News

Federal Court Blocks Border Emergency Declaration

A federal court in Texas on Friday declared President Donald Trump’s national emergency declaration illegal and blocked construction of the border wall, Fox 17 News reports. The president had used an emergency declaration to transfer funds from the Department of Defense to border wall construction over the summer. The court ruled that his action violated the Consolidated Appropriations Act, which prohibits funding approved by Congress from being used on projects not specifically intended. El Paso County and the Border Network for Human Rights brought the suit. The U.S. Supreme Court previously had cleared the way for the administration to access the funds.

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Federalist Society Presents U.S. Supreme Court Review

The Memphis Chapter of the Federalist Society presents a “U.S. Supreme Court Roundup” on Thursday with Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, and University of Memphis law school professor Steven Mulroy. The pair will discuss cases from the past year during the noon program in Wade Auditorium at Memphis Law.

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Blind Man Free to Sue Over Web, App Accessibility

The U.S. Supreme Court declined last week to hear Domino’s Pizza Inc.’s appeal over whether its website and mobile app must comply with federal disabilities law, the ABA Journal reports. The company had argued that only physical facilities are covered by the 1990 Americans with Disabilities Act (ADA). In refusing to hear the case, the court let stand a decision by the 9th U.S. Circuit Court of Appeals that allowed a blind man to sue the pizza chain to ensure its website and mobile app work with common screen-reading software. The ADA does not explicitly address the Internet or mobile apps, leaving courts around the country to determine how the law applies.

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Judge Mattice Announces Plans to Step Down

U.S. District Judge Sandy Mattice has notified President Trump that he intends to step down from the federal court effective March 10, 2020. Mattice has served in the Eastern District of Tennessee for more than 20 years, first as the U. S. attorney and later as district judge, the Hamilton County Herald reports. He was appointed to the bench by President George W. Bush in 2005. Before entering federal service, Mattice was a shareholder with Baker Donelson and a partner at Miller & Martin in Chattanooga. He also served as a senior counsel to the U.S. Senate Committee on Governmental Affairs during a special investigation.

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Investiture Set for Judge Corker

The U.S. District Court for the Eastern District of Tennessee is inviting the legal community to attend the investiture of Clifton L. Corker as a new district judge. The ceremony will take place Nov. 1 at 1:30 p.m. at the James H. Quillen U.S. Courthouse at 220 West Depot St. in Greeneville. A reception will follow the ceremony. RSVP here. President Trump announced Corker’s nomination last fall. The U.S. Senate approved his nomination in July. Corker previously served as a U.S. magistrate judge for the Eastern District of Tennessee.

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Court Hears Oral Arguments in LGBT Employment Cases

Tthe U.S. Supreme Court yesterday heard oral arguments in a trio of civil-rights cases involving LGBT employees. The question is whether the 1964 Civil Rights Act, which prohibits sex discrimination in the workplace, also protects gay and transgender employees. The debate included a discussion of whether the court should rule in the case or call on Congress to clarify the statute, National Public Radio reports. Justice Neil Gorsuch also asked if the court should consider “the massive social upheaval” that could follow a ruling in favor of the workers. Attorneys for employers sued in the cases said Congress meant the protections to apply only on the basis of biological gender to protect women in the workplace. Lawyers for the plaintiffs, however, argued that the court has interpreted the law more broadly in the past, sometimes applying its provisions to cases Congress could not have imagined at the time it was passed.

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Court’s New Term Includes ‘Blockbuster’ Cases

The U.S. Supreme Court has several blockbuster cases in its new term—on gay and transgender rights, federal immigration enforcement, gun regulation and abortion. But before it gets to those, the court will take up two criminal law cases raising significant questions, even though only a handful of states are affected by each, the ABA Journal reports. Oral arguments started today in a case weighing whether states can abolish the insanity defense. The other case will consider whether the Sixth Amendment to the U.S. Constitution requires unanimous jury verdicts and whether that requirement is applicable to the states.

