(09/30/2002)
Governor Appoints Goldin to Fill Judicial Vacancy
Attorney Arnold Goldin of Memphis has been appointed by Gov. Don Sundquist to succeed Chancellor Floyd Peete, Jr., who died in August.
A native of Richmond, VA., Goldin has been in private practice since 1974. He received his B.A. in government and foreign affairs from the University of Virginia in 1971 and his J.D. from the University of Memphis in 1974. He is active in community and professional organizations in Memphis and has been included on the Naifeh and Smith “Best Lawyers in America” list since 1995.
Goldin, 53, resides in Memphis with his wife, Shara Lynn.
(09/24/2002)
Judicial Selection Commission Submits Three Names to Governor
The names of three attorneys, including a member of the Tennessee House of Representatives, have been submitted to Gov. Don Sundquist, who will appoint one of the recommended applicants to fill a judicial vacancy in Memphis.
Donna Marie Fields of Memphis, Arnold Goldin of Germantown and Rep. Larry Scroggs of Collierville were among twelve applicants vying to succeed Chancellor Floyd Peete, Jr., who died Aug. 3. The 17-member Judicial Selection Committee met Monday in Memphis to conduct a public hearing, interview applicants and come up with the slate of three names for the governor’s consideration.
Peete had held the Chancery Court Part 2 seat since 1990. He was reelected in 1998 to an eight-year term. The position will be on the ballot in 2004, the next biennial August election, to fill out the remainder of Peete’s unexpired eight-year term ending in 2006.
(09/16/2002)
Supreme Court Majority Affirms Death Sentence in Murder-for-Hire Case
The death sentence Richard Hale Austin received for his role in the murder-for-hire fatal shooting of a Memphis undercover agent was affirmed Monday in a 4-1 decision by the Tennessee Supreme Court.
Austin has twice been sentenced to death for paying Jack Charles Blankenship to kill Julian Watkins in 1977. His first death sentence was affirmed by the Tennessee Supreme Court but overturned in 1997 by a federal court. After a second sentencing hearing, a Memphis jury again imposed the death penalty.
Writing for the majority, Justice Janice M. Holder said the issues raised by Austin in his direct appeal do not warrant a reversal of his sentence. Austin, 37 years old at the time of the crime, was convicted and sentenced as an accessory before the fact in the premeditated murder of Watkins. The victim’s work as an undercover agent resulted in illegal gambling indictments against Austin and others connected with a pool hall Austin owned in Memphis. He hired Blankenship, an escaped convict, to murder Watkins. Blankenship, who fired the fatal shots, pleaded guilty to first degree murder and received a life sentence. His accomplice, Terry Lee Casteel, pleaded guilty to second degree murder and received a 20-year sentence.
Issues raised by Austin, and addressed by the court in its opinion, were whether the trial court erred in excluding certain mitigating evidence during the sentencing hearing; whether the court erred in allowing victim impact testimony by Carolyn Watkins-Cupp and Steve Watkins, the victim’s widow and son; and whether the sentence was disproportionate.
“Having carefully reviewed these issues and the remainder of the issues raised by Austin, we conclude that they do not warrant relief,” Holder said in the opinion affirming a Court of Criminal Appeals decision in the case.
Also, she wrote, his sentence of death is not disproportionate when compared to similar cases in which the death penalty has been sought and a jury has determined the penalty.
Under state law, the court is required to review death penalty cases to determine whether the sentences are aberrant when compared to similar cases.
“. . . We have considered the entire record and conclude that the sentence of death has not been imposed arbitrarily, that the evidence supports the jury’s finding of the statutory aggravating circumstance, that the evidence supports the jury’s finding that the aggravating circumstance outweighs mitigating circumstances beyond a reasonable doubt, and that the sentence is not excessive or disproportionate,” Holder wrote.
In a dissenting opinion, Justice Adolpho A. Birch, Jr., said the process used by the court to compare cases is not effective.
“In a line of dissents, I have maintained that the comparative proportionality review process currently embraced by this court fails,” Birch wrote. “It fails because it does not operate to protect defendants from the arbitrary and disproportionate imposition of the death penalty.”
Birch said in his dissenting opinion that the protocol used by the court “just does not work.” He wrote that the proportionality test is too broad; the pool of cases used for comparison is too small; and the review process is too subjective.
