TBA Law Blog

Posted by: Journal News on Dec 1, 2013

Journal Issue Date: Dec 2013

Journal Name: December 2013 - Vol. 49, No. 12

Haslam Appoints 17-Member Group

Gov. Bill Haslam named members to the Governor’s Commission for Judicial Appointments, which will consider applications from those seeking to fill court vacancies. The new 17-member commission will send a panel of three nominees to the governor to make an appointment when a vacancy occurs or is impending.

In October, the Tennessee Attorney General issued an opinion confirming the governor’s authority to continue making judicial appointments after the termination of the Judicial Nominating Commission (JNC) on June 30. The JNC also had 17 members.

“I would like to keep the process virtually the same for selecting judges in Tennessee … until Tennesseans have the opportunity to vote on the proposed constitutional amendment in 2014. This commission allows us to continue to select the highest quality people and ensure a stable and effective judiciary,” Haslam said.

Attorneys among the group are S. Leo Arnold of Dyersburg; Bradford Box of Jackson; Alberto Gonzales of Nashville; Olen Haynes Sr. of Johnson City; Thomas Lawless of Nashville; Gilbert McCarter II of Murfreesboro; Jimmie Carpenter Miller of Kingsport; J. Bartlett Quinn of Chattanooga; Cheryl G. Rice of Knoxville; W. Scott Sims of Nashville; Michael Spitzer of Hohenwald; and Charles Tuggle and Amy P. Weirich of Memphis.

Community members are Miles Burdine, president of the Kingsport Area Chamber of Commerce; Dr. Jesse Cannon with Western Mental Health Institute in Bolivar; David Golden with Eastman Chemical Company in Kingsport; and victim advocate Verna Wyatt of Nashville.

TBA Supports Constitutional Amendment on Judicial Selection

Following a complete review of its policy on judicial selection, the Tennessee Bar Association (TBA) Board of Governors on Oct. 12 reaffirmed its commitment to merit selection to fill judicial vacancies, and voted to support a constitutional amendment that provides for gubernatorial appointment, legislative confirmation and retention elections for judges.
The board did so because of assurances that Gov. Bill Haslam would include merit in the process via an Executive Order, if the amendment is adopted. The amendment will be on the ballot in the state’s November 2014 general election.


CLE Commission Proposes Extensive Rule Changes
The Tennessee Commission on Continuing Legal Education and Specialization has proposed a comprehensive set of revisions to the rule on mandatory continuing legal education. The 18-page petition filed with the Tennessee Supreme Court details changes to almost every section of the rule and includes: a recommendation to end exemption for lawyers 65 or older; a new requirement that at least five credit hours must be by live, in-person CLE activity; reshuffling the requirements for responding to the annual report statement; ending presumptive approval for CLE courses by certain providers; and, making a number of other changes that the commission characterizes as self-evident. The petition was filed on Oct. 30, but at press time no order had been issued by the court soliciting or setting a deadline for comments.

TBA Renews Judicial Campaign Code of Conduct Program
The Tennessee Bar Association (TBA) has renewed a program that invites judges and judicial candidates to agree to a campaign code aimed at preserving public faith in the integrity of the justice system.

“Judicial elections are different,” TBA President Cindy Wyrick said. “Judges must run on a pledge that they will conduct themselves in a fair and impartial manner if elected. A judicial candidate who might be asked to pre-judge a case or to comment on legal issues might have to step aside or recuse himself or herself, if they already announced how they would rule.”

The 2014 effort builds on the highly successful 2006 program, which saw 189 judicial candidates agree to abide by the code of conduct. Judicial candidates who agree to the Tennessee Fair Judicial Campaign Code of Conduct during this election cycle will be listed on the TBA’s website, which also will include general information about judicial campaigns and a voter guide called “Judging Judges.”

Medicare Terms Still Make a Difference After 'Bagnall' Ruling
In her recent “Senior Moments” column (October 2013), Knoxville lawyer Monica Franklin wrote about the differences in the Medicare world between the terms “observation” and “admission.” The use of one or other of the words can make a huge difference in whether your client will incur extra costs for the hospitalization and whether your client will receive the Medicare benefit to pay for skilled care in a rehabilitation facility.

In the column, Franklin references Bagnall v. Sebelius, which at the Journal’s press time was pending. Late last month, Judge Michael P. Shea ruled against the plaintiffs and granted the government's motion to dismiss the action. The plaintiffs’ main substantive claim was that observation status violates the Medicare statute because it deprives them of coverage they are entitled to by law. The judge dismissed this claim by relying on a federal appeals court case that held that it is permissible for Medicare to consider someone an inpatient only if she has been formally admitted by a hospital. Franklin notes that the Improving Access to Medicare Coverage Act of 2013 (HR 1179), provides that a three-day stay in the hospital, regardless of observation or admission status, would allow a Medicare beneficiary to receive benefits to pay for skilled care in a rehabilitation facility.

Youth Court Program Growing
Two new Youth Courts were installed recently in Tennessee: Blount County and the Academy of Law at Cane Ridge High School in Nashville.

The Blount County Youth Court will operate under the supervision of Juvenile Judge Terry Denton, whose support has been instrumental to its success. After a successful pilot program in the spring, Cane Ridge installed the newest members of its youth court program in October. Davidson County Juvenile Judge Sophia Crawford, whose support has been central to the development of this innovative collaboration, officiated at the installation and swearing-in ceremonies.