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Justice Breyer Spoke to ‘Packed’ Hall in Memphis

U.S. Supreme Court Justice Stephen Breyer delivered the Constitution Day lecture yesterday at Rhodes College in Memphis. According to the Daily Memphian, nearly 550 people were in attendance and the line to the auditorium snaked down the sidewalk an hour before the event. Speaking for 30 minutes, Breyer emphasized the changing nature of the justices’ work and spoke about his 2016 book, “The Court and the World: American Law and the New Global Realities.” He then took questions submitted by students and staff for about an hour.

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Split Intensifies over Prosecutors’ Ethical Disclosure Duties

States remain split on whether a prosecutor’s ethical duties for disclosures in criminal cases should extend beyond the constitutional obligations set by the U.S. Supreme Court in the case of Brady v. Maryland. A recent story in the ABA Journal looks at the situation in Tennessee, where the state Supreme Court vacated a formal ethics opinion from the Board of Professional Responsibility that would have required additional disclosures than the nation’s high court. The piece looks at the arguments on both sides and includes comments from Penny White, director of the Center for Advocacy and Dispute Resolution at the University of Tennessee College of Law, and Memphis attorney Lucian T. Pera.

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Judge Rules for State in Hepatitis C Suit from Inmates

A federal judge has ruled against a group of inmates with chronic Hepatitis C who challenged current Tennessee Department of Correction (TDOC) policies and procedures as unconstitutional, the state attorney general reported yesterday. In the order from the U.S. District Court for the Middle District of Tennessee, the court found that TDOC’s prioritization of treatment for severe cases does not violate the constitutional rights of others with the disease. Read more in a press release from the attorney general’s office.

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Wyrick Takes Oath to be U.S. Magistrate Judge for Eastern District of Tennessee

Former TBA president and Sevierville attorney Cynthia Richardson Wyrick was sworn in today as a U.S. magistrate judge for the Eastern District of Tennessee by Chief Judge Pamela L. Reeves. The ceremony took place at the Greeneville federal courthouse. A formal investiture will be scheduled for a later date for Wyrick, a University of Tennessee College of Law graduate who has been a member of the law firm of Ogle, Wyrick & Associates in Sevierville since 1996. She has also served as the city attorney for Pigeon Forge.

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Federal Public Defender Honored by ABA Death Penalty Representation Project

The ABA has announced that its Death Penalty Representation Project has recognized supervisory assistant federal defender Kelley J. Henry with the 2019 John Paul Stevens Guiding Hand of Counsel Award. The group said it honored Henry for leading a “groundbreaking challenge to the state’s execution protocol, developing new scientific evidence on the possibility of torturous executions that has shaped similar lawsuits across the country.” Henry works in Nashville representing men and women on death row. In accepting the award, she talked about the “brokenness” she has seen in her career. “It’s a study in brokenness,” she said. “Brokenness of clients. Brokenness of the system that failed them before they could even walk or talk.” Learn more about the death penalty project.

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Murfreesboro Fire Captain Files Federal Lawsuit Alleging Discrimination

A Murfreesboro fire captain who says he was forced to resign or lose his pension after complaining about time clock issues has filed a federal lawsuit alleging that he was targeted because he is black, the Daily News Journal reports. The complaint maintains that Battalion Chief Daryl Alexander changed plaintiff Theodore Pertiller’s time records without reason and that Pertiller was not properly compensated for overtime worked, stating there was no legitimate reason for Alexander’s actions and "similarly situated non-African-American employees were not subjected to this type of conduct." Pertiller says he complained to the City’s Human Resources Department about the incident, and that the city’s Human Resources Department agreed that race may have been a factor. City spokesman Mike Browning denied the allegations and said that Pertiller chose to retire prior to completion of the disciplinary process.
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State Rep. Dickerson Denies Allegations of Health Care Fraud

State Sen. Steve Dickerson, R-Nashville, has denied all allegations against him by state and federal officials in a wide-ranging case against Comprehensive Pain Specialists and its owners for allegedly defrauding Medicare and Medicaid. The lawsuit specifically identifies Dickerson as having submitted more than 750 false claims amounting to nearly $6.5 million for specimen validity, genetic and psychological testing, and for acupuncture. In a response filed this week, Dickerson denies the claims and any knowledge of a broader scheme to defraud Medicare and Medicaid, the Nashville Post reports.