“Until the issues I have continually raised are addressed, I hold that this court cannot thoroughly and adequately fulfill its statutory duty to review death penalty cases to ensure that a defendant’s death sentence is proportionate,” he concluded.
The majority, however, said the proportionality review process was sufficient and the aggravating circumstance found by the jury - that it was a hired killing - outweighed mitigating evidence presented during the sentencing hearing.
“In the present case, the victim was shot execution-style in the head and then several more times in the neck and chest,” Holder wrote. “The motive for the killing was to retaliate against the victim for his undercover work exposing Austin’s illegal gambling. The murder clearly was premeditated. . . Given the numerous similar cases in which the death penalty has been imposed, we are unable to conclude that the sentence of death imposed by the jury in this case represents an aberrant sentence.”
Concurring with Holder were Chief Justice Frank F. Drowota, III, and Justices E. Riley Anderson and William M. Barker.
(09/04/2002)
Supreme Court Clears Way for Public, Comptroller Scrutiny of Non-Profit’s Records
The public is entitled to scrutinize the records of private entities doing business with the state to the extent they become the “functional equivalent” of government agencies, the Tennessee Supreme Court said Thursday in a decision addressing two significant right-to-know issues.
The unanimous opinion, authored by Justice Adolpho A. Birch, Jr., said the records of Cherokee Children & Family Services, Inc., of Memphis fall under the state’s Public Records Act and also are subject to an audit by State Comptroller of the Treasury John Morgan. The decision stems from two cases consolidated for review by the court. The Supreme Court ruling reversed a Court of Appeals decision that the records are not public and not subject to a state audit.
“. . . The public’s fundamental right to scrutinize the performance of public services and the expenditure of public funds should not be subverted by government or by private entity simply because public duties have been delegated to an independent contractor,” Birch wrote. “When a private entity’s relationship with the government is so extensive that the entity serves as the functional equivalent of a governmental agency, the accountability created by public oversight should be preserved.”
In one case - Memphis Publishing Company, et al., v. Cherokee Children & Family Services, Inc., et al. - The Commercial Appeal sought to inspect Cherokee’s records under the Tennessee Public Records Act. The newspaper, published by Memphis Publishing Co. (MPC), contended the records were public property because Cherokee derived virtually all of its revenues from the government through contracts with the Tennessee Department of Human Services. Also, MPC claimed, Cherokee should be deemed a state agency subject to the Public Records Act because of the services it performed between 1990 and 2000. The state contracted with Cherokee to administer a government-subsidized child care program.
In the second case - John Morgan v. Cherokee Children & Family Services, Inc. - the state comptroller filed suit asking the court to require the non-profit corporation to submit to a state audit.
Morgan said state law and contracts between Cherokee and TDHS provided authority to conduct an audit of Cherokee’s records.
In both cases, trial courts found that Cherokee was not a government agency, but that all records in its possession were state property. The trial court also found in the Morgan case that an audit was authorized under state law. The Court of Appeals reversed the orders granting access to the records.
“After thorough review of the record and relevant authority, we hold that all of Cherokee’s records are subject to access by the public and the comptroller under the terms of the Tennessee Public Records Act,” Birch wrote for the Supreme Court.
Birch said the Public Records Act “serves a crucial role in promoting accountability in government through public oversight of governmental activities.” Birch cited the law which says it should be “?broadly construed so as to give the fullest possible public access to public records.’”
With privatization, or contracting out, increasingly used to provide services formerly provided by the government, Birch said attention has become focused on accountability to the public. He said courts in other states also have “examined how public records laws should apply in a climate of increased privatization to ensure that public access, and hence governmental accountability, is preserved.”
The Court of Appeals has taken a “narrow approach” in defining records subject to the Public Records Act, Birch wrote. Citing a previous decision, he said the Court of Appeals denied access to records because a non-profit corporation had not been established by the legislature “regardless of its public function, public oversight and public funding.”
He said the “agency” analysis used in that case to determine whether records should be subject to the Public Records Act is not appropriate because of “the growing trend toward privatization of governmental functions and services.” He said the state’s contracts with Cherokee called for the non- profit corporation to provide a service previously provided by the government or on behalf of the government.
“Our review of authority from other jurisdictions persuades us that the functional equivalency approach . . . provides a superior means for applying public records laws to private entities which perform ?contracted out’ government services,” Birch wrote.
