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Friday, November 18, 2011

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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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
00 - TN Court of Appeals
04 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
02 - TN Supreme Court - Disciplinary Orders

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.

DOROTHY KING ET AL. v. VIRGINIA BETTS ET AL.
With Concurring Opinion

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; John W. Dalton, Senior Counsel, for the appellants, Virginia Betts, Lynn McDonald, Dr. Lindsey Douglas, and Glynda Heinicke.

William J. Haynes, III, Nashville, Tennessee, for the appellee, Patricia Battle.

Judge: KOCH

This appeal involves the assertion of the qualified immunity defense in a 42 U.S.C. section 1983 (2008) action filed in state court. A registered nurse employed at a state psychiatric facility publicly disagreed with a change in the facility's procedures for administering prescription medications at night and on the weekend. When the facility declined to change its procedures, the nurse filed a 42 U.S.C. section 1983 action in the Chancery Court for Davidson County against various officials and employees of the then Tennessee Department of Mental Health and Developmental Disabilities, alleging the existence of a hostile work environment and retaliation for the exercise of her constitutionally protected free speech rights. The defendants filed a motion for summary judgment on the nurse's First Amendment claim and a motion for judgment on the pleadings asserting qualified immunity. The trial court, after considering the products of two years of discovery, granted both of the defendants' motions and dismissed the nurse's complaint. The Court of Appeals reversed the trial court with regard to both motions based on its conclusion that material issues of fact precluded both motions. King v. Betts, No. M2009-00117-COA-R3-CV, 2009 WL 4893590 (Tenn. Ct. App. Dec. 18, 2009). We granted the defendants' Tenn. R. App. P. 11 application for permission to appeal to address the procedure for the consideration of qualified immunity defenses in 42 U.S.C. sectin 1983 actions filed in Tennessee's courts and to determine whether the defendants were entitled to qualified immunity on the facts of this case. We have determined that the defendants are entitled to qualified immunity because the nurse has failed to demonstrate that the defendants' response to her criticism of the changes in the procedures for administering prescription medications violated a clearly established right.

http://www.tba2.org/tba_files/TSC/2011/kingd_111811.pdf

HOLDER concurring
http://www.tba2.org/tba_files/TSC/2011/kingd_CON_111811.pdf

STATE OF TENNESSEE v. DAVID HOUSTON GREENE

Court: TCCA

Attorneys:

Steve McEwen, Mountain City, Tennessee (on appeal); Stephen M. Wallace, District Public Defender; and Richard A. Tate, Assistant Public Defender, Blountville, Tennessee (at trial and on appeal) for the Defendant-Appellant, David Houston Greene.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and William B. Harper, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

Defendant-Appellant, David Houston Greene, appeals the Sullivan County Circuit Court's revocation of his probation in three different cases. He was originally convicted of possession of cocaine with intent to sell, aggravated perjury, and misdemeanor failure to appear. He received an effective eight-year sentence, all of which was suspended after thirty days incarceration. On appeal, Greene claims that the trial court abused its discretion in revoking his probation and in ordering him to serve the sentences in confinement. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/greened_111811.pdf

STATE OF TENNESSEE v. CHARLOTTE McCARTER

Court: TCCA

Attorneys:

Bryan E. Delius and Bryce W. McKenzie, Sevierville, Tennessee, for the Defendant-Appellant, Charlotte McCarter.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James B. Dunn, District Attorney General, and Ashley D. Musselman, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

In this extraordinary appeal, the Defendant-Appellant, Charlotte McCarter, appeals the Sevier County Circuit Court's order refusing to grant an interlocutory appeal regarding the denial of pretrial diversion. On appeal, McCarter argues that the prosecutor abused her discretion in denying her application for pretrial diversion by: (1) failing to properly consider her amenability to correction; (2) making "rote statements" that the evidence weighed in favor of denying pretrial diversion instead of properly weighing the relevant factors; (3) relying on the circumstances of the offense and the need for deterrence, where these factors were not of such "overwhelming significance" to justify the denial; and (4) failing to have "substantial evidence" to support her decision to deny pretrial diversion. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/mccarterc_111811.pdf

STATE OF TENNESSEE v. PAUL M. STACKHOUSE

Court: TCCA

Attorneys:

Douglas R. Beier, Morristown, Tennessee, for the appellant, Paul M. Stackhouse.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Greg W. Eichelman, District Public Defender; and Kimberly Morrison, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Paul M. Stackhouse, was convicted of one count of aggravated sexual battery, a Class B felony, and sentenced to nine years in the Department of Correction. The defendant appeals his conviction, claiming that: (1) the evidence is insufficient to support his conviction; (2) the trial court abused its discretion by admitting certain expert testimony and by failing to provide a requested special jury instruction regarding same; (3) the trial court abused its discretion by allowing a witness to testify regarding a prior inconsistent statement made by one of the State's witnesses during the State's case-in-chief and by refusing to provide a limiting jury instruction regarding same; and (4) the trial court erred by failing to grant a judgment of acquittal. After carefully reviewing the record and the arguments of the parties, we affirm the judgment of the court below.

