(12/19/2002)
First Certified Court Interpreters Available in Tennessee
For the first time, Tennessee has certified foreign language interpreters available to assist court users who speak and understand little or no English.
The seven interpreters, certified in Spanish, have passed written and oral examinations and a criminal background check as required by Tennessee Supreme Court rules adopted earlier this year. The two rules mandate proficiency and ethics standards for certification and were aimed at eliminating language barriers to equal justice. Before the rules were adopted in April, there were no standards for state court interpreters in Tennessee.
The Administrative Office of the Courts, using a federal grant, contracted with the Tennessee Foreign Language Institute to develop standards and conduct workshops and testing for prospective interpreters. The AOC also joined a national consortium to access tests for the certification process.
Written tests have been given to 150 applicants and 39 also have taken the oral examination. Prospective interpreters have been tested in Arabic, Vietnamese, Lao and Spanish. In addition to the first seven to be certified, another 18 have qualified as registered interpreters, meaning they have passed the written test and criminal background check, but have not yet completed the oral examination requirement.
"The certification of these interpreters is a tremendously important step toward addressing some of the issues that have arisen as our population has become more diverse," Chief Justice Frank Drowota said.
Under the supreme court rules, judges in Tennessee are required to attempt to appoint an interpreter who is certified if one is available. In most cases, the cost of providing an interpreter is included in court costs, although indigent criminal defendants may have state-paid interpreters to help them communicate with their attorneys.
A list of the certified interpreters is available on the court system website at www.tsc.state.tn.us.
Supreme Court Expands Rights of Property Owners Harmed by Neighbors' Trees
Property owners whose trees cause substantial damage to adjoining property may be held financially responsible, the Tennessee Supreme Court said Thursday in a unanimous decision providing a new legal remedy for neighbors harmed by encroaching limbs or roots.
The ruling, written by Chief Justice Frank Drowota, says the trees can, in some cases, fit the legal definition of "private nuisance." Under the state's private nuisance law, compensation may be awarded for removal of the tree and actual damage to the property as well as for inconvenience and emotional distress suffered by the adjoining landowner.
The ruling stemmed from a Memphis case in which Gloria B. Lane filed a lawsuit claiming the branches and roots of trees on property adjoining hers had caused major damage to her home and resulted in health problems. She was denied relief in the trial court, a decision affirmed by the Court of Appeals.
The lower courts based their decision on a 1949 Tennessee Supreme Court opinion, Granberry v. Jones, in which the court affirmed a prevailing legal rule that "no landowner has a cause of action from the mere fact that the branches of an innoxious tree, belonging to an adjoining landowner, overhang his premises. . . " The rule said a law allowing neighbors to cut off overhanging branches to the property line was "a sufficient remedy."
"The rationale for the rule was that a landowner has the ‘liberty to use his land, and all of it, to grow trees and their growth naturally and reasonably will be accompanied by the extension of boughs and the penetration of roots over and into adjoining property of others,'" Drowota wrote.
The 1949 court limited a plaintiff's remedy to "self-help," or the right to trim encroaching vegetation. But, the court added, the decision was not intended to address "whatever rights" a plaintiff may have to recover the cost of cutting the overhanging branches or foliage.
In the Memphis case, large oak trees on rental property owned by W.J. Curry & Sons, were described as "overshadowing" the house in which Lane has lived her entire life. Damage from overhanging branches has included destroying her roof and causing ceilings to fall. Roots from the trees have clogged the sewer line leaving the one bathroom unusable for two years. As a result of the long-standing problems from the trees, Lane testified she has been under the care of a psychiatrist and takes medication for emotional problems.
"The plaintiff is not physically able to cut the limbs back that hang over the house and she cannot afford to hire someone else to do it," Drowota wrote. "Nor can she afford to repair the damage to the exterior and interior of her home, including the hole in her roof."
In reviewing Lane's case, Drowota said the court looked at approaches taken by other states concerning encroaching vegetation. Courts across the nation "uniformly hold that a landowner has a remedy of self-help, meaning that the landowner has the right to cut encroaching branches, roots and other growth to the property line. . .," he wrote. But, there are varied rules regarding any remedies beyond self-help.
"After carefully considering the various approaches of other jurisdictions and our own decision in Granberry, we have decided to join the growing number of states that have adopted the Hawaii approach," Drowota wrote.
The Hawaii Rule strikes a balance between discouraging trivial lawsuits and allowing recovery in cases where it is warranted. The rule, embraced by the Tennessee Supreme Court, imposes a requirement of actual harm or "imminent danger of actual harm to the adjoining property."
Limiting relief to self-help "encourages a ‘law of the jungle' mentality because self-help replaces the law of orderly judicial process as the exclusive way to adjust the rights and responsibilities of disputing neighbors," the chief justice wrote. "It seems that more harm than good can come from a rule that encourages angry neighbors to take matters into their own hands."
The court held that encroaching trees and plants are not legally nuisances "merely because they cast shade, drop leaves, flowers or fruit, or just because they happen to encroach upon adjoining property. . ." Under the court's decision, they may be regarded as a nuisance only when they cause actual harm or pose an imminent danger of actual harm to neighboring property. The court's ruling leaves intact existing law allowing adjoining landowners to cut away encroaching vegetation to the property line.