The Tennessee Youth Court Program, an initiative of the Tennessee Bar Association offices, spans the state with youth court programs in 16 counties. Tennessee youth courts, juvenile delinquency prevention and intervention programs, have achieved a 93-percent success rate. Youth court programs are for first-time juvenile offenders who accept responsibility for low-level offenses; a jury of their peers determines the sentence.

Your New Colleagues
There were 611 successful students who took the bar exam in July. They were sworn-in around the state in ceremonies in November.

Consider Signing Up to Be a Mentor

Mentoring Program Will Help New Lawyers Go Solo

The Tennessee Bar Association has launched a new mentoring program, developed in part to respond to the growing trend of newly admitted lawyers opening solo practices.  The program will offer mentoring to TBA members with up to three years of law practice experience who do not have access to an existing mentoring program.  The TBA is currently soliciting attorneys from across the state with at least eight years of legal practice experience to serve as mentors. Those interested in being mentored may submit their applications to be matched with a mentor by Jan. 3, 2014.

Those participating in the program will commit to a formal mentoring relationship that will last for one year, and mentors and mentees will be required to meet face-to-face at least once a month.  Participants can choose one of two tracks — one track can result in participants receiving up to 7 hours of CLE credit, and the other track will  not confer CLE credit. Participants can choose from curriculum materials on a variety of topics that will be available at tba.org. The program will officially kick off on Feb. 3, 2014, and each newly matched mentor and mentee pair will be encouraged to have their first face-to-face meeting during that week.   

If you are a TBA member interested in serving as a mentor or participating as a mentee, please complete an application, which can be found at www.tba.org/programs/the-tba-mentoring-program. Contact the TBA’s Mentoring Coordinator, Christy Gibson, at (615) 383-7421 or cgibson@tnbar.org for more information.

Celebrate Pro Bono’ Helps More Than 1,800 With Legal Needs

More than 80 “Celebrate Pro Bono” events were held across the state in October. Nearly 200 attorneys and 140 other volunteers (including law students, paralegals, notaries and translators) served an estimated 1,800 clients. Events included traditional legal advice clinics, continuing legal education, clinics focused on specific topics or areas of need, public education sessions,celebrations and fundraisers for pro bono programs and volunteer recognitions. 33 lawyers and 27?other volunteers from the Memphis Bar Association helped 98 people at a “Wills for Heroes” event sponsored by the TBA Young Lawyers Division. This program provides wills, powers of attorney and other end-of-life documents for emergency first-responders and their families.

Deadline is Feb. 15, 2014

Run for Tennessee Bar Association?Office

During 2014, the following officers, governors and delegates of the Tennessee Bar Association (TBA) will be elected as set forth in the association’s bylaws:

TBA Officers and Board of Governors

A vice president (from the East Tennessee Grand Division — elected by the association’s membership-at-large). The vice president automatically assumes the office of president-elect in 2016 and president in 2017.

District Governors
District Governors in the 2nd, 4th, 5th (Position 2) and 7th districts will be elected to three-year terms. These governors are elected by the members in their respective districts.
Those who currently hold those positions are: Tasha Blakney (2nd), Donna Pierce (4th), Dan Berexa (5th) and Jason Creasy (7th). Jason Creasy (7th) is ineligible for re-election as district governor because of term limits.

Grand Division Governors
TBA Grand Division Governors are elected for one-year terms by the membership in each grand division.

  • Two East Tennessee governors from the 1st, 2nd or 3rd district.
  • Two Middle Tennessee governors from the 4th, 5th or 6th district.
  • Two West Tennessee governors from the 7th or 8th district.

To qualify, the position must specify whether the candidate is seeking a particular seat denominated Grand Division (Position 1) or (Position 2).
Those who currently hold those positions are:

  • East Tennessee: Jason Long (Position 1) and Andy Roskind (Position 2)
  • Middle Tennessee: Gary Shockley (Position 1) and Jim Cartiglia (Position 2)
  • West Tennessee: Michelle Sellers (Position 1) and Brian Faughnan (Position 2).  

Andy Roskind, Gary Shockley, Jim Cartiglia, Michelle Sellers and Brian Faughnan are eligible for re-election. Jason Long is ineligible for re-election as a Grand Division Governor due to term limits.

TBA Delegates to the ABA House of Delegates

Three members to represent the TBA in the American Bar Association (ABA) House of Delegates will be elected for two-year terms by the TBA membership in 2014. The positions are designated positions 2, 4 and 5.

Those who currently hold those positions are Buck Lewis (2), John Tarpley (4) and Paul Campbell III (5). All are eligible for re-election.

Qualifying, Balloting & Elections

The officers, governors and delegates to the ABA are elected by the membership as provided by election procedures with petitions due Feb. 15, 2014.

To qualify for any of these offices, a candidate must file a nominating petition with the executive director of the TBA. The petition must contain the names of 25 members of the association in good standing. The petition must be received at the TBA office on or before Feb. 15, 2014.

The Board of Governors has authorized an electronic balloting system supervised by auditors selected by the Board. After electronic balloting, mail ballots are also distributed. To be counted, these mail ballots must be received at the office of the TBA auditors. If there is only one duly-qualified candidate for an office by Feb. 15, 2014, that candidate will automatically be declared elected.

This notice is in accordance with bylaws of the TBA §15 and 40 through 46.
For more information on running for any of these offices, visit the TBA’s Web site at https://www.tba.org/election-guidelines or call 615-383-7421 for an election handbook.