2007 4th Quarter Hotlist

Raybin and Richter Tennessee Supreme Court Hot List

(An Analysis of Reviews Granted the Week of December 26, 2007)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted the Week of December 17, 2007)

This week the Court granted review in six cases. There is something for everybody which is appropriate for this time of year. We will continue to adhere to our practice of not making a prediction in cases where our firm represents one of the litigants. Perhaps in the future we may invite "guest predictions." Readers ask if we can put them on a mailing list. We do not maintain such a list and recommend that you bookmark this page and return to it each Wednesday for our report. Responsible organizations who wish to link to our site may do so without charge but should first call David Raybin for a copyright release.

• Petitions for Declaratory Judgments Against the State and Exhaustion of Administrative Remedies

In Colonial Pipeline Co. v. John G. Morgan, et al., an interstate carrier of refined petroleum products appealed the dismissal of its constitutional challenges to portions of Tennessee's tax system. The chancery court dismissed the carrier's complaint on the basis that the carrier failed to exhaust its administrative remedies. On appeal, the Court of Appeals reversed the chancery court's holding that the carrier failed to exhaust its administrative remedies, reasoning that the plain words of the statute did not require the exhaustion of administrative remedies prior to seeking relief from the courts, the carrier sought judicial review raising only questions of law rather than questions of fact, and the carrier raised errors that the administrative agency had no power to correct. The Court of Appeals also concluded that the carrier could maintain a petition for declaratory judgment against the State despite the prohibition on actions against the State where the goal is "to reach the state, its treasury, funds or property," because the carrier was instead seeking a declaratory judgment that the State's tax scheme was unconstitutional. The Supreme Court granted review on December 17, 2007.

Prediction: We both believe the Supreme Court will affirm the trial court's finding that the nature of the carrier's claim relieved it of any obligation to exhaust its administrative remedies. However, Sarah thinks the Court will most likely reverse the finding that a petition for declaratory judgment could be maintained against the State under these circumstances. Although the carrier's complaint attacks the constitutionality of the State's existing tax scheme, the carrier's ultimate goal is to alter its classification under Tennessee's tax law and thereby reduce its tax liability in a clear effort to reach the "funds" of the State. David disagrees on the procedural posture in that the Court will allow a declaratory judgment on the merits of the constitutional question. If the Court reaches the merits of the constitutional question the statute will be upheld.

• Will Construction

In In re: Estate of Cornelius Theodore Ridley, the son of the decedent appealed the probate court's construction of the decedent's will which gave the decedent's second wife a life estate in the marital home with a one-half remainder to his step-daughter. On appeal, the Court of Appeals reversed, finding that the probate court's interpretation, while fair and equitable to the parties, was inconsistent with the language of the will. The Supreme Court granted review on December 17, 2007.

Prediction: It is unlikely that the Supreme Court would review this case if only to commend the Court of Appeals for its proper interpretation of the will, therefore, Sarah thinks it is likely that the decision will be reversed. David agrees.

• Public Employee Retirement Benefits

In Amos v. Metropolitan Government of Nashville and Davidson County, Amos and his fellow plaintiffs were employees of the police and fire departments of the Metropolitan Government of Nashville and Davidson County, Tennessee, who retired after September 13, 2001. All of the employees worked for over 25 years for Metro. This appeal involved a declaratory judgment on the issue of whether pursuant to the Metro Code, the Metropolitan Government of Nashville, should have included lump-sum payments for accrued vacation time in the calculation of pension benefits for the retired employees, or in the alternative, whether Metro should be estopped from excluding lump-sum payments for accrued vacation time from the calculation of pension benefits for retired employees. On appeal, the employees claimed that the trial court erred in finding that: (1) pursuant to the Metro Code, lump-sum payments should be excluded from the calculation of pension benefits for retired employees, (2) Mrtro is not estopped from excluding the lump-sum payments from the calculations, and (3) denying certification of this matter as a class action. The Court of Appeals denied relief. The central holding was that:

"Vacation pay is a form of compensation for services rendered, and when the services are rendered, the right to secure the promised compensation is a vested right. ... In this case, accrued vacation time is a vested right to take time off without deduction of pay that is earned by performing personal services. However, accrued vacation time is not the right to receive a lump-sum payment upon retirement. The lump-sum payment is made in lieu of the retiring employee using his/her accrued vacation time. Stated differently, the Appellants are receiving the lump-sum payment for their accrued vacation time, not for performing personal services. In essence, the Appellants are selling their accrued vacation time back to their employer instead of exercising their right to take time off without deduction of pay. Therefore, we hold that lump-sum payments for accrued vacation time are not "earnings" as defined in Metropolitan Code § 3.08.010(3) because the lump-sum payments are not for "personal services". Hence, if the lump-sum payments for accrued vacation time are not "earnings" as defined in Metropolitan Code § 3.08.010(3), then they are not includable in the calculation of pension benefits as "average earnings" pursuant to Chapter 3.37 of the Metropolitan Code. Furthermore, because the lump-sum payment is not includable as "average earnings," the timing of the lump-sum payment, whether it was made prior to or after retirement, does not affect this Court's decision."

