TBA Law Blog

Posted by: Journal News on Jun 1, 2014

Journal Issue Date: Jun 2014

Journal Name: June 2014 - Vol. 50, No. 6

Ramsey Confirms ‘Confidential Plan’ to Defeat Justices

Nashville’s News Channel 5 revealed last night that it had obtained a “confidential Republican plan” that outlines a campaign to oust three members of the Tennessee Supreme Court. The plan, put together by Lt. Gov. Ron Ramsey's office, appears designed to remove the justices to free up seats for new Republican appointees and to increase the likelihood that a Republican attorney general is appointed, the station reports. The document suggests that the justices could be “portrayed as soft on crime and anti-business.” Ramsey also confirmed to the station that he has been presenting a slide show to business leaders to highlight what he sees as "anti-business" court decisions and to encourage them “not to sit on the sidelines." He also confirmed that he has been working with the Republican Attorneys General Association to get funding for the effort. The Tennessean carried a similar story today and questioned why Ramsey is pushing for the justices’ defeat after he worked with them to craft an amendment for the November ballot that changes how Tennessee selects appellate judges. Ramsey maintained there was no contradiction between the two efforts. Both stories included reaction from Lew Conner, a prominent Republican lawyer and former appeals court judge, who called Ramsey's document "an unwarranted, unjustified attack on the independence of the judiciary."

Haslam Won't Take Part in Campaign Against Justices

Gov. Bill Haslam said today he will not take part in efforts by Lt. Gov Ron Ramsey to unseat the three Supreme Court justices appointed by Democrats, the Chattanooga Times Free Press reports. Haslam told reporters at a Lipscomb University event that he has a “good working relationship with all three” targeted justices. Haslam also said he has some concerns the campaign against the judges could hurt chances of passing the constitutional change on judicial selection that he is supporting.

Conner: Ramsey Attacks 'Misleading' on Death Row Cases

Two former death row inmates could become the poster children for a campaign by Republican activists to unseat three state Supreme Court justices, News Channel 5 reports. As a follow-up story to Tuesday's news that Lt. Gov. Ron Ramsey's office has prepared a campaign strategy against the three, the TV station is reporting that the plan highlights the cases of Arthur Copeland and Leonard Edward Smith to suggest the justices are soft on crime. In the Smith case, Ramsey questions how the court could "let this double murderer off death row." He also maintains that some of the "heinous crimes that have been overturned" have been for " frivolous reasons." Republican lawyer Lew Conner, after looking the cases, calls the attacks "misleading." He provides insight into the cases as well as the general observation that in 21 of the death penalty cases that have come before the Supreme Court on direct appeal since 2006, the court has upheld the death penalty in 18 of them. "How can that be soft on crime?" Conner asks.

TBA President Joins in Yes on 2 Campaign Launch

TBA President Cindy Wyrick today joined Gov. Bill Haslam and Yes on 2 Honorary Co-Chairs former Gov. Phil Bredesen and former U.S. Sen. Fred Thompson for the Yes on 2 Campaign kickoff. The Yes on 2 Campaign is supported by a business coalition that hopes to raise the funds necessary for mass campaign activities, including television commercials urging the adoption of the amendment. “I was very pleased to be present for the launch of the Yes on 2 campaign, as the TBA shares the campaign’s very important goal of passing the Judicial Selection Amendment, or Amendment 2," Wyrick said. "The TBA believes that adoption of the amendment is the best way to ensure stability and consistency in our judicial system and to maintain our fair and impartial courts."  The TBA Board of Governors determined that it should favor adoption of the amendment with the advent of the Governor’s Commission for Judicial Appointments, because it is the best way to further the TBA’s long-standing policy of supporting merit selection for judges and the use of retention elections.

Gov. Shows Support for 2 in Online Video

Gov. Bill Haslam followed yesterday’s launch of the Yes on 2 Campaign with the release of an online video in support of Constitutional Amendment 2 or the Judicial Selection Amendment. He also today unveiled a new Yes On 2 Campaign website. Democratic former governor Phil Bredesen and Republican former senator Fred Thompson also showed their support for the amendment with in an op-ed piece in the Tennessean.

New Studies: Salaries, Billing Rates Still Low for Female Lawyers

A recent study reported in the ABA Journal found that female lawyers and judges earn about 82 percent of what their male counterparts make. And when it comes to billing rates, another study found that female law-firm partners are lagging behind their male counterparts. That analysis, reported by the Wall Street Journal Law Blog, found that women partners on average earn 10 percent less for their services then male partners. The analysis also found that the gap begins at the junior lawyer level and is more pronounced among seasoned attorneys at major firms – even when female partners possess similar levels of experience and work in the same market.

