Tag Archives: courts

AG sues paralegal selling fake court order

KNOXVILLE, Tenn. (AP) — A Tennessee state judge has ordered a Knoxville paralegal to turn over his files and even the contents of his Facebook profile after the state attorney general accused him of ripping off legal customers.

The Tennessee Attorney General’s office has filed a lawsuit against paralegal Jonathan Trotter, the Knoxville News Sentinel reports (http://bit.ly/29E18U8 ). The lawsuit alleges Trotter began advertising his legal services on Facebook after he completed a 17-week paralegal certificate program at the University of Tennessee in 2013.

Assistant Tennessee Attorney General Nate Casey says one woman paid Trotter $800 to help gain custody of her grandson. Trotter gave the woman a court order signed by a judge granting her custody. Casey said the order was a fake and Trotter had forged a judge’s signature.

The attorney general filed the lawsuit under the Tennessee Consumer Protection Act. No criminal charges have been filed, but the allegations have been referred to the Knox County district attorney general.

Trotter has not responded to the lawsuit.

Certified paralegals can perform some legal services, such as preparing court documents. But they cannot practice law, including setting fees, representing clients in and out of court and giving legal advice.

“(Trotter) was not supervised by an attorney and did not have an attorney review the legal documents he prepared for consumers,” the lawsuit stated. “As a result, (Trotter) has provided consumers with erroneous, deficient and ineffective legal advice and documents, and consumers have suffered substantial injury due to (his) unlawful conduct.”

In issuing the order, Knox County Circuit Court Judge Bill Ailor wrote “an injunction is necessary to protect consumers and legitimate business enterprises from defendant’s unfair and deceptive business model.”

Judge dismisses gun show operator’s lawsuit against Nashville fairgrounds

A Nashville judge Tuesday threw out a lawsuit brought by a gun show operator who has held events at Nashville Fairgrounds and fears they will be stopped under a new policy, according to The Tennessean.

Davidson County Chancellor Carol McCoy, in a ruling from the bench, granted Metro’s motion to dismiss the case and denied the motion of plaintiff David Goodman of Bill Goodman’s Gun and Knife Shows for injunctive relief.

…McCoy said that Goodman does not face immediate and irreparable harm to warrant an injunction and also lacked standing to bring the lawsuit because she said his rights had not been violated. Goodman, whose company has rented space at the fairgrounds for gun shows for more than 30 years, filed the lawsuit against Metro in April with a co-plaintiff, the Tennessee Firearms Association.

The ruling, which came after more than two hours of oral arguments, marked the first time a judge has weighed in on the Metro fair board’s controversial vote in December to halt future gun shows beginning next year unless new rules are in place for the events. McCoy found that the board was within its authority.

“I cannot find that there is a right to contract with Metro,” McCoy said. “You can try to contract with Metro. You can be the best business person in the world, but there is no right that the courts can enforce to require Metro to contract with that person or that entity.

“It may be that they decide to lease to Mr. Goodman. They may decide to lease to Mr. Goodman’s competitor. They may decide to lease to an entity that is not fully unknown at this point in time. But it’s not for the court to interfere with dictating to the fairgrounds and its board how those premises should be used through injunctive relief.”

Goodman’s attorney, Timothy Rudd, would not say whether he plans to appeal the decision.

Prosecutor seeks to pierce TN shield law for ‘Dateline NBC’ interview

With a high-profile double killing as the backdrop, a Knox County judge is being asked to do something no appellate court in Tennessee’s history has ever approved — pierce the shield that protects journalists from disclosing information not yet published or aired.

Further from the News-Sentinel:

Criminal Court Judge Steve Sword heard arguments Thursday in a bid by prosecutors to force the television news magazine “Dateline NBC” to turn over video of an interview with double-killing suspect Norman Eugene Clark that has yet to be broadcast.

Clark, accompanied by defense attorney Gregory P. Isaacs, gave the interview soon after a jury last year deadlocked with a vote of 11-1 to acquit him of charges he killed his pregnant girlfriend, Brittany Eldridge, 25, and their unborn son, Ezekiel, in December 2011. The state now seeks to retry him.

