The Tennessee Supreme Court today set oral argument for Earle J. Fisher et al v. Tre Hargett et al for July 30 at 10:30 CDT. The case is being consolidated with Benjamin Lay et al. v. Mark Goins et al. Both cases address voting via absentee ballot. The oral arguments will take place remotely via Zoom and will be live-streamed to the TN Courts YouTube page. Find more on both cases here.

The Tennessee Supreme Court has rejected a petition for an emergency rule waiver that asked the court to waive the bar examination requirement of the Tennessee Rules for Admission to the Bar and grant diploma privilege to those currently registered for the July, September and February 2021 bar exams. The petition argued that the COVID-19 pandemic “created exceptional circumstances in Tennessee which warrants emergency diploma privilege” and included impact statements from applicants on the hardships they have experienced because of the pandemic. The deans of four Tennessee law schools also expressed support for the petition. The Tennessee Board of Law Examiners opposed the petition arguing that “exempting certain bar applicants from taking a competency examination poses an unreasonable risk of harm to the public.” The board also noted that the court had already taken several steps to address issues faced by recent law school graduates. The court said that while it is sensitive to the hardships and challenges faced by the graduates, it did not believe the measure was in the interest of the public and the administration of justice.

In Antonio Howard v State, a unanimous opinion released today, the Tennessee Supreme Court determined that when analyzing a claim of ineffective assistance of counsel, trial counsel’s failure to file a timely motion for new trial does not require a presumption of prejudice. Today’s decision overruled the court’s previous holding in Wallace v. State that, when a defendant indicates a desire to appeal, trial counsel’s failure to file a timely motion for new trial is presumptively prejudicial. It explained that, while a presumption of prejudice is appropriate for claims involving the complete denial of an appeal, the petitioner in this case—as well as the petitioner in Wallace—received meaningful review on direct appeal and complained of waiver of only certain issues. The court concluded that, because the petitioner was not completely denied a direct appeal, the post-conviction court appropriately required him to demonstrate actual prejudice. Further, the court found no error in the post-conviction court’s conclusion that Howard was not prejudiced by trial counsel’s deficiency. Accordingly, the Supreme Court reversed the judgment of the Court of Criminal Appeals and reinstated the judgment of the post-conviction court denying post-conviction relief.

The Tennessee Supreme Court today issued a statewide order requiring all those entering a courthouse for court-related business to wear a face covering over the nose and mouth. That covering should be worn at all times while in the building. “The recent uptick in COVID-19 cases, hospitalizations, and deaths required the Court to reconsider how to best keep the public, court staff, and judiciary safe while keeping courts as open and accessible as possible,” Chief Justice Jeff Bivins said. The requirement is consistent with directives from the Centers for Disease Control, the Tennessee Department of Health and several Tennessee county mayors. Exceptions to the order include those under the age of 12 and those with a bona fide medical reason. Courthouses are also coordinating with local Tennessee Emergency Management Agency offices to have masks available.

The Tennessee Supreme Court in a unanimous decision today held that acquitted-act evidence (evidence of a prior act for which a defendant was acquitted) may be used against that defendant in a subsequent trial if it meets the requirements of Rule of Evidence 404(b). The decision explicitly overturns the court's prior decision in State v. Holman, which prohibited use of such evidence in all circumstances. The new ruling finds the evidence can be used if the trial court determines, among other factors, that it is relevant to prove some other material issue.

The Tennessee Supreme Court today issued an order cancelling the July 28- 29 Uniform Bar Examination, citing the increase of confirmed COVID-19 cases in the state and in Knoxville, Memphis and Nashville where the July exam was scheduled to take place. All those registered for the July exam should now expect to sit for the Sept. 30- Oct. 1 exam, which is moving ahead as planned. President of the Board of Law Examiners Bill Harbison said in today’s press release, “We understand that this has been a difficult time for recent law school graduates and the Board is committed to making the Uniform Bar Examination available to all July 2020 applicants before the end of the year, absent any new “safer at home” orders or other significant changes.” Other states are making similar decisions, including Florida, whose Board of Bar Examiners yesterday canceled the July in-person exam, opting to instead administer an online exam in August. 

Applicants to the 2020 bar examination today filed a petition asking the state Supreme Court to waive the bar exam requirement and grant diploma privilege for those currently registered for the July 2020, September 2020 and February 2021 exams. The petition argues that the COVID-19 pandemic has “created exceptional circumstances in Tennessee which warrants emergency diploma privilege,” and includes impact statements from applicants on hardships they’ve experienced because of the pandemic, such as financial stress and housing uncertainty, increased child care and familial responsibilities and lack of appropriate study space. The petition also argues that exam administration is “uncertain, unsafe, and disparately impacts applicants.” Read the petition in its entirety here.

The Tennessee Supreme Court today affirmed current law that appeals of an order of protection from a general sessions court must take place within 10 days. It also reaffirmed that common law writ of error as a means of appeal has been abolished. In the case of New v. Dumitrache et al., a general sessions court entered a one-year order of protection prohibiting David New from having contact with his ex-wife and their minor child. Over a month later, New appealed to the chancery court, arguing that the general sessions court had erred in issuing the order. When the chancery court rejected his claim, New appealed to the Court of Appeals. That court reversed the lower court, concluding that while the writ of error was abolished for some purposes, it remains a valid means of appealing a judgment. The Supreme Court rejected that interpretation, pointing out that neither the law nor the Tennessee Rules of Appellate Procedure provide for a writ of error.

The Tennessee Supreme Court today released a statement reinforcing its commitment to providing equal justice for all Tennesseans. To help ensure that justice is served for all, the high court will continue to provide implicit bias training for all judges and says it has also directed the Access to Justice Commission to “establish a new initiative to identify and eliminate barriers to racial and ethnic fairness and justice.” The commission will work to advise the court on how to effect change in the areas of education and training, the judicial environment and court policies and procedures that in any way lead to racial bias. “Change is needed and only can happen through listening, as well as valuing and respecting a myriad of voices with different perspectives and views,” the statement says. “Our commitment today is another step in what will be a long, sustained journey.” Read the full statement from the State Courts website.

The Tennessee Supreme Court ruled yesterday that it will not block a judge’s order allowing a vote-by-mail option for all eligible voters during the COVID-19 pandemic, the Tennessean reports. Davidson County Chancellor Ellen Hobbs Lyle earlier this month ordered that expansion to protect the health of voters during the pandemic. The majority of the justices voted against stopping the absentee voting expansion pending appeal, but agreed with the state’s wish to fast-track the appeal without a lower appellate court considering it. State officials have opposed the expansion, saying it wouldn’t be feasible due to lack of money, personnel and equipment. The high court wrote that it considered those issues, but found that the state “has not met its burden of demonstrating that the balance of the relevant factors weighs in favor of a stay pending appeal." Voters can apply for an absentee ballot until July 30.