Candidates vie for judgeship

Written by: Doug Davis

MURFREESBORO — The three candidates left standing after the Tennessee Judicial Nominating Commission’s proceedings concluded Friday told The Daily News Journal earlier this week why they are qualified to be the next appointed 16th Judicial District judge. “I have been in practice for 23 years,” said Howard Wilson, 51, of Lascassas. “I have a broader range of experience due to the fact that I have practiced so much longer (than the other two candidates).

He said he also was an administrative law judge for the Tennessee Department of Education for 14 of those years. “I have the proper demeanor to be the judge,” he said, referring to a Rutherford/Cannon County Bar Association poll which gave him high marks. He came in third as highly recommended with 37 votes, 26.8 percent.

Another finalist, M. Keith Siskin picked up 56 votes in the highly recommended category and picked up 40.6 percent of those surveyed to come out on top in the poll.
Siskin, 40, a magistrate in Rutherford County Juvenile Court, spoke of his qualifications Monday afternoon. “I have a well-rounded background. I’ve got eight years of judicial experience,” he said. “From 1998 to 2007, I practiced law. When you combine my judicial experience with the litigation experience, I can see both sides of the courtroom and see how things should be done.”

Siskin was appointed part-time magistrate by Judge Donna Scott Davenport in juvenile court in 2004 and Siskin became full-time magistrate in 2007.
“It has the same powers as judge,” Siskin said. “The only difference is that the (Magistrate’s) decision can be appealed to the judge.

Barnes, 36, touts her judicial experience and experience as an attorney. “The circuit court judges in our district hear both criminal and civil cases and I have experience in both,” Barnes said. “I have also received special training from the National Judicial College, the nation’s leading provider of education for judges,” the Smyrna Municipal Judge said.

Barnes said she hears criminal general sessions cases as part of her duties in Smyrna.

“Which means I conduct preliminary hearings for felony charges,” she continued. “I conduct bench trials for misdemeanor charges and hear violation of probation hearings. I (also) hear municipal code violations and traffic offenses.”

The Smyrna court by special legislation, she explained, has concurrent general sessions jurisdiction for criminal cases. “From what I understand of the other candidates, I am the only applicant that is a sitting judge that hears adult cases,” she said.

Thirteen candidates applied for three finalist slots Friday during a full day of meetings inside the Rutherford County Courthouse in Murfreesboro.
The next step is apparently a background check by the TBI of all three candidates. It is not known when the candidates will be vetted by the governor’s office or before Gov. Bill Haslam himself.

Don Ash has accepted a new position as senior judge and will be vacating his post as circuit court judge, but it appears his initial assignment as senior judge will be in his current position.

TN Supreme Court reverses course on donations by judges to campaigns

Written by

Bobby Allyn and Sarah Kingsbury

In January, the Tennessee Supreme Court adopted an overhauled code of conduct that applied to judges across the state, intended to draw a clear line between courts and politics.

But days before the new conflict-of-interest rules were to take effect on July 1, the Court issued a little-noticed order reversing one of its reforms: judges in the state will be allowed to make political contributions — despite being expressly banned in the original, widely-celebrated changes.

Most of the ethics reforms have remained intact, including specific rules about when a judge should step down from a case due to campaign contributions or other activities that may undermine fairness. In addition, judges cannot endorse candidates.
Nonetheless, some legal experts say the change of direction is questionable.

“The better practice is for judges to err on the side of staying out of politics,” said Adam Skaggs, attorney with New York University’s Brennan Center for Justice. “Judges would be well-served to avoid injecting themselves in heated partisan debates.”

At least 27 Tennessee judges have donated to political campaigns this year, according to the Davidson County Election Commission. Nearly all the donations were under $1,000.There were a few exceptions, however.

Out-going General Sessions Judge Mike Jameson gave the largest sum, a $1,400 contribution to his former colleague Phillip North's bid for state Senate. And Judge John McClarty of the Court of Appeals for East Tennessee contributed $1,000 to the re-election campaign of Representative JoAnne Favors of Chattanooga.

The change of course was prompted by letters to the high court from three judges, two from the Knoxville area and one from Lafayette, who disputed the rule.
Among them, Judge David Duggan of the Fifth District argued in his letter to the court that prohibiting donations infringes on judges’ free speech.

