TBA Today - Monday, May 3, 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
Monday, May 3, 2021
Today's News

House Finance Committee Creates Court of Special Appeals in Place of Statewide Chancery Court

The House Finance Committee today considered and passed an amendment to HB1130/SB868, legislation that previously would have created a new statewide chancery court. The latest amendment, which replaces all previous versions of the bill, would create a new Court of Special Appeals composed of three judges, one from each grand division of the state. The governor would appoint the judges, and then the voters would elect each judge through a statewide retention election. Initial terms would begin on Oct. 1 of this year.
 
The Court of Special Appeals would have jurisdiction over appeals of cases challenging the constitutionality of a statute, Executive Order or administrative rule brought against the state, a state department, a state agency or any state official acting in an official capacity. The amendment defines “challenging the constitutionality” as a civil cause of action “alleging a statute, rule or Executive Order is unconstitutional at all times and under all circumstances or has been applied in an unconstitutional manner.” Additionally, the state attorney general could ask the Court of Special Appeals to review a judgement on the issue of constitutionality in a proceeding in which the attorney general has intervened on behalf of the state. Both the Court of Special Appeals and the trial court would have to grant permission for the interlocutory appeal. The original court of jurisdiction would maintain jurisdiction over the remainder of the case and would stay its proceedings until the Court of Special Appeals or Supreme Court ruled on the issue certified. Review by the Court of Special Appeals is de novo.
 
Finally, the amendment provides that the jurisdiction of the Court of Special Appeals would be appellate only, except that it would have original jurisdiction over any case challenging a statute that apportions or redistricts state legislative or congressional districts.  
 
The Court of Special Appeals would sit in the supreme court buildings in Knoxville, Nashville and Jackson and act as a three judge panel with the majority prevailing.
 
HB1130 as amended is scheduled to be on the House floor tomorrow. The Senate Finance Committee is also scheduled to consider the legislation tomorrow, but it is unknown whether Senate leaders have agreed to the House amendment. The legislature is expected to adjourn for the year this week.

 

February Bar Exam Results Show Lower Passage Rates

Tennessee Bar Exam results show that 306 applicants — 163 first-time test takers and 143 repeat candidates — sat for the February exam. Of the first-time test takers, 60.7% passed — a slight decline from the February 2020 passage rate of 64.1%. For repeat test takers, 28% passed — a decline from 32.1% last year. Combined, all test takers achieved a 45.4% passage rate. Vanderbilt law graduates recorded the highest passage rate – 100% percent for first timers – followed by University of Memphis School of Law at 94.1%, Belmont University College of Law at 75%, University of Tennessee College of Law at 66.7%, Lincoln Memorial University Duncan School of Law at 50% and the Nashville School of Law at 10%. Access all exam data from the Board of Law Examiners here.

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Report: Race at Crisis Point at Memphis Law School

A potential revolt is brewing at the University of Memphis Law School based on what students of color and a senior Black faculty member say is continuing racial injustice by the institution, Memphis Flyer reports. Faculty member Alena Allen, wife of Shelby County Mayor Lee Harris, recently announced her intention to resign in order to underscore her dissatisfaction with a system she says promotes less qualified white faculty and applicants over Black candidates. She also alleges that the university took no action after she complained that a white security officer harassed her and other students of color. Following Allen’s comments, the National Black Law Students Association charged the university with “racial bias” and made a series of demands. Specific criticisms have been leveled at Dean Katharine Schaffzin, who students say has been unresponsive to their concerns and was hired over a faculty-endorsed Black male candidate.

Government Says it Will Retry Former Pilot Flying J President

Federal officials say they will retry former Pilot Flying J president Mark Hazelwood and two co-defendants next February, Chattanoogan.com reports. The announcement comes after an appeals court threw out their convictions in a fraud case that lasted for months. The 6th Circuit Court of Appeals voted to void the convictions based on the fact that a jury was allowed to hear an inflammatory tape that included racist remarks by Hazelwood. Jury selection will begin on Feb. 1, 2022, at the federal courthouse in Chattanooga. The three company executives were originally charged in 2013 in a scheme to cheat trucking companies out of promised rebates.

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Immigrants Rights Group Celebrates New Home

The Tennessee Immigrant and Refugee Rights Coalition (TIRC) celebrated the opening of its new Antioch office with a virtual ribbon-cutting ceremony last week, Main Street Nashville reports. The 7,000-square-foot building is located in the heart of Davidson County’s immigrant and refugee community. The coalition decided to relocate when it outgrew space at the Casa Azafràn community center on Nolensville Pike. The new space is designed to give the community a place to gather, host events and attend workshops, leadership training and English classes. It also has a soccer pitch and playground for youth in the area. Through a capital campaign, the organization raised $2.6 million but still needs $275,000 to pay down the rest of the construction debt. Those interested in helping can donate online or mail checks to 3310 Ezell Rd., Nashville, TN 37211.