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Court to Consider Workplace Protections for Sexual Orientation

On Oct. 8, the U.S. Supreme Court to will consider whether Title VII of the Civil Rights Act of 1964 guarantees federal protection from workplace discrimination based on sexual orientation, the New York Times reports. The case centers on a county employee in Georgia who claims he was fired after he joined a gay recreational softball league, though the employer says the termination was based on “conduct unbecoming of a…county employee.” In addition, the justices will hear a companion case brought by a skydiving instructor who says he was fired for being gay. His firing followed a complaint from a female customer who expressed concerns about being strapped to him during a tandem dive. The instructor died in a 2014 skydiving accident but the case is being pursued by his estate.

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Openly Gay Prosecutor Nominated as Judge for U.S. Court of Appeals for the Ninth Circuit

President Trump last week announced the nomination of an openly gay candidate to preside over the U.S. Court of Appeals for the Ninth Circuit, the Boston Globe reports. Patrick J. Bumatay is a federal prosecutor and Harvard Law alumnus who has reportedly served as Counselor to the Attorney General on various criminal issues, including the national opioid strategy and transnational organized crime. The Federalist has described Bumatay as “an originalist in the mold of Supreme Court Justice Neil Gorsuch.” If confirmed, he would be the first Filipino-American federal judge and the second openly gay federal judge, the first on the Ninth Circuit. 

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U.S. Supreme Court to Consider National Workplace Protections Regarding Sexual Orientation

The U.S. Supreme Court on Oct. 8 will consider whether Title VII of the Civil Rights Act of 1964 guarantees federal protection from workplace discrimination based on sexual orientation, The New York Times reports. The case under consideration — Gerald Lynn Bostock v. Clayton County, Georgia — centers around a man who was a county Child Welfare Services Coordinator and claims he was fired after he joined a gay recreational softball league, despite 10 years of employment and receiving positive performance evaluations and professional accolades. The defendant argues that his termination was due to “conduct unbecoming of a Clayton County employee;” however, Bostock maintains that several other employees had made critical comments regarding his sexual orientation and that the defendant conceded to him that he was fired because of sexual orientation. You can view the Petition for Writ of Certiorari using this link.

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New TBA Sidebar Podcast Episode Shares Benefits of Improv Comedy For Lawyers

A new installment of the Tennessee Bar Association Podcast Network show, Sidebar, is now available. The episode focuses on improv skills for attorneys and features interviews with the co-owner of the Third Coast Comedy Club in Nashville and Kirsten Jacobson, staff attorney at the Tennessee Alliance for Legal Services and improv student. Sidebar is available on the TBA's website or anywhere you listen to podcasts, including Spotify, Apple Podcasts, Google Play, Stitcher and TuneIn. Simply search the show title of "Tennessee Bar Association." Do you have a story lead you'd like to hear on a future episode? Submit your ideas here.

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Nissan to Pay $15M to Settle Fraud Charges

Nissan will pay $15 million to settle allegations that it hid more than $140 million of its former chairman’s retirement benefits from investors, the Nashville Business Journal reports. The former chairman, Carlos Ghosn, also will pay $1 million and Greg Kelly, a former director based in Middle Tennessee, will pay $100,000. Ghosn and Kelly also are facing charges in Japan, where Nissan is based. According to the Associated Press, Nissan and its former officials settled the charges without admitting or denying the allegations from the Securities and Exchange Commission.