The court concluded that the lower courts erred in Lane's case by finding that her only remedy was self-help. The case was sent back to the trial court for a determination of damages "and other appropriate relief."
(12/11/2002)
Supreme Court Appoints New Members to Lawyer Disciplinary Board
The Tennessee Supreme Court has appointed three members to the state Board of Professional Responsibility which investigates complaints against attorneys and disciplines lawyers who violate professional rules.
Mark L. Hayes, a Dyer County attorney, was reappointed by the court for a three year term ending Dec. 31, 2005. New members also appointed for three year terms are John J. Hollins, a Nashville attorney, and Gail Carr Williams, assistant director of community, government and neighborhood relations at Vanderbilt University. Williams fills one of three non-attorney positions on the 12-member board.
In its order, the Supreme Court named Memphis attorney Charles Carpenter as board chair and Bristol attorney C. Thomas Davenport, Jr., as vice chair. The court extended its “deep appreciation and gratitude” to outgoing members Jack W. Robinson and McDonald Williams for “their years of dedicated service.”
In 1996, the Supreme Court expanded the board to include three non-attorney members. The goal was to increase public confidence in the fairness and effectiveness of the board’s disciplinary process, said Justice Adolpho A. Birch, Jr., the court’s liaison to the Board of Professional Responsibility.
The board, an arm of the Supreme Court, received 1,171 complaints from Nov. 1, 2001, through Oct. 31, 2002, resulting in nine disbarments, 13 suspensions, 13 public censures, 50 private reprimands and 82 private admonitions. Another four attorneys opted to take disability inactive status. The number of complaints against attorneys dropped from the previous 12 month period, when the total was 1,397.
In the past 26 years, the board received 32,280 complaints resulting in 141 disbarments, 333 suspensions, 368 public censures and 2,397 private reprimands or admonitions.
In 2002, fees paid by attorneys provided the board with revenue of $1.6 million.
(10/21/2002)
Four Knox County High Schools Participate in Court of Appeals Program
Students from four Knox County High Schools will get a first-hand look at the judicial system Nov.15 as participants in a state Court of Appeals program designed to educate young Tennesseans about the appellate process.
The 150 students and their teachers will attend oral argument in four actual cases being heard by Eastern Section Court of Appeals Judges Houston M. Goddard of Maryville, Charles D. Susano, Jr., and D. Michael Swiney, both of Knoxville. The half-day session at Fulton County High School is part of the court’s CASE Project. CASE is an acronym for Court of Appeals Affecting Student Education.
Austin East High School, West High School, Central High School and Fulton High School selected the participating students. The students will hear argument in all four cases. Cases students will hear involve medical malpractice; the Consumer Protection Act, refusal of a city to issue a beer permit and a negligence claim by an accident victim who was injured by a co-worker.
“It is important to educate students about the court system and how it affects the lives of all citizens,” Swiney said. “CASE is the court’s effort to play a role in preparing these students to become well-informed adults. We believe that seeing for themselves how the system works is a valuable supplement to their studies in the classroom. This is the second CASE Project we have conducted and we are committed to do others in the future.”
The Court of Appeals is one of three appellate courts in Tennessee. The 12 Court of Appeals judges statewide, sitting in panels of three, hear appeals from trial courts in civil, or non-criminal cases. The 12-member Court of Criminal Appeals, also sitting in panels, hears appeals in criminal cases and the five-member state Supreme Court sits together to hear appeals in civil and criminal cases.
As part of the CASE Project, law clerks who work for the appellate judges will go into classrooms the week before oral argument to brief students about the appellate process and the cases they will be hearing. The week after court, the law clerks will return to the schools to debrief the students and answer questions. When the cases are decided by the court, copies of the written opinions will be furnished to the students.
Immediately following the court session, which begins at 9 a.m., students and teachers will join the lawyers and court for lunch, sponsored by Knoxville City Council.
(10/14/2002)
Area Students Participating in Supreme Court Program
High school students from Bradley, McMinn, Monroe and Polk counties will participate Nov. 7 in a state Supreme Court program designed to educate young Tennesseans about the judicial branch of government.
The 650 students and their teachers from 9 public and private schools will attend a special Supreme Court session at the Bradley County Courthouse where justices will hear oral arguments in three actual cases. Following oral arguments, students will meet for question and answer sessions with attorneys who presented each side in their cases.
All participating students and teachers also will join the Supreme Court for lunch at Cleveland State Community College. During lunch and a brief program, students will be seated at tables with the five Supreme Court justices, local judges and attorneys, city, county and school officials.
Schools participating in SCALES - an acronym for the Supreme Court Advancing Legal Education for Students – are Cleveland County, Polk County, McMinn Central, McMinn County, Sequoyah, Sweetwater, Bradley Central and Walker Valley high schools and Fairview Academy.