Judge Clement dissented: "I respectfully disagree with the majority's conclusion that the lump-sum payments made to [the employees] upon their retirement were not for performing personal services; but instead, were in lieu of the employee using his/her accrued vacation time. Although the payments were indeed made in lieu of the employee using his/her accrued vacation time, the payments were compensation for the employee performing personal services during his/her employment."

The Supreme Court granted review on December 17.

Prediction: David Raybin represents the police officers in this case (Dewey Branstetter represents the firefighters) and thus we will not offer a prediction on this one.

• Consecutive Sentences - Confessions

In State v. Davis, the defendant was found guilty of murder, assault, and attempted second degree murder. The trial court sentenced Davis as a Range II, multiple offender, to fifteen years for his attempted murder conviction and eleven months, twenty-nine days for his misdemeanor conviction. The trial court ordered Davis to serve his attempted murder sentence consecutively to his life sentence, and the misdemeanor sentence concurrently with his other sentences, for an effective sentence of life plus fifteen years. On appeal the primary issues included a confession question and several evidentiary rulings. However the "hot" issue appears to be the question of consecutive sentences.

Prediction: David will go out on a limb on this one and predict that this case will form the third opinion in a group of cases already pending on the issue of consecutive sentencing. (See our review of cases granted the week of October 15) However, resolution of the confession question will produce some new law of what constitutes "questioning." Notice that the Supreme Court granted review this week in another confession case (State v. Northern) so police interrogation tactics may be another "hot" topic which is of interest to the Court.

• Search and Seizure

In Meeks v State, the trial judge granted the defendant's motion to suppress but the Court of Criminal Appeals reversed. The Tennessee Supreme Court granted review on December 17 on the search question which involved a search without a warrant of a meth factory in a hotel room. Here is the central holding:

"We conclude that a warrantless search of the Defendants' hotel room was proper. Our review of the record convinces us that the Defendants' actions did indeed present an immediate threat to public safety. An occupant of the hotel called the authorities complaining of a smell that she suspected was associated with the manufacture of methamphetamine, possibly coming from the room next door. Officer Caldwell arrived on the scene, spoke with the complainant, and detected the odor coming from Room 110. Officer Peterson described the smell as "[s]trong[,]" and Corporal Gray noted a "very strong" odor emanating from the room. When the door was opened, a "chemical cloud" came out of the room. "Air suits" were required before Officer Caldwell and Coroporal Gray could reenter the room to remove the unconscious Meeks from the room. According to Officer Caldwell, the situation was "[v]ery, very dangerous[,]" and this laboratory was "more dangerous" than usual. The occupants of the adjoining rooms were evacuated following entry into Room 110. Officer Caldwell described the dangers to the occupants: "They faced inhaling toxic chemicals. They risked the danger of an explosion and fire. It could be fatal." A "haz-mat" team was called to the scene. Both of the Defendants were taken to the hospital, and Defendant Meeks was hospitalized for several days following this incident. Furthermore, the officers involved were experienced with cases involving the manufacturing of methamphetamine. Therefore, we conclude that probable cause to search was present and accompanied by exigent circumstances-the dangers associated with the active production of methamphetamine in a hotel room. ... we conclude that the initial entry into the hotel room was necessary based upon the immediate threat to the public,... ."

Prediction: There is nothing "smelly" about this holding: it represents a sound application of settled Fourth Amendment law. David and Sarah agree that the search will be upheld by the Supreme Court.

• Confessions: Question-First, Warn-Later Tactic

In State v. Marco Northern the officers questioned the in-custody defendant, obtained a confession and then gave him his Miranda warnings and then questioned him again, producing a confession. The Court of Criminal Appeals affirmed and found that the earlier confession did not contaminate the second.

Prediction: Miranda is a shoot first, ask questions later rule. This business of asking questions to obtain a confession and then giving the Miranda warnings before taking a second -- "admissible" -- confession turns Miranda on its head. This case was not some field interview where a suspect blurts out a statement before the officers can give Miranda warnings. Here the officers had the defendant in the police station when they started questioning him without any warnings. David and Sarah believe that this location-of-the-defendant factor is decisive and thus the so-called "Question-First, Warn-Later Tactic" will be soundly rejected by a majority of the Supreme Court.