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Gorsuch Says Court is Not Split on Partisan Lines

U.S. Supreme Court Justice Neil Gorsuch spoke at Brigham Young University on Friday, refuting the notion that judges are just “like politicians with robes.” According to WATE, Gorsuch said he does not recognize the court reflected in media, which focuses on partisan divides, Instead, he said, the justices eat lunch together, sing happy birthday to each other, grill burgers at employee picnics and play practical jokes. “That’s the Supreme Court I know,” he said. Gorsuch also talked about the deterioration of civic education, saying only one-third of millennials think it’s important to live in a democracy.

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Rose Files Bill to Expedite Challenges to Nationwide Injunctions

U.S. Rep. John Rose of Cookeville has filed legislation that would expedite challenges to so-called nationwide injunctions. In an op ed in the Gallatin News, the Republican congressman writes that these injunctions are “a harmful trend” that are “unfair” and have a “detrimental effect.” He notes that the administration has had close to 40 nationwide injunctions imposed on its policies since the president took office. The bill, H.R.4219, would allow for direct appeals of nationwide injunctions to the U.S. Supreme Court, skipping the federal circuit courts of appeal.

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Deputy Commissioner of TennCare Roberts to Speak at TBA Health Law Forum

As Tennessee deals with the rising medical needs of its rural citizens and seeks to realize its Medicaid block grant proposal, there are many developments on the horizon for TennCare. TBA Health Law Section member and Deputy Commissioner of TennCare Gabe Roberts will address some of these plans on Oct. 17 at the 31st Annual TBA Health Law Forum. Roberts’ address — along with presentations by Johns Hopkins health policy expert and New York Times bestselling author Marty Makary and health care policy advisor to the White House Larry Van Horn — will make this year’s forum the must-see, must-do event in health law. You can learn more and see the rest of the program’s stellar line-up using this link.
 
When: Oct. 17-18; registration begins at 7 a.m., CDT on Oct. 17
Where: Embassy Suites Cool Springs, 820 Crescent Centre Drive, Franklin
 
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Tennessee Middle District to Hear Arguments Regarding 48-Hour Waiting Period on Abortions

The U.S. District Court for the Middle District of Tennessee will hear arguments today regarding the 48-hour waiting period for women seeking abortions passed by Tennessee’s General Assembly in 2015, ABC News reports. The controversial law would require women to make separate trips to an abortion clinic, with mandatory in-person counseling prior to the procedure. Plaintiffs argue that the burden of the law is excessive, especially when combined with other state laws that prohibit many private health insurance plans from providing abortion coverage, limits on abortion coverage in public health insurance plans and the ban on the procedure after 16 weeks of pregnancy. Twenty-seven states currently require a waiting period between counseling and an abortion; however, only 14 of these require pre-abortion counseling to take place in person

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Waiting Period for Abortions Headed to Court

Four years after Tennessee enacted a law requiring women who want an abortion to undergo a 48-hour "waiting period," a legal challenge to its constitutionality is set to go to trial, the Tennessean reports. The 2015 measure requires a woman seeking an abortion to make two trips to a clinic. The first visit is for in-person counseling by a doctor. The woman then must wait at least 48 hours before returning for an abortion. A trial date in the case was originally set for 2016, but after years of delays, the case is now scheduled to be heard Monday in a Nashville federal court.

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U.S. Attorney Says He Won't Follow Judge's Directive on Evidence Rule

The federal prosecutor for East Tennessee says he plans to abide by new rules endorsed by the state Supreme Court on when to share evidence rather than stricter rules endorsed by the federal courts, Knoxnews reports. A recent Tennessee Supreme Court ruling relaxed requirements for sharing information with defendants. The chief judge for the District Court for the Eastern District of Tennessee quickly responded saying the judges in the district expect prosecutors to abide by the stricter standard. U.S. Attorney Doug Overbey responded saying the judge cannot force prosecutors to use the stricter standard.

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