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| Monday, January 24, 2011 |
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Public Service superstars honored at luncheon
Lawyers who give and give some more were honored at the Tennessee Bar Association's Public Service Luncheon on Jan. 22 at Nashville's War Memorial Auditorium. American Bar Association President-elect William T. Robinson III, a Kentucky lawyer and TBA member was keynote speaker for the annual event, which featured presentation of the Law Student Volunteer of the Year Award, the Ashley T. Wiltshire Public Service Attorney of the Year Award and the Harris Gilbert Pro Bono Volunteer of the Year Award.
The TBA Young Lawyers Division also celebrated the good works of its members during the weekend activities, honoring three "stars" who have made significant contributions to the YLD's public service and member service missions.
Learn more about the TBA Public Service Luncheon
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TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.
03 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
00 - TN Court of Appeals
03 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then
open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to
download the original document. If not, you may need to right-click on the URL to get the option to save the file
to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view
and save a plain-text version of the opinion.
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BLUE BELL CREAMERIES, LP v. RICHARD ROBERTS, COMMISSIONER, DEPARTMENT OF REVENUE, STATE OF TENNESSEE
Court: TSC
Attorneys:
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Brad H. Buchanan, Assistant Attorney General, for the appellant, Richard Roberts,
Commissioner of Revenue, State of Tennessee.
James Campbell Bradshaw, Nashville, Tennessee, for the appellee, Blue Bell Creameries, LP.
Joe Barnett Huddleston, Washington, D.C., for the amicus curiae, Multistate Tax Commission.
Judge: HOLDER
Taxpayer is a Delaware limited partnership that produces, sells, and distributes ice cream in Tennessee and elsewhere. At issue in this appeal is the Tennessee Department of Revenue's excise tax assessment on capital gains from a one-
time stock transaction between Taxpayer and its holding company. Taxpayer sought a refund in chancery court, challenging the validity of the tax assessment on statutory and federal constitutional grounds. Both Taxpayer and the Department moved for summary judgment. The chancery court granted summary judgment to Taxpayer, and the Court of Appeals affirmed the judgment. Based on the uncontested facts in the record, we hold that Taxpayer's capital gains were business earnings pursuant to the functional test provided in Tennessee Code Annotated section 67-4-2004(1) (Supp. 2000) and therefore subject to the excise tax. Additionally, we hold that the tax assessment was constitutional pursuant to the unitary business principle. We therefore reverse the judgment of the Court of Appeals and enter summary judgment for the
Department. We remand to the trial court to determine the amount of excise tax related to Taxpayer's capital gains.
http://www.tba2.org/tba_files/TSC/2011/bluebell_012411.pdf
SUPREME COURT DISCRETIONARY APPEALS
Grants & Denials List
Court: TSC
http://www.tba2.org/tba_files/TSC/2011/certlist_012411.pdf
STATE OF TENNESSEE v. JEREMY GARRETT
Court: TSC
Attorneys:
James E. Thomas (on appeal), Memphis, Tennessee, and Tyrone Paylor and Robin Steward (at trial), Memphis, Tennessee, for the appellant, Jeremy Garrett.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Asst. Attorney General; William L. Gibbons, District Attorney General; James Wax and Paul Hagerman, Asst. District Attorneys General, for the appellee, State of Tennessee.
Judge: CLARK
The defendant was indicted separately for two different criminal episodes, one involving an aggravated robbery and the other involving a homicide and an especially aggravated robbery. On the State's motion but over the defendant's objection, and without conducting an evidentiary hearing, the trial court consolidated the indictments for a single trial. The jury convicted the defendant of all offenses charged, and the Court of Criminal Appeals affirmed. On appeal, the defendant contends that the trial court committed reversible error in consolidating the offenses. We hold that the trial court erred both as to methodology and as to result in consolidating the indictments. When a defendant objects to the State's pretrial motion to consolidate offenses, the trial court must conduct a hearing and consider the motion under the severance provisions of Tennessee Rule of Criminal Procedure 14(b)(1), not the provisions of Rule 8(b). We also hold that a prosecutor should refrain from seeking the consolidation of offenses over a defendant's objection unless the prosecutor has a good faith basis for arguing that the requirements of Rule 14(b)(1) will be met. The trial court's
error in ordering consolidation requires that we reverse the defendant's conviction of aggravated robbery and remand for a new trial on that charge. The trial court's error was
harmless as to the defendant's convictions for first degree felony murder and especially aggravated robbery, and we affirm those convictions.
