The Tennessee Supreme Court today upheld the constitutionality of a healthcare liability statute after removing portions it considered unconstitutional. The language in question provided that a trial court must issue a qualified protective order when requested. The court found that provision violated the separation of powers clause in the Tennessee Constitution because it removed the inherent discretion of the trial courts to decide discovery matters. The court then concluded that the statute could be elided, making the provision no longer mandatory but permissive. Justice Holly Kirby authored a dissenting opinion arguing that the entire statute violates the separation of powers clause and therefore should be found unconstitutional.

The Supreme Court today held that the state’s cap on noneconomic damages in civil cases does not violate the Tennessee Constitution. Plaintiff Jodi McClay had filed a personal injury lawsuit against Airport Management Services LLC, and was awarded damages by the U.S. District Court of Middle Tennessee that included $930,000 for noneconomic damages for pain and suffering, permanent injury and loss of enjoyment of life. The defendant sought to apply the state’s statutory cap on noneconomic damages, which caps damages at $750,000 in most civil liability actions. McClay argued the cap was unconstitutional. In the majority opinion, the Supreme Court held the cap doesn’t violate a plaintiff’s right to a trial by jury, doesn’t interfere with the court’s authority to apply and interpret the law and doesn’t violate the equal protection provision of the Tennessee Constitution. Go online to read the majority opinion by Chief Justice Jeff Bivins and dissenting opinions by Justices Cornelia A. Clark and Sharon G. Lee.

The Tennessee Supreme Court today affirmed the conviction of Alexander Vance despite the trial court’s error in admitting testimony regarding a non-testifying co-defendant. Vance and co-defendant Damonta Meneese were tried jointly for murder. A third co-defendant, who was severed from the case, had made pre-trial statements to police that implicated Vance and Meneese. During trial, the state requested permission to ask a detective about those statements after claiming the defense had “opened the door” for that line of questioning. The court allowed the question. Following conviction, Vance’s attorney filed for a new trial arguing the testimony violated his client’s Sixth Amendment right to confront witnesses. The Supreme Court ruled that the testimony was not appropriate, but that the defense should have raised the constitutional issues during trial. It also concluded that the jury probably would have convicted Vance on other proof and therefore a new trial was not required. Read more about the case in this press release.

The Tennessee Supreme Court last week rejected a conditional guilty plea submitted by Davidson County lawyer Charles Martin Duke to resolve a petition for discipline filed against him on Feb. 1, 2018. The plea was negotiated by the Board of Professional Responsibility, which recommended the court accept it. But the court stated that it had “concerns about the recommended punishment in light of the nature of the misconduct and the apparent failure of the attorney to take full responsibility for it.” It referred the matter back to the board for further proceedings.

The Tennessee Supreme Court today announced execution dates for Bryon Lewis Black (Oct. 8) and Pervis T. Payne (Dec. 3). Black was convicted of the 1988 murders of Angela Clay and her daughters, Latoya Clay and Lakeisha Clay, in Davidson County. Payne was convicted of the 1987 murders of Charisse Christopher and her daughter, Lacie Jo, in Shelby County. View the orders setting the dates.

The Tennessee Supreme Court has clarified the language of the state’s burglary statute to allow its application to a criminal defendant who enters a retail store — from which they previously had been banned — and commits a theft. The decision came in a case involving Abbie Welch, who entered a Walmart retail store to steal merchandise and then have another individual return the merchandise for a gift card. Because she had been banned from the store for prior acts of shoplifting, the state argued she should be charged with burglary rather than criminal trespass. The court agreed, saying the burglary statute is properly applied to defendants who enter a store without the effective consent of the owner and commit a theft.

The Supreme Court held today that the Board of Professional Responsibility failed to prove that attorney James S. MacDonald violated any Rules of Professional Conduct, resulting in the dismissal of the disciplinary allegations against him. The original petition for discipline was filed against MacDonald after he added the signature of the opposing party to a copy of a draft letter that he believed, in the original transmission, was signed and sent by the opposing party. The hearing panel of the BPR determined the BPR had failed to establish a violation of the Rules of Professional Conduct, but on appeal by the BPR, a trial court reversed that holding. MacDonald then appealed to the Supreme Court which unanimously decided he had added the signature in good faith that there was a signed original, thus reinstating the hearing panel’s dismissal of the petition for discipline against MacDonald. Read the unanimous opinion.

The Tennessee Supreme Court will hear oral arguments in Nashville tomorrow on five cases: a health care liability action; a challenge to a judicial district’s local rule of court, which requires certain actions by bonding agents; a contract dispute; and two disciplinary matters pending before the Board of Professional Responsibility. Read more about the cases in this release from the court.

The Tennessee Supreme Court today extended the deadline to file comments on a proposed change to Tennessee Supreme Court Rule 8, RPC 1.15 to April 3. The TBA last week asked the court to extend the deadline, which was set to expire today. The court had issued an order on Dec. 3, 2019, asking for comments on proposed changes to what efforts must be made after a lawyer learns of unidentified funds in an IOLTA account. The change is being sought by the Tennessee Board of Professional Responsibility and the Tennessee Lawyers’ Fund for Client Protection.

The Tennessee Supreme Court ruled yesterday that a criminal trial court lacks authority to partially vacate its own order dismissing criminal prosecutions once the order becomes final. The court also acknowledged that the defendant at the center of the opinion had identified several ambiguities in the Tennessee Sexual Offender Registration, Verification, and Tracking Act concerning how persons who commit sexual offenses in other states should be classified as sexual offenders or violent sexual offenders in Tennessee. The Supreme Court urged the state legislature to clarify these ambiguities. Read the unanimous opinion authored by Justice Cornelia A. Clark.