TBA Today - Tuesday, January 12, 2021 - 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
Tuesday, January 12, 2021
Today's News
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Lee Announces 5 Judicial Appointments

Gov. Bill Lee this week announced the appointment of five judicial positions across the state. The appointments are: Judge Jill Ayers, Court of Criminal Appeals, Middle District; Christopher Heagerty, 6th Judicial District Chancery Court; Jerome Melson, 6th Judicial District Circuit Court; James “Jimmy” Turner, 16th Judicial District Circuit Court; and Rebecca Lee, 4th Judicial District Public Defender. “I am proud to announce the appointment of these highly qualified individuals, and I value the experience they will bring to their respective judicial districts,” Lee said. “I’m confident they will serve Tennessee with integrity.”
 
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State Sen. Yarbro Asks AG to Weigh in On Lawmakers’ Involvement in Riots

Senate Minority Leader Jeff Yarbro, D-Nashville, yesterday urged Attorney General Herbert Slatery to issue an opinion on the legality of state lawmakers' involvement in the Jan. 6 protest and riot in Washington, D.C., the Tennessean reports. Citing the 14th Amendment in his letter to Slatery, Yarbro asks the AG to clarify what the legal ramifications would be for state lawmakers who “engaged in insurrection” or provided “aid or comfort” to insurrectionists. The 14th Amendment prohibits public officials from continuing to hold office after such involvement in an insurrection. Yarbro wrote that he’d like clarity on the definition of “aid and comfort,” and on which government authority holds the power to investigate and determine the level of a public official’s involvement.  
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Nashville Attorney Co-Hosts New Episode of TBA BarBuzz Podcast

A new episode of the TBA’s BarBuzz podcast is streaming now and ready to help give you a rundown of news from the Tennessee legal community and updates from the bar association. This month, Nashville attorney Marcia McShane of Constangy, Brooks, Smith & Prophete helps co-host the show, with a special guest appearance from Parke Morris of Parke Morris & Associates in Memphis. BarBuzz is part of the TBA Podcast Network and is available anywhere you listen to podcasts and on the TBA’s website.
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Ingram Joins LAS as Lead Family Law Attorney

The Legal Aid Society of Middle Tennessee and the Cumberlands has hired Lynne Ingram as the lead family law attorney of its Nashville office. She will manage the Family Law Practice Group. Ingram is currently an adjunct professor at Vanderbilt Law School and served for more than 11 years as an assistant U.S. attorney in Nashville and Phoenix. She is a 2014 graduate of the TBA’s Leadership Law program. Read more on Ingram’s new role with LAS.
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Hamilton County Sheriff Denies Mistreatment of Detainees at Silverdale Facility

Hamilton County Sheriff Jim Hammond on Monday addressed allegations of prisoner mistreatment at the Silverdale Detention Center, the Chattanoogan reports. The county assumed control of the facility from CoreCivic in late December. In the weeks since the transition, reports have surfaced of prisoners not being fed, not receiving medical attention and being excessively tased and maced. Hammond denied those allegations, saying most of the detainees don’t like that there’s a “new sheriff in town.” He did acknowledge that his office has “clamped down” on “things that were going on” at the facility and have performed a number of “shakedowns” on prisoners. Hamond said reports of prisoners going without food were false, with the only exception being those who have court or those being transported to another jail. 
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Stay Granted for Only Woman on Federal Death Row

Judge Patrick Hanlon late Monday granted a stay in the case of Lisa Montgomery, the first woman in nearly seven decades scheduled to be executed by the U.S. government, the Tennessean reports. Montgomery had been scheduled to be executed today, but Hanlon granted the stay, citing the need to determine Montgomery’s mental competence. Montgomery’s execution has been delayed and rescheduled a number of times this year after her Tennessee-based federal public defenders, Kelley Henry and Amy Harwell, contracted the COVID-19 virus. Her attorneys say that Montgomery has “brain damage and severe mental illness that was exacerbated by the lifetime of sexual torture.”
 
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Report: Legislators in FBI Probe Spent $182K With 3 Firms

Three Tennessee lawmakers at the center of an FBI investigation have collectively spent $182,794 in campaign money with three little-known companies in recent months, the Tennessean reports. The FBI raided the homes and offices of former House Speaker Glen Casada, R-Franklin, Rep. Robin Smith, R-Hixson and Rep. Todd Warner, R-Chapel Hill last week, but have not released further details on the probe. Two of the companies the lawmakers hired — Bullet Proof Research and Dixieland Strategies — have no online presence and are not registered with the Secretary of State. An array of Republican lawmakers have paid a third company, Phoenix Solutions, for mail services. In several of those instances, lawmakers said it was Smith who coordinated with the company after they had hired her to help with their campaigns. An anonymous source told the Tennessean that Casada’s former aid, Cade Cothren, is the owner of Phoenix Solutions. Cothren’s home was also raided by FBI agents last week. Cothren resigned from his position in 2019 after admitting to cocaine use in his legislative office, sending racist text messages, harassing interns and more.
 
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Also in This Issue: Attorney Resilience, Parental Rights and Archaic Court Forms

"Not the year anyone planned," is how TBA President Michelle Greenway Sellers describes the last year, as she reflects on the work of the TBA and Tennessee attorneys in 2020. In her January/February Tennessee Bar Journal column, she points out that this year of twists and turns provided an opportunity to demonstrate attorneys’ resilience. Also in this issue, Nashville lawyer Nate Lykins describes the difference between "and" and "or," and how that affected the interpretation of new statutory grounds for terminating parental rights. An article by Laura Revolinski and Gordon Bonnyman argues that making the civil justice system accessible to pro se litigants must include updating archaic court forms "frozen in language prescribed by antebellum statutes." The Journal is available online and in print. 
 

