in part, and the case is remanded for the correction of the judgment.

http://www.tba2.org/tba_files/TCCA/2010/mcnackm_122210.pdf


DAVID M. OLVERA v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David M. Olvera, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Petitioner, David M. Olvera, was convicted of first degree felony murder and especially aggravated robbery, a Class A felony. See Tenn. Code Ann. section 39-13-202(a)(2), -403(b). This Court affirmed his convictions on direct appeal. See State v. Olvera, No. M2004-02090-CCA-R3-CD, 2005 WL 3262932 (Tenn. Crim. App., Nashville, Dec. 2, 2005), perm. to appeal denied, (Tenn. May 1, 2006). The Petitioner filed a timely petition for post- conviction relief. After an evidentiary hearing, the post- conviction court denied relief, and this appeal followed. After our review, we affirm the post-conviction court's denial of relief.

http://www.tba2.org/tba_files/TCCA/2010/olverad_122210.pdf


STATE OF TENNESSEE v. KEVIN E. SHEPARD

Court: TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Kevin E. Shepard.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Kim R. Helper, District Attorney General; and Joseph Fahey, II, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Kevin E. Shepard, was convicted after a bench trial of reckless endangerment involving a deadly weapon, a Class E felony, and was sentenced to two years, suspended to supervised probation. On appeal, he argues that the evidence is insufficient to sustain his conviction. After review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/shepardk_122210.pdf


STATE OF TENNESSEE v. KEVIN LEE WILLIAMS

Court: TCCA

Attorneys:

Daniel A. Stephenson, Clarksville, Tennessee, for the appellant, Kevin Lee Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; John Carney, District Attorney General, and Robert Nash, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Kevin Lee Williams, pleaded guilty in the Montgomery County General Sessions Court to two counts of domestic assault. The general sessions court sentenced Appellant to two concurrent sentences of eleven months and twenty-nine days. Appellant subsequently appealed his plea to the Montgomery County Circuit Court arguing that his plea was entered involuntarily. The circuit court held a hearing, but the hearing was limited to the issue of sentencing. Appellant appeals from the circuit court's refusal to consider whether his plea was entered voluntarily based upon provisions set out in Rule 37 of the Tennessee Rules of Criminal Procedure. Because we have determined that Rule 37 does not apply to proceedings in general sessions courts, we affirm the circuit court's determination with regard to limiting the hearing to an appeal of the imposed sentence. Therefore, we affirm the decision of the circuit court.

http://www.tba2.org/tba_files/TCCA/2010/williamsk_122210.pdf


Effect of Tenn. Code Ann. Section 24-7-124 (Supp. 2010) on Admissibility of Photographs Generated by Automated Speed Detection Devices

TN Attorney General Opinions

Date: 2010-12-22

Opinion Number: 10-116

http://www.tba2.org/tba_files/AG/2010/ag_10_116.pdf

Duty to Destroy DNA Samples and Records of Samples

TN Attorney General Opinions

Date: 2010-12-22

Opinion Number: 10-117

http://www.tba2.org/tba_files/AG/2010/ag_10_117.pdf

TODAY'S NEWS

Legal News
Tenn. Government
Correction
Congressional News
Career Opportunities
TBA Member Services

Legal News
TBA closes for holiday
The Tennessee Bar Association will close at 4 p.m. today and reopen at 8 a.m. on Monday, Dec. 27, in observance of Christmas. TBA Today will resume publication on Monday. The TBA wishes you a wonderful holiday with friends and family.

Levy suing former company
Nashville's former chief medical examiner, Dr. Bruce Levy, is suing the company he once worked for, saying it reneged on an exit deal worth about $1.6 million when he left the business. Levy is asking for more than $5 million in pay, benefits and damages. In dispute is whether Levy resigned or was terminated in March, shortly after he was arrested on a marijuana possession charge in Mississippi.
The Tennessean reports
Pro Bono Program presents awards
The Nashville Pro Bono Program presented two awards during the annual Nashville Bar Banquet on Dec. 8. Frank Grace with Waller Lansden Dortch & Davis was named the Joseph G. Cummings Sr. Pro Bono Volunteer Attorney of the Year. The award recognized his work increasing awareness of pro bono needs among his colleagues and organization of a monthly debt clinic. The group's Pro Bono Leadership Award was given to the Nashville Bar Association for its Modest Means Initiative, which provides reduced-fee legal services to those who cannot afford a lawyer but do not qualify for assistance from legal aid. The award recognizes outstanding and innovative work in promoting access to justice.

Legal Aid Society reports on fundraising, recent grants
The Legal Aid Society (LAS) reported this week it has raised $687,964 of its $700,000 goal for this year's fundraising campaign. It also announced a $500,000 grant from the federal Office of Criminal Justice Programs, which will allow it to provide civil legal services to victims of domestic violence. The partnership with other local social service organizations will provide more than 1,200 low-income victims with free, comprehensive and quality legal representation. LAS also recently announced a grant of $180,000 from the Nashville Metro Council to support community services. And finally, it thanked the Nashville Business Journal for donating office furniture to redecorate its offices.
To support the society, visit its site online
Tenn. Government
Former state rep. to lead new department
Jim Henry, former minority leader of the Tennessee House of Representatives and a 2002 candidate for governor, has been appointed by Governor-elect Bill Haslam as the state's first commissioner of the newly formed Tennessee Department of Intellectual Disabilities. The agency was a division of the Department of Finance & Administration before the legislature made it a department. For the past 13 years, Henry has been president and CEO of Omni Visions Inc., a company serving adults with developmental disabilities.
Read more about the appointment in the Nashville Post (subscription required)
Correction
A TBAToday item Tuesday referenced an article in The Blog of Legal Times that contained incorrect information. The article stated that funds held in Interest On Lawyer Trust Accounts (IOLTA) would have lost FDIC protection if legislation were not passed by the U.S. Senate this week. That was incorrect. Even without Senate action, IOLTA funds up to $250,000 per client, per financial institution, would have been protected. Today, however, the issue became moot when the Senate, by unanimous consent, joined the House in modifying the Dodd Frank Wall Street bill to extend unlimited FDIC insurance to all funds held in IOLTA accounts.
Read about the Senate action in The Blog of Legal Times
Congressional News
Judicial nomination deal excludes four
Leaders of both parties in the U.S. Senate have worked out a deal allowing confirmation of 19 of President Obama's judicial nominees and deferral of four others: Goodwin Liu, 9th U.S. Circuit Court of Appeals; Edward Chen, District Court for the Northern District of California; Louis Butler Jr., District Court for the Western District of Wisconsin; and John McConnell Jr., District Court for Rhode Island. Their nominations will expire when Congress adjourns for the year.
The ABA Journal reports
Career Opportunities
Legal recruiter seeks IP attorney
Legal recruiting company Counsel On Call is seeking an intellectual property attorney to work on an "as needed basis" for a Memphis-based corporation. The ideal candidate would have experience handling IP matters in a corporate setting, be admitted to practice before the U.S. Patent and Trade Office and possess solid academic and work credentials. Interested individuals should submit a resume and cover letter to Jay Brenner at jay.brenner@counseloncall.com.
Learn more about Counsel On Call
TBA Member Services
Ship directly from Microsoft Office Outlook with FedEx QuickShip
Now you can ship your FedEx packages directly from the Microsoft Office Outlook application -- and save money doing it. It's a fast and convenient way to easily access some of the most popular features on fedex.com using Microsoft technology. That's why you should Think FedEx First.
Take advantage of your member discounts on select FedEx shipping services and FedEx OfficeSM business services

 
 
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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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