http://www.tba2.org/tba_files/TCCA/2011/stackhousep_111811.pdf

STATE OF TENNESSEE v. CASEY TREAT

Court: TCCA

Attorneys:

Ronald C. Newcomb, Knoxville, Tennessee for the Appellant, Casey Treat.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; James Dunn, District Attorney General, and Greg Eshbaugh, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Sevier County grand jury indicted the Defendant, Casey Treat, for driving under the influence and driving under the influence per se. The Defendant pled guilty but reserved a certified question of law, pursuant to Tennessee Rule of Criminal Procedure 37(b)(2), as to whether the absence of the video recording of his stop violated his constitutional rights. After review, we conclude that this Court does not have jurisdiction to address the certified question because it does not comply with the strict requirements of Tennessee Rule of Criminal Procedure 37(b)(2), as the certified question is (1) not dispositive of the case and (2) overly broad. Accordingly, the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2011/treatc_111811.pdf

IN RE: DAVID J. JOHNSON, BPR 004595

Court: TSC-Disciplinary_Order

Judge: KOCH

Disbarment

http://www.tba2.org/tba_files/TSC/2011/johnsond_111811.pdf

WILLIAM LEE WHEATLEY, BPR 022339

Court: TSC-Disciplinary_Order

Judge: KOCH

Reinstatement

http://www.tba2.org/tba_files/TSC/2011/wheatleyw_111811.pdf

TODAY'S NEWS

Politics
Legal News
Disciplinary Actions
TBA Member Services

Politics

Kyle will not run for district attorney general

State Sen. Jim Kyle announced today he will not run for Shelby County district attorney general next year. A special general election is scheduled for next August for the office in the wake of former Dist. Atty. Gen. Bill Gibbons' departure in January to join Gov. Bill Haslam's Cabinet as commissioner of safety and homeland security. Haslam appointed Gibbons' deputy district attorney, Amy P. Weirich, to replace him in January and she will be a candidate for the remainder of the term. The qualifying deadline for candidates is Dec. 8 and the special primary election for the office is in March.

The Commercial Appeal has more

Legal News

Satellite city forms court system, despite Metro

The city of Forest Hills Board of Commissioners Thursday appointed a city judge and authorized a newly created court system, even though Metro Nashville attorneys claim the board lacks the legal authority to do so. The court will hear cases involving zoning and property ordinances. The three-member commission appointed attorney David McMackin, a Forest Hills resident, as the city's judge, and scheduled the new court to open Tuesday, Dec. 20.

The City Paper has the story

Civil suits likely in Penn State scandal

Civil law suits appear inevitable in the aftermath of the Penn State child-sex abuse scandal, and the matter raises novel and challenging legal issues, according to lawyers with experience in similar litigation. And after football defensive coordinator Jerry Sandusky's interview with NBC's Bob Costas, at least one of his alleged victims took issue and will now appear at his preliminary hearing. "When Mr. Sandusky gave his interview, he referred to his behavior as, I believe, 'horsing around,'" the victim's lawyer Ben Andreozzi said. "The contact that he had with my client was sexual in nature, completely inappropriate and severe sexual assault."

The Legal Intelligencer reports

Cumberland approves new roof for justice center

The Cumberland County Justice Center has been approved to pay a new architect for design services on the Justice Center roofing project.

The Crossville Chronicle has the story

Revival of 1991 PSA brings new attention to Houston

A 20-year-old public service announcement, released onto YouTube on Thursday, praises the life of lawyer Charles Hamilton Houston in a "Black History Minutes" spot. Among many accomplishments, Houston is credited for masterminding the strategy that eventually led to the Brown v. Board of Education decision. The announcement is made by 1991's editor of the Harvard Law Review -- Barack Obama.

ABAJournal brings you the video

Environmental suit not chicken feed to lawmakers

An environmental showdown in Maryland pits the governor against the dean of the University of Maryland Francis King Carey School of Law. This week, Gov. Martin O'Malley sent a harshly worded letter to Dean Phoebe Haddon calling the school's environmental clinic's involvement in a lawsuit an "ongoing injustice." The governor asked Haddon to end the school's connection to the suit filed in March 2010 against poultry giant Perdue Farms Inc. and a chicken farm that supplies the company. The suit, which claims the groups are illegally discharging pollution into several waterways, has rankled lawmakers who said it hurts local industry. Legislators threatened to cut $250,000 from the university's budget unless every one of the law school's clinics turn over information about the clients they have represented during the past five years.