But, he added, the decision “is not intended to allow public access to the records of every private entity which provides any specific, contracted-for services to governmental agencies.” Only those private entities providing services to the extent that they become the “functional equivalent” of a government agency are subject to the Public Records Act, he said.
(08/27/2002)
Tennessee Supreme Court Revises Ethics Rules for Lawyers
The state's 19,000 lawyers and their clients will be affected beginning March 1, 2003, by substantially revised ethics rules for attorneys adopted Tuesday by the Tennessee Supreme Court to replace the current 32-year-old code of conduct. The court's order overhauling the rules was prompted by a Tennessee Bar Association petition filed two years ago. The attorney organization, which had studied and debated the issue for several years, asked the court to adopt a comprehensive revision of a Supreme Court rule governing lawyer ethics.
The court invited comments from judges, lawyers and the public concerning rules proposed by the TBA and considered the hundreds of comments and suggestions it received. Justices also heard oral arguments in June on a revision of the TBA proposal. "... The court agrees that, due to the emergence of new areas of practice, along with changes in various procedural and substantive rules of law, the Code of Professional Responsibility is no longer adequate to regulate the conduct of lawyers or the relationship between lawyers and clients," justices said in the order.
The order deletes the existing Code of Professional Responsibility contained in Supreme Court Rule 8 and adopts instead the new Tennessee Rules of Professional Conduct. Changes include an expansion of a lawyer's duty to keep client information confidential and a revision of the rules regarding conflicts of interest.
The court also tightened the rules governing contingency fees - the percentages of money collected for clients that lawyers may take in some cases, such as accidents. Under the current rule, the fees cannot be "clearly excessive" or illegal and cannot be charged in criminal cases. The new rule requires detailed written agreements with clients in advance as well as detailed settlement sheets after a case is concluded. It also prohibits contingency fees in domestic relations matters, such as divorce and custody cases, unless a lawyer is attempting to collect an arrearage owed to the client.
While the court used the TBA proposal as a guide, it did not accept all of the organization's suggested changes. The Bar sought to do away with an existing requirement that disclaimers must appear in lawyers' advertisements stating they are not certified in certain areas of the law.
The court also continued the current practice of not allowing lawyers to secretly record conversations in civil - or non-criminal - cases. In approving the new rules, the court said its action "stands as a testament" to the contribution the TBA has made to the practice of law in Tennessee.
The order also thanks other groups and individuals involved in the process, including the state Board of Professional Responsibility, which disciplines lawyers, the Tennessee Attorney General, the District Attorneys General Conference and the United States Attorneys from the state's three districts. Also singled out in the order was Chattanooga attorney T. Maxfield Bahner.
(08/29/2002)
Supreme Court Sets Standard for Appellate Review in Insanity Defense Cases
A standard for state appellate court review of cases in which juries have rejected insanity defenses was announced Thursday by the Tennessee Supreme Court in a decision involving a Memphis man who shot a church counselor.
The court unanimously held that appellate courts reviewing cases in which juries have rejected the insanity defense should overturn a jury’s decision only if “no reasonable trier of fact could have failed to find that the defendant’s insanity at the time of committing the offense was established by clear and convincing evidence.” The court, however, was divided as to the application of the standard to the facts of the Memphis case.
Chief Justice Frank Drowota wrote for the majority that jurors “implicitly rejected” the insanity defense of Christopher M. Flake when they convicted him of attempted voluntary manslaughter for the 1997 wounding of pastoral counselor Turner Carpenter. Justices Janice M. Holder and William M. Barker concurred. The majority reversed the state Court of Criminal Appeals,which had reversed the jury’s verdict and remanded the case back to the trial court for a verdict of not guilty by reason of insanity.
Drowota wrote that the insanity defense is controlled by a 1995 statute that amended and narrowed the definition of insanity by requiring proof of insanity by clear and convincing evidence. Prior to the amendment, the prosecution had the burden of proving the defendant’s sanity beyond a reasonable doubt. In 1995, the legislature “fundamentally altered” the insanity defense by requiring that a defendant prove the defense by clear and convincing evidence. The change also provides that the defense applies only when a severe mental disease or defect results in a defendant being “unable to appreciate the nature or wrongfulness” of the crime.