“I think judges should self-regulate self-restrict, but I don’t see how making a political contribution impacts my way of hearing a case,” he said in a phone interview.
The court considered the judges’ letters as a petition, which triggered a survey of some 180 judges around the state. Nearly 63 percent of respondents said they favored no limits on campaign contributions beyond those that apply to the public.
The Tennessee Bar Association supported lifting the ban.

“The courts have held that money is speech,” said Allan Ramsaur, who leads the association. Unless there is a compelling reason to override First Amendment rights, he added, donation restrictions “are pretty much frowned upon,” in addition to being vulnerable to legal attacks.

Yet Dick Williams of Common Cause Tennessee, which advocates for government openess, said “it’s a step back from what could have been a significant step forward.”
“Preventing endorsement is meaningless, because a contribution is a de facto endorsement,” Williams said. “It signals that the court bowed to the interest of those who want to contribute.”

Sen. Mae Beavers, a champion of greater judicial transparency, said the state’s recusal reform and other ethics revisions — the first changes to the code in more than two decades — should be applauded.

In other states where judicial donation rules were amended, lawsuits swiftly followed, according to Skaggs of the Brennan Center. There has been no indication that a legal challenge is looming in Tennessee.

Skaggs said some states are trying to harness the momentum around the U.S. Supreme Court’s Citizens United ruling, which gave corporations and unions the right to contribute to campaigns without limits, to deregulate judicial rules. “If they succeed, it is going to create courts that are staffed with people indistinguishable from other political groups, which would be a great disservice to the public.”

TN court clerks resist suspending licenses over unpaid fees

Some worry new law on unpaid fees further hurts poor

Written by: Brian Haas

Come Wednesday, Omar Dhies is set to lose his driver’s license.
Not because of the DUI charge, but because he hasn’t paid nearly $2,500 in court fees he owes after his conviction in Davidson County.“I’m trying to pay the court costs,” Dhies said. “But (what) if you don’t have nothing to pay to get the license back?”

Starting July 1, clerks throughout Tennessee gained the power to begin suspending driver’s licenses if court fees and fines go unpaid for a year. But not a single license has been suspended, according to the Tennessee Department of Safety and Homeland Security. Even Tommy Bradley, chief administrative officer for the Davidson County Criminal Court Clerk’s Office and the man who wrote the law, is holding off until Aug. 1 to give debtors one last chance to pay at least something.

Other clerks are questioning whether to suspend licenses at all, out of logistical or moral reservations. “I just want to wait and see,” said Wilson County Circuit Court Clerk Linda Neal. “I’m afraid this law is going to be hurting the people who would really like to put out the effort to pay and they simply can’t.” Bradley acknowledges there is “widespread” opposition to the law, which he wrote to help collect hundreds of millions in uncollected court costs.

Wiggle room

In Davidson County alone, taxpayers are owed more than $300 million in court costs — enough to run Metro’s police and fire departments for a year. Bradley noticed that courts had far less trouble collecting costs from defendants in traffic cases who risked losing their licenses for not paying up. So he persuaded the legislature in 2011 to extend that potential penalty to all criminal court defendants.

The law states that clerks are supposed to file to have a debtor’s license suspended if their fees are uncollected a year after disposition. Clerks were given wiggle room, however, to delay filing for a suspension, as in the case of debtors setting up payment plans. Bradley said that even his office won’t suspend licenses of debtors who pay at least $15 a month.

“We’re only going to be sending the ones who aren’t paid and aren’t paying,” he said. “If they’re making a minimum monthly payment of $15 a month, we’re not sending it. The point is not to take away your license, but to get it paid.”

Since his office began sending out warnings, he said the simple threat of suspension has helped collect on fees. More than $600,000 has been collected in court fees than the prior year. “That’s a chunk of change,” he said. “The word’s out.”

Broad opposition

But Bradley recognizes that the new law isn’t particularly popular among clerks.
“I understand clearly the opposition for this statute,” he said. “I think it’s widespread, to be frank.”

Neal said that aside from moral qualms at saddling poor offenders with even more burdens, she’s not sure she has the money or staff to send out notices and then process debtors for suspensions.

