Supreme Court backs Bredesen in judicial selection suit

The Tennessee Supreme Court ruled today in favor of Gov. Bredesen in a case involving the appointment of justices to the state's high court. The justices agreed with Davidson County Chancellor Ellen Hobbs Lyle that Houston Gordon and Buck Lewis are not eligible to be included on subsequent panels of candidates because the governor turned down a slate that had included them. The court, however, rejected Lyle's remedy, directing the Judicial Selection Commission to reinstitute the selection process for all three nominees.
Read the decision

Following release of the opinion, the commission announced it will meet Feb. 28 to determine how to fill the vacancy. "We will meet to further review the court's opinion, ensure strict compliance with it and determine how to proceed," Chairman Dale Tuttle said.

The News Sentinel reports on the court's decision:

http://www.knoxnews.com/kns/state/article/0,1406,KNS_348_5367776,00.html

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

PHIL BREDESEN, Governor of the State of Tennessee v. TENNESSEE JUDICIAL SELECTION COMMISSION, ET AL.

Court: TSC

Attorneys:

Charles W. Bone and Charles Robert Bone, Nashville, Tennessee; Lyle Reid, Brownsville, Tennessee; and Irma Merrill Stratton and Timothy W. Smith, Memphis, Tennessee, for the appellant, J. Houston Gordon.

John Spaulding Hicks, Nashville, Tennessee, for the appellant, George T. Lewis, III

Robert E. Cooper, Jr., Attorney General and Reporter, and Janet M. Kleinfelter, Senior Counsel, for the appellee, Governor Phil Bredesen

Ben H. Cantrell, Nashville, Tennessee, for the appellee, Tennessee Judicial Selection Commission

Judge: BARKER

This appeal concerns the process for appointing a new justice to become the fifth member of the Tennessee Supreme Court. The issues in this case involve the proper interpretation of sections 17-4-101 to 17-4-118 of the Tennessee Code Annotated (the Tennessee Plan) and matters of constitutional law. For the reasons stated below, we hold that: (1) the first list of nominees certified to the Governor under the Tennessee Plan was not rendered invalid upon one nominee's subsequent withdrawal from consideration for appointment; (2) an individual listed on a panel of nominees certified to the Governor by the Tennessee Judicial Selection Commission (the Commission) which has been rejected by the Governor may not be included on the second panel of nominees certified to the Governor under the Tennessee Plan; (3) the Governor's rejection of Lewis and Gordon did not violate the Tennessee Human Rights Act (THRA) because a nominee or applicant to fill a judicial vacancy is an not "employee" for purposes of the THRA; (4) the equal protection challenge to the Governor's rejection of the first panel is a non-justiciable political question; (5) the equal protection challenge to the Governor's rejection of the first panel is otherwise without merit; (6) the Governor's letter rejecting the first list of nominees did not encroach on the powers assigned to the Commission by the Tennessee Plan; and (7) the trial court erred in its determination of the appropriate remedy.

http://www.tba2.org/tba_files/TSC/2007/bredesen_022107.pdf


STATE OF TENNESSEE v. DANNY L. DAVIS

Court: TCCA

Attorneys:

William Louis Ricker and Kim C. Miller, Greeneville, Tennessee, for the appellant, Danny Lloyd Davis

Paul G. Summers, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Amber DePriest and Eric D. Christiansen, Assistant District Attorneys General, for the appellee, State of Tennessee

Judge: WILLIAMS

The defendant, Danny L. Davis, was convicted of vehicular homicide in the Criminal Court for Greene County. He was sentenced as a Range I, standard offender to six years in the Tennessee Department of Correction. On appeal, he raises the following six issues for review: (1) the trial court erred by failing to grant his motion of acquittal when the State failed to show time of death or cause of death through medical testimony; (2) the trial court erred in overruling his objection to the State's opinion testimony regarding the speed of the defendant's vehicle at the time of the accident; (3) the trial court erred in failing to grant a mistrial regarding the State's opinion testimony; (4) the trial court erred in denying the defendant's motion in limine to prohibit any testimony regarding the purchase of beer prior to the accident where consumption of alcohol was not an element of the alleged crime; (5) the trial court erred in using factors not submitted to the jury in determining the defendant's sentence; and (6) the evidence was insufficient to support a finding of guilt for vehicular homicide. After careful review, we find no error exists and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/davisd_022107.pdf


STATE OF TENNESSEE v. CHARLES A. GREEN

Court: TCCA

Attorneys:

John H. Henderson, District Public Defender, and Dana M. Ausbrooks, Assistant Public Defender, for the appellant, Charles A. Green

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Ronald L. Davis, District Attorney General, and Jeffrey Lynn Long, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: TIPTON