Flake, 25 years old at the time of the crime, had been charged with attempted first degree murder, but jurors convicted him of a lesser offense, attempted voluntary manslaughter. The victim, a counselor at Central Church in Memphis, had been introduced to Flake by the church pastor, who said Flake was an alcoholic in need of counseling. Flake showed up unannounced at Carpenter’s office while he was counseling a woman and after
leaving for a few minutes, returned and shot Carpenter, who survived. The victim testified there had been no ill will between them.
Psychiatrists and other experts testified that Flake was schizophrenic. With the exception of one prosecution expert, they said Flake was “unable to appreciate the wrongfulness of his conduct in shooting the victim.” The facts of Flake’s case, however, such as his fleeing from the scene of the shooting and telling police where to find the gun, indicated that Flake “realized his conduct was wrongful,” Drowota wrote.
In addition, the majority highlighted evidence in the record that suggested defendant was malingering. For example, prior to committing this offense, Flake had not been diagnosed as schizophrenic or reported auditory hallucinations - “hearing voices” - a symptom key to the diagnosis of schizophrenia.
“Where the proof is contested, appellate courts should rarely reverse a jury’s rejection of the insanity defense under this deferential standard of review,” the court said. “. . . Appellate courts do not reweigh the evidence or reassess credibility determinations. These tasks are within the province of the jury. . . . While a jury may not arbitrarily ignore evidence, a jury is not bound to accept the testimony of experts where the evidence is contested.”
In a separate concurring/dissenting opinion, Justices E. Riley Anderson and Adolpho A. Birch, Jr., agreed with the standard of appellate review adopted by the majority, but disagreed with the majority’s application of the standard to Flake’s case.
“. . . Virtually all of the lay and expert testimony established the defendant’s insanity at the time of the offense,” Anderson wrote, adding that insanity was “established by clear and convincing evidence.”
The victim described the shooting as “totally off the wall, weird and crazy,” Anderson wrote. He also testified that when Flake returned to his office, he was “yelling in an ?abnormal’ voice,” and had “changed from a normal appearance to “horrible looking,” “crazed,” and “the devil himself.” In addition, Anderson wrote that all five of the psychiatrists and psychologists who performed evaluations determined that Flake suffered from a serious mental illness, that he could not appreciate the wrongfulness of his conduct, and that he was not malingering his mental illness. There was no basis for the jury to “reasonably” have rejected evidence that Flake was insane, Anderson said.
Reversals under the standard unanimously adopted by the court will be “rare,” Anderson and Birch concluded, but upholding the verdict in the Flake case “has made appellate review of a jury’s verdict meaningless and useless.”
Flake also was convicted of two counts of first degree murder for the 1997 shooting deaths of Fred Bizot, who attended Alcoholics Anonymous meetings with Flake, and Mike Fultz. In June, 2002, the Court of Criminal Appeals reversed the jury’s decision and imposed verdicts of guilty by reason of insanity. The state’s petition to appeal the decision is pending before the Supreme Court.
(08/21/2002)
Chief Justice to be Sworn In as His Mother Celebrates 98th Birthday
Chief Justice Frank Drowota, III, the longest-serving judge in the 178-member Tennessee Judicial Conference, will be sworn in Friday at 1:30 p.m. for a full four-year term as chief justice of the Tennessee Supreme Court.
His mother, Mrs. Vivian Drowota, also of Nashville, will attend the ceremony in the Supreme Court Building and celebrate her 98th birthday. His late father, Frank Drowota, Jr., celebrated his 85th birthday on the day Drowota was sworn in for his first term as chief justice in 1989.
This marks the third time he has been elected chief justice during his 22 years on the Supreme Court. He first served as chief justice in 1989-90 and was elected last year to fill the unexpired term of Justice Riley Anderson, who stepped down as chief justice, but remained on the court.
Drowota began his judicial career in 1970 when he was appointed by Gov. Buford Ellington to the Chancery Court of Davidson County. In 1974, Gov. Winfield Dunn appointed him to the state Court of Appeals where he remained until his first election to the Supreme Court in 1980.
Drowota is married to the former Claire Hooper. They have two children, Helen Drowota Close of Nashville and Dr. Frank R. Drowota of Murfreesboro. He is an Elder of Woodmont Christian Church, where his father was the church>s founding minister and served the congregation for 30 years before his retirement.