Shelby County Lawyer Censured

Shelby County attorney Eric John Montierth today received a public censure from the Board of Professional Responsibility of the Tennessee Supreme Court for failing to timely file an appellate brief in two criminal cases. The court ordered Montierth to file the brief within 10 days and Montierth failed to do so and did not ask for an extension of time. He appeared before the court months later to explain his conduct in both cases and the court accepted the late-filed brief in each case. It was found that Montierth’s conduct resulted in potential harm to his clients and he was issued the censure. A public censure is a rebuke and warning to the attorney, but it does not affect the attorney’s ability to practice law.
 
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CLE Reveals Secret to Mastering Persuasive Legal Writing

What is the secret skill needed to master persuasive legal writing? Register now for the 2021 Guide to Persuasive Legal Writing to find out! The “CLE Performer” Stuart Teicher will instruct attendees on the technicalities of sentence structure, his method to reduce long sentences and more. The live virtual event is worth three dual CLE credits and will run from noon until 3:15 p.m. CST on Feb. 10. Use the prepaid CLE credits that come with your TBA Complete Membership and save on this course. Not a member? Join today to start saving.
 
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Find Employment Leads on JobLink

TBA’s JobLink is a job seeking and recruitment tool available at no charge. Whether you have a position to fill or are seeking employment, this site will guide you through a simple process to post your information. Get started!
 
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.

STATE OF TENNESSEE v. JOHN WILLIAM ANDERSON

Court: TN Court of Criminal Appeals

Attorneys:

Patrick S. Rader (on appeal) and W. Andrew Kennedy (at trial), Assistant District Public Defenders, for the appellant, John William Anderson.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Barry P. Staubus, District Attorney General; and P. Michael Filletti, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WITT

The defendant, John William Anderson, appeals his Sullivan County Criminal Court jury convictions of attempted theft of property valued at $10,000 or more but less than $60,000 and criminal simulation. He challenges the sufficiency of the convicting evidence and the propriety of the sentencing decision of the trial court. The evidence was sufficient to support the convictions, but the trial court erred by imposing a sentence in the absence of a presentence report. Consequently, we affirm the defendant’s convictions but reverse the sentencing decision of the trial court and remand the case to the trial court for a new sentencing hearing.

andersonj_011221.pdf

JOSHUA MICHAEL STEWART v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Joshua Michael Stewart.

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

Court Appealed: WITT

The petitioner, Joshua Michael Stewart, appeals the denial of his petition for postconviction relief, which petition challenged his 2017 Knox County Criminal Court jury convictions of rape of a child and aggravated sexual battery. He argues that he was deprived of the effective assistance of counsel. Discerning no error, we affirm.

stewartj_011221.pdf

STATE OF TENNESSEE v. PHILLIP HARVEY WALLACE

Court: TN Court of Criminal Appeals

Attorneys:

Brandon T. Kibert, Middlesboro, Kentucky (on appeal); and Travis D. Patterson, Maynardville, Tennessee (at trial), for the appellant, Phillip Harvey Wallace.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Jared Effler, District Attorney General; and Ronald Laffitte, Assistant District Attorney General, for the appellant, State of Tennessee.

Judge(s): WITT

The defendant, Phillip Harvey Wallace, appeals the sentencing decision of the trial court that followed the revocation of his probation in case number 5263 and his pleading guilty in case number 5376, arguing that the trial court erred by failing to consider a community corrections placement and by ordering that the 12-year sentence imposed in case number 5376 be served consecutively to the remainder of the two-year sentence in case number 5263. Discerning no error, we affirm.

wallacep_011221.pdf
 

E. A. C. A. v. JEFFREY A. ROSEN, Acting Attorney General

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ARGUED: Rachel Naggar, CATHOLIC LEGAL IMMIGRATION NETWORK, INC., Silver Spring, Maryland, for Petitioner.

ARGUED: Joanna L. Watson, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

ON BRIEF: Rachel Naggar, CATHOLIC LEGAL IMMIGRATION NETWORK, INC., Silver Spring, Maryland, for Petitioner.

ON BRIEF: Joanna L. Watson, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Judge(s): MOORE, GILMAN, and GRIFFIN, Circuit Judges

Court Appealed: On Petition for Review from the Board of Immigration Appeals

KAREN NELSON MOORE, Circuit Judge. E.A. C.A. (“E.A.”) petitions this court for review of the order of the Board of Immigration Appeals (“BIA”) denying her motion to reopen an in absentia removal order. Because the BIA abused its discretion in concluding that E.A. had not established that exceptional circumstances justified her failure to appear, we GRANT the petition for review, VACATE the removal order, and REMAND for further proceedings consistent with this opinion.

eaca_011221.pdf

MELANIE PELCHA v. MW BANCORP, INC.; WATCH HILL BANK

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ON BRIEF: Donald B. Hordes, RITTER & RANDOLPH, LLC, Cincinnati, Ohio, Paul Plotsker, THE PLOTSKER LAW FIRM, INC., Cincinnati, Ohio, Morris E. Fischer, MORRIS E. FISCHER, LLC, Silver Spring, Maryland, for Appellant.

ON BRIEF: Robin D. Miller, ULMER & BERNE LLP, Cincinnati, Ohio, for Appellees.

Judge(s): SUHRHEINRICH, McKEAGUE, and READLER, Circuit Judges

McKEAGUE, Circuit Judge. Melanie Pelcha was an employee of Watch Hill Bank (“Watch Hill”) and its holding company MW Bancorp Inc. until she was terminated for refusing to turn in a time-off request form. Pelcha alleges that she was terminated on the basis of her age in violation of the Age Discrimination in Employment Act (“ADEA”). The district court dismissed her claims on summary judgment. We see no error in the district court’s decision and AFFIRM.

pelcham_011221.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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