Arizona to Offer First B.A. in Law

The University of Arizona will be the first major U.S. university to offer a bachelor of arts degree in law when it launches its program next fall, administrators announced this week. Arizona’s program will differ from the prelaw or legal-studies majors offered by many universities. Those programs tend to focus broadly on the social sciences, while Arizona’s will closely resemble a law school curriculum, with the law classes taught by full-time law school faculty. The program is designed to complement Arizona’s new “3+3” program, which allows students to complete a bachelor's in law and a juris doctor degree within six years, rather than the typical seven. The National Law Journal has more.

ABA Forms Task Force on Cost of Legal Education

The American Bar Association has formed a new task force charged with examining the cost of a legal education, how law school is financed, what role student loans play and the impact of overall educational debt. The ABA Task Force on the Financing of Legal Education also will consider current practices in the use of merit scholarships, tuition discounting and need-based aid. Members of the task force include Memphis lawyer Lucian Pera, a partner at Adams and Reese and treasurer of the ABA.

ABA Ethics Opinion: Do Not 'Friend' Jurors

Lawyers may look up jurors or potential jurors on the Internet and social media, but they may not communicate directly with them — such as asking to “friend” them on Facebook. According to Formal Opinion 466 issued today by the ABA Standing Committee in Ethics and Professionalism, lawyers may pick through the troves of public information that jurors put on the Internet about themselves. “'The mere act of observing’ is not improper ex parte conduct, much as driving down a juror’s street to get a sense of his or her environs isn’t,” the ABA Journal reports.

Nashville Mayor Proposes New Conservator Agency

Nashville Mayor Karl Dean has proposed a new Office of Public Guardian to defend the elderly and others who are not able to care for themselves. His budget, released this week, includes $195,000 to establish the office and hire a public guardian and accountant. The office would be the first publicly funded in the state. Guardians typically are paid through fees assessed on individuals receiving the assistance. Davidson County Probate Judge David “Randy” Kennedy praised the move and said he was confident the Metro Council would approve the funding. Dean’s proposal tracks recommendations from a task force Kennedy appointed.

Supreme Court Clarifies Standard for Review of Judicial Diversion

The Tennessee Supreme Court in a unanimous opinion today clarified the standard of appellate review for a trial court’s decision regarding judicial diversion, the Administrative Office of the Court reports. When a case is appealed, the court must determine what standard of review applies. In the case State v. King, the defendant argued that the Court of Criminal Appeals used the wrong standard when reviewing the trial court’s decision to deny judicial diversion. The Tennessee Supreme Court upheld the ruling of the Court of Criminal Appeals, adopting as the appropriate standard of review for judicial diversion rulings “abuse of discretion with a presumption of reasonableness.”

1 in 25 Sentenced to Death Are Likely Innocent, Study Says

A new study suggests that about one in 25 people who are sentenced to death are likely innocent, the ABA Journal reports. The study, published in the Proceedings of the National Academy of Sciences, says that while only 1.6 percent of those on death-row are exonerated and released, the actual figure is likely a minimum of 4.1 percent when statistical assumptions are applied to the cases of people who are removed from death row and given life sentences.The new study also refutes a statement made by Justice Antonin Scalia in a concurring opinion in 2007 in which he wrote that American criminal convictions have an error rate of 0.027 percent “or, to put it another way, a success rate of 99.973 percent.”

House Approves Electrocution Bill

The Capital Punishment Enforcement Act, which would allow the state Department of Correction to use the electric chair for executions if lethal injection chemicals are unavailable, passed in the House by a 68-13 vote, the Tennessean reports. HB 2476 sponsored by state Rep. Dennis Powers, R-Jacksboro, allows the department to petition the governor to use the electric chair if it is unable to obtain the proper chemicals for administering a lethal injection. Having passed the Senate last week 23-3, the bill now heads to Gov. Bill Haslam. State Attorney General Robert Cooper issued an opinion in March that deemed the bill constitutionally defensible, the Nashville Scene notes.

Court Upholds Prayer at NY Town Meetings

The U.S. Supreme Court ruled today that mostly Christian prayers, delivered by a “chaplain of the month” before town meetings, do not violate the establishment clause, the ABA Journal reports. A 5-4 majority upheld the practice saying it “comports with our tradition and does not coerce participation.” While the suit had sought to limit prayers to those that do not reference a particular faith or belief, the majority found that such a “fixed standard” was “not consistent with the tradition of legislative prayer” and would actually force legislatures and courts to “act as supervisors and censors of religious speech.” Justice Elena Kagan wrote the dissenting opinion in which she argued that town hall meetings do not need to be religion-free zones but that the town of Greece “did nothing to recognize religious diversity” until it was sued.

O’Connor Pushes Civics Education at Nashville Event

More than 100 lawyers and judges from across the southeast today heard about the “appalling level of public ignorance” about our democratic system from former U.S. Supreme Court Justice Sandra Day O’Connor. The lawyers were in Nashville attending SEABOTA, the regional gathering of members of the American Board of Trial Advocates. Among the solutions offered to what was described as a “crisis” in civics education was the iCivics program, which now numbers more than 65,000 registered teachers; the new civics education and engagement and assessment requirement for Tennessee schools sponsored by Sen. Mark Norris, R-Memphis; and respect for jurors and effective access to justice programs. Also at the event, Tennessee Supreme Court Chief Justice Gary Wade moderated a panel of judges from 10 southern states who highlighted the importance of fair and impartial state courts. Learn more about ways to assist civics education efforts in Tennessee.

Governor Signs 3 TBA Bills; Others on the Way

All of the TBA's legislative initiatives have passed both houses of the General Assembly, and three have been signed by the governor. The statute of repose for legal malpractice was signed by Gov. Haslam and will take effect July 1, as will TBA's family law bill enhancing parental rights concerning custody orders and a bill clarifying liability obligations in a limited liability partnership. Two more measures, the revision to the nonprofit corporations act and changes to the probate law are headed to the governor's desk for signature. Check TBAImpact for other bills we are tracking this session.

State to Criminalize Moms Using Drugs while Pregnant

Gov. Bill Haslam today signed legislation allowing women who use drugs while pregnant to be criminally charged for harm done to their infants, the Tennessean reports. “The intent of this bill is to give law enforcement and district attorneys a tool to address illicit drug use among pregnant women through treatment programs,” Haslam wrote in a statement. Tennessee officials have wrestled with what to do about the growing numbers of infants born dependent on drugs. The law brings back criminalization, which lawmakers had eliminated two years ago as the state moved toward programs that incentivize expecting mothers to get into treatment.

Justice Alito: Law Schools Give LSAT Too Much Weight

Supreme Court Justice Samuel Alito has taken sides in the polarizing debate over the Law School Admissions Test (LSAT). Student scores on the entrance exam shouldn’t matter as much as they do, he told the American Spectator. “Law schools put too much emphasis on this one multiple choice test. What in life is a multiple choice test?” he said. During the wide-ranging interview with the magazine, the justice also discussed the importance of justices accepting change and his aversion towards attending State of the Union addresses. The Wall Street Journal Law Blog has more.

Obama’s Impact on Courts Under Scrutiny

What has been President Barack Obama’s impact on the courts? Journalists are updating their analyses as November’s mid-term elections near, and Democratic control of the Senate comes into question, Gavel Grab reports. A Bloomberg News article published today reports that Obama has surpassed his predecessor, President George W. Bush, for the number of judges confirmed to the bench at a corresponding point in his two terms. The article also notes Obama has named more blacks, Hispanics, women and Asians as federal judges than any of his predecessors.

Supreme Court Clarifies Standard for Review of Judicial Diversion

The Tennessee Supreme Court in a unanimous opinion today clarified the standard of appellate review for a trial court’s decision regarding judicial diversion, the Administrative Office of the Court reports. When a case is appealed, the court must determine what standard of review applies. In the case State v. King, the defendant argued that the Court of Criminal Appeals used the wrong standard when reviewing the trial court’s decision to deny judicial diversion. The Tennessee Supreme Court upheld the ruling of the Court of Criminal Appeals, adopting as the appropriate standard of review for judicial diversion rulings “abuse of discretion with a presumption of reasonableness.”

Survey: People Now Search Internet First When Needing a Lawyer

People in need of legal representation now are more likely to turn to the internet to find a lawyer, a recent survey suggests. This is a reversal since just a decade ago, when studies showed the internet was the least popular source, behind personal referrals, the Yellow Pages or local bar associations. The new survey, conducted by FindLaw.com and Thomson Reuters, found that 38 percent of the 1,000 respondents said that they would use the Internet first. That was considerably higher than the other available options: 29 percent of respondents would ask a friend or relative first, 10 percent would go straight to the local bar association; and 4 percent would rely on the Yellow Pages. ABAJournal.com has more details.

Memphis Law Student Wins 2014 Hastings Competition

The TBA Environmental Law Section today announced that William McDonald "Mac" Plosser, a third-year student at the University of Memphis Cecil C. Humphreys School of Law, is the winner of the 2014 Jon E. Hastings Memorial Award Writing Competition. The writing competition is sponsored by the Environmental Law Section in memory of Jon Hastings, one of the founding members of the section. Plosser's paper "Into The Fracking Fray: Advocating For A Balanced Approach To Hydraulic Fracturing Regulation In Tennessee" addresses the recent expansion of hydrofracturing to extract natural gas nationwide and how that issue has been addressed in Tennessee. In response to conflicts between local and state control in other states, the author proposes a balanced role that preserves both local zoning power and state regulatory authority.

The annual Jon E. Hastings Memorial Award Writing Competition is a juried competition for the best legal writing on a topic of Tennessee or federal environmental law and is open to law students enrolled in a Tennessee law school. Plosser will collect a cash award and his article will be published in an upcoming edition of the TBA Environmental Law Section's newsletter.