“We’ve got all the work that we can say grace over now,” Neal said. “To me, it’s going to be more record-keeping and a little bit more difficult to keep up with.”
Neal said she’s more likely to just continue sending unpaid debts to a collection agency. It’s cheaper and easier on her overworked staff.

The new law also has created more work for attorneys. Davidson County Public Defender Dawn Deaner said more clients are asking judges to have their fees waived, so as to avoid having their licenses suspended.

“You can’t get blood from a turnip. I think, frankly, a lot of the clerks out there recognize that they’re chasing a turnip, that these folks don’t have the money,” Deaner said. “Most of the people in the criminal justice system, they are indigent, they are living below the federal poverty guideline. When you then suspend their driver’s license, you make it harder for them to find employment, find resources, find ways to pay these debts.”

Gov. Haslam names blue-chip panel to hear judicial selection appeal

Written by Chas Sisk


Gov. Bill Haslam appointed a special Supreme Court to sort through a long-running court battle over how judges are chosen in Tennessee.

Haslam named three former judges and two other attorneys to handle an appeal filed by former Democratic gubernatorial candidate and Nashville lawyer John Jay Hooker that challenges the makeup of the Court of Criminal Appeals. Hooker says the court violates the state constitution because members are initially appointed by the governor.
Hooker asked members of the state Supreme Court to recuse themselves from the case because they are also appointed by the governor. Eleven of 12 appeals court judges have also dismissed themselves.

The special Supreme Court will consist of William M. Barker, a retired state Supreme Court chief justice who now practices law in Chattanooga; Andree Sophia Blumstein, a Nashville attorney specializing in civil appellate litigation; George H. Brown Jr., a former Supreme Court justice, circuit court judge and arbitration specialist in Memphis; Robert L. Echols, a former U.S. District Court judge who practices law in Nashville; and W. Morris Kizer, a former law director for the city of Knoxville when Haslam was mayor there.

“The special appointees are a group of highly qualified and diverse legal minds representing the three grand divisions of the state,” the governor’s office said in a statement. “They come from all practice areas and have more than a century of experience.”

Hooker has been challenging the so-called Tennessee Plan, through which vacancies on the state’s appeals court are filled by the governor using a list of pre-screened candidates. Judges then must stand for retention elections, up-or-down votes on whether they should remain on the bench.

Hooker says the system violates the state constitution’s stipulation that judges be elected. The Tennessee Supreme Court has ruled previously that retention elections fulfill the requirement.

Lawmakers are weighing constitutional amendments that would clarify the process.

New laws taking effect in TN beginning July 1

A list of some of the new laws:

GOV. BILL HASLAM'S BUDGET: Enacts Tennessee's more than $31 billion annual spending plan.

ABORTION DOCTORS: Requires physicians to have hospital privileges in the home or adjacent county of woman seeking abortion.

TRA OVERHAUL: Overhauls the Tennessee Regulatory Authority with a part-time board.

MENTAL HEALTH-NAME CHANGE: Adds the words Substance Abuse Services to the name of the state Department of Mental Health.

EMBRYO ASSAULT: Includes embryo as victim in assaults on pregnant women.

DOMESTIC ABUSE: Requires mandatory jail time for repeat domestic abuse convictions.

GANG BILL: Increases penalties for violent crimes committed by three or more people.

GATEWAY SEXUAL ACTIVITY: Prohibits teachers from promoting or condoning "gateway sexual activity."

CORRECTIONS TRANSFER: Merges the Board of Probations and Parole into the Department of Correction.

CHARTER SCHOOLS FOREIGNERS: Limits number of foreign workers allowed to be employed at charter schools.

CHARTER SCHOOL TRANSPARENCY: Requires charter schools to operate under state open meetings laws.

SCHOOL ACTIVITIES: Allows parents to keep their children from joining extracurricular groups at school.

JUDICIAL DISCIPLINE: Creates new panel for disciplining judges.

DUI MINORS: Increases penalties for drunken driving when child under 18 is in car.

WILD APPEARING SWINE: Makes it a crime to release wild-appearing swine without proper documentation.

BATH SALTS: Makes it a felony to sell synthetic drugs known as bath salts.

BOARDS AND COMMISSIONS: Allows governor to appoint heads of boards, including Tennessee Higher Education Commission.

CIVIL SERVICE: Revises state civil service laws to make it easier to hire and fire state employees.