He also is active in legal and civic organizations, including having served on the boards of directors for the YMCA of Nashville and Middle Tennessee, Cumberland Museum & Science Center, the National Conference of Christians and Jews, Children's House, Opportunity House, the Bill Wilkerson Speech and Hearing Center and the Disciples Divinity House. He has served as president of the Nashville Rotary Club and the Nashville area chapter of the American Red Cross. He is a trustee of Montgomery Bell Academy, where he attended school, the Dantzler Bond Ansley Fund and The Frist Foundation.
Drowota earned his undergraduate and law degrees at Vanderbilt University. He later served as a Naval officer aboard the aircraft carrier USS Shangri-la and was commanding officer for a local reserve unit. He retired after 27 years of active and reserve military service and is a member of the Naval Reserve Association.
(08/20/2002)
Justice Birch Receives Barbara Jordan Lifetime Achievement Award
Justice Adolpho A. Birch, Jr., of the Tennessee Supreme Court has received the Phi Alpha Delta Law Fraternity’s top honor, the Barbara Jordan Award, for his lifetime commitment to public service.
The award presented by the international organization is named in honor of former U.S. Rep. Barbara of Texas Jordan. Birch received his honor at the fraternity’s international convention in Phoenix, where he also was a keynote speaker.
Birch earned his B.A. and law degrees from Howard University in Washington, D.C. He was in the private practice of law from 1958-66. He served as assistant public defender and later assistant district attorney general in Davidson County before becoming a General Sessions Court judge in 1969, where he remained until 1978 when he became a Criminal Court judge. He was appointed to the state Court of Criminal Appeals in 1987, was elected in 1988 and reelected in 1990. In 1993, he was appointed by Gov. Ned McWherter to the Tennessee Supreme Court. He was elected in 1994 and reelected in 1998. He served as chief justice in 1996-97.
Birch is a former associate professor of Legal Medicine at Meharry Medical College and a former lecturer in law at Fisk University and Tennessee State University. He is a member of the teaching faculty at the Nashville School of Law and has served as University of Memphis Distinguished Jurist in Residence.
(08/12/2002)
Court System Website Features Videos in Seven Languages
Videos in Kurdish, Arabic, Spanish, Vietnamese, Russian, Laotian and English explaining basic rights of defendants, parental rights in abuse and neglect cases and how to obtain orders of protection are available on the court system website at www.tsc.state.tn.us.
"The videos are among several steps the court system has taken to eliminate language barriers to equal justice," said Cornelia Clark, administrative director of the courts. "The population of Tennessee, as in many states, has become increasingly diverse. Many of these new neighbors speak little or no English. We hope the videos will help them enter the courthouse on an equal footing with all others who use the system."
Working with a grant from the Office of Criminal Justice Programs, the Administrative Office of the Courts created the videos in languages judges hear most often. In addition to being added to the website, the tapes are available in courthouses across the state and may be copied. The AOC contracted with the Tennessee Foreign Language Institute to provide translation services for the videos.
Other recent initiatives aimed at providing equal justice include foreign language versions of court forms and other material available on the website and Supreme Court rules setting standards for foreign language court interpreters.
(08/09/02)
Deadline Set to Apply for Judicial Appointment
Attorneys interested in filling a Memphis judicial vacancy, created by the Aug. 3 death of Chancellor Floyd Peete, Jr., must apply by the end of the business day Sept. 4 to be considered, Cornelia Clark, administrative director of the courts said Thursday.
"Those of us who had the privilege of working with him were greatly saddened by the loss of Chancellor Peete, who had held the Chancery Court Part 2 seat since his election in 1990," Clark said.
"He was a fine jurist and an important member of the judicial community. Now we must go about the business of filling the unexpired eight-year term to which he was reelected in 1998."
Applications are available from the Administrative Office of the Courts, 511 Union Street, Suite 600, Nashville 37219 or by calling Lisa Hazlett at 615-741-2687. Applications also can be downloaded and printed from the court system website. The original and 18 copies must be submitted to the commission through the Administrative Office of the Courts.
Under state law, the 17-member Judicial Selection Commission will meet within 60 days of the vacancy to conduct a public hearing and interview applicants for the appointment. The commission will submit three names to Gov. Don Sundquist, who may appoint one of the recommended applicants. The position will then be on the ballot in 2004, the next biennial August election, to fill out the remainder of the full eight-year term ending in 2006.
Clark said her office is working with the commission to set a meeting date which will be as soon as possible. The commission meeting and public hearing will be in Memphis, she said.