http://www.tba2.org/tba_files/TSC/2011/garrettj_012411.pdf
STATE OF TENNESSEE v. MICHAEL CLARK
Court: TCCA
Attorneys:
Joseph A. McClusky and Massey McClusky (on appeal) and Jeff Woods (at trial), Memphis, Tennessee, for the appellant, Michael Clark.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WILLIAMS
The defendant, Michael Clark, was convicted of attempted second degree murder, a Class B felony. He was sentenced to twenty years in the Tennessee Department of Correction as
a multiple offender. On appeal, he argues that the evidence was insufficient to support his conviction and that the trial court erred in allowing evidence to be presented concerning his prior conviction for aggravated assault. After careful review, we affirm the judgment from the trial court.
http://www.tba2.org/tba_files/TCCA/2011/clarkm_012411.pdf
CHRISTOPHER FLAKE v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Marty B. McAfee, Memphis, Tennessee, for the appellant, Christopher Flake.
Robert E. Cooper, Jr., Attorney General and Reporter, J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General, and John Campbell, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: SMITH
Petitioner, Christopher Michael Flake, was convicted by a Shelby County Jury of two counts of first degree murder. On direct appeal, Petitioner's convictions were reversed on the basis that the jury improperly rejected the proof at trial that established Petitioner was insane at the time of the offenses. State v. Christopher Flake, No. W2001-00568-CCA-R3-CD, 2002 WL 1298733 (Tenn. Crim. App., at Jackson, June 12, 2002), rev'd on appeal by State v. Flake, 114 S.W.3d 487 (Tenn. 2003). The Supreme Court reversed the decision of this Court on appeal. State v. Flake, 114 S.W.3d 487 (Tenn. 2003). Petitioner sought post-conviction relief, among other things, on the basis of ineffective assistance of counsel. After a hearing, the post-conviction court denied relief. After a thorough review of the record, we determine that Petitioner has failed to show that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.
http://www.tba2.org/tba_files/TCCA/2011/flakec_012411.pdf
MELVIN REED v. JOSEPH EASTERLING, WARDEN
Court: TCCA
Attorneys:
Melvin Reed, Mountain City, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter, and Clarence E. Lutz, Assistant Attorney General, for the appellee, State of Tennessee.
Judge: WILLIAMS
The petitioner, Melvin Reed, appeals the summary dismissal of his petition for writ of habeas corpus relief. He entered a guilty plea to possession with intent to sell cocaine and was
sentenced to ten years incarceration. On appeal, he argues that the indictment that led to his conviction was void. The State has moved to affirm the judgment from the trial court
pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. After careful review, we grant the motion, and the judgment of the trial court is affirmed pursuant to Rule 20.
http://www.tba2.org/tba_files/TCCA/2011/reedm_012411.pdf
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| TODAY'S NEWS |
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Legal News
Tenn. Government
Disciplinary Actions
TBA Member Services
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| Legal News |
| Nashville School of Law celebrates 100 years |
| In 1911, a group of earnest young law school graduates started teaching free law classes at night in the basement of the Nashville YMCA. The idea was to make a legal education accessible to all "for the good of the town." Now 100 years later, the Nashville School of Law is going strong and seen as an excellent value. |
The Tennessean has the story
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| Law student leadership class opens |
| The TBA YLD's newest program for law students -- the Diversity Leadership
Institute -- got underway this past weekend with a focus on issues of
leadership and diversity in the legal profession. The class of 15 joined bar
leaders from across the state for programs on Saturday and then heard from
Nashville lawyer John Tarpley and a panel of lawyers including James
Crumlin, Kaz Kikkawa, Wendy Warren and Jude White. Former TBA president Gail
Vaughn Ashworth led the group in a debriefing caucus at the end of the
program. Over the next several months, the students will work with an
assigned mentor and complete CLE and public service requirements. The
program, an initiative of YLD President Tasha Blakney of Knoxville, is
co-chaired by Memphis attorney Ahsaki Baptist and Chattanooga lawyer Blair
Bennington Cannon.