ETHICS DISCLOSURES: Requires local and regional planning commissioner to submit state ethics disclosures.

MONOXIDE MONITOR-RV: Requires working carbon monoxide detectors in leased recreational vehicles.

REMOTE MEETINGS: Allows school board members to participate in meetings remotely.

ROLL YOUR OWN CIGARETTES: Promulgates rules for new requirements for roll-your-own tobacco retailers.

SAGGY PANTS: Prohibits students from wearing saggy pants or other indecent clothing on school grounds.

SCHOOL SAFETY: Gives teachers more authority to act against students who pose a safety risk.

TATTOO LEGISLATION: Increases the penalty for tattooing a minor.

Supreme Court adopts new ethics rules for TN judges

Published June 26, 2012 by Philip Nannie             

The Tennessee Supreme Court has adopted a comprehensive revision to its ethics rules. “Maintaining a high standard of judicial ethics is paramount to the public’s trust and confidence in the courts and the judges who preside over them,” Chief Justice Cornelia A. Clark said in a statement Tuesday.

The rules changes impacting the state’s judiciary most tangibly are in essence a restatement of earlier rules governing the political activities of judges, but with modifications. Judges and judicial candidates may continue to make contributions to political organizations — or to candidates for public office — as well attend or purchase tickets to dinners and other events sponsored by a political organization or a candidate for public office. The latter is a nuance not included in the first proposed rule changes and was included after input from the Tennessee Bar Association and others. Further, judges and judicial candidates are now prohibited from endorsing or opposing other candidates for public office.

Click here for the order issued by State Supreme Court Chief Justice Cornelia A. Clark, which includes the petition to amend Rule 10.
Other items decided by the court in its January 2012 session addressing rules of conduct changes are as follows:
• The court adopted a new provision regarding the disability and impairment of a judge or attorney. The rule instructs judges to take “appropriate action” should a judge have reasonable belief that another judge or attorney is impaired.
• The court adopted a rule setting out a new procedure for pursuing the recusal of a judge, and a new process for seeking an expedited appeal if a motion for recusal is denied.
The new guidelines for conduct, dubbed Rule 10, take effect July 1.

TN law allows some felons a second chance

Starting July 1, some one-time offenders will have right to expunge conviction

Written by

Brian Haas

The Tennessean

For the first time in Tennessee, some one-time, nonviolent offenders will have the right to expunge their felony conviction, forever erasing that criminal record. A bill signed into law last month, and effective July 1, allows some offenders to expunge a select set of felonies and misdemeanors for a fee, after meeting all court requirements. The law applies only to offenders with a single conviction.

The economy has already proven a powerful incentive for people to have their records expunged. As people lost jobs over the past few years, they found that criminal records often prevented them from finding work, particularly as more people vied for a smaller pool of positions. State and local officials say that economic pressure is responsible for a surge in expungements over the last five years, from roughly 23,000 in 2007 to more than 39,000 in 2011.

Loosening the restrictions is expected to shatter all records, with a stunning 60,000 additional requests each year, according to a fiscal analysis of the approved bill.
“These things are life-altering. It is just devastating to apply to a job, to try to get many things, primarily economic,” said Nashville criminal defense attorney David Raybin, who handles expungement and felons’ rights restoration cases. “The United States is the land of the second chance, that’s what we’re about. To permanently brand somebody with something like this to where it destroys their ability to work or go to school, there’s no reason for it anymore.”

Conviction stood

Until this law was passed, a conviction was permanent, absent an executive exoneration from the governor. Expungement was available only for those not guilty or whose charges were dropped or for those sentenced to judicial diversion, a process by which offenders can clear their names after meeting all of their court-mandated requirements.

Tennessee is set to join at least 17 other states that have some mechanism for first-time offenders to expunge a criminal charge, according to a study by the University of Cincinnati Law Review.

Under the new law, offenders can only have a single criminal conviction, must wait 5 years after all court requirements have been fulfilled and then must pay $350 to apply to have their one charge expunged. Offenders must apply in the county where they are convicted and after a hearing before a judge, where prosecutors could conceivably present evidence in opposition to the removal of a charge.