(07/18/2002)
Court Affirms Conviction, Overturns Sentence Due to Improper Jury Charge
A Knox County juror who was the lone holdout against imposing a death sentence may have felt coerced to change his vote by a judge's jury instructions, the Tennessee Supreme Court said Friday in a unanimous opinion affirming the defendant's conviction, but ordering a new sentencing hearing.
The judge presiding over the first degree murder trial of William Pierre Torres should have accepted the jury's report that after deliberating for six hours it was deadlocked 11-1, Chief Justice Frank Drowota wrote for the court. Instead the judge told jurors to resume deliberations. The judge said, in part, that jurors should not hesitate to "re-examine your own views and change your opinion if convinced it is erroneous..." He also said they should "deliberate with a view to reaching an agreement, if you can do so without violence to your own individual judgment."
The supplemental instruction omitted three sentences that are part of a charge adopted by the Tennessee Supreme Court in State v. Kersey, a 1975 case. The Kersey charge should have included, "‘The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous,'" Drowota wrote, quoting from the Kersey opinion.
"Over defense objections, the trial court returned the jury to open court and gave the instruction, despite the fact that the note expressed an unequivocal deadlock," Drowota wrote. "The note did not request further instructions and the trial court did not ask the jurors whether further instructions and deliberations might assist them in returning a verdict. Instead the trial court simply gave the instruction and ordered the jury to continue deliberation. Just one hour later, the jury returned with a unanimous verdict of death."
Drowota said the dissenting juror probably had held out for six hours and likely concluded that the trial court was instructing "him," one of four men on the jury, to reconsider his position. The jury's note to the judge identified the hold-out juror as "he."
Under state law, if the jury is deadlocked in a capital sentencing hearing, the judge "shall instruct the jury that in further deliberations, the jury shall only consider the sentences of imprisonment for life without possibility of parole and imprisonment for life." Because of the law, the "rationale for giving the Kersey charge - avoidance of the societal costs of a retrial - is not as compelling in a capital sentencing hearing because the jury's inability to agree on the sentence does not result in a retrial," Drowota wrote.
He said judges have the authority to give the Kersey instruction when a jury has not reached a decision after a short period of time, but should exercise discretion to determine whether a jury has been "ultimately" unable to agree on punishment. In Torres' case, the single juror, identified by gender, "may have been coerced into surrendering views conscientiously held, and under such circumstances, ‘the jury's province is invaded and the requirement of unanimity is diluted,'" Drowota wrote, citing State v. Kersey.
"Having determined that the defendant is entitled to a new sentencing hearing, we need not address the other issues raised..... The sentence of death is vacated and the case is remanded to the trial court for a new sentencing hearing... at which the jury shall only consider the sentences of imprisonment for life without possibility of parole and imprisonment for life," the chief justice wrote.
Torres was convicted in 1999 of first degree murder by aggravated child abuse for killing his 15-month-old son, Quintyn Pierre James Wilson. Following a sentencing hearing, jurors found that the aggravating circumstances, as defined by state law, outweighed mitigating evidence. The two aggravating circumstances found by the jury were that the murder was committed against a person less than 12 years old and the defendant was at least 18 years old and that the murder was "especially heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death."
Torres was caring for the baby when he called the victim's mother at work and told her to come home. Torres told the mother, who was his girlfriend, that their son had fallen from his crib. He was later declared dead at a hospital where doctors noted "very suspicious marks" on his body. The baby's face and scalp also were bruised and swollen and bruises were visible. An autopsy found that he had been subjected to "blunt force trauma" and had died as a result of hemorrhaging and a brain injury that were not consistent with a fall. Under questioning by police, Torres denied injuring his son, but later said he had shaken him because he was crying.
The conviction and sentence of death were affirmed by the state Court of Criminal Appeals.
(07/17/2002)
Former Judge’s Bequest Benefits Memphis Legal Library
A $50,000 gift from a former Tennessee Court of Appeals judge will help improve and sustain a Memphis law library used for legal research by state appellate court judges.
“We are grateful for the generosity of Judge Robert Love Taylor, who was a beloved and respected member of the Tennessee judiciary on the trial and appellate benches,” said Court of Appeals Judge Frank Crawford of Memphis, presiding judge for the western section. “The Hillsman Taylor Memorial Law Library was named for Judge Taylor’s father, who was an attorney and speaker of the Tennessee House of Representatives from 1901 to 1911. He later also served as a district attorney general. The library endowed by his son is a valuable resource for appellate judges with offices in Memphis and, as such, benefits all Tennesseans.”
