TBALink Opinion-Flash

September 8, 1997 -- Volume #3 -- Number #084

Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.

This Issue (IN THIS ORDER):
04-New Opinons From TSC
01-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
00-New Opinons From TCA
00-New Opinons From TCCA

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George Dean
TBALink Chief Editor



ROBERT BEAN, FRANKLIN
SHAFFER, DAVID AUTRY,
MACK ROBERTS, KEVIN ANTLE,
TOM NICHOLS, TAMMIE BEASLEY,
and ROXANNE LUCE
vs.
Hon. Irvin H. Kilcrease, Jr.
NED RAY McWHERTER, in his
capacity as Governor of the State of
Tennessee, CHARLES W. BURSON,
Attorney General of the State of
Tennessee, TENNESSEE WILDLIFE
RESOURCES COMMISSION, and
GARY MYERS, Director of the
Wildlife Resources Agency

Court:TSC

Attorneys:

FOR APPELLEES:                      FOR APPELLANTS:

F. Clay Bailey, Jr.                 John Knox Walkup
Tune, Entrekin & White, P.C.        Attorney General & Reporter
Nashville
                                    Michael E. Moore
                                    Solicitor General

                                    Elizabeth P. McCarter
                                    Senior Counsel                          

Judge: HOLDER

First Paragraph:

This appeal addresses the General Assembly's power to delegate
rule-making authority to administrative agencies.  The Court of
Appeals held that the General Assembly could not constitutionally
delegate power to the Tennessee Wildlife Resources Commission ("TWRC")
to add or delete animals from the dangerous species list.  We reverse
and hold that the legislature may delegate power to add and delete
items from a statutory schedule absent explicit guidance standards. 
The legislature, however, must provide a basic standard accompanied by
a general policy when delegating in areas concerning public health,
safety, and general welfare. COURT OF APPEALS REVERSED; CASE REMANDED.

URL:http://www.tba.org/tba_files/TSC/BEANR_OPN.WP6
Opinion-Flash

ARNOLD CARTER
vs.
STATE OF TENNESSEE

Court:TSC

Attorneys: 

For Appellee:                       For Appellant:

KENNETH F. IRVINE, JR.              JOHN KNOX WALKUP
Knoxville, TN                       Attorney General and Reporter

                                    MICHAEL E. MOORE
                                    Solicitor General
                           
                                    KATHY MORANTE
                                    Deputy Attorney General
                                    Nashville, TN
                        
                                    JERRY N. ESTES
                                    District Attorney General

                                    STEPHEN BAXTER WARD
                                    Assistant District Attorney
                                    General                         

Judge: BIRCH

First Paragraph:

We granted the State's application in this case to determine whether
the Post-Conviction Procedure Act of 1995 ("the new Act"), provides to
petitioners for whom the statute of limitations had expired under the
old Act additional time in which to file petitions for post-conviction
relief.  We conclude that although the language of the new Act is
ambiguous, the legislative intent is clear:  petitioners for whom the
statute of limitations expired prior to the effective date of the new
Act, i.e., May 10, 1995, do not have an additional year in which to
file petitions for post-conviction relief.  Thus, the petition filed
by Arnold Carter is barred by the statute of limitations.  The
judgment of the Court of Criminal Appeals is reversed, and the
petition is dismissed. REVERSED AND DISMISSED.

URL:http://www.tba.org/tba_files/TSC/CARTERA_OPN.WP6
Opinion-Flash

VERNON RAY DAVIS
vs.
HON. WILLIAM R. HOLT, JR.,
JIM REAGAN and HOWARD SEXTON,
d/b/a PRECISION CONSTRUCTION
CO.; and TRAVELERS INSURANCE)
CO.
and
LARRY BRINTON, JR., Director of 
Worker's Compensation, Tennessee
Dept. of Labor, Second Injury Fund,
and
BESSIE LOU RAYFIELD,
vs.
EMPLOYERS INSURANCE COMPANY 
OF WAUSAU; and ED SMITH, d/b/a  
DAYS INN OF PIGEON FORGE
and
LARRY BRINTON, TENNESSEE
DEPT. OF LABOR, DIVISION OF 
WORKERS' COMPENSATION,
SECOND INJURY FUND

Court:TSC

Attorneys: 

FOR APPELLEE:                       FOR APPELLANT, SECOND INJURY FUND:

R. B. Hailey                        John Knox Walkup
Frank Q. Vettori                    Attorney General & Reporter
Knoxville
                                    Dianne Stamey Dycus
                                    Senior Counsel 
                                    Attorney General's Office                         

Judge: HOLDER

First Paragraph:

We granted this consolidated appeal to determine whether permanent
total disability can be awarded when an anatomical disability rating
is less than 16.7 percent.  In Seiber v. Greenbrier Industries, Inc.,
906 S.W.2d 444 (Tenn. 1995), this Court adopted a panel decision
holding that the limits in Tenn. Code Ann. S 50-6-241 (1996 Supp.)
precluded an award of total disability when the anatomical impairment
was less than 16.7 percent.  A later, but unpublished, workers'
compensation panel decision held that the limitations in Tenn. Code
Ann. S 50-6-241(b) are not applicable to permanent total disability
claims.  Warren v. Twin City Fire Ins. Co., No. 03S01-9506-CV-00061
(Nov. 29, 1995, at Knoxville).  We granted review to reconcile these
two cases and decide this issue.  For the reasons explained below, we
agree with the panel's findings in Warren and hold that Tenn. Code
Ann. S 50-6-241's limitations on permanent partial disability do not
apply to awards of permanent total disability. TRIAL COURT JUDGMENTS
AFFIRMED.

URL:http://www.tba.org/tba_files/TSC/DAVISVR_OPN.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JEFFERSON C. PENNINGTON 

Court:TSC

Attorneys: 

For Appellee:                       For Appellant:

J. BRYAN LEWIS                      JOHN KNOX WALKUP
PHILLIP A. PURCELL                  Attorney General and Reporter
Nashville, TN
                                    MICHAEL E. MOORE
                                    Solicitor General
                           
                                    DARYL J. BRAND
                                    Assistant Attorney General
                                    Nashville, TN
                        
                                    VICTOR S. JOHNSON, III
                                    District Attorney General

                                    JAMES W. MILAM
                                    Asst District Attorney General
                                    Nashville, TN                         

Judge: BIRCH

First Paragraph:

We review this cause to determine whether detention immediately after
arrest, purposely continued because of the accused's refusal to submit
to a breathalyzer test, constitutes punishment that prevents, under
double jeopardy principles, punishment upon conviction.  Because we
find that jeopardy did not attach to the proceedings before the
judicial commissioner and because the detention, even if punitive, did
not constitute punishment for the charged offenses, we find no double
jeopardy violation.  Accordingly, the judgment of the Court of
Criminal Appeals is reversed, the indictments are reinstated, and the
cause is remanded to the trial court for further proceedings. JUDGMENT
REVERSED, INDICTMENTS REINSTATED, AND CAUSE REMANDED.

URL:http://www.tba.org/tba_files/TSC/PENNINGJ_OPN.WP6
Opinion-Flash

SUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL
September 8, 1997       


Court:TSC - Rules

URL:http://www.tba.org/tba_files/TSC_Rules/STATELST_WPD.WP6

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