There is no indication Clark admitted to the killings, which he denies, and Deputy Assistant District Attorney General Kyle Hixson concedes prosecutors do not know whether Clark said anything in the interview that might be helpful to the prosecution in what is an entirely circumstantial case against him.

Hixon also agrees Tennessee’s press shield law has been tough enough to withstand all appellate reviews. The law protects journalists from being forced to reveal sources and information gathered as part of their duties and is designed to ensure the media can fulfill its watchdog function without fear of government interference.

But, Hixon argued Thursday, prior bids to pierce the shield involved “bad arguments” in which those seeking protected information failed to show a need so “compelling” as to overcome First Amendment guarantees. Not so in the Clark case, he argued.

“I don’t know what the bright line is, but I think when we’re talking about a double homicide case, purely circumstantial case, no other avenue to get this information, no other information … every piece of evidence is important,” Hixson said.

U.S. Supreme Court abortion ruling likely to impact TN laws

By Travis Loller, Associated Press
NASHVILLE, Tenn. — The U.S. Supreme Court’s Monday ruling on abortion restrictions in Texas could affect the outcome of a federal court challenge to two Tennessee laws.

“It seems like this will be a slam-dunk in Tennessee,” said Ilene Jaroslaw, an attorney with the Center for Reproductive Rights, which represents plaintiffs in both states.

The Tennessee laws under challenge “are indistinguishable in practice from the two that were judged unconstitutional in Texas,” she said.

In the Texas case, the Supreme Court struck down laws requiring abortion clinics to meet hospital-like standards and requiring abortion providers to have admitting privileges at nearby hospitals.

Tennessee’s admitting privileges requirement became law in 2012 and resulted in the closure of two of Tennessee’s eight clinics that provided surgical abortions, according to court records. Of the six remaining clinics, two face possible closure because of the strict new clinic standards adopted by the legislature in 2015. Continue reading

TN judge rules on parental rights in same-sex divorce case

In the first ruling of its kind in Tennessee, a Knox County judge on Friday decided that the same-sex spouse of a woman giving birth to a child by artificial insemination has no legal rights or obligations to the baby after a divorce.

Further from the News-Sentinel:

“I believe this is a situation where (Erica Witt) has no biological relationship with this child, has no contractual relationship with this child,” 4th Circuit Court Judge Greg McMillan ruled.

Erica Witt and Sabrina Witt legally wed in Washington, D.C., in April 2014, bought a home in Knoxville and decided to have a child via artificial insemination from an anonymous donor. Sabrina Witt bore a baby girl as a result in January 2015. Because Tennessee did not then recognize same-sex marriage as legal, Erica Witt’s name was not placed on the baby’s birth certificate.

In February, Sabrina Witt filed for divorce. Her attorney, John Harber, contended the only law on Tennessee’s books addressing parenting rights in the case of artificial insemination — enacted in 1977 — makes clear the law applies only to husbands.

“That terminology is not interchangeable,” Harber argued at a hearing Friday.

Tennessee still doesn’t have a law on the books officially recognizing same-sex marriage but is essentially under a mandate to do so due to a U.S. Supreme Court decision last year recognizing the rights of same-sex couples to marry. That ruling did not address divorce or parental rights in a divorce in which neither same-sex partner legally adopted the child they call their own.

Erica Witt’s attorney, Virginia Schwamm, contends the same reasoning used by the nation’s high court in marriage applies in divorce and custody matters.

“The argument that marriage may only consist of a ‘husband’ and a ‘wife’ has been held to be unconstitutional,” Schwamm said. “(Tennessee marriage certificates) still (indicate) male and female, but surely that no longer applies. Just because the statute reads man and woman, this court can interpret the statute in a manner that makes it constitutional.”

…Schwamm called the language of husband and wife outdated and urged McMillan to simply update it via his ruling, just as court clerks’ offices across the state are now revamping all manner of domestic forms, from marriage certificates to divorce petitions, to accommodate same-sex couples.

…But McMillan said it was not up to the courts to enact “social policy” via legal rulings and a strict reading of the artificial insemination law tied his hands in this case.

“I believe as a trial court I am not to plow new ground, but to apply precedent and the law,” McMillan said.

