TBA Today - Friday, October 16, 2020 - Your fastest source of appellate court decisions, Supreme Court rules and orders changes, attorney general opinions and other Tennessee legal community news.
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TBA Today
Friday, October 16, 2020
Today's News
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High School Mock Trial Goes Virtual for 2021

The TBA Young Lawyers Division today announced it will move forward with the 2021 Tennessee High School Mock Trial Competition by making the event virtual. The YLD’s Mock Trial Committee came to this decision after carefully considering feedback from Mock Trial participants, restrictions on student travel during the school year and the quarantine requirements and changing availability of courtrooms. The committee plans to release the 2021 problem, along with new format rules and procedures in mid-November. Read today’s announcement and check back for more information on the TBA’s Mock Trial webpage.

 
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Milan Attorney on Active Duty in Kuwait Appointed District Attorney of 28th District

Frederick H. Agee, a Milan attorney currently serving an active duty tour in Kuwait with the Army Reserve, was this week appointed district attorney for the 28th Judicial District by Gov. Bill Lee, the Jackson Sun reports. Agee will be released from active duty later this month and will quarantine for two weeks in Texas before being sworn in to begin serving the district, which covers Gibson, Haywood and Crockett counties. Agee, who has been a defense attorney in Milan his entire career, will be the only veteran currently serving as a DA in the state’s 31 districts. “That’s not necessarily something I set out for, but I’m proud of my military service and I’m proud to represent veterans in this capacity,” he said. Agee will fill the vacancy created by former DA Garry Brown’s retirement. The position will be up for election in August 2022.

Students Complete Pro Bono Projects for ATJ Commission Fellows Program

Eighteen students from Tennessee law schools have completed the Tennessee Supreme Court’s Access to Justice Summer Fellows Program, which connected the students with a dozen organizations dedicated to expanding justice. In addition to their pro bono work with the organizations, students also remotely attended a weekly professional development, led by leading legal figures like Supreme Court Justice Connie Clark, who spoke on the importance of pro bono and civil justice work. During the program, students remotely helped to develop tools to mitigate unnecessary denials of social security disability benefit claims, worked with the Tennessee Coalition to End Domestic & Sexual Violence to help judges presiding over domestic violence cases and much more. Read more on the program from the Administrative Office of the Courts website.

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Chattanooga Legislator Under Fire After Interview Comments

State Sen. Todd Gardenhire, R-Chattanooga, is under fire for comments he made regarding “inner city” obesity and the local police department during an interview with Chattanooga’s News Channel 9, the Associated Press reports. “The obesity rate in the inner city is bigger than anywhere else. Because ... they go to a 7-Eleven or a convenience store, there’s fried chicken so they get them some fried chicken on the way home and have dinner on that. Well, that’s the worst thing you can eat,” Gardenhire, who is white, said during the interview. Gardenhire also briefly suggested that a police officer should not arrest a person caught driving drunk, but should instead drive that individual home if the officer knows the person. Senate Speaker Randy McNally defended Gardenhire, saying his “candid style often leads to misunderstanding and misinterpretation.” “I am confident he did not intend any offense or disrespect,” McNally said.

Hearing Set for National Eviction Moratorium Case in Memphis

A hearing date has been scheduled in the federal lawsuit against the United States over the national eviction moratorium, the Associated Press reports. Seven Memphis landlords filed the suit, claiming the order infringes on their rights as property owners. They will make their case in front of a federal judge on Oct. 30 at 10 a.m. CDT. Several similar cases across the country have recently been dismissed, but Glankler Brown attorneys S. Joshua Kahane and Aubrey B. Greer say they are confident they’ll be successful in showing the moratorium violates not only property rights but also federal regulations.

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Inmate Seeking Firing Squad Option Gets 2022 Trial Date

U.S. District Judge William Campbell has set an April 2022 trial date in the case of a death row inmate seeking to die by firing squad, the Associated Press reports. Terry Lynn King, along with three other death row inmates, filed the suit nearly two years ago, arguing that the state had several alternative execution methods that would “substantially reduce the constitutionally-unacceptable risk of inflicting unnecessary and serious pain” caused by electrocution. Three of those inmates — Nicholas Todd Sutton, Stephen Michael West and David Earl Miller — have since been executed by the electric chair. According to the lawsuit, attorneys argue that the state already has the trained personnel, firearms and space to allow for a firing squad. However, if the court disagreed, the suit argued inmates should have permission to use other alternatives such as orally administering lethal drugs over using a needle, or using different forms of drugs.   

