COVER STORY: This Month’s Top Story

In a 5–4 decision on June 21, 2018, the Supreme Court upheld South Dakota’s online sales tax collection statute and ruled that the “physical presence” test, under the court’s 1992 case Quill Corp. v. North Dakota,[1] no longer limits a state’s ability to collect sales tax on purchases by in-state customers. In order for a state to impose a duty on sellers to collect online sales tax, the seller must have a substantial nexus with the taxing state. “Such a nexus is established when the taxpayer or collector avails itself of the substantial privilege of carrying on business in that jurisdiction.”[2] Before Wayfair, a business had to have a physical presence in a state to satisfy this substantial nexus requirement. However, writing for the majority, Justice Kennedy, joined by Justices Alito, Ginsburg, Thomas and Gorsuch, found the “physical presence rule” is not a “necessary interpretation” of the substantial nexus requirement. In the majority’s view, earlier decisions like Quill “serve[d] as a judicially created tax shelter for businesses that decide to limit their physical presence and still sell their goods and services to a State’s consumers.”

FEATURED: This Month’s Articles

October is “Celebrate Pro Bono Month,” and Tennessee lawyers are joining their colleagues across the country to provide free legal services to those in need and honor the good work performed by lawyers every day as part of the annual National Pro Bono Celebration. Tennessee is among a small group of states that celebrates Pro Bono Month, not just a single day or week. Now in its 10th year, the TBA’s statewide Celebrate Pro Bono initiative brings together legal services providers with local bar associations, law schools, law firms and individual lawyers to offer free services to those unable to afford a lawyer.

October is “Celebrate Pro Bono Month.” It is fitting that we remember a pro bono lawyer — Lutie Lytle — who was the first in many things. She was one of America’s first black female journalists.[1] She was the first black woman to earn a law degree in the South and be admitted to the bar in the South.[2] She was the first woman (of any color) admitted to the Tennessee bar.[3] She was the first black woman admitted to the Kansas bar. She was the first female law professor (of any color) in the nation.

In an apparent attempt to bring a greater degree of certainty to the law in Tennessee with respect to the matter of deficiency judgments after real property foreclosure sales, the legislature enacted what has been codified as Tenn. Code Ann. § 35-5-118, effective Sept. 1, 2010 (the “Deficiency Statute”).

We will briefly examine the state of the law both before and after the enactment of the Deficiency Statute and let the reader decide whether the legislature did indeed achieve its goal.

COLUMNS: Quick Reads on Timely Topics

President's Perspective

“We make a living by what we do, but we make a life by what we give.” — Winston Churchill

It cannot be stated enough times that an overwhelming number of low-income Tennesseans are in need of legal services. Lawyers are an invaluable resource for individuals at risk of losing their homes, their incomes, and even their children. A study by a national bar organization found that at least 40 percent of low- and moderate-income households experience a legal problem each year. The same study concluded that the collective civil legal aid effort is serving only about 20 percent of the legal needs of low-income people. Our profession can and must do better to help low-income households in Tennessee.

The Law at Work

A recent decision from the Tennessee Court of Appeals, authored by Judge Goldin, reminds employment litigators of a key distinction in state law: there is no right to a jury trial on Tennessee Human Rights Act (THRA) claims in circuit court. If you want a jury, though, fret not. Just be sure your case is in chancery court. In this column, we’ll review some state constitutional law principles and take a road trip through Red Bank, Lafollette, and finally, out west to Jackson.

Tennessee is one of only a handful of states to distinguish between courts of equity (chancery courts) and courts of law (in our state, circuit courts). Delaware, Mississippi, New Jersey and South Carolina are the others. For many types of cases it matters not whether they are filed in chancery or in circuit. The rights and remedies are the same. However, while THRA claims can be filed in either court, only chancery will guarantee a right to a jury.

But Seriously, Folks

Aug. 31, 2018, will go down in Tennessee history as the best-dressed day ever for the legal profession. On that day, lawyers across the Volunteer State made a fashion statement … a seersucker fashion statement.

They did it at the first statewide Seersucker Flash Mob! When I started law practice 40 years ago, lawyers dressed for work every day even when they had no scheduled court appearances, depositions or client conferences.

YOU NEED TO KNOW: News, Success, Licensure & Discipline

ACCESS TO JUSTICE

ATJ Community Gathers to Learn and Honor Leaders for Service

More than 200 lawyers, law students and advocates gathered in late August for the 2018 Equal Justice University (EJU) in Murfreesboro. The three-day conference is sponsored by the Tennessee Alliance for Legal Services (TALS); the Tennessee Bar Association is an event co-sponsor.

Former Tennessee Bar Association president and Nashville lawyer John R. Tarpley gave testimony in September in the confirmation hearing of U.S. Supreme Court nominee Brett Kavanaugh. Speaking on behalf of the American Bar Association, Tarpley explained how the judge earned a unanimous “well-qualified rating.” Tarpley is the lead evaluator on the Standing Committee on the Federal Judiciary.

DISABILITY INACTIVE

The law license of Knox County lawyer James Douglas Busch was transferred to disability inactive status on Aug. 14, pursuant to Section 27.4 of Tennessee Supreme Court Rule 9. Busch cannot practice law while on disability inactive status. He may return to the practice of law after reinstatement by the Tennessee Supreme Court upon showing of clear and convincing evidence that the disability has been removed and he is fit to resume the practice of law.

TBA CLE: Upcoming Programs from the Tennessee Bar

The CLE Course Catalog tells you what programs are coming this month and beyond, as well as offering a full listing of online programs and the TBA’s convenient 1-Click packages.