He is allowing Schwamm to appeal, putting the divorce action on hold pending a decision by the Tennessee Court of Appeals on whether to hear the issue.

“Given the novelty of this issue, the court thinks it appropriate to see if the appellate courts want to address this,” he said.

Judge halts recount of Amendment 1 vote

A federal judge has ordered a halt to a vote recount on the controversial abortion measure, Amendment 1, pending an appeal by state election officials.

Further from The Tennessean:

U.S. District Judge Kevin Sharp, who ordered the recount in April, issued the stay on Tuesday at the request of Tennessee election officials who are appealing his decision the U.S. Court of Appeals for the 6th Circuit.

Sharp cited the potential price tag of a recount to Tennessee taxpayers — approximately $1 million — in issuing his order.

Should the Court of Appeals overturn his order, it “raises the possibility that public money may be spent on something which turns out to be unnecessary,” Sharp wrote.

Amendment 1 passed in November 2014 with 53 percent of the vote. The measure was among the most controversial in Tennessee history and stripped the right to an abortion from the state constitution.

Eight voters, including the board chair of Planned Parenthood of Middle & Eastern Tennessee, filed suit within days of its passage, claiming the method state election officials used to count the vote was fundamentally unfair and gave more weight to “yes” votes than “no” votes.

AG won’t appeal court decision striking down TN anti-gang law

The Tennessee attorney general will let stand a ruling striking down the state’s gang enhancement law as unconstitutional, a move that could invalidate multiple criminal convictions. One factor cited is the Legislature’s move to change the questioned law during the past legislative session.

From Jamie Satterfield at the News Sentinel:

Harlow Sumerford, spokesman for Attorney General Herbert H. Slatery III, said Wednesday the office will not seek a Tennessee Supreme Court review of a decision in April by a lower appellate court declaring the law constitutionally unsound.

Slatery’s decision comes after the state Legislature quickly passed a new version of the law, which boosts penalties for crimes committed by alleged gang members, in the wake of the Court of Criminal Appeals ruling.

“One of the many factors in that decision included the General Assembly amending this statute this past session,” Sumerford said.

The new law applies only to future prosecutions, so every case in Tennessee in which the old statute — first passed in 2012 — was successfully used is now considered flawed. Knox County has been a hotbed for such prosecutions.

Although exact figures were not available Wednesday, Knox County District Attorney General Charme Allen’s office estimated at least 60 convictions under the old law are in jeopardy. In addition, all pending gang enhancement charges must be dismissed, Deputy District Attorney General Kyle Hixson said.

Hixson said prosecutors will not take the lead in determining which cases now need to be reheard and how.

“It will be up to the convicted parties to determine if they wish to challenge their sentence,” he said.

Using a Knox County case as a backdrop, the appellate court ruled the gang enhancement law was so broad it allowed gang members to suffer extra punishment for crimes that had nothing to do with any gang or gang activity and for the misdeeds of other gang members in which they weren’t even involved.

Tennessee largely stood alone in the nation for punishing criminals simply for being in a gang. Membership in a gang — even a criminal one — is not by itself illegal.

The Legislature revised the law to specifically require proof the underlying crime was committed “at the direction of, in association with or for the benefit of” either the gang or a fellow gang member.

But the Legislature did not address other constitutional issues with the old law raised by the appellate court, said Knoxville attorney Stephen Ross Johnson, who has served as president of the Tennessee and the national associations of criminal defense attorneys.

“How do we determine you are a gang member?” Johnson asked, noting the appellate court faulted that section of the law as well.

Drunken driver gets 14-year-sentence in death of former state rep

A Kingsport man, whose drunken driving killed a former state representative, received a 14-year prison sentence Thursday, according to the Kingsport Times-News.

The sentence was handed down to James D. Hamm Jr. in a Sullivan County courtroom. Hamm was found guilty in February of this year on vehicular homicide by intoxication, driving under the influence, leaving the scene of a motor vehicle collision involving a fatality, two counts of reckless endangerment and failure to exercise due care in the death of former state representative Mike Locke.