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See a photo of the class on TBAConnect
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| PD's office will move to Franklin courthouse |
| Public defenders in the 21st Judicial District will soon move into
a 4,100 square foot office on the first floor of the historic courthouse building at 305 Public Square in Franklin. |
The Tennessean has more
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| Juvenile crime down in Hamilton County, report says |
| The number of crimes committed by juveniles went down 31 percent in the last five years to the lowest level since Hamilton County began tracking such data, according to an annual report from the Juvenile Court System. |
The Chattanooga Times Free Press reports
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| Barrett says he'll take redistricting to court if needed |
| A veteran Nashville attorney known for his civil rights, labor and constitutional work, George Barrett is determined to ensure that the city redraw its 35 Metro Council district lines to maximize voter representation accuracy. And if it doesn't, he's ready to go to court.
"The citizens of Nashville should not be submitted to four years of governance by an improperly constituted city council," Barrett wrote in the letter. "I stand ready to seek the assistance of the federal court should such reapportionment not take place prior to the August 2011 city council elections." |
The City Paper has details
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| 2 judges recuse themselves from Titans-Kiffin case |
| Two federal judges felt they couldn't oversee the case in which the Tennessee Titans are suing former University of Tennessee football coach Lane Kiffen. The suit stems from Kiffin hiring former Titans running back coach Kennedy Pola, who joined Kiffen at the University of Southern California after abruptly leaving UT.
Todd J. Campbell, chief judge of the U.S. District Court for the Middle District of Tennessee stepped down because his son has applied to USC, and Judge Aleta A. Trauger recused herself because her husband, Nashville attorney Byron Trauger, headed up negotiations to bring the Titans to Nashville.
Trauger said she doesn't believe she was legally required to step down, but, like Campbell, wanted to avoid the appearance of bias.
The case was reassigned to Senior Judge John T. Nixon. |
Learn more from the Tennessean
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| Tenn. Government |
| Haslam does not favor electing attorney general, Supreme Court |
| Tennessee Gov. Bill Haslam said electing the state's attorney general could lead to an infusion of politics into an office that should be focused on protecting the state's legal interest.
Haslam told the Chattanooga Times Free Press
that he "will not oppose" efforts by Republicans in the General Assembly to push for an elected attorney general, but said that
electing that position may cause the person to focus more on political advancement than legal issues.
Haslam also opposes popular election of appellate court judges.
"The Supreme Court should not have to do what I just did," said Haslam, referring to his two-year campaign that cost about $15 million.
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The News Sentinel has more
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| Disciplinary Actions |
| Knoxville attorney disbarred |
| On Jan. 19, the Tennessee Supreme Court disbarred Knoxville attorney Kristin Alyse Godsey pursuant to Tennessee Supreme Court Rule 9, Section 4.1. She violated disciplinary rules by practicing while suspended, submitting false fee requests to the Administrative Office of the Courts, and forging a judge's name to a document. |
Download the BPR news release
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| Memphis attorney disbarred |
| Memphis attorney
King Bethel Harris III was disbarred by Order of the Tennessee Supreme Court on Jan. 19. He was ordered to pay restitution to two people totaling $210,000, and pay the board's costs. A hearing panel determined that he continued to hold himself out as a licensed attorney while serving an ongoing, prior suspension for disciplinary misconduct. Using a Missouri address and a Tennessee address as an office location, Harris promised clients that he would hold their funds in his attorney trust account in an investment deal he was facilitating, but the funds were never transferred to a third party for investment. |
Download the BPR news release
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| Nashville lawyer suspended |
| On Jan. 18, the Tennessee Supreme Court suspended Nashville lawyer Edward L. Swinger for two years with all time probated subject to several conditions: he must have no further substantiated cases of disciplinary misconduct and he must attend six additional hours of continuing legal education in the subject of legal ethics and professionalism. The petition for Discipline was based upon an incident of domestic violence between Swinger and the mother of his child. |
Download the BPR news release
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| TBA Member Services |
| Avis benefits 'try harder' |
| TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.
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Questions, comments: Email us at TBAToday@tnbar.org
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.
© Copyright 2011 Tennessee Bar Association
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