(An Analysis of Reviews Granted the Week of December 10, 2007)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted the Week of November 26, 2007)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted the Week of November 18, 2007)

• Vehicle Stop; Search and Seizure

The Court granted the government's application for appeal in State v. Richard Adam Hannah, et al., Tenn. Crim. App. June 6, 2007 where the Court of Criminal Appeals affirmed the trial judge's suppression of drugs found following a traffic stop. "Only one witness testified at the hearing on the motion to suppress. No evidence was introduced to contradict the testimony of the witness. From the trial court's comments, the trial judge implicitly found that the only reason Officer Shaw stopped the Altima was because the vehicle was traveling 15 miles per hour below the speed limit and about one-half the average speed of other vehicles which were traveling about 10 miles per hour over the posted maximum speed limit. Since it was a four-lane road, other vehicles were able to drive around the Altima. Thus, the trial court found that other traffic was not 'impeded.'" ... "Viewing the totality of the circumstances, Officer Shaw did not have a reasonable suspicion, supported by specific and articulable facts, to believe the defendants had committed a crime or were about to commit a crime when he initiated the traffic stop. Prior to stopping the defendants' vehicle, the officer did not observe any traffic violations, such as running a stop sign or red light, or weaving across lanes into oncoming traffic. Neither did he witness any equipment failures, such as a non-working headlight or taillight. Nor was there any evidence that the vehicle lacked tags or had expired tags. Officer Shaw did not testify that it was his belief that the individuals in the car were perpetrating a crime or had just committed a crime. The proof showed only that Officer Shaw observed the defendants' vehicle traveling within the bounds of the speed limit while other vehicles traveled ten miles per hour in excess of the speed limit. There was no minimum speed limit posted on the road. Officer Shaw testified that traffic was able to pass the defendants' vehicle in the right hand lane rather than being forced to stop by the defendants' reduced speed. This is not evidence sufficient to support a finding of probable cause or reasonable suspicion sufficient to stop the vehicle."

Prediction: We believe this will be affirmed even though the defendant was driving a little too slowly. Most of these cases involve excessive speed. I think that settled rules of suppression dictate that the trial judge's findings of fact are virtually conclusive. There will be a dissent but this one will go to the defense.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of November 11, 2007)

The Court granted review this week in three cases: two civil and one criminal. Interestingly, two of the three involved dissents from judges on the intermediate appellate courts. A discussion of these cases follows after a brief discussion about the Hot List.

• Information about our Hot List

Some attorneys have inquired about being placed on an email notification system when a new Hot List comes out. We do not plan on having such a notification system at the present time because email addresses are fluid and we do not want to be responsible for the constant process of updating emails. The best way to stay current is to put this page in your Favorites listing on your browser and then you can return to this page every week since the URL (web address) will always remain the same. We attempt to have the listing posted by Thursday of each week. If anyone has suggestions as to how we can improve our Hot List, please let us know. Finally, if a member of our firm is involved in any of the mentioned cases we will disclose that fact. Thank you.

• Effectiveness of Small Employer's Release of Liability

In Maggart v. Almany Realtors, Inc., Employee of a three-person real estate brokerage firm filed an action against Employer for work-related injuries. The trial court dismissed Employee's claim finding that a release of liability signed by Employee prior to the injury barred the claim. On appeal, the court concluded that the exculpatory agreement was void as against public policy and therefore unenforceable. The Supreme Court granted review on Employer's application, clearly on the issue of whether the release of liability is void as against public policy.

Prediction: The Supreme Court will likely reverse and hold that the release of liability is enforceable. The Workers' Compensation Act which requires that employers compensate employees for work-related injuries and prohibits exculpatory clauses is admittedly inapplicable to Employer in this case because the Act only applies to employers with five or more employees. Since the strictures of the Act are inapplicable to Employer, the Court will likely hold that under the long-standing doctrine of freedom of contract, the parties are entitled to contract as they so choose, including that one shall not be liable for his negligence to another.

• Disputed Facts in Motion for Summary Judgment

In Martin v. Norfolk S. Railway Co., Defendant's train struck Decedent's vehicle at a railroad crossing, resulting in Decedent's death. The trial court granted Defendant summary judgment finding that although there were some facts in dispute, none of the disputed facts, even if construed in a light most favorable to Decedent, could overcome the finding that Decedent was at least 50% at fault for the accident. The Court of Appeals agreed. However, Judge Susano dissented arguing that "[s]ummary judgment for the defendant is reserved for those situations where the undisputed material facts reflect that a plaintiff has no case." According to Judge Susano, summary judgment was improper because there were genuine issues of material fact as to whether Decedent's vehicle stopped once or twice at the tracks, whether the train engineer blew the whistle prior to the collision, how far Decedent could see down the track, and how the overgrown vegetation impacted Decedent's line of sight.