Most of the felonies eligible to be expunged are property crimes like theft and vandalism where the goods stolen are worth less than $1,000. Some minor drug charges, such as felony simple possession, are also eligible to be expunged.
Most misdemeanors are eligible, with the exception of convictions for violent crimes like assault and domestic assault, some weapons charges, child neglect and molestation charges and DUIs.

The bill passed handily, but not without much discussion and some opposition.
State Sen. Jack Johnson, R-Franklin, said he wasn’t opposed to the idea in spirit, but was uncomfortable with some details in the bill.

“It wasn’t necessarily an easy vote for me because I do believe in second chances. But I just don’t like that it includes a few things that I thought should not be expunged,” he said. “I thought it was a little broad, included some things I wasn’t comfortable with.”
He pointed to a handful of felony charges that could be expunged that he thought shouldn’t be, including forgery up to $1,000, auto burglaries and felony vandalism with damages up to $999.

“Being labeled as a felon? That’s pretty serious stuff and that could haunt a 22-year-old kid for the rest of their lives. I don’t have a problem showing some compassion for that,” he said. “But this bill went a little further than that.”

Gun rights a factor

Raybin said that a secondary effect of the new law is that some felons will have their rights — including the right to have a gun — restored when their crimes are expunged. Raybin said that most of the clients who approach him about felony rights are specifically interested in having their gun rights restored.
“It is tremendous the number of people who can’t have a firearm because of a conviction,” he said.

Raybin is currently suing the state on behalf of a Franklin man who was pardoned in Georgia and had his gun rights restored there, but was denied a gun permit in Tennessee because his original charge was drug-related. Tennessee bars violent and drug felons from possessing guns.

He said the new law is not only just, but will also benefit the state economically by removing barriers to employment for those who have made a mistake in their past.

Thousands of Tennesseans could lose their licenses

Written by: The Associated Press 

CLINTON, Tenn. (AP) —The impact of a law that gives Tennessee court clerks a powerful tool for collecting unpaid court costs will soon be felt when thousands of people begin losing their driver’s licenses.

The law says defendants have a year to pay all court costs in misdemeanor and felony cases or the Department of Safety will automatically revoke their licenses. It took effect last July, and the one-year grace period to pay is coming to an end for some defendants.

Court officials told The Knoxville News Sentinel that they welcome a new way to collect millions of dollars in outstanding debts, but they worry about the burden on an already overloaded court system.

Court clerks will be providing the information to the state about who hasn’t paid their fines.

 

Immigration lawyers busy after president's policy change

By Joseph Pleasant

NASHVILLE, Tenn. -

Immigration lawyers are seeing an increase in calls from people wanting to know how to apply for deferred action through the Department of Homeland Security.

"The very first consult I had this morning was with a girl who was 13 years old and her parents brought her here because she wanted to see a lawyer," immigration attorney Elliott Ozment said. "I had to tell her there was nothing I could do for her today because you have to be 15 before you can register for this program."

Under the provisions of the program, illegal immigrants who meet certain criteria will be allowed to apply for work authorization and will not be deported.

In order to qualify, the person must have come to the United States before the age of 16. They must have continuously lived in the United States for five years prior to June 15, 2012 and be in the country on the 15th.

They must also be currently in school, have graduated from high school, have obtained a GED or are honorably discharged veterans of the Coast Guard or United States Armed Forces.

The person can not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses or otherwise pose a threat to national security or public safety.

Finally, the person must be younger than 30 years old.

The provisions are closely matched to those in the Development, Relief, and Education for Alien Minors or DREAM Act.

The measure has not been passed by Congress.

"I am just so disappointed that this administration has continued to try to change policy by just a dictate," 6th District Representative Diane Black said. "Not taking policy through Congress as it should be."

Ozment said he has had so many people making appointments that by Monday his calendar for the rest of the week is already full.

"First of all this has been an issue that has built up a lot of pent up demand for resolution," he said. "It is a sad commentary on this country that this problem has existed for as long as it has."

Ozment also said some people are being cautious about applying for the program. Some he said want to wait until after the November election.

"If Mitt Romney wins in November this action could just as easily be undone by President Mitt Romney," he said. "What if that was to happen? What would happen to those young people?"

The change in policy is immediate, but the application process is expected to begin in roughly 60 days. The Department of Homeland Security estimates that 800,000 people could qualify for the program.