 
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Retired Public Defender Bryan Honored by General Assembly

Gov. Bill Lee recently signed a resolution honoring and commending Vanessa Pettigrew Bryan for her distinguished service to the state as public defender for the 21st Judicial District, the Williamson Herald reports. Bryan retired in November 2020 after 31 years of service. The resolution, introduced by Franklin lawmakers Rep. Sam Whitson and Sen. Jack Johnson, commends Bryan on her “honorable and astute service” and wishes her “a happy and fulfilling retirement.” In addition to serving as public defender, Bryan sat on the board of directors of the 21st Judicial District Drug Court and the D.U.I. Drug Court, and volunteered with Discovery House, Magdalene House, Mending Hearts, Mercy Clinic, Nashville Rescue Mission, New Life Lodge and the Refuge Center, among other organizations.

 
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Rebranding After the Pandemic and More in New Issue

Many businesses are re-assessing and planning for an economic future after the disruption of the COVID-19 pandemic. In the May-June TBJ cover story, Scott Douglas and Dominic Rota explain one pathway to growth — corporate rebranding of a company name, logo or design. But businesses looking to bridge historic brand recognition with a modern update should explore the legal doctrine of “tacking.” The issue also includes Part 2 of Nick McCall and Jill McCook's "Getting to Know the Federal Executive Branch Ethics Laws," and much more. And in her last column, TBA President Michelle Greenway Sellers writes about the wild ride that has been the past year, and how the legal profession has risen to meet the challenges. 

 
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Well-Being Week in Law Kicks Off Today

Well-Being Week in Law is recognized each year during the first full week of May as part of Mental Health Awareness Month. The initiative, sponsored by the Institute for Well-Being in Law, is designed to engage the legal profession in practical activities that reflect a holistic approach to well-being. Today's theme is “Stay Strong: Physical Well-Being.” Activities to focus on include getting regular exercise and enough sleep, eating a good diet, limiting addictive substances and seeking help for physical health when needed. The institute recommends reading “Don't Underestimate the Power of a Walk” from the Harvard Business Review, watching “How Exercise Can Change Your Life” with neuroscientist Dr. Wendy Suzuki, and downloading guides for desk yoga and breathing exercises. Access these resources here.

 
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Carthage Attorney Dies at Age 83

Carthage attorney Jacky O. Bellar died April 12 at 83. Bellar earned his law degree from the University of Tennessee in 1962. His first job was assistant district attorney general for the Fifth Judicial Circuit. He later served as Carthage City judge and attorney for Smith County government for more than 50 years. He was senior partner in the Bellar & Winkler Law Firm working as legal counsel for several area lending institutions at the time of his death. He also served as legal counsel for the Upper Cumberland Electric Membership Corporation (UCEM), Tennessee Farmers Mutual Insurance Co. and Cincinnati Insurance Co. The family has requested memorials be given to UCEM Cares, 907 N. Main St., Carthage, TN 37030.

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Brentwood Lawyer Dies at 73

Brentwood lawyer Richard A. “Rick” Buerger, 73, died March 28. A graduate of Vanderbilt University Law, Buerger first joined with James Peterson to open a law office. He later was named a partner in the firm of Buerger, Moseley & Carson and stayed with the firm until he retired in 2002. Buerger also served as the attorney for Williamson County for 24 years, chair of the Williamson County Ethics Committee, president of the Williamson County Bar Association, and adjunct professor of health care management at Belmont University. He practiced in almost every area of the law from criminal to family law and from general business to health care law. Memorial donations may be made to Wounded Warrior Project or Tennessee Wildlife Federation, 300 Orlando Ave., Nashville, TN 37209.

 
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Immigration Law Forum Set for Thursday

The 2021 Immigration Law Forum is set for Thursday from 9 a.m. until noon CDT. Join Bruce Buchanan of Sebelist Buchanan Law in Nashville to learn how the Biden administration's first 100 days has impacted immigration law. The program also will look at immigration cases at the U.S. Supreme Court, pending litigation, ethics and more. Want to save money? Join the Immigration Law Section for discounts on this and other section programs.

 
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New Job Postings on TBA JobLink

New job postings have been added to TBA’s employment portal. Positions include general and senior counsel, practice area experts and associate. JobLink helps Tennessee legal employers post jobs and TBA members connect with career opportunities.

 
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.