Prediction: The Supreme Court will likely reverse and hold that the appropriate vehicle for disposing of a "close case" is not summary judgment since a party has a constitutionally protected right to have a jury determine the merits of its complaint if the procedural prerequisites are satisfied.

• Ineffective Assistance of Counsel

In Dennis Pylant v. State , Tenn Crim. App., filed June 29, 2007, the defendant was convicted of child-abuse murder. His original lawyer asserted that the victim's mother had caused the victim's death. There was no defense. On post conviction the defense presented a multitude of witnesses including the medical examiner who contradicted the cause of death. The Court of Criminal Appeals affirmed, finding that the original lawyer acted within the Sixth Amendment. There was a very strong dissent that the original lawyer rendered ineffective assistance of counsel. The dissent asserted that the prejudice prong was established here:

The test for Strickland prejudice is not an evidence sufficiency inquiry; that is, a petitioner need not demonstrate that absent counsel's deficient performance sufficient evidence to convict would not have existed. Moreover, a petitioner "need not show that counsel's deficient conduct more likely than not altered the outcome in the case.".... Indeed, "[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."

The Supreme Court granted the Review on the petitioner's Application on November 12, 2007, clearly on the issue of ineffective assistance of counsel.

Prediction: This is not even close. The Court will reverse and adopt the dissent on the test for prejudice. Noteworthy, is that the defense lawyer turned down a three-year sentence plea bargain: the defendant was sentenced to life! The United States Supreme Court has recently granted review on what happens if the defense lawyer renders ineffective assistance of counsel in plea bargaining: Arave v. Hoffman

What to do in the meantime: This is a very fact-specific case which will articulate a broader test for prejudice.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of November 5, 2007)

• Delayed Appeal

The Tennessee Court granted review this week in only one case which concerned a delayed appeal. State v. Branner, 2007 WL 1559248 (Tenn.Crim. App. 2007). The Tennessee Supreme Court found the record deficient as to whether the trial judge had granted a delayed appeal and thus enter an unpublished ORDER remanding the case back to the trial judge for clarification. In my view this has no precedential value.

(An Analysis of Reviews Granted the Week of October 29, 2007)

No Reviews were Granted this week.

(An Analysis of Reviews Granted the Week of October 22, 2007)

No Reviews were Granted this week.

(An Analysis of Reviews Granted the Week of October 15, 2007)

• Consecutive Sentencing

The most significant cases of the week are on the criminal side. In State v. Allen and State v. Lumpkins, the Court has granted review on October 15, 2007 to determine if the Sixth Amendment prohibits judicial fact-finding in determining whether to impose consecutive sentences. Both decisions of the Court of Criminal Appeals followed the cases from other states which find that the Sixth Amendment has no impact on consecutive sentences. Now that the Tennessee Supreme Court has granted review the issue is on the table.

Two weeks ago the Tennessee Supreme Court held in State v. Gomez, that the pre-1995 presumptive sentencing law prohibited the use of enhancement factors to increase a sentence above the minimum. (see here for an extensive discussion) That decision had limited impact because the legislature "fixed" the problem for crimes which took place after June 7, 2005. See Raybin, The Blakely Fix. However, the "fix" did not impact consecutive sentences which are now suspect because current law requires concurrent sentences unless the judge finds certain facts. It is that judicial "fact-finding" which may impact the Sixth Amendment.

The Tennessee consecutive sentence statute is not totally discretionary like the statutes in other states and thus opinions from other states may not be helpful in resolving this question. We have written about this very topic in pleadings (here) filed in other cases which address the issue is more detail.

Prediction: This is tough because this could have a huge impact on hundreds of contested cases which were not a result of plea negotiations. Read literally our consecutive sentence statute is indistinguishable from our sentencing laws and so the Court may well find the current law invalid, prohibiting consecutive sentences unless based on prior convictions.

What to do in the meantime: Object whenever the judge imposes consecutive sentences. You are on notice that this is an issue so raise the point. Use our pleadings in related cases to perfect the issue and be aware that at least one other state (Oregon) has recently applied the Blakely doctrine to consecutive sentences.