“We’re very pleased with the sentence,” said Lesley Tiller, Sullivan County Assistant District Attorney. “We feel it’s appropriate. …I think it has given closure to the Locke family.”

Tiller and Sullivan County Assistant District Attorney Kent Chitwood prosecuted the case for the state of Tennessee.

The state sought and received the maximum sentence in this case. Hamm will have to serve 30 percent of the sentence — four years and two months — before he is eligible for parole. Tiller said this was based on the fact that he does not have any prior felony convictions.

Locke was placing campaign signs along Fort Henry Drive for then primary candidate Bud Hulsey, who is now the state representative for Kingsport, when he was struck by a vehicle driven by Hamm. The impact knocked Locke off the bridge and into a ravine approximately 20 feet below.

…”I’m glad that the justice side of this thing is finally completed,” Hulsey said. “I wish his sentence was more severe than that.”

Last year, the Tennessee legislator passed a bill sponsored by Hulsey, dubbed the Ben Woodruff and Mike Locke Act, which requires those convicted of aggravated vehicular homicide to serve 60 percent of their sentence instead of 30. The bill does not apply retroactively.

Slatery joins Texas lawsuit over transgender bathroom directive

News release from Tennessee attorney general’s office:
Attorney General Herbert H. Slatery III today joined Texas and nine other states in filing a lawsuit against the United States Department of Education (DOE) and the Department of Justice (DOJ). This is in direct response to recent actions taken by DOE and DOJ in connection with Title VII and Title IX. In the joint letter referred to as the “Dear Colleague Letter” sent by DOE and DOJ to school districts across the country, DOE and DOJ redefined the term “sex” as a person’s sense of gender identity and placed federal funding at risk for schools whose facilities and programs do not comply with the new definition.

Slatery said, “The Executive Branch has taken what should be a state and local issue [under the Tenth Amendment] and made it a federal issue. Schools that do not conform under the new rules risk losing their federal funding. This is yet another instance of the Executive Branch changing law on a grand scale, which is not its constitutional role. Congress legislates, not the Executive Branch. Our Office has consistently opposed efforts like this to take away states’ rights and exclude the people’s representatives from making these decisions, or at a minimum being able to engage in a notice and comment period under the Administrative Procedures Act (APA). As the complaint describes, it is a social experiment implemented by federal departments denying basic privacy rights and placing the burden largely on our children, not adults. Sitting on the sidelines on this issue was not an option.”

In 1964, Congress enacted Title VII of the Civil Rights Act, making it illegal for employers to discriminate on the basis of race, color, religion, sex or national origin. Eight years later, Congress took it a step further with Title IX of the Education Amendments of 1972, expanding those protections to federally funded education programs.

Slatery added, “Title IX prohibits discrimination on the basis of “sex” – defined to be a biological category based principally on male or female anatomy. The Administration is incorrectly interpreting Title IX to include self-proclaimed gender identity. By issuing this change as a “guideline,” DOE and DOJ are sidestepping the APA and infringing on a legal territory reserved for the legislature. Tennessee is initiating this lawsuit with the other states to contest the action for all of these reasons.”

Other states joining in the filing are Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Utah, West Virginia, and Wisconsin.

Appeals court backs TennCare applicants in lawsuit

By Travis Loller, Associated Press
NASHVILLE, Tenn. — Tennessee’s Medicaid program has to provide applicants with a fair hearing if it cannot process their requests on time, under an order that’s been upheld by a federal appeals court.

Applications for most forms of Medicaid should be processed within 45 days, by law. Applications based on disability are allowed 90 days.

Applicants for TennCare — Tennessee’s version of Medicaid — sued in July 2014, complaining that their applications had been pending for months, and the state had refused to provide hearings.

A federal judge in Nashville issued a preliminary injunction in September 2014 requiring hearings for those whose applications were not timely processed. The injunction is a temporary ruling in effect while the case works its way through the courts. The judge also granted the lawsuit class-action status, meaning anyone in a similar situation to the original plaintiffs could be considered a plaintiff.

The state appealed, asking the 6th U.S. Circuit Court of Appeals to dismiss the lawsuit on technical grounds.

On Monday, a 6th Circuit panel ruled 2-1 in favor of the TennCare applicants.
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