The defendant, Charles A. Green, was convicted on his guilty pleas of three counts of aggravated assault, a Class C felony. The defendant, a Range I offender, received four-year sentences, with two counts to be served consecutively, for an effective sentence of eight years. The effective sentence involved split confinement of one year in jail and seven years on probation. The trial court later found that the defendant had violated his probation by committing a new offense and revoked his probation. The defendant appeals, arguing that substantial evidence does not support that determination. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/greenc_022107.pdf


ANDRE HICKS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Andre Hicks

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WOODALL

Petitioner, Andre Hicks, appeals the order dismissing his petition for post-conviction relief, arguing that it should have been granted because he received ineffective assistance of counsel at trial. Following our review, we affirm the post-conviction court's order of dismissal.

http://www.tba2.org/tba_files/TCCA/2007/hicksa_022107.pdf


Secretary of State's Publication of Public and Private Acts

TN Attorney General Opinions

Date: 2007-02-16

Opinion Number: 07-18

http://www.tba2.org/tba_files/AG/2007/ag_07-18.pdf

TODAY'S NEWS

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Legislative News
Judiciary committees recommend new rules
Both the House and Senate Judiciary Committees recommended this week that amendments to the Tennessee Rules of Practice and Evidence, adopted by the Supreme Court in January, be approved by their respective chambers. The resolutions now await floor action. Once approved, the rules will take effect July 1.
Read about the amendments
Legal News
Court denies detainee challenge
By a 2-1 vote, the U.S. Court of Appeals for the D.C. Circuit dismissed hundreds of cases filed by foreign-born detainees saying the regular American court system is the wrong forum to challenge indefinite imprisonment. Attorneys for the detainees said they would appeal the ruling to the Supreme Court. In an interesting twist, court watchers also said the decision could be used to deny court access to millions of lawful permanent residents currently in the U.S.
Read about the decision in the Tennessean
Hyneman takes fifth about dealings with Ford
Developer Rusty Hyneman repeatedly asserted his Fifth Amendment right against self-incrimination yesterday in the case of former state senator John Ford, refusing to talk about an expensive watch he allegedly gave Ford. The defense had offered a motion to exclude the watch from evidence. U.S. District Judge Daniel Breen denied that motion but reserved judgment on if and how prosecutors may use the item.
The Commercial Appeal has the latest
AG touts protection from religious discrimination
U.S. Attorney General Alberto Gonzales was in Nashville yesterday to announce a new Justice Department program designed to protect Americans from religious discrimination. The "First Freedom Project" would increase awareness about religious discrimination through educational and training seminars throughout the country. Also in the works, according to Gonzalez, is a Religious Freedom Task Force that will review religious discrimination policies and cases. Learn more about the initiative at www.firstfreedom.gov
Read the AP report on the speech
Tobacco jury verdict rejected
On a 5-4 vote, the U.S. Supreme Court threw out a $79.5 million jury award against Philip Morris USA, saying that a jury may punish a defendant only for the harm done to the person who is suing. The company had argued that the jury was encouraged to punish it for health problems suffered by every one who smoked its cigarettes.
The News Sentinel has details
Council approves immigration checks
The Metro Council of Nashville and Davidson County approved a resolution last night allowing the sheriff's department to screen foreign-born arrestees for federal immigration violations. Nashville is one of a handful of counties experimenting with giving local law enforcement resources to identify immigration status, the Nashville City Paper reports.
Read the story
Former sheriff pleads guilty
Sumner County's former sheriff J.D. Vandercook pleaded guilty to federal fraud yesterday, admitting his role in a scheme to funnel taxpayer money to his brother through a construction contract.
WSMV TV has more
County studies justice center
The Anderson County Commission has established a committee to evaluate construction of a justice center. The panel also gave approval for county officials to meet with Oak Ridge leaders to come up with a cost sharing arrangement to provide new space for the General Sessions Division II Court.
Read more in the Oak Ridger
Adoption plea gets personal
Jerry Baker, the foster parent of Anna Mae He, has sent an impassioned letter to the justices of the state Supreme Court asking them to come to Memphis to observe the transfer of the girl to her biological parents.
Read the letter in the Nashville City Paper
Upcoming
Law society hosts lunch with leading corporate attorney
The Nashville Chapter of the American Constitution Society for Law and Policy will host a free lunch and presentation this Friday, Feb. 23, from 11:45 a.m. to 1 p.m. with Kent Greenfield, professor of law at Boston College Law School. Greenfield will discuss his new book "The Failure of Corporate Law: Fundamental Flaws and Progressive Possibilities" at the Nashville firm of Harwell, Howard, Hyne, Gabbert & Manner (315 Deaderick Street, Suite 1800). Greenfield served as a law clerk under Supreme Court Justice David H. Souter. He now teaches corporate and constitutional law. For more information contact Juan G. Villasenor at (615) 479-0383.

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