 
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Appellate Panel Affirms Absentee Voting Signature Match Decision

A 6th U.S. Circuit Court of Appeals three-judge panel on Thursday ruled it would not change Tennessee’s signature matching requirement for absentee voting before the November election, the Associated Press reports. The panel was split on affirming a lower court’s decision, with Judge Julia Smith Gibbons citing a lack of evidence that the signature verification process infringed on anyone’s Constitutional rights. The preliminary injunction had sought to let voters fix signature issues before mail ballot rejections. Judge Karen Nelson Moore’s dissent claimed “yet another chapter in the concentrated effort to restrict the vote.”

 
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LAS Plans 3 Phone Clinics Next Week

Legal Aid Society of Middle Tennessee & the Cumberlands will hold three phone clinics next week for members of the public with questions about housing and renters’ rights, bankruptcy, medical bills, debt collection, domestic violence, SNAP benefits and unemployment benefits. Clinics will take place Tuesday from 3 to 4 p.m., Wednesday from 11 a.m. to 1 p.m., and Saturday from 8:30 to 11:30 a.m. All times central. LAS is looking for attorneys to help answer questions. To volunteer contact Andrae Crismon or Kendra Cheek or call 615-780-7131. See all clinics for the month.

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NSL, Habitat for Humanity Seeking Volunteers for Virtual Wills Clinic

The Nashville School of Law Habitat for Humanity Wills Clinic works directly with NSL students and licensed attorney volunteers to produce wills for new Habitat homeowners each month using an approved will form. Attorney volunteers are needed for approximately two hours via Zoom to oversee upper-level law students as they go through the intake process with clients. No further time commitment is needed and an attorney-client relationship will not be established. Volunteer for just one session or sign up for as many as you’d like. The next three clinics will take place from 6 to 8 p.m. CDT on Oct. 20, Nov. 17 and Dec. 15. If you are able to help, email Ryan Harris or call at 615-942-1262.

 
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CLE to Cover ABCs of Special Needs Trusts and Planning

Join Mac Bailey, founding member of The Bailey Law Firm and Darlene Kemp and Theresa Law of Vista Points Special Needs Trusts & Resource Center as they walk you through the complex world of special needs trusts during the ABCs of SNTS program. Topics will include drafting tips, ethical considerations, types and specific purposes of special needs trusts and more. The program will take place virtually on Oct. 29 from 10 a.m. until 12:30 p.m. CDT and is worth 2.5 general CLE credits. Immediately following the program, there will be a live 30-minute Q&A time with all speakers.

 
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Put TBA UPS Account to Work

Have you enrolled in TBA’s UPS account for members? Visit UPS's TBA page and save up to 45% on UPS’s broad portfolio. Shipping services include next day air, international, ground and express.

 
Court Opinions

You can obtain full-text versions of these opinions by selecting the link below each opinion’s summary paragraph. Your email software should give you the option of reading the opinion online or downloading it to your computer or mobile device. Decisions from the 6th Circuit Court that are not designated for publication are not included in this report.

IN RE ADOPTION OF M.L.S.

Court: TN Court of Appeals

Attorneys:

Rachel Ratliff, Johnson City, Tennessee, for the appellants, Jerry T. and Penny T.

Phillip L. Boyd, Rogersville, Tennessee, for the appellees, Renee G. and Danny G.

Judge(s): MCGEE

This case involves a petition to set aside a final decree of adoption. The trial court granted the adoptive parents’ motion to dismiss the petition. We affirm and remand for further proceedings.

adoptionofmls_101620.pdf

PETER R. CULPEPPER v. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C., ET AL.

Court: TN Court of Appeals

Attorneys:

Peter R. Culpepper, Knoxville, Tennessee, Pro Se.

P. Edward Pratt, Knoxville, Tennessee, and Sam Berry Blair and Ryan A. Strain, Memphis, Tennessee, for the appellees, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.; John S. Hicks; Tonya Mitchem Grindon; Martha L. Boyd; Samuel Lanier Felker; Lori B. Metrock; and Lori H. Patterson.