After a person is accepted into the deferred action program they have to reapply every two years.

The illegal immigrant can apply for work authorization and also enroll in college.

"I have had others come in here today in tears thankful that someone cared enough to do something," Ozment said. "I just wish it had been done sooner."

Rep. Black has said she will draft legislation to reverse the change to the DHS policy this week when she returns to Washington.

Attorney general's view allays concern over open meetings

Written by

Erik Schelzig

Associated Press

A state lawmaker says a recent legal opinion from the state’s attorney general has soothed concerns about Tennessee’s open meetings law.

Republican Rep. Tony Shipley of Kingsport said he requested the opinion to clarify that local government officials can meet privately over a meal, as long as they don’t decide public business.

“My county commissioners were concerned they couldn’t even go to lunch together, and I told them I don’t think that’s the intent,” Shipley said. “So essentially that’s what I asked the AG, and he said: No, of course they can go to lunch together.”

Attorney General Bob Cooper cautioned in the opinion that while officials can share meals, they must avoid deliberating about official matters, which “has been defined to mean to ‘examine and consult in order to form an opinion,’ or to ‘weigh arguments for and against a proposed course of action.’”

The Tennessee County Commissioners Association during this year’s legislative session sought to have the state’s open meetings law changed to allow private meetings among officials as long as a quorum isn’t present.

Gov. Bill Haslam and fellow Republican House Speaker Beth Harwell of Nashville quickly came out against the proposal, but Senate Speaker Ron Ramsey was more receptive to concerns about the existing law that bans any number of local officials from deciding government business behind closed doors.

“It’s the same old question — it’s just according to what the press decides is deliberating,” Ramsey, R-Blountville, said in an interview at the legislative office complex. “There’s no definition in the law about what deliberations are.
“Does discussing a pothole in a county road and deciding that we want to vote on that (constitute) deliberating?”

Ramsey said the attorney general’s opinion takes steps toward clarifying the law, but he still considers the rules to be open to interpretation.
“I still feel the law is very vague, but I don’t think we’re ever going to change anything,” he said.

The law enacted in 1974 doesn’t ban officials from speaking to each other — as long as they are not deliberating on a pending issue. Frank Gibson, public policy director for the Tennessee Press Association, said the opinion reflects “what the law has been all along.”

“If they use breakfast or lunch at Cracker Barrel to deliberate or decide business, then that’s a violation,” he said.

“But there’s nothing in the law that says they can’t talk to each other or socialize.”

Haslam Issues Executive Order on State Drug Court Programs

Gov. Bill Haslam today announced an executive order to change the management and oversight of state drug court programs as part of his administration’s ongoing effort to increase government efficiency and effectiveness.

Executive Order No. 12 transfers the drug court programs from the Department of Finance and Administration (F&A) to the Department of Mental Health and Substance Abuse Services (TDMHSAS) effective July 1, 2012.
TDMHSAS oversees the licensing and funding for indigent Tennesseans needing substance abuse prevention, treatment, and recovery support services. The transfer of the drug courts to TDMHSAS will lessen duplication of effort and align with the department’s role as the substance abuse authority in the state.

“Management and oversight of Tennessee’s drug court programs are consistent with the focus of the Tennessee Department of Mental Health and Substance Abuse Services, and we believe it makes more sense for the department to manage these programs,” Haslam said.

Drug courts were established as an alternative to jails and prisons and are designed to foster recovery. For many arrested on drug-related offenses, prison is not the answer, and research has shown treatment costs are lower than costs associated with incarceration.

Drug courts refer clients to substance abuse community agencies that provide intervention and treatment services, which are funded, contracted and licensed by TDMHSAS. The department and the Office of Criminal Justice Services in F&A have had discussions about transitioning the programs and are prepared for a smooth transition.

“We are facing a major prescription drug problem in our state,” TDMHSAS Commissioner Doug Varney said. “We need to focus all of our resources in the most efficient, effective and collaborative way to maximize our impact on this issue and drug abuse overall.”

Drug court activities are also closely aligned with other programs currently overseen by TDMHSAS. For additional information about Tennessee’s drug court programs or other mental health and substance abuse programs please contact TDMHSAS’ Office of Communications at (615) 253-4812 or visit www.tn.gov/mental.