Tennessee Supreme Court DISCRETIONARY APPEALS Grants & Denials List

Court: TN Supreme Court

For the week of April 26, 2021 - April 30, 2021

certlist_050321.pdf

 

STATE OF TENNESSEE v. ANTOINE ADAMS

Court: TN Court of Criminal Appeals

Attorneys:

Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Antoine Adams.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Brad Reasonover and Matt McLeod, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): WITT

Aggrieved of his Shelby County Criminal Court Jury convictions of first degree murder and especially aggravated robbery, the defendant, Antoine Adams, appeals, challenging the sufficiency of the convicting evidence and the consecutive alignment of his sentences. Discerning no error, we affirm the judgments of the trial court.

adamsa_050321.pdf

STATE OF TENNESSEE v. DERRIAN HILL

Court: TN Court of Criminal Appeals

Attorneys:

Hannah C. Stokes, Chattanooga, Tennessee, for the appellant, Derrian Hill.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Senior Assistant Attorney General; Neal Pinkston, District Attorney General; and Colin Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): HOLLOWAY

Defendant, Derrian Hill, was indicted with Co-Defendant, Miranda Barley, for aggravated kidnapping in count one and aggravated robbery in count two. Defendant then filed a Motion to Suppress the victim’s pretrial identification of Defendant, and the trial court denied the motion. Following a trial, the jury convicted Defendant as charged on both counts, and the trial court sentenced Defendant to concurrent terms of eight years’ incarceration with a one hundred percent release eligibility for count one and twelve years’ incarceration with an eighty-five percent release eligibility for count two. On appeal, Defendant argues that the trial court erred in denying his Motion to Suppress the victim’s pretrial identification of Defendant. After a thorough review, we affirm the judgments of the trial court.

hilld_050321.pdf

MELVIN HOPKINS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Shea Atkinson, Memphis, Tennessee, for the appellant, Melvin Hopkins.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): DYER

The petitioner, Melvin Hopkins, appeals the denial of his post-conviction petition arguing the post-conviction court erred in finding he received the effective assistance of counsel at trial. Following our review, we affirm the post-conviction court’s denial of the petition.

hopkinsm_050321.pdf

MELVIN JACKSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

J. Colin Rosser, Somerville, Tennessee, for the appellant, Melvin Jackson.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Mark E. Davidson, District Attorney General; and Lisa Miller, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WITT

The petitioner, Melvin Jackson, appeals the denial of his petition for post-conviction relief, which petition challenged his McNairy County Circuit Court guilty-pleaded convictions of aggravated robbery and unlawful possession of a weapon by a convicted felon, arguing that he was deprived of the effective assistance of counsel. Discerning no error, we affirm.

jacksonm_050321.pdf

DONTEL MORGAN v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Lance R. Chism, Memphis, Tennessee, for the appellant, Dontel Morgan.

Herbert H. Slatery III, Attorney General and Reporter; Katherine K. Decker, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Jennifer Morris, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): DYER

The petitioner, Dontel Morgan, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding that he received the effective assistance of counsel prior to and during his guilty pleas and that his guilty pleas were knowingly and voluntarily entered. Upon our review of the record, the arguments of the parties, and the pertinent authorities, we affirm the denial of the petition.

morgand_050321.pdf

 

UNITED STATES OF AMERICA v. JAMES FREI

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ON BRIEF: Charles D. Buckholts, BUCKHOLTS LAW OFFICE, Nashville, Tennessee, for Appellant.

ON BRIEF: J. Christopher Suedekum, Kathryn D. Risinger, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.

Judge(s): BATCHELDER, GRIFFIN, and STRANCH, Circuit Judges.

Court Appealed: United States District Court for the Middle District of Tennessee at Nashville

ALICE M. BATCHELDER, Circuit Judge. A jury convicted defendant-appellant James Frei of eight counts of child-exploitation-related crimes, including four counts of sexual exploitation of a minor in violation of 18 U.S.C. § 2251. The district court sentenced Frei to a 318-month prison term and a life term of supervised release. On appeal, Frei argues that: (1) the district court’s jury instruction regarding § 2251 was misleading and erroneously omitted Frei’s proposed instruction; and (2) his sentence is substantively unreasonable. Both arguments are meritless. We AFFIRM.

freij_050321.pdf

JOSHUA SIMONS v. HEIDI E. DEPARTMENT OF CORRECTIONS, DIRECTOR; MICHIGAN DEPARTMENT OF CORRECTIONS

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ARGUED: Kathryn L. Wynbrandt, JENNER & BLOCK LLP, Washington, D.C., for Appellant.

ARGUED: Zachary A. Zurek, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

ON BRIEF: Amir H. Ali, Eliza J. McDuffie, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, Washington, D.C., for Appellant.

ON BRIEF: Zachary A. Zurek, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

Judge(s): SUTTON, Chief Judge; SUHRHEINRICH and SILER, Circuit Judges

Court Appealed: United States District Court for the Western District of Michigan at Grand Rapids

SUTTON, Chief Judge. The Prison Litigation Reform Act establishes what has come to be known as the three-strikes rule. See 28 U.S.C. § 1915(g). A prisoner accrues a strike when he brings a frivolous lawsuit. After three strikes, the Act prohibits inmates from filing those lawsuits without paying the initial court fee for bringing them. At stake in this appeal is who makes the call about a strike and when.

We affirm the judgment of the district court.

simonsj_050321.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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