Judge(s): FRIERSON

In this legal malpractice action, the trial court granted judgment on the pleadings in favor of the defendants, determining that the plaintiff had waived any conflict of interest in his signed engagement letter. The court also ruled that the plaintiff’s legal malpractice claims were barred by the applicable statute of limitations. The plaintiff has appealed. Upon our review of the pleadings and acceptance as true of all well-pleaded facts contained in the plaintiff’s complaint and the reasonable inferences that may be drawn therefrom, we determine that the plaintiff has pled sufficient facts in support of his claim of legal malpractice. We therefore reverse the trial court’s grant of judgment on the pleadings with regard to the plaintiff’s legal malpractice claim.

culpepperp_101620.pdf

IN RE MEGHAN M. R.

Court: TN Court of Appeals

Attorneys:

William Wesley Brooks, Tazewell, Tennessee, for the appellant, P. R.

Herbert H. Slatery, III, Attorney General and Reporter, and Stephanie Renee Reevers, Deputy Attorney General, for the appellee, Tennessee Department of Children’s Services.

Judge(s): BENNETT

A trial court terminated the parental rights of a mother based on the grounds of abandonment by failure to visit, abandonment by failure to provide a suitable home, substantial noncompliance with permanency plans, persistence of conditions, and failure to manifest an ability and willingness to assume custody. The mother appealed, and we affirm the termination on all grounds.

meghanr_101620.pdf

IN RE M.L.S.

Court: TN Court of Appeals

Attorneys:

Phillip L. Boyd, Rogersville, Tennessee, for the appellants, Renee G. and Danny G.

Rachel Ratliff, Johnson City, Tennessee, for the appellees, Penny T. and Jerry T.

Judge(s): MCGEE

This appeal involves a petition to enforce a visitation order after the entry of a final decree of adoption. The adoptive parents filed a motion to dismiss, which the trial court granted in part and denied in part. The trial court ordered the parties to participate in depositions to address the issue of “acquiescence” and determine “if an enforceable right of visitation with the minor Child was acquired by the Petitioners being allowed to visit after the adoption of the minor Child was finalized.” The adoptive parents sought and were granted permission to file an interlocutory appeal, challenging the denial in part of their motion to dismiss. We reverse and remand for further proceedings.

mls_101620.pdf

 

STATE OF TENNESSEE v. CARL ALLEN

Court: TN Court of Criminal Appeals

Attorneys:

Carl Allen, Memphis, Tennessee, Pro Se

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Kristen Cook, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): EASTER

Defendant, Carl Allen, is appealing the trial court’s denial of his motion to correct illegal sentence filed pursuant to Tennessee Rule of Criminal Procedure 36.1. After a thorough review of the record, we affirm the judgment of the trial court.

allenc_101620.pdf

DARRELL A. COOPER v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Darrell A. Cooper.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant Attorney General; Charme P. Allen, District Attorney General; and Ashley McDermott, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): MONTGOMERY

The Petitioner, Darrell A. Cooper, appeals from the Knox County Criminal Court’s denial of his petition for post-conviction relief from his 2016 convictions for two counts of aggravated robbery, two counts of aggravated kidnapping, and one count of possession of a firearm while being a convicted felon, for which he is serving a twenty-year sentence. The Petitioner contends that he received the ineffective assistance of counsel, rendering his guilty pleas involuntary. We remand the case to the post-conviction court for the entry of an order setting forth findings of facts and conclusions of law in compliance with Tennessee Code Annotated section 40-30-111(b) (2018).

cooperd_101620.pdf

STATE OF TENNESSEE v. RONALD DAVIS

Court: TN Court of Criminal Appeals

Attorneys:

Phyllis Aluko, Public Defender, and Michael J. Johnson, Assistant Public Defender, Memphis, Tennessee, for the appellant, Ronald Davis.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and David M. Zak, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WEDEMEYER

The Defendant, Ronald Davis, appeals the trial court’s revocation of his three-year probationary sentence for identity theft. The trial court determined that the Defendant’s failure to report to his probation officer violated the terms of his probation sentence and ordered the Defendant to serve his sentence. The Defendant asserts that the trial court’s revocation of his probation sentence was an abuse of discretion because he “was trying to connect with his probation officer.” The record supports the trial court’s finding that the Defendant failed to report to his probation officer during a six-month period. Based upon this evidence, we conclude that revocation of the probation sentence was not an abuse of discretion.

davisr_101620.pdf

STATE OF TENNESSEE v. ROBERT GLEN GRAY

Court: TN Court of Criminal Appeals

Attorneys:

Jamie L. Lowrance, Selmer, Tennessee, for the appellant, Robert Glen Gray.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant Attorney General; Mark E. Davidson, District Attorney General; and Lisa M. Miller, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WEDEMEYER

A McNairy County jury convicted the Defendant, Robert Glen Gray, of two counts of delivery of methamphetamine weighing .5 grams or more. The trial court sentenced the Defendant to a total effective sentence of twenty-five years. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. After review, we affirm the trial court’s judgments.

grayr_101620.pdf

BRANDON HARRIS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Terita M. Hewlett, Memphis, Tennessee, for the Petitioner, Brandon Harris.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge(s): MCMULLEN

The Petitioner, Brandon Harris, appeals from the denial of post-conviction relief arguing that trial counsel was ineffective in failing to investigate and call witnesses, failing to present expert testimony of mental impairment, and failing to object to the State’s certification of a voice recognition expert. Upon review, we affirm the judgment of the post-conviction court.

harrisb_101620.pdf

JAMES KELLY v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

James Kelly, Pro Se, Mountain City, Tennessee.

Herbert H. Slatery III, Attorney General and Reporter; and Renee W. Turner, Senior Assistant Attorney General, for the appellee, State of Tennessee.

Judge(s): THOMAS

The pro se Petitioner, James Kelly, appeals as of right from the Bradley County Criminal Court’s order summarily denying his pro se pleading that the trial court treated as a petition for post-conviction relief. The State has filed a motion to affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Following our review, we conclude that the State’s motion is well-taken and affirm the judgment of the trial court.

kellyj_101620.pdf

COREY MITCHELL v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Jason M. Matthews, Memphis, Tennessee, for the Petitioner, Corey Mitchell.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Paul Hagerman, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge(s): MCMULLEN

Following the reversal and remand of this case for a new evidentiary hearing, Corey Mitchell v. State, No. W2016-01818-CCA-R3-PC, 2018 WL 3005379, at *7 (Tenn. Crim. App. June 14, 2018), the post-conviction court again denied relief to the Petitioner, Corey Mitchell. In this appeal, the Petitioner argues that he received ineffective assistance of counsel, that his guilty plea was unknowing and involuntary, and that his plea should be withdrawn to correct manifest injustice. We affirm the judgment of the post-conviction court.

mitchellc_101620.pdf

STATE OF TENNESSEE v. SEBASTIAN A. STEVENS

Head Comment: Correction: On page 1, the city where the Public Defenders Office is located was changed from Jackson to Murfreesboro.

Court: TN Court of Criminal Appeals

Attorneys:

Gerald Melton, District Public Defender; John D. Driver, Assistant District Public Defender, Murfreesboro, Tennessee, for the appellant, Sebastian A. Stevens.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Assistant Attorney General; Jennings H. Jones, District Attorney General; and Dana S. Minor and Sarah N. Davis, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): WEDEMEYER

A Rutherford County jury convicted the Defendant, Sebastian A. Stevens, of three counts of aggravated assault and one count of aggravated kidnapping. The trial court sentenced the Defendant to a total effective sentence of eight years to be served consecutively to a prior sentence. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. He also contends that the trial court erred when it excluded the victim’s prior conviction and when it allowed the State to introduce evidence of the Defendant’s prior incarceration. The Defendant lastly contends that the trial court erred when it ordered that his effective sentence of eight years in this case be served consecutively to his sentence for a previous conviction. After review, we affirm the trial court’s judgments.

stevens_CORR_101620.pdf

STATE OF TENNESSEE v. NELSON P. TROGLIN

Court: TN Court of Criminal Appeals

Attorneys:

Nelson P. Troglin, Pikeville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Mike Taylor, District Attorney General, for the appellee, State of Tennessee.

Judge(s): MONTGOMERY

The Defendant, Nelson P. Troglin, appeals from the Bledsoe County Circuit Court’s denial of his motion to correct an illegal sentence. See Tenn. R. Crim. P. 36.1. He contends that the trial court erred in denying relief on the basis that he was illegally convicted of the offense of attempted first degree felony murder. We affirm the judgment of the trial court.

troglinn_101620.pdf

 

EMW WOMEN’S SURGICAL CENTER, P.S.C., ON BEHALF OF ITSELF, ITS STAFF, AND ITS PATIENTS; ERNEST MARSHALL, M.D., ON BEHALF OF HIMSELF AND HIS PATIENTS AND PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC. v. ERIC FRIEDLANDER, IN HIS OFFICIAL CAPACITY AS SECRETARY OF KENTUCKY’S CABINET FOR HEALTH AND FAMILY SERVICES; ANDREW G. BESHEAR, GOVERNOR OF KENTUCKY, IN HIS OFFICIAL CAPACITY AND DANIEL J. CAMERON, ATTORNEY GENERAL OF THE COMMONWEALTH OF KENTUCKY

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ARGUED: S. Chad Meredith, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Appellants.