Teachers whose classes are involved in the project attended a three-hour professional development session Oct. 1 at Cleveland High School to prepare for the SCALES Program. Tennessee Court of Appeals Judge Patricia J. Cottrell of Nashville discussed the state and federal court systems, answered questions and presented an overview of the cases to be argued when students attend SCALES. Teachers also were provided with notebooks of materials to use in their classrooms, including suggested activities, and SCALES Project handbooks for each student. Circuit Court Judge Larry H. Puckett is coordinating the project in the 10th Judicial District.
"The Tennessee Supreme Court believes that knowledge and understanding of the judicial branch of government are essential to good citizenship,” Chief Justice Frank Drowota said. “The SCALES Project is designed to educate young participants about the system they will inherit. The interaction we have with the students at lunch and throughout the day also renews our faith that our nation’s future is in good hands.”
Local judges and attorneys met with participating teachers at the professional development session to schedule classroom visits to review the cases and issues to be considered by the Supreme Court. After justices rule in the cases, copies of the court's opinions will be provided to the classes and posted on the court system website at www.tsc.state.tn.us.
"The SCALES Project is important because it creates a partnership between the judiciary, the Bar and schools to promote a better understanding of the judicial branch of government," the chief justice said. "We hope that teachers will use the materials to make judicial education a continuing part of their curriculum."
Cases students will hear deal with termination of parental rights, whether the state’s kidnaping statute should apply to a victim’s father and a lawsuit involving the negligent acts of more than one wrongdoer.
Including SCALES in the 10th Judicial District, more than 10,000 Tennessee students across the state have taken part in the project since the Supreme Court initiated it in 1995. Including SCALES in the 10th Judicial District, more than 10,000 Tennessee students across the state have taken part in the project since the Supreme Court initiated it in 1995.
(10/07/2002)
Supreme Court Rejects Ineffective Assistance Claims, Affirms Death Penalty
A Hamilton County man who repeatedly confessed to committing felony murder and numerous counts of aggravated rape was not denied his constitutional right to effective legal counsel, the Tennessee Supreme Court said Monday in a decision affirming his convictions and sentence of death.
Justice E. Riley Anderson, writing for a 4-1 majority, upheld a Court of Criminal Appeals opinion affirming the death sentence imposed by a jury against Harold Wayne Nichols in 1989. In a separate concurring and dissenting opinion, Justice Adolpho A. Birch, Jr., agreed with the majority that the felony murder conviction should stand, but disagreed on the imposition of the death penalty on the basis of his "long line of dissents" challenging the method the court uses to compare capital cases to ensure the sentences are not disproportionate.
Nichols was sentenced to death for the 1988 killing of 21-year-old Karen Pulley. He broke into Pulley's Chattanooga home, raped her, and hit her in the head with a board at least four times. The victim suffered skull fractures and massive brain injuries and died the following day. In addition to the death sentence, Nichols received a 60-year sentence for aggravated rape and a 15-year sentence for first-degree burglary, both in connection with the attack on Pulley.
Nichols was arrested several months after the Pulley murder for unrelated rapes and burglaries committed in the Chattanooga area. Nichols confessed to rapes against several victims and also gave a videotaped confession to the rape and murder of Pulley. After pleading guilty to aggravated rape offenses against two women and being tried by a jury and convicted for aggravated rape offenses against two others, Nichols pleaded guilty to felony murder, aggravated rape and first-degree burglary for the offenses against Pulley.
Prosecutors sought the death penalty based on two statutory aggravating factors – that the murder of Pulley occurred during the commission of a felony and that Nichols had prior convictions for violent felonies - the aggravated rape offenses committed against the other victims. Jurors found that the aggravating factors outweighed mitigating evidence presented during the sentencing phase of his trial.
In 1995 and 1996, Nichols filed petitions for post-conviction relief challenging his convictions and death sentence claiming, in part, that he was denied the right to effective assistance of counsel guaranteed by the state and federal constitutions. In the majority opinion, Anderson wrote that "the trial court conducted evidentiary hearings . . . over the course of eight days, considered thousands of pages of records and documentary evidence and heard testimony from dozens of witnesses."
The Supreme Court addressed 10 claims raised on appeal by Nichols and found that all were without merit. Anderson wrote that Nichols' attorneys were experienced in criminal and capital case defense and had worked over 1,300 out-of-court hours and 259 in-court hours on the Pulley case and more than 650-out-of-court and 30 in-court hours on the other cases. The lead attorney testified he had reviewed files and records, talked to investigating officers, interviewed witnesses and visited the crime scenes. Anderson also observed that the attorneys "spent nearly 70 hours meeting with Nichols in prison, during which Nichols consistently confirmed his statements to officers" confessing to the crimes. Nichols also admitted his guilt to a defense investigator, a mental health expert and others, including the victim's mother.
Anderson concluded that "despite his confessions and statements, the petitioner's main argument is that his confessions should have been challenged as false because they contained inaccuracies and omissions and because there was evidence of his innocence."
"The argument is immediately undercut, however, by the fact that the petitioner never refuted his confessions or his own statements to his trial counsel and others. . . .," Anderson wrote. "Accordingly, when viewed in the appropriate context . . . we agree with the trial court's conclusion that the evidence presented during the post-conviction failed to establish that trial counsel's performance was deficient. "