The library’s benefactor died in 1996 in Texas, where he lived. His bequest establishes the Hillsman Taylor Memorial Library Fund.
Taylor was a trial lawyer in Memphis when he was elected chancellor in 1966. In 1968, he was appointed to the Court of Appeals where he served until 1970 when he resigned to seek the Democratic nomination for governor.
Supreme Court Upholds TRA, Rules BellSouth Must Allow Competitors’ Logos
BellSouth cannot bar competing local telephone service providers from adding their logos to the covers of white pages directories, the Tennessee Supreme Court said Wednesday in a unanimous decision, upholding Tennessee Regulatory Authority judgments and overturning a ruling by the state Court of Appeals.
“...The governmental interest in this case is important, indeed, for informing consumers about their choices in the local telecommunications service market is a fundamental aspect of promoting free competition,” Justice Adolpho A. Birch, Jr., wrote for the court. “Moreover, the government’s chosen means to advance its goals, the requirement that logos of competing telecommunications service providers be displayed on equal footing with BellSouth’s logo, does not substantially affect BellSouth’s ability to communicate its own speech to customers in the market.”
In the opinion, Birch said two TRA decisions allowing competitors’ logos on the directories did not violate the First Amendment to the United States Constitution, as claimed by BellSouth Advertising & Publishing Corporation, a part of BellSouth Corporation created to produce telephone directories. Only the BellSouth logo currently appears on directory covers published by BAPCO for BellSouth Telecommunications, Inc.
“After a painstaking review of the voluminous record and a thorough consideration of the issues, we hold that the TRA is authorized to require that the names and logos of competing local exchange telephone companies be included on the cover of white pages directories published on behalf of BellSouth,” Birch wrote.
The Supreme Court decision resulted from a consolidated appeal by the TRA, which is charged under Tennessee law with regulating public utilities in the state. The TRA, in a 2-1 decision, had ruled
in favor of AT&T, a BellSouth competitor, saying BAPCO must provide the opportunity for AT&T to include its name and logo on telephone directory covers “under the same terms and conditions as BAPCO provides to BellSouth by contract.”
While the appeal of the AT&T proceeding was pending in the Court of Appeals, another competitor, Nextlink, filed a petition with the TRA asking the regulatory board to order BAPCO to give all competing local exchange telephone companies the same opportunity to appear on white pages directory covers in their service areas. The TRA ruled in favor of Nextlink and the decision was appealed by BAPCO to the Court of Appeals. The Court of Appeals consolidated the appeals and reversed the TRA, saying the agency had exceeded its authority. That decision was appealed by the TRA to the state Supreme Court, which agreed to take the case.
Citing state law and earlier Supreme Court decisions involving public utilities, Birch said the legislature gave the TRA broad regulatory and rule-making authority. The General Assembly “has provided that the laws governing the TRA shall be given ?a liberal construction’ and has mandated that ?any doubts as to the existence or extent of a power conferred on the TRA ... shall be resolved in favor of the existence of the power...,” he wrote.
“While it is abundantly clear that the TRA has jurisdiction over BellSouth, a regulated public utility, BAPCO suggests that because it is not a public utility, it is beyond the reach of the TRA,” Birch wrote. “... BellSouth is a public utility regulated by the TRA and is required by law to provide a white pages directory in its market area. BellSouth has contracted that duty to BAPCO, an affiliated company within BellSouth’s parent corporation. Thus, for purposes of these two declaratory order proceedings, we conclude that the TRA had jurisdiction over BAPCO.”
The TRA’s orders were designed to help consumers by compelling BellSouth to disclose information about the identity of its competitors, Birch said.
Until 1995, local telephone services in Tennessee were provided only by “monopoly providers,” Birch wrote in the court’s decision. A change in state law abolished “monopolistic control of the local telephone service market” and allowed open-market competition. Long-distance competition took effect under the federal Telecommunications Act of 1996.
“BellSouth Telecommunications, Inc. (BellSouth), under its former name, South Central Bell, operated as a monopoly in providing local telephone service in Tennessee markets” prior to the change in state law, Birch wrote. The telephone company was required to publish a white pages directory listing all telephone subscribers within each service area. BellSouth contracted with BAPCO to publish both its white and yellow pages directories.