• Uninsured Motorist Carrier Credits

In Green v. Johnson, the Eastern Section of the Court of Appeals determined that an uninsured motorist carrier is entitled to a credit from settlement proceeds made to an insured plaintiff by a non-motorist defendant despite Plaintiff's argument that allowance of the credit is contrary to the language and purpose of the uninsured motorist statute. The Tennessee Supreme Court granted Plaintiff's application for permission to appeal on October 15, 2007.

Prediction: Based on the clear language from the Court in Poper v. Rollins, the decision of the Court of Appeals will likely be upheld. It is curious that the Tennessee Supreme Court granted review unless some members of the Court want to overturn Poper.

What to do in the meantime: Uninsured motorist carriers should continue to attempt to offset their liability to the insured by any amount of money received by the insured from whatever source.

• Appeal of Restitution Orders

In Lane v. State, the Court of Criminal Appeals held that where the judge denies a motion to modify court-ordered restitution, the defendant may appeal that ruling by a writ of certiorari. Judge Wedemeyer filed a dissenting opinion as to whether the issue is even appealable. The Tennessee Supreme Court granted the State's Application for permission to appeal on October 15, 2007.

Prediction: It is difficult to agree that sentencing orders - even of this obscure nature - are immune to appellate review. However, Judge Wedemeyer may be right about this and we may need to amend the statute to allow appeals of these orders.

What to do in the meantime: Legislative action may be the only remedy to solve this problem.

• Remands in Gomez cases

Two weeks ago the Tennessee Supreme Court held in State v. Gomez, that the pre-1995 presumptive sentencing law prohibited the use of enhancement factors to increase a sentence above the minimum. In light of that ruling a number of Court of Criminal Appeals cases were remanded back to the Court of Criminal Appeals for reconsideration on October 15, 2007 by the Tennessee Supreme Court.

State v. Gomez (Gomez II) is a significant ruling. In State v Gomez, 163 S.W. 3d 632 (Tenn. 2005) ( Gomez I) the Tennessee Supreme Court held that Tennessee's sentencing laws did not violate the Sixth Amendment. Granting the defendants' Petition for a Writ of Certiorari, the U.S. Supreme Court remanded and directed that the Tennessee Supreme Court reconsider the decision in light of Cunningham v. California, 127 S.Ct. 856 (2007) which struck down the California sentencing scheme not unlike the Tennessee presumptive sentencing scheme.

On October 9, 2007, the Tennessee Supreme Court released Gomez II and found that the pre-2005 Tennessee presumptive sentencing statute violated the Sixth Amendment. The Court further held that the two defendants in Gomez were entitled to new sentencing hearings and that the government could not use prohibited, judge-determined enhancement factors to increase the sentence beyond the statutory minimum.

The fundamental holding in Gomez II was that because Tennessee had a presumptive sentencing scheme, the trial judge was prohibited from imposing any sentence above the minimum unless the judge found certain facts. This fact-finding was to be made by a jury and not a judge, and thus judge-found enhancement factors violated the Sixth Amendment. An exception was made for enhancement factors which rested on prior convictions.

As applied to the defendants in Gomez II, the case was remanded for a new sentencing hearing where the judge could only consider "prior conviction" enhancement factors. Other types of enhancement factors could not be applied to enhance the sentence.

The impact of Gomez II to other defendants is that unless a defendant has prior convictions, the defendant must receive the minimum sentence within the sentencing range. Any increase above the minimum violates the Sixth Amendment.

The holding has limited impact since the legislature anticipated this ruling in 2005 and remedied Tennessee sentencing laws by removing the mandatory presumptive sentence. See Raybin, The Blakely Fix. The new law was effective for crimes that occurred on or after June 7, 2005. Thus, Gomez II only applies to crimes committed prior to June 7, 2005.

Gomez II used a "plain error" framework to address the merits of the Sixth Amendment issue since neither defendant had raised the issue in the trial court. This is important because it answers another fundamental question of "how far back" Gomez II will reach. The Court held that "defense counsel, like many others in the legal community, did not realize until Blakely was decided [June 24, 2004] that the defendants had a potential claim for relief [under the Sixth Amendment]." This may signal that the Court will "reach back" as far as Blakely to grant retroactive relief.

Prediction: In our view, defendants who were sentenced between June 24, 2004 and June 7, 2005 will have a legitimate argument that any sentence above the minimum violates the Sixth Amendment. This would only apply where the sentence was contested - such as after a trial - and not where there was a plea agreement and an agreed sentence. Thus the number of impacted prisoners could be measured in the hundreds at most. We seriously doubt that Gomez II will be given unlimited retroactive relief which would affect thousands of prisoners.