ARGUED: Easha Anand, ORRICK, HERRINGTON & SUTCLIFFFE LLP, San Francisco,California, for Appellee Planned Parenthood of Indiana and Kentucky, Inc. Brigitte Amiri, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellees Women’s Surgical Center, P.S.C. and Ernest Marshall, M.D.

ON BRIEF: S. Chad Meredith, M. Stephen Pitt, Matthew F. Kuhn, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Appellants.

ON BRIEF: Easha Anand, Karen G. Johnson-McKewan, ORRICK, HERRINGTON & SUTCLIFFFE LLP, San Francisco, California, Carrie Y. Flaxman, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C., Michael P. Abate, James E. McGhee, KAPLAN JOHNSON ABATE & BIRD LLP, Louisville, Kentucky, Lisa T. Simpson, Jennifer M. Keighley, ORRICK, HERRINGTON & SUTCLIFFE LLP, New York, New York, Melanie L. Bostwick, ORRICK, HERRINGTON & SUTCLIFFE LLP, Washington, D.C., Robert L. Uriarte, ORRICK, HERRINGTON & SUTCLIFFE LLP, Menlo Park, California, for Appellee Planned Parenthood of Indiana and Kentucky, Inc.

ON BRIEF: Brigitte Amiri, Elizabeth Watson, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Donald L. Cox, LYNCH, COX, GILMAN & GOODMAN, P.S.C., Louisville, Kentucky, Heather L. Gatnarek, ACLU OF KENTUCKY, Louisville, Kentucky, Amy D. Cubbage, ACKERSON & YANN, PLLC, Louisville, Kentucky, for Appellees Women’s Surgical Center, P.S.C. and Ernest Marshall, M.D. Thomas M. Fisher, OFFICE OF THE INDIANA ATTORNEY GENERAL, Indianapolis, Indiana, Heidi Parry Stern, OFFICE OF THE NEVADA ATTORNEY GENERAL, Carson City, Nevada, La Tasha Buckner, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Kimberly A. Parker, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Amici Curiae.

Judge(s): CLAY, LARSEN, and READLER, Circuit Judges

Court Appealed: Appeal from the United States District Court for the Western District of Kentucky at Louisville

LARSEN, Circuit Judge. Two decades ago, the Kentucky General Assembly enacted a law requiring abortion facilities to obtain transfer agreements with a local hospital and transport agreements with a local ambulance service. Ky. Rev. Stat. (KRS) § 216B.0435. Regulations promulgated in 2017 imposed stricter conditions on the agreements but also allowed successive, ninety-day waivers for facilities unable to comply with the law. 902 Ky. Admin. Regs. (KAR) 20:360 § 10. The plaintiffs in this case, who were, at the time, Kentucky’s only licensed abortion facility, its owner, and another facility seeking licensure, challenged the transfer- and transport-agreement requirements as imposing an undue burden on abortion access. The plaintiffs argued that it had become impossible for them to obtain the required agreements, and that the law’s enforcement would leave Kentucky without a licensed abortion facility, thereby eliminating abortion access in the Commonwealth. Agreeing with the plaintiffs, the district court held that Kentucky’s requirements were facially invalid and permanently enjoined them.

Kentucky appeals the permanent injunction, arguing, among other things, that the plaintiffs failed to show that the law would in fact leave the Commonwealth without a licensed facility, because a facility unable to obtain the required agreements could still obtain a waiver. Kentucky also appeals the district court’s order imposing monetary sanctions for failure to produce a designee for a properly noticed deposition. We conclude that the district court did not abuse its discretion by imposing monetary sanctions, so we AFFIRM in part. But because the district court erred in concluding that Kentucky would be left without an abortion facility, we REVERSE in part, VACATE the permanent injunction, and REMAND for further proceedings.

emwwomenssurgical